When is a law not a law? When it is not in Title 22, according to DSS. But that puts state regulations written by state employees above the law and above the legislature and the governor.
If a law could be set aside because DSS was malfeasant (failing to act)—perhaps even incompetent—in adopting regulations, the law is not canceled if and until DSS actually does what it is supposed to do. Health and Safety Code 1569.30 (1530 for ARFs): “The department shall adopt, amend, or repeal…such reasonable rules, regulations, and standards as may be necessary or proper to carry out the purposes and intent of this chapter…not inconsistent with any statute of this state.”
A couple of examples. The California Legislature enacted a new emergency disaster law in 2009 and DSS quickly set out enforcing 1569.695. However, nothing in the new law can be found in Title 22, but that is the correct method for compliance. New law and enforce it. Then, the prohibited condition law, Health and Safety Code 1569.39, goes into effect in 2016 that allows residents with prohibited conditions to be admitted into RCFEs as long as the resident has access to home health or hospice.
DSS is citing facilities for obeying the law because it has not changed Title 22 regulations and because of that, no resident or facility can use that law for admissions. New law but ignore it in deference to old, obsolete regulations, 87615 and 87616.
The medication training law is not in Title 22, but DSS enforces it. The employee training law is not in Title 22, but DSS enforces that, too. There are so many other examples where DSS is selectively enforcing “laws that are convenient,” instead of upholding new law.
In truth, Title 22 is obsolete, but DSS prefers to use obsolete regulations above current law. That is not legal, but DSS gets away with its failures and depends upon the ignorance of licensees and LPA intimidation. In my 25 years of experience “dealing” with DSS, it depends upon its “power” to excuse its practices.
Know the law. Know Health and Safety Code! The law cannot be pushed into the darkness because DSS does not want its obsolete regulations to be brought into the light. DSS is selectively enforcing laws it “likes,” but buries the laws it does not like. The failure to update regulations to “to carry out the purposes and intent” of the law is fraud—misrepresentation or concealment of key facts leading another party to act to their detriment. In this case the detriment is to the resident and also to licensees.
The reason for this is mysterious, but that mystery cannot be used to subvert the purposes and intent of state law.