Title 22 “emergency updates” miss the mark!

The February 7, 2022, update to Title 22, found in CDSS Manual Letter NO. CCL-22-05, was not released to the public until March 28. What did the update do, or unfortunately, not do?

          Some history.

          In October 2018, DSS placed the new personal rights laws from 2015 into Title 22 but did not update Title 22s Table of Contents (TOC) to advise the public two new sections were added. With the 2022 update the consumer can discover the THREE personal rights sections in the TOC, but for over three years these new sections were not in the TOC. No big deal?

          Also in October 2018, DSS completely changed Title 22 section 87468, the old personal or resident rights section (from 1989) and added sections 87468.1 and 87468.2. These changes and additions required DSS to revise other Title 22 sections including 87724, 87411, 87507, 87611, 87613, 87705, and 87758, but DSS did not do that. Any Title 22 section referencing section 87468 is incorrect and has been incorrect for nearly four years. No big deal?

          Notwithstanding the 2022 update to the TOC just below the personal rights sections is the obsolete reference to “Advance Health Care Directives, Requests to Forego Resuscitative Measures, and Do-Not-Resuscitate Forms.” In 2015, DSS renamed Title 22 section 87469 to “Advance Directives and Requests Regarding Resuscitative Measures,” but did not change the name in the TOC, nor did it revise other regulations to reflect its 2015 changes.

          A 2009 change to California Probate Code 4780 required DSS to make  changes to Title 22, but that didn’t happen. There are several obsolete definitions that should have been changed in 2015, 2017, 2018 and certainly could have been changed in 2022, but DSS is not diligently keeping Title 22 updated and coherent. Remember, no proofreaders or factcheckers.

          Health and Safety Code 1569.30 demands DSS “adopt, amend and repeal” regulations. When DSS placed Health and Safety Codes 1569.261 – .269 into Title 22 it just “cut and pasted” the new laws into the regulations without providing “interpretation” as required by the California Administrative Procedures Act. Even worse the Office of Administrative Law, the agency tasked with oversight of new regulations, did not honor the legal approval methods, which requires state agencies to “interpret” statute or law to make the law’s intent clear.

          Regulations are NOT supposed to be confusing, unclear and complex, but have clarity for citizens to know what is wanted, needed, expected and required. The placing of laws, categorized as “wholly enabling or susceptible to interpretation,” into regulations without interpretation, violates the Administrative Procedures Act.

          The Office of Administrative Law sees “wholly enabling” laws as not having any legal effect without the enactment of a regulation i.e., “The department may set an annual licensing fee up to $500.” How much is the fee? Without a regulation it is unknown and unenforceable; it is wholly enabling as defined.

          When a law is classified as “susceptible to interpretation,” it has language that needs a regulation for “its efficient enforcement.” An example is, “There shall be adequate space between beds.” That law can’t be enforced as whose interpretation of “adequate” will be used?

          California Government Code 11340 states in part: “The Legislature finds and declares…the language of many regulations is frequently unclear and unnecessarily complex…. The language is often confusing to the persons who must comply with the regulations. [This] has placed an unnecessary burden on California citizens…. The complexity and lack of clarity in many regulations put small businesses, which do not have the resources to hire experts to assist them, at a distinct disadvantage.”

          After the Legislature passed the punitive “RCFE Reform Act of 2014,” the new laws on personal rights with ambiguous terms required DSS to not “cut and paste” the laws into the regulations because some language in the laws is “susceptible to interpretation.” Thus, the regulations are “unclear and unnecessarily complex.” The personal rights laws used words susceptible to interpretation: “reasonable,” “choices about daily life,” “enhance autonomy,” “staff that are sufficient in numbers,” “resident preferences concerning roommate choices,” “privately paid personal assistants,” and “prompt access.”

          DSS, in cutting and pasting the laws into state regulations without interpretation, failed to assist facilities with compliance. Even worse, the state legislature, knowing conformity to the personal rights might be too difficult, exempted all “publicly operated” or state operated facilities from honoring any of the new personal rights. Is that not discrimination against small businesses and an unfair business practice? Just no big deal, right?

          DSS revised page 6 of the regulations removing the statement that new or revised regulations will no longer be identified with a vertical line [ | ] in the left column of the page. Now, new regulations placed into Title 22 will not be identified with the line in the left margin. No big deal?

          DSS removed two definitions from Section 87101, “Universal Precautions” and “Standard Precautions,” and page 24 is missing.

          Title 22 section 87208, Plan of Operation, was amended adding facilities must have an infection control plan. DSS revised the section but left many mistakes, including misspelled words, in 87208. Here’s one: “designation of the rooms to be used…for bedridden residents, other than for a termporary illness or recovery from surgery.” I understand not having proofreaders but how about spell check software? DSS did not reference the new infection control section, 87470, in the “Note: Authority Cited” that concludes 87208. That’s right, no proofreader or factchecker was available.

          The biggest travesty involves sections 87411, Personnel Requirements – General, and 87412, Personnel Records. Never mind the obsolete statement,

“All persons who supervise employees or who supervise or care for residents shall be at least eighteen (18) years of age” (the age has been 21 since 2015). Never mind training direct care staff only in first aid when CPR is required (since 2015), and never mind section 87411 does not list all areas of training for staff, like emergency procedures, but it did add staff must be trained in infection control.

          The 2022 “update,” did not create regulations requiring new staff training for 40 hours in the first four weeks of employment then 20 hours annually. DSS did not place the 2009 requirements for medication training in the regulations, but indolently stated, “All RCFE staff who assist residents with personal activities of daily living shall receive initial and annual training as specified in Health and Safety Code sections 1569.625 and 1569.69.”

          How long has DSS downplayed the law in deference to the regulations? Now, it is stating, “go look at the law.” DSS has long ignored state laws if those laws do not fit into DSS’ agenda i.e., allowing admission and retention of prohibited conditions (1569.39) and using the complete definition of bedridden.

          Suddenly, DSS wants facilities to know the laws about personnel training without obeying the law: “the department shall adopt regulations” to “consist of 40 hours of training.” The law on staff training, H&S Code 1569.625, needs clarification to alleviate the legal confusion found in the law, but DSS avoided any attempt at interpreting the law.

          Here’s part of the confusion. The law requires 40 hours of training to include 6 hours on dementia and 4 hours on postural supports, restricted health conditions and hospice care. Six plus four equals 10, but the law states, “the remaining 20 hours.” Forty minus 10 equals 30, but the law states only 20 hours remain. Huh?

          Thirty hours remain and require 6 more hours on dementia. That’s 30 minus 6, 24 hours, but then the law states, “the additional 16 hours shall be hands on training.” No proofreaders or factcheckers in the Legislature either?

          When I went to school 20 minus 6 equaled 14, not 16. The law requires 12 hours on dementia, 16 hours of hands-on training (which should be defined in Title 22), and 4 hours on postural supports, restricted health conditions and hospice. The math is 12 plus 16 plus 4 equals 32 hours, but 40 is required. Eight hours are missing. No big deal, right?

          This should be explained in regulations! DSS chose to let the math stand.

          The Personnel Records section 87412(c)(1)(A) was not updated to reflect the 40 hours of required training. Instead, this section still states, “The following staff training and orientation shall be documented…of at least ten hours of initial training within the first four weeks of employment, and at least four hours of training annually thereafter…” (emphasis added).

          Get it? Title 22 section 87412 requires only “ten hours of initial training” and “four hours annually.” It is obsolete! How does DSS miss this? Ignorance of the regulations, lack of due diligence, lack of caring, no proofreaders, all of the above?

          DSS has yet to address the hiring of nurse assistants, LVNs or RNs and their required training in “resident characteristics.” What are resident characteristics? Need regulations to clarify “susceptible to interpretation” laws. No big deal, right?

          The medication training, required since 2009, is not addressed in the new regulations. DSS just mentioned the law, H&S Code 1569.69, about medication training in section 87411. This is not what DSS is supposed to do. Instead of writing new regulations, DSS is attempting to enforce its medication guide, written in 2016 and revised in 2021. Why not write new regulations instead?

          State law does not allow any agency to “issue, utilize, enforce or attempt to enforce any guideline…” (Government Code 11340.5). The guide does reference the medication law and some regulations, but this guide is filled with illegal provisions, references to regulations that do not exist, misrepresentations and “best practices” that are not best practices at all.

          Back to the TOC. It added section 87470, Infection Control Requirements. Unfortunately, DSS did NOT add Title 22 section 87470, but instead added 87440 into the regulations. How is that possible? That’s right, no proofreaders.

          Then, ta da! DSS, lacking that proofreader, puts the new infection control requirements into Title 22 but has it as “87440.” It is supposed to be section 87470. That’s embarrassing and inexcusable. No one at DSS noticed this? I keep forgetting DSS does not employ proofreaders!

          The Infection Control Requirements mentions “volunteers” having to “perform hand hygiene,” “wearing gloves” when “coming into contact with blood or body fluids such as saliva, stool, vomit or urine.”

          When or why would volunteers come into contact with resident blood and urine? Would that be when caregiving? Volunteers?

          It continues with allowing volunteers to be “assigned to assist residents with the self-administration of medication and assigned to the care of a resident.” Seriously?! DSS is allowing volunteers to assist with medication and care of residents? Really? And volunteers are to be trained annually how to wear PPE, too.

          Section 87440 (87470) references staff assisting with injections. This is also found in section 87465. The staff assisting residents with injections has never been clarified in Title 22. Volunteers are passing medications and doing resident care and staff are assisting with injections? These new infection control requirements are contradicting laws and existing regulations. How did DSS get away with this?

          Then comes the skilled nursing requirement to have an “Infection Preventionist.” A what? Well, the term is frequently used in skilled nursing settings, and now RCFEs, need one, too, and it can be a member of staff. DSS requires facilities to identify a staff member as this preventionist and then report it to the local DSS office.

          The “preventionist” must be trained by a “medical professional, local health official, health department, or other research-based medical authority that provides infection control training that will include enforcement of the Infection Control Plan.” The preventionist must train staff and all new hires in the facility’s infection control plan.

          The training and the trainer is not clearly stated in the regulations. Of course not, right? However, in another one of those PINs, is information about the source of training, but are “skilled nursing focused.” One is from the California Department of Public Health and is titled, “Infection Preventionist Training for Skilled Nursing Facilities.” This is an online course described as a 14-hour self-paced course designed for healthcare professionals. It does not have to be completed in one session. “This online course provides practical guidance for implementing an infection prevention program in a skilled nursing facility…for preventing healthcare-associated infections including central line associated bloodstream infections, Clostridioides difficile infection, catheter-associated urinary tract infections, COVID-19, and pneumonia.”

          Is that an RCFE? Central lines?

          Other training is available through the CDC and PIN 22-13-ASC lists those trainings.

          The last of the February 2022 revisions is in section 87629, Injections, just to reference the Infection Control Requirements.

          DSS has failed the industry with these “emergency regulations.” What happens to LIC808, the mitigation plan? Does it become obsolete? Well, since DSS did not reference this form in the new regulations, then, it cannot be required. What happens to all of those PINs? Bye bye. NONE of the PINs can be enforce once the “state of emergency” is lifted, thought to be June 30. If you took the time to read this, how about confronting your analyst with this? How about telling your state legislature with the multiple problems this revision has had upon licensees and administrators?