Officials from the Department of Social Services (DSS) have told me if Title 22 is not updated with a new law, then Title 22 is enforceable even if the new law contradicts existing regulations. I think that’s my biggest frustration with DSS: “selective enforcement.” By that I mean new laws are suppressed, ignored and seemingly surrendered to old, obsolete regulations unless DSS prefers new laws over old regulations.
For over 11 years, DSS decided new hospice laws would not be enforced because Title 22 regulations had not yet been revised and were stricter, but that selective enforcement violated resident and licensee’s civil rights and was a restraint of trade. In contrast, the 60-day notice of rate increases, enacted in 2003, was enforced immediately despite the absence of regulations until 2017. The new law overturned the regs, as it did for hospice, but DSS decided one law was worth enforcing but another law was not; selective enforcement. And don’t get me started on bedridden where the 2010 regulations reflected an illegally written but enforced 2007 memo attempting to “amend” a 1992 law. The memo was a solicitation to evaluators to diagnose a resident’s physical condition, a task, by law, reserved only for a health care professional.
Health and Safety Code 1569.30 demands that DSS adopt regulations consistent with all state laws. It does not allow DSS to suppress new or old laws and enforce obsolete regulations. Tort law does not recognize mistakes or purposeful omissions but considers it negligence or fraud. The failure to update regulations in light of new law cannot promote regulations above the law.