RCFE Applications, Appeals and More from Mike
Mike and Robin still maintain their website to assist facilities stay in compliance by accessing many required resources. Follow our link: https://rfce4you.com/product-category/products-and-services/ to view RCFE resources such as our mandatory regulation subscription service, emergency disaster plan, dementia plan of operation, infection control plan and more. We continue to write the RCFE new facility application, at an affordable rate, and we do appeals, too.
Liability and Worker’s Compensation Insurance
Since July 1, 2015, RCFE Health and Safety Code 1569.605 demands all elder care homes in California have liability insurance in “at least one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the total annual aggregate, caused by the negligent acts or omissions to act of, or neglect by, the licensee or its employees.” California law also demands all employers obtain and maintain worker’s compensation insurance on all employees. We are pleased to refer you to Patrick Perlas of Perlas Insurance, 34-year old company specializing in insurance for residential care homes. As you know, Willy Halle has retired—although he remains a great resource for administrators—and has been referring his former clients to Patrick and the Perlas Group. Give Patrick and his Group a call for a quote at (818) 468-4017 or email questions about insurance to jpatrick@perlasinsurance.com. Willy sends his THANKS to all his past and present clients and to those that provide exceptional care for their residents.
Industry Updates and Legislation
What is a “PIN?” DSS uses a “provider information notice” to communicate to facility administrators. However, it cannot be used as a substitute for current state regulations. California law does not allow any agency to release publications, including PINs and manuals, and enforce the contents of the publications. Anything DSS releases outside of adopted regulations is not enforceable. Government Code 11340.5 states, “No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual…unless…adopted as a regulation and filed with the Secretary of State.” The California Office of Administrative Law must ensure “agency regulations are clear, necessary, legally valid, and available to the public.” A PIN is not regulation and can never substitute for adopted regulations.
Health and Safety Code Health and Safety Code 1569.30 (1530 for ARFs) demands that DSS adopt regulations, not memos and manuals, that must be “necessary or proper to carry out the purposes and intent of this chapter (the law)…not inconsistent with any statute of this state” (emphasis added). Any attempt to enforce non-Title 22 “regulations” is illegal and DSS can be held liable to such enforcement under California Government Code 815.2.
A PIN may have good information, but the PIN cannot be enforced. Same for the Evaluator Manual in which evaluators are told not to attempt to enforce their personal opinions and interpretations. Government Code 11340.1 charges the Office of Administrative Law (OAL) to a “…review of adopted regulations…to reduce the number of administrative regulations and to improve the quality of those regulations which are adopted. It is the intent of the Legislature that agencies shall actively seek to reduce the unnecessary regulatory burden on private individuals and entities by substituting performance standards [PINs] for prescriptive standards wherever performance standards can reasonably be expected to be as effective and less burdensome” (emphasis added).
The OAL labels PINs, memos, updates, manuals, etc. as “underground regulations” meaning an agency “…issues, utilizes, enforces, or attempts to enforce a rule without following the APA (Administrative Procedures Act) when it is required to, the rule is called an “underground regulation.” State agencies are prohibited from enforcing underground regulations” (emphasis added).
So, how about DSS’ recent PIN, dated November 6, that addresses newly chaptered laws? This PIN is advising administrators about three chaptered bills, now laws. This PIN is attempting to inform facilities, absent adopted regulations, that some bills were signed into law. DSS believes a new law is not effective until it adopts enforceable regulations. That is a lie! No law awaits for interpretive regulations to be adopted before a law is effective. DSS has said, publicly, that for a law to be enforceable, DSS must place it into Title 22 regulations. That is fraud. Ask DSS why it enforces the medication training law that is not in Title 22? Or the emergency disaster plan? The law, of course, is not paused because an agency failed to adopt enforceable regulations.
Are you required to post PINs? No, so don’t. You cannot be cited for choosing not to post DSS’ opinions. The November PIN, 25-09-ASC, is an attempt to inform facilities the governor signed some bills into law that may impact facilities. But, if regulations have not been adopted, would the new laws be enforceable? DSS would say no.
One new law is for ARFs if giving emergency internasal (into the nose) seizure medication. First, the law requires staff training to be written by DSS in about two years, and ARFs must have a “seizure action plan” without regulations explaining the contents of such a plan. The burden is on DSS, not ARFs. Did the Legislature believe DSS would immediately try to help ARF residents prescribed seizure medications?
Another law addresses placing a facility license in an “inactive” status due to an emergency such as fire. The inactive status can only last two years, but “may” be extended. DSS “may” also waive its fees, or not. The new law adds the ARF and RCFE Health and Safety Codes with new laws. A request for an inactive license must be due to “situations outside of periods of nonoperation due to destruction, significant damage, or prolonged closure as outlined.” Oh, and during the inactive status of the license, DSS has the option of suspending annual inspections.
Why did the legislature give DSS two years to enact specific regulations? Most likely because it appears to take the state, counties or cities that long to decide to issue building permits.
The Legislature amended the emergency disaster law, 1569.695, to “encourage” to submit emergency plans to the “medical health and operational area coordinator.” Who? Assembly Bill 251 will apply to most licensed facilities when it comes to “burden of proof” evidence in court cases involving elder and dependent adult abuse. It will empower courts to us a “preponderance of evidence standard in cases that involve spoliation of evidence.” That would apply if it were proven there was an intentional improper alteration of evidence or intentional concealment or destruction of records, documents, or other evidence that is done by a party, with the intent of preventing the evidence from being produced, and that has materially prejudiced the other party.