1265-1271.15
HEALTH AND SAFETY CODE
SECTION 1265-1271.15
1265. Any person, political subdivision of the state, or
governmental agency desiring a license for a health facility,
approval for a special service under this chapter, or approval to
manage a health facility currently licensed as a health facility, as
defined in subdivision (a), (b), (c), (d), or (f) of Section 1250,
that has not filed an application for a license to operate that
facility shall file with the department a verified application on
forms prescribed and furnished by the department, containing all of
the following:
(a) The name of the applicant and, if an individual, whether the
applicant has attained the age of 18 years.
(b) The type of facility or health facility.
(c) The location thereof.
(d) The name of the person in charge thereof.
(e) Evidence satisfactory to the department that the applicant is
of reputable and responsible character. If the applicant is a firm,
association, organization, partnership, business trust, corporation,
or company, like evidence shall be submitted as to the members or
shareholders thereof, and the person in charge of the health facility
for which application for license is made. If the applicant is a
political subdivision of the state or other governmental agency, like
evidence shall be submitted as to the person in charge of the health
facility for which application for license is made.
(f) Evidence satisfactory to the department of the ability of the
applicant to comply with this chapter and of rules and regulations
promulgated under this chapter by the department.
(g) Evidence satisfactory to the department that the applicant to
operate a skilled nursing facility or intermediate care facility
possesses financial resources sufficient to operate the facility for
a period of at least 45 days. A management company shall not be
required to submit this information.
(h) Each applicant for a license to operate a skilled nursing
facility or intermediate care facility shall disclose to the
department evidence of the right to possession of the facility at the
time the application will be granted, which may be satisfied by the
submission of a copy of applicable portions of a lease agreement or
deed of trust. The names and addresses of any persons or
organizations listed as owner of record in the real estate, including
the buildings and the grounds appurtenant to the buildings, shall be
disclosed to the department.
(i) Any other information as may be required by the department for
the proper administration and enforcement of this chapter.
(j) Upon submission of an application to the department by an
intermediate care facility/developmentally disabled habilitative or
an intermediate care facility/developmentally disabled-nursing, the
application shall include a statement of need signed by the
chairperson of the area board pursuant to Chapter 4 (commencing with
Section 4570) of Division 4.5 of the Welfare and Institutions Code.
In the event the area board has not provided the statement of need
within 30 days of receipt of the request from the applicant, the
department may process the application for license without the
statement.
(k) The information required pursuant to this section, other than
individuals' social security numbers, shall be made available to the
public upon request, and shall be included in the department's public
file regarding the facility.
(l) With respect to a facility licensed as a health facility, as
defined in subdivision (a), (b), or (f) of Section 1250, for purposes
of this section, "manage" means to assume operational control of the
facility.
1265.1. (a) An application for licensure under this chapter may be
denied by the state department if the applicant for a license has
been convicted of a crime, as defined in Section 1265.2, or on the
ground of knowingly making a false statement of fact required to be
revealed in an application for such licensure.
(b) If the applicant is a firm, partnership, association, or
corporation, the conviction of any officer, director, shareholder
with a beneficial ownership interest in the applicant exceeding 10
percent, or the person in charge of the health facility may serve as
the basis for denial of the license by the state department. If the
applicant is a political subdivision of the state or other
governmental agency, the conviction of such a crime by the person in
charge of the health facility may serve as the basis for denial of
the license by the state department.
(c) The record of conviction or a certified copy thereof certified
by the clerk of the court or by the judge in whose court the
conviction is had, shall be conclusive evidence thereof.
1265.2. A "crime," within the meaning of this chapter, means a
violation of a law or regulation which is substantially related to
the qualifications or duties of the applicant or licensee or which is
substantially related to the functions of the business for which the
license was, or is to be, issued.
A "conviction," within the meaning of this chapter, means a plea
or verdict of guilty or a conviction following a plea of nolo
contendere. Any action which the state department is permitted to
take following the establishment of a conviction may be taken when
the time for appeal has elapsed, or the judgment of conviction has
been affirmed on appeal or when an order granting probation is made
suspending the imposition of sentence, notwithstanding a subsequent
order pursuant to the provisions of Section 1203.4 of the Penal Code
permitting such person to withdraw his plea of guilty and to enter a
plea of not guilty, or setting aside the verdict of guilty, or
dismissing the accusation, information, or indictment.
Evidence of conviction of a misdemeanor following a plea of nolo
contendere pursuant to the provisions of Section 1290 shall not be
admissible in any hearing conducted under Section 1269 or 1295.
No application for licensure shall be denied nor shall a license
be suspended or revoked solely on the basis of the conviction of a
crime if the director determines that the person has been
rehabilitated in accordance with standards for rehabilitation
developed by the director. The director shall take into account all
competent evidence of rehabilitation furnished by the applicant or
licensee.
1265.3. (a) For any individual or entity that seeks approval to
operate or manage a health facility licensed pursuant to subdivision
(a), (b), or (f) of Section 1250 and is subject to Section 1265, the
department shall consider the following:
(1) To determine whether the applicant is of reputable and
responsible character, the department shall consider any available
information that the applicant has demonstrated a pattern and
practice of violations of state or federal laws and regulations. The
department shall give particular consideration to those violations
that affect the applicant's ability to deliver safe patient care.
(2) To determine whether the applicant has the ability to comply
with this chapter and the rules and regulations adopted under this
chapter, the department shall consider evidence that shall include
all of the following:
(A) If any, prior history of operating in this state any other
facility licensed pursuant to Section 1250, and the applicant's
history of substantial compliance with the requirements imposed under
that license, applicable federal laws and regulations, and
requirements governing the operators of those facilities.
(B) If any, prior history of operating in any other state any
facility authorized to receive Medicare Program reimbursement or
Medicaid Program reimbursement, and the applicant's history of
substantial compliance with that state's requirements, and applicable
federal laws, regulations, and requirements.
(C) If any, prior history of providing health services as a
licensed health professional or an individual or entity contracting
with a health care service plan or insurer, and the applicant's
history of substantial compliance with state requirements, and
applicable federal law, regulations, and requirements.
(b) The department may also require the entity described in
subdivision (a) to furnish other information or documents for the
proper administration and enforcement of the licensing laws.
1265.4. (a) A licensed health facility, as defined in subdivision
(a), (b), (c), (d), (f), or (k) of Section 1250, shall employ a
full-time, part-time, or consulting dietitian. A health facility that
employs a registered dietitian less than full time, shall also
employ a full-time dietetic services supervisor who meets the
requirements of subdivision (b) to supervise dietetic service
operations. The dietetic services supervisor shall receive frequently
scheduled consultation from a qualified dietitian.
(b) The dietetic services supervisor shall have completed at least
one of the following educational requirements:
(1) A baccalaureate degree with major studies in food and
nutrition, dietetics, or food management and has one year of
experience in the dietetic service of a licensed health facility.
(2) A graduate of a dietetic technician training program approved
by the American Dietetic Association, accredited by the Commission on
Accreditation for Dietetics Education, or currently registered by
the Commission on Dietetic Registration.
(3) A graduate of a dietetic assistant training program approved
by the American Dietetic Association.
(4) Is a graduate of a dietetic services training program approved
by the Dietary Managers Association and is a certified dietary
manager credentialed by the Certifying Board of the Dietary Managers
Association, maintains this certification, and has received at least
six hours of in-service training on the specific California dietary
service requirements contained in Title 22 of the California Code of
Regulations prior to assuming full-time duties as a dietetic services
supervisor at the health facility.
(5) Is a graduate of a college degree program with major studies
in food and nutrition, dietetics, food management, culinary arts, or
hotel and restaurant management and is a certified dietary manager
credentialed by the Certifying Board of the Dietary Managers
Association, maintains this certification, and has received at least
six hours of in-service training on the specific California dietary
service requirements contained in Title 22 of the California Code of
Regulations prior to assuming full-time duties as a dietetic services
supervisor at the health facility.
(6) A graduate of a state approved program that provides 90 or
more hours of classroom instruction in dietetic service supervision,
or 90 hours or more of combined classroom instruction and instructor
led interactive Web-based instruction in dietetic service
supervision.
(7) Received training experience in food service supervision and
management in the military equivalent in content to paragraph (2),
(3), or (6).
(c) Pursuant to Section 1276, the State Department of Public
Health may grant a program flexibility request to the facility to
modify the requirements in subdivision (b) for any individual who has
at least five years experience prior to January 1, 2009, as a
dietetic services supervisor in a health facility specified in
subdivision (a) to allow that individual to function as a dietetic
services supervisor for a period not to exceed 18 months, as long as
the individual is enrolled in a program that meets the requirements
listed in subdivision (b). The department may extend the program
flexibility request for a period not to exceed six months if the
individual can demonstrate to the department that the coursework
could not otherwise be completed within the original 18-month period.
Program flexibility requests shall be submitted not later than
December 31, 2009.
1265.5. (a) (1) Prior to the initial licensure or renewal of a
license of any person or persons to operate or manage an intermediate
care facility/developmentally disabled habilitative, an intermediate
care facility/developmentally disabled-nursing, an intermediate care
facility/developmentally disabled-continuous nursing, or an
intermediate care facility/developmentally disabled, other than an
intermediate care facility/developmentally disabled operated by the
state, that secures criminal record clearances for its employees
through a method other than as specified in this section or upon the
hiring of direct care staff by any of these facilities, the
department shall secure from the Department of Justice criminal
offender record information to determine whether the applicant,
facility administrator or manager, any direct care staff, or any
other adult living in the same location, has ever been convicted of a
crime other than a minor traffic violation.
(2) (A) The criminal record clearance shall require the applicant
to submit electronic fingerprint images and related information of
the facility administrator or manager, and any direct care staff, or
any other adult living in the same location, to the Department of
Justice. Applicants shall be responsible for any cost associated with
capturing or transmitting the fingerprint images and related
information.
(B) The criminal record clearance shall be completed prior to
direct staff contact with residents of the facility. A criminal
record clearance shall be complete when the department has obtained
the person's criminal record information from the Department of
Justice and has determined that he or she is not disqualified from
engaging in the activity for which clearance is required.
(3) (A) The Licensing and Certification Program shall issue an All
Facilities Letter (AFL) to facility licensees when it determines
that both of the following criteria have been met for a period of 30
days:
(i) The program receives, within three business days, 95 percent
of its total responses indicating no evidence of recorded criminal
information from the Department of Justice.
(ii) The program processes 95 percent of its total responses
requiring disqualification in accordance with subdivision (b), with
notices mailed to the facility no later than 45 days after the date
that the criminal offender record information report is received from
the Department of Justice.
(B) After the AFL is issued, facilities shall not allow newly
hired facility administrators, managers, direct care staff, or any
other adult living in the same location to have direct contact with
clients or residents of the facility prior to completion of the
criminal record clearance. A criminal record clearance shall be
complete when the department has obtained the person's criminal
offender record information search response from the Department of
Justice and has determined that the person is not disqualified from
engaging in the activity for which clearance is required.
(C) An applicant or certificate holder who may be disqualified on
the basis of a criminal conviction shall provide the department with
a certified copy of the judgment of each conviction. In addition, the
individual may, during a period of two years after the department
receives the criminal record report, provide the department with
evidence of good character and rehabilitation in accordance with
subdivision (c). Upon receipt of a new application for certification
of the individual, the department may receive and consider the
evidence during the two-year period without requiring additional
fingerprint imaging to clear the individual.
(D) The department's Licensing and Certification Program shall
explore and implement methods for maximizing its efficiency in
processing criminal record clearances within the requirements of law,
including a streamlined clearance process for persons that have been
disqualified on the basis of criminal convictions that do not
require automatic denial pursuant to subdivision (b).
(4) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local governmental agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
(b) (1) The application for licensure or renewal shall be denied
if the criminal record indicates that the person seeking initial
licensure or renewal of a license referred to in subdivision (a) has
been convicted of a violation or attempted violation of any one or
more of the following Penal Code provisions: Section 187, subdivision
(a) of Section 192, Section 203, 205, 206, 207, 209, 210, 210.5,
211, 220, 222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267,
inclusive, Section 273a, 273d, 273.5, or 285, subdivisions (c), (d),
(f), and (g) of Section 286, Section 288, subdivisions (c), (d), (f),
and (g) of Section 288a, Section 288.5, 289, 289.5, 368, 451, 459,
470, 475, 484, or 484b, Sections 484d to 484j, inclusive, or Section
487, 488, 496, 503, 518, or 666, unless any of the following applies:
(A) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code and the
information or accusation against the person has been dismissed
pursuant to Section 1203.4 of the Penal Code with regard to that
felony.
(B) The person was convicted of a misdemeanor and the information
or accusation against the person has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(C) The person was convicted of a felony or a misdemeanor, but has
previously disclosed the fact of each conviction to the department
and the department has made a determination in accordance with law
that the conviction does not disqualify the person.
(2) The application for licensure or renewal shall be denied if
the criminal record of the person includes a conviction in another
state for an offense that, if committed or attempted in this state,
would have been punishable as one or more of the offenses set forth
in paragraph (1), unless evidence of rehabilitation comparable to the
dismissal of a misdemeanor or a certificate of rehabilitation as set
forth in subparagraph (A) or (B) of paragraph (1) is provided to the
department.
(c) If the criminal record of a person described in subdivision
(a) indicates any conviction other than a minor traffic violation or
other than a conviction listed in subdivision (b), the department may
deny the application for licensure or renewal. In determining
whether or not to deny the application for licensure or renewal
pursuant to this subdivision, the department shall take into
consideration the following factors as evidence of good character and
rehabilitation:
(1) The nature and seriousness of the offense under consideration
and its relationship to their employment duties and responsibilities.
(2) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(3) The time that has elapsed since the commission of the conduct
or offense referred to in paragraph (1) or (2) and the number of
offenses.
(4) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(5) Any rehabilitation evidence, including character references,
submitted by the person.
(6) Employment history and current employer recommendations.
(7) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(8) The granting by the Governor of a full and unconditional
pardon.
(9) A certificate of rehabilitation from a superior court.
(d) Nothing in this section shall be construed to require a
criminal record check of a person receiving services in an
intermediate care facility/developmentally disabled habilitative,
intermediate care facility/developmentally disabled-nursing,
intermediate care facility/developmentally disabled-continuous
nursing, or intermediate care facility/developmentally disabled.
(e) For purposes of this section, "direct care staff" means all
facility staff who are trained and experienced in the care of persons
with developmental disabilities and who directly provide program and
nursing services to clients. Administrative and licensed personnel
shall be considered direct care staff when directly providing program
and nursing services to clients. Persons employed as consultants and
acting as direct care staff shall be subject to the same
requirements for a criminal record clearance as other direct care
staff. However, the employing facility shall not be required to pay
any costs associated with that criminal record clearance.
(f) Upon the employment of any person specified in subdivision
(a), and prior to any contact with clients or residents, the facility
shall ensure that electronic fingerprint images are submitted to the
Department of Justice for the purpose of obtaining a criminal record
check.
(g) The department shall develop procedures to ensure that any
licensee, direct care staff, or certificate holder for whom a
criminal record has been obtained pursuant to this section or Section
1338.5 or 1736 shall not be required to obtain multiple criminal
record clearances.
(h) In addition to the persons who are not required to obtain
multiple criminal record clearances pursuant to subdivision (g), a
person shall not be required to obtain a separate criminal record
clearance if the person meets all of the following criteria:
(1) The person is employed as a consultant and acts as direct care
staff.
(2) The person is a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, or speech-language
pathologist.
(3) The person has obtained a criminal record clearance as a
prerequisite to holding a license or certificate to provide direct
care services.
(4) The person has a license or certificate to provide direct care
service that is in good standing with the appropriate licensing or
certification board.
(5) The person is providing time-limited specialized clinical care
or services.
(6) The person is not left alone with the client.
(i) If, at any time, the department determines that it does not
meet the standards specified in clauses (i) and (ii) of subparagraph
(A) of paragraph (3) of subdivision (a), for a period of 90
consecutive days, the requirements in paragraph (3) of subdivision
(a) shall be suspended until the department determines that it has
met those standards for a period of 90 consecutive days.
(j) During any period of time in which paragraph (3) of
subdivision (a) is inoperative, facilities may allow newly hired
facility administrators, managers, direct care staff, or any other
adult living in the same location to have direct contact with clients
or residents of the facility after those persons have submitted
live-scan fingerprint images to the Department of Justice, and the
department shall issue an AFL advising of this change in the
statutory requirement.
(k) Notwithstanding any other provision of law, the department is
authorized to provide an individual with a copy of his or her state
or federal level criminal offender record information search response
as provided to that department by the Department of Justice if the
department has denied a criminal background clearance based on this
information and the individual makes a written request to the
department for a copy specifying an address to which it is to be
sent. The state or federal level criminal offender record information
search response shall not be modified or altered from its form or
content as provided by the Department of Justice and shall be
provided to the address specified by the individual in his or her
written request. The department shall retain a copy of the individual'
s written request and the response and date provided.
1265.6. Notwithstanding any other provision of law, a registered
nurse within his or her scope of practice may require direct care
staff in an intermediate care facility/developmentally disabled
habilitative or an intermediate care facility/developmentally
disabled-nursing to administer blood glucose testing for a person
with developmental disabilities who resides at the facility and who
has diabetes, if all of the following criteria are met:
(a) The blood glucose testing is specifically ordered by a
physician. The results of the testing shall be reported to a
registered nurse as specified in the physician's order.
(b) Prior to performing the blood glucose testing, the direct care
staff shall be trained by the registered nurse to perform the
testing and shall demonstrate proficiency in performing the testing
while under the immediate supervision of the registered nurse.
(c) Training of direct care staff to perform blood glucose testing
shall include, but not be limited to, an overview of the basic
disease process of type I and type II diabetes, recognition of the
signs and symptoms of hypoglycemia and hyperglycemia, the role of
nutrition management in diabetes, diabetes and blood sugar control,
long-term complications of diabetes, specific instruction in
utilizing and the use of a specific over-the-counter glucose
monitoring device that is approved by the FDA, including the cleaning
and maintaining the accuracy of the client-specific glucose
monitoring device, proper infection control practices related to the
use of the device, including the handling and disposal of infectious
waste, and recording accurate records of blood glucose readings in
the client medical record. Records of blood glucose readings shall be
reviewed by the facility registered nurse at least monthly.
(d) A signed written statement shall be prepared by the registered
nurse that includes a certification of the direct care staff's
competence to perform the testing and that identifies the clients
residing at the facility for whom the certification is applicable.
This certification shall be placed and maintained in the direct care
staff's training record.
(e) The certification of competence to perform the blood glucose
testing shall be procedure and client specific, and shall not be
transferred between clients residing at the facility or other
facilities.
(f) The registered nurse shall be responsible for monitoring and
implementing the direct care staff blood glucose testing. At least
once every three months, the registered nurse shall observe and
confirm the direct care staff person's proficiency in performing the
approved testing and shall update the certification. The proficiency
determination shall include a determination by the registered nurse
that the direct care staff remains proficient in demonstrating the
specified method for cleaning and recalibration of the glucose
monitoring device.
(g) A registered nurse shall provide continuing in-service
education on the management of diabetes and the use of blood glucose
monitoring devices not less than once per year and include
documentation of the content of the training and the staff who were
in attendance.
(h) A facility shall develop a written policy and procedure
governing blood glucose testing for clients residing at the facility
that shall include procedures for the training and competency
assessment of direct care staff as required by this section.
(i) A facility shall have received a certificate of waiver
pursuant to subdivision (n) of Section 483.460 of Title 42 of the
Code of Federal Regulations prior to the implementation of blood
glucose testing and shall retain a copy of the CLIA waiver for
inspection by the department.
1265.7. (a) (1) The state department shall adopt regulations for
the licensure of congregate living health facilities. The regulations
shall include minimum standards of adequacy, safety, and sanitation
of the physical plant and equipment, minimum standards for staffing
with duly qualified personnel, and training of the staff, and minimum
standards for providing the services offered.
(2) Regulations for facilities approved to provide services for
persons who may be ventilator dependent shall ensure that residents
of these facilities are assured appropriate supportive health
services in the most normal, least restrictive physical and
rehabilitative environment appropriate to individual resident needs.
(3) Regulations for facilities approved to provide services for
persons who are terminally ill, who have a diagnosis of a
life-threatening illness, who are catastrophically and severely
disabled, or any combination of those persons, shall ensure that
residents of these facilities receive supportive health services,
based on individual resident acuity levels in the most normal, least
restrictive physical environment for individual resident needs.
(b) Pending adoption of the regulations pursuant to paragraphs (2)
and (3) of subdivision (a), an entity shall be licensed as a
congregate living health facility serving persons who are terminally
ill, persons who are catastrophically and severely disabled, persons
who are mentally alert but physically disabled, or any combination of
these persons, by the state department beginning July 1, 1988, if it
meets the requirements identified in subdivision (i) of Section 1250
and in Section 1267.13.
1265.8. In addition to the requirements of this chapter, any
person, political subdivision of the state, or governmental agency
desiring a license for a health facility shall file with the state
department a verified statement that it has complied with the
requirements of Chapter 1 (commencing with Section 15000) of Division
12.5, and it has received approval pursuant to that chapter. The
state department shall not issue any license until such requirement
has been met.
1266. (a) The Licensing and Certification Division shall be
supported entirely by federal funds and special funds by no earlier
than the beginning of the 2009-10 fiscal year unless otherwise
specified in statute, or unless funds are specifically appropriated
from the General Fund in the annual Budget Act or other enacted
legislation. For the 2007-08 fiscal year, General Fund support shall
be provided to offset licensing and certification fees in an amount
of not less than two million seven hundred eighty-two thousand
dollars ($2,782,000).
(b) (1) The Licensing and Certification Program fees for the
2006-07 fiscal year shall be as follows:
Type of Facility Fee
General Acute Care Hospitals $ 134.10 per bed
Acute Psychiatric Hospitals $ 134.10 per bed
Special Hospitals $ 134.10 per bed
Chemical Dependency Recovery
Hospitals $ 123.52 per bed
Skilled Nursing Facilities $ 202.96 per bed
Intermediate Care Facilities $ 202.96 per bed
Intermediate Care Facilities
- Developmentally Disabled $ 592.29 per bed
Intermediate Care Facilities
- Developmentally Disabled - per
Habilitative $1,000.00 facility
Intermediate Care Facilities
- Developmentally Disabled - per
Nursing $1,000.00 facility
Home Health Agencies per
$2,700.00 facility
Referral Agencies per
$5,537.71 facility
Adult Day Health Centers per
$4,650.02 facility
Congregate Living Health
Facilities $ 202.96 per bed
Psychology Clinics per
$ 600.00 facility
Primary Clinics - Community per
and Free $ 600.00 facility
Specialty Clinics - Rehab
Clinics per
(For profit) $2,974.43 facility
(Nonprofit) per
$ 500.00 facility
Specialty Clinics - Surgical per
and Chronic $1,500.00 facility
Dialysis Clinics per
$1,500.00 facility
Pediatric Day Health/Respite
Care $ 142.43 per bed
Alternative Birthing Centers per
$2,437.86 facility
Hospice per
$1,000.00 facility
Correctional Treatment Centers $ 590.39 per bed
(2) In the first year of licensure for intermediate care
facility/developmentally disabled-continuous nursing (ICF/DD-CN)
facilities, the licensure fee for those facilities shall be
equivalent to the licensure fee for intermediate care
facility/developmentally disabled-nursing facilities during the same
year. Thereafter, the licensure fee for ICF/DD-CN facilities shall be
established pursuant to subdivisions (c) and (d).
(c) Commencing February 1, 2007, and every February 1 thereafter,
the department shall publish a list of estimated fees pursuant to
this section. The calculation of estimated fees and the publication
of the report and list of estimated fees shall not be subject to the
rulemaking requirements of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(d) By February 1 of each year, the department shall prepare the
following reports and shall make those reports, and the list of
estimated fees required to be published pursuant to subdivision (c),
available to the public by submitting them to the Legislature and
posting them on the department's Internet Web site:
(1) The department shall prepare a report of all costs for
activities of the Licensing and Certification Program. At a minimum,
this report shall include a narrative of all baseline adjustments and
their calculations, a description of how each category of facility
was calculated, descriptions of assumptions used in any calculations,
and shall recommend Licensing and Certification Program fees in
accordance with the following:
(A) Projected workload and costs shall be grouped for each fee
category, including workload costs for facility categories that have
been established by statute and for which licensing regulations and
procedures are under development.
(B) Cost estimates, and the estimated fees, shall be based on the
appropriation amounts in the Governor's proposed budget for the next
fiscal year, with and without policy adjustments to the fee
methodology.
(C) The allocation of program, operational, and administrative
overhead, and indirect costs to fee categories shall be based on
generally accepted cost allocation methods. Significant items of
costs shall be directly charged to fee categories if the expenses can
be reasonably identified to the fee category that caused them.
Indirect and overhead costs shall be allocated to all fee categories
using a generally accepted cost allocation method.
(D) The amount of federal funds and General Fund moneys to be
received in the budget year shall be estimated and allocated to each
fee category based upon an appropriate metric.
(E) The fee for each category shall be determined by dividing the
aggregate state share of all costs for the Licensing and
Certification Program by the appropriate metric for the category of
licensure. Amounts actually received for new licensure applications,
including change of ownership applications, and late payment
penalties, pursuant to Section 1266.5, during each fiscal year shall
be calculated and 95 percent shall be applied to the appropriate fee
categories in determining Licensing and Certification Program fees
for the second fiscal year following receipt of those funds. The
remaining 5 percent shall be retained in the fund as a reserve until
appropriated.
(2) (A) The department shall prepare a staffing and systems
analysis to ensure efficient and effective utilization of fees
collected, proper allocation of departmental resources to licensing
and certification activities, survey schedules, complaint
investigations, enforcement and appeal activities, data collection
and dissemination, surveyor training, and policy development.
(B) The analysis under this paragraph shall be made available to
interested persons and shall include all of the following:
(i) The number of surveyors and administrative support personnel
devoted to the licensing and certification of health care facilities.
(ii) The percentage of time devoted to licensing and certification
activities for the various types of health facilities.
(iii) The number of facilities receiving full surveys and the
frequency and number of follow up visits.
(iv) The number and timeliness of complaint investigations.
(v) Data on deficiencies and citations issued, and numbers of
citation review conferences and arbitration hearings.
(vi) Other applicable activities of the licensing and
certification division.
(e) (1) The department shall adjust the list of estimated fees
published pursuant to subdivision (c) if the annual Budget Act or
other enacted legislation includes an appropriation that differs from
those proposed in the Governor's proposed budget for that fiscal
year.
(2) The department shall publish a final fee list, with an
explanation of any adjustment, by the issuance of an all facilities
letter, by posting the list on the department's Internet Web site,
and by including the final fee list as part of the licensing
application package, within 14 days of the enactment of the annual
Budget Act. The adjustment of fees and the publication of the final
fee list shall not be subject to the rulemaking requirements of
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
(f) (1) No fees shall be assessed or collected pursuant to this
section from any state department, authority, bureau, commission, or
officer, unless federal financial participation would become
available by doing so and an appropriation is included in the annual
Budget Act for that state department, authority, bureau, commission,
or officer for this purpose. No fees shall be assessed or collected
pursuant to this section from any clinic that is certified only by
the federal government and is exempt from licensure under Section
1206, unless federal financial participation would become available
by doing so.
(2) For the 2006-07 state fiscal year, no fee shall be assessed or
collected pursuant to this section from any general acute care
hospital owned by a health care district with 100 beds or less.
(g) The Licensing and Certification Program may change annual
license expiration renewal dates to provide for efficiencies in
operational processes or to provide for sufficient cash flow to pay
for expenditures. If an annual license expiration date is changed,
the renewal fee shall be prorated accordingly. Facilities shall be
provided with a 60-day notice of any change in their annual license
renewal date.
1266.1. (a) Each new or renewal application for a license for a
psychiatric health facility shall be accompanied by a fee equal in
amount to the fee for an acute psychiatric hospital as specified in
subdivision (a) of Section 1266 or, as modified by subdivision (e).
(b) New or renewal licensure application fees for psychiatric
health facilities shall be collected by the State Department of
Mental Health.
(c) The State Department of Mental Health shall make available to
the Legislature and other interested parties, on or before January 17
of each year, information describing program costs within the State
Department of Mental Health for licensure, regulation, and monitoring
of psychiatric health facilities.
(d) The annual fees shall be waived for any psychiatric health
facility conducted, maintained, or operated by this state or any
state department, authority, bureau, commission, or officer, or by
the Regents of the University of California, or by a local hospital
district, city, county, or city and county.
(e) If additional private psychiatric health facilities seek new
licensure on or after January 1, 1991, the State Department of Mental
Health may increase the fees for all private psychiatric health
facilities with more than nine beds sufficient to accommodate the
increased level of workload and costs.
(f) (1) Any licensee desiring to obtain a special permit to offer
and provide structured outpatient services shall file an application
with the State Department of Mental Health.
(2) The application for a special permit, if any, shall be
submitted with each new or renewal application for a license for a
psychiatric health facility, and shall be accompanied by a reasonable
fee, as determined by the State Department of Mental Health, not to
exceed the actual costs of administration related to the special
permit. An application for a special permit submitted by a
psychiatric health facility operated by a public entity shall be
exempt from the fee required pursuant to this section for the
issuance of the special permit.
(3) The State Department of Mental Health shall not issue a
special permit unless the applicant furnishes all of the following:
(A) Its annual licensing fee required pursuant to subdivision (a).
(B) A completed application submitted on forms furnished by the
department.
(C) A written agreement ensuring that the facility will have
additional staffing for the services to be provided under the special
permit, that the additional staffing will meet the same professional
standards as required by regulation for inpatient services, and that
a coordinator of these services will be appointed.
(D) Any other information or documentation as may be required by
the department for its proper and efficient administration and
enforcement of special permit services.
(4) The provision of structured outpatient services pursuant to a
special permit may be as an alternative to admission to inpatient
services, as aftercare services following discharge from inpatient
care, or as both.
1266.5. (a) Whenever any entity required to pay fees pursuant to
Section 1266 continues to operate beyond its license expiration date,
without the Licensing and Certification Program renewal fees first
having been paid as required by this division, those fees are
delinquent.
(b) A late payment penalty shall be added to any delinquent fees
due with an application for license renewal made later than midnight
of the license expiration date. The late payment penalty shall be
computed as follows:
(1) For a delinquency period of 30 days or less, the penalty shall
be 10 percent of the fee.
(2) For a delinquency period of more than 30 days to and including
60 days, the penalty shall be 20 percent of the fee.
(3) For a delinquency period of more than 60 days, the penalty
shall be 60 percent of the fee.
(c) The department may, upon written notification to the licensee,
offset any moneys owed to the licensee by the Medi-Cal program or
any other payment program administered by the department, to recoup
the license renewal fee and any associated late payment penalties.
(d) No license may be renewed without payment of the Licensing and
Certification Program fee plus any late payment penalty.
1266.7. The annual Licensing and Certification Program fee for a
congregate living health facility shall be set in accordance with
Section 1266.
1266.9. There is hereby created in the State Treasury the State
Department of Public Health Licensing and Certification Program Fund.
The revenue collected in accordance with Section 1266 shall be
deposited in the State Department of Public Health Licensing and
Certification Program Fund and shall be available for expenditure,
upon appropriation by the Legislature, to support the department's
Licensing and Certification Program's operation. Interest earned on
the moneys in the fund shall be deposited as revenue into the fund to
support the department's Licensing and Certification Program's
operation.
1266.10. The amount of three million two hundred four thousand
three hundred seventy dollars ($3,204,370) is appropriated from the
General Fund to the State Department of Health Services, for a loan
for use to support the operations of the Licensing and Certification
Program. Repayment of this loan shall be made with proceeds from fees
collected pursuant to Section 1266, in three equal annual
installments of one million sixty-eight thousand one hundred
twenty-three dollars ($1,068,123), commencing on July 1, 2007, or
upon the enactment of the Budget Act of 2007, whichever is later.
1266.12. (a) The annual Licensing and Certification Program fee for
a skilled nursing facility, intermediate care facility, general
acute care hospital, acute psychiatric hospital, special hospital,
chemical dependency recovery hospital, correctional treatment center,
intermediate care facility/developmentally disabled, intermediate
care facility/developmentally disabled nursing, and intermediate care
facility/developmentally disabled habilitative shall be set in
accordance with Section 1266.
(b) Commencing January 1, 2007, the department shall give priority
in conducting initial licensing surveys to each intermediate care
facility/developmentally disabled, intermediate care
facility/developmentally disabled habilitative, and intermediate care
facility/developmentally disabled nursing. Upon successful
completion of licensure, and upon notification by the facility that
it is ready for an initial certification survey, the department shall
schedule and initiate a certification survey within 60 days.
1267. (a) (1) Each license issued pursuant to this chapter shall
expire 12 months from the date of its issuance and each special
permit shall expire on the expiration date of the license.
Application for renewal of a license or special permit accompanied by
the necessary fee shall be filed with the state department not less
than 30 days prior to the expiration date. Failure to make a timely
renewal shall result in expiration of the license or special permit.
(2) Notwithstanding paragraph (1), the license of a facility
operated by a receiver appointed pursuant to Article 8 (commencing
with Section 1325) shall not expire during the period of the
receivership, and for 30 days thereafter.
(b) A renewal license or special permit may be issued for a period
not to exceed two years if the holder of the license or special
permit has been found in substantial compliance with any statutory
requirements, regulations, or standards during the preceding license
period. However, for a health facility specified in subdivision (a)
or (b) of Section 1250, a renewal license or special permit may be
issued for a period not to exceed three years, if the holder of the
license or special permit has been found in substantial compliance
with statutory requirements, regulations, or standards during the
preceding license period.
(c) Notwithstanding the length of the period for which a renewal
license is issued, a license fee shall be due and payable annually.
1267.5. (a) (1) Each applicant for a license to operate a skilled
nursing facility or intermediate care facility shall disclose to the
state department the name and business address of each general
partner if the applicant is a partnership, or each director and
officer if the applicant is a corporation, and each person having a
beneficial ownership interest of 5 percent or more in the applicant
corporation or partnership.
(2) If any person described in paragraph (1) has served or
currently serves as an administrator, general partner, trustee or
trust applicant, sole proprietor of any applicant or licensee who is
a sole proprietorship, executor, or corporate officer or director of,
or has held a beneficial ownership interest of 5 percent or more in,
any other skilled nursing facility or intermediate care facility or
in any community care facility licensed pursuant to Chapter 3
(commencing with Section 1500) of this division, the applicant shall
disclose the relationship to the state department, including the name
and current or last address of the health facility or community care
facility and the date the relationship commenced and, if applicable,
the date it was terminated.
(3) (A) If the facility is operated by, or proposed to be operated
in whole or part under, a management contract, the names and
addresses of any person or organization, or both, having an ownership
or control interest of 5 percent or more in the management company
shall be disclosed to the state department. This provision shall not
apply if the management company has submitted an application for
licensure with the state department and has complied with paragraph
(1).
(B) If the management company is a subsidiary of one or more other
organizations, the information shall include the names and addresses
of the parent organizations of the management company and the names
and addresses of any officer or director of the parent organizations.
The failure to comply with this subparagraph may result in action to
revoke or deny a license. However, once the information that is
required under this subparagraph is provided, the action to revoke
the license shall terminate.
(4) If the applicant or licensee is a subsidiary of one or more
other organizations, the information shall include the names and
addresses of the parent organizations of the subsidiary and the names
and addresses of any officer or director of the parent
organizations.
(5) The information required by this subdivision shall be provided
to the state department upon initial application for licensure, and
any change in the information shall be provided to the state
department within 30 calendar days of that change.
(6) Except as provided in subparagraph (B) of paragraph (3), the
failure to comply with this section may result in action to revoke or
deny a license.
(7) The information required by this section shall be made
available to the public upon request, shall be included in the public
file of the facility, and by July 1, 2002, shall be included in the
department's automated certification licensing administration
information management system.
(b) On and after January 1, 1990, no person may acquire a
beneficial interest of 5 percent or more in any corporation or
partnership licensed to operate a skilled nursing facility or
intermediate care facility, or in any management company under
contract with a licensee of a skilled nursing facility or
intermediate care facility, nor may any person become an officer or
director of, or general partner in, a corporation, partnership, or
management company of this type without the prior written approval of
the state department. Each application for departmental approval
pursuant to this subdivision shall include the information specified
in subdivision (a) as regards the person for whom the application is
made.
The state department shall approve or disapprove the application
within 30 days after receipt thereof, unless the state department,
with just cause, extends the application review period beyond 30
days.
(c) The state department may deny approval of a license
application or of an application for approval under subdivision (b)
if a person named in the application, as required by this section,
was an officer, director, general partner, or owner of a 5-percent or
greater beneficial interest in a licensee of, or in a management
company under contract with a licensee of, a skilled nursing
facility, intermediate care facility, community care facility, or
residential care facility for the elderly at a time when one or more
violations of law were committed therein that resulted in suspension
or revocation of its license, or at a time when a court-ordered
receiver was appointed pursuant to Section 1327, or at a time when a
final Medi-Cal decertification action was taken under federal law.
However, the prior suspension, revocation, or court-ordered
receivership of a license shall not be grounds for denial of the
application if the applicant shows to the satisfaction of the state
department (1) that the person in question took every reasonably
available action to prevent the violation or violations that resulted
in the disciplinary action and (2) that he or she took every
reasonably available action to correct the violation or violations
once he or she knew, or with the exercise of reasonable diligence
should have known of, the violation or violations.
(d) No application shall be denied pursuant to this section until
the state department first (1) provides the applicant with notice in
writing of grounds for the proposed denial of application, and (2)
affords the applicant an opportunity to submit additional documentary
evidence in opposition to the proposed denial.
(e) Nothing in this section shall cause any individual to be
personally liable for any civil penalty assessed pursuant to Chapter
2.4 (commencing with Section 1417) or create any new criminal or
civil liability contrary to general laws limiting that liability.
(f) This section shall not apply to a bank, trust company,
financial institution, title insurer, controlled escrow company, or
underwritten title company to which a license is issued in a
fiduciary capacity.
(g) As used in this section, "person" has the same meaning as
specified in Section 19.
(h) This section shall not apply to the directors of a nonprofit
corporation exempt from taxation under Section 23701d of the Revenue
and Taxation Code that operates a skilled nursing facility or
intermediate care facility in conjunction with a licensed residential
facility, where the directors serve without financial compensation
and are not compensated by the nonprofit corporation in any other
capacity.
1267.7. The State Department of Health Services and the State
Department of Developmental Services shall jointly develop and
implement licensing and Medi-Cal regulations appropriate to
intermediate care facility/developmentally disabled-habilitative
facilities. These regulations shall ensure that residents of these
facilities are assured appropriate developmental and supportive
health services in the most normal, least restrictive physical and
programmatic environments appropriate to individual resident needs.
Regulations adopted pursuant to this section shall include provision
for maximum utilization of generic community resources in the
provision of services to residents and participation of the residents
in community activities.
1267.8. (a) An intermediate care facility/developmentally disabled
habilitative or an intermediate care facility/developmentally
disabled--nursing or a congregate living health facility shall meet
the same fire safety standards adopted by the State Fire Marshal
pursuant to Sections 13113, 13113.5, 13143, and 13143.6 that apply to
community care facilities, as defined in Section 1502, of similar
size and with residents of similar age and ambulatory status. No
other state or local regulations relating to fire safety shall apply
to these facilities and the requirements specified in this section
shall be uniformly enforced by state and local fire authorities.
(b) An intermediate care facility/developmentally disabled
habilitative or an intermediate care facility/developmentally
disabled--nursing or a congregate living health facility shall meet
the same seismic safety requirements applied to community care
facilities of similar size with residents of similar age and
ambulatory status. No additional requirements relating to seismic
safety shall apply to such facilities.
(c) Whether or not unrelated persons are living together, an
intermediate care facility/developmentally disabled habilitative
which serves six or fewer persons or an intermediate care
facility/developmentally disabled--nursing which serves six or fewer
persons or a congregate living health facility shall be considered a
residential use of property for the purposes of this article. In
addition, the residents and operators of the facility shall be
considered a family for the purposes of any law or zoning ordinance
which is related to the residential use of property pursuant to this
article.
For the purposes of all local ordinances, an intermediate care
facility/developmentally disabled habilitative which serves six or
fewer persons or an intermediate care facility/developmentally
disabled--nursing which serves six or fewer persons or a congregate
living health facility shall not be included within the definition of
a boarding house, rooming house, institution or home for the care of
minors, the aged, or the mentally infirm, foster care home, guest
home, rest home, sanitarium, mental hygiene home, or other similar
term which implies that the intermediate care
facility/developmentally disabled habilitative or intermediate care
facility/developmentally disabled--nursing or a congregate living
health facility is a business run for profit or differs in any other
way from a single-family residence.
This section does not forbid any city, county, or other local
public entity from placing restrictions on building heights, setback,
lot dimensions, or placement of signs of an intermediate care
facility/developmentally disabled habilitative which serves six or
fewer persons or an intermediate care facility/developmentally
disabled--nursing which serves six or fewer persons or a congregate
living health facility as long as such restrictions are identical to
those applied to other single-family residences.
This section does not forbid the application to an intermediate
care facility/developmentally disabled habilitative or an
intermediate care facility/developmentally disabled--nursing or a
congregate living health facility of any local ordinance which deals
with health and safety, building standards, environmental impact
standards, or any other matter within the jurisdiction of a local
public entity, as long as that ordinance does not distinguish
intermediate care facility/developmentally disabled habilitative
which serves six or fewer persons or an intermediate care
facility/developmenta lly disabled--nursing or a congregate living
health facility from other single-family dwellings and that the
ordinance does not distinguish residents of the intermediate care
facility/developmentally disabled habilitative or intermediate care
facility/developmentally disabled--nursing which serves six or fewer
persons or a congregate living health facility from persons who
reside in other single-family dwellings.
No conditional use permit, zoning variance, or other zoning
clearance shall be required of an intermediate care
facility/developmentally disabled habilitative which serves six or
fewer persons or an intermediate care facility/developmentally
disabled--nursing which serves six or fewer persons or a congregate
living health facility which is not required of a single-family
residence in the same zone.
Use of a single-family dwelling for purposes of an intermediate
care facility/developmentally disabled habilitative serving six or
fewer persons or an intermediate care facility/developmentally
disabled--nursing which serves six or fewer persons or a congregate
living health facility shall not constitute a change of occupancy for
purposes of Part 1.5 (commencing with Section 17910) of Division 13
or local building codes. However, nothing in this section supersedes
Section 13143 to the extent these provisions are applicable to
intermediate care facility/developmentally disabled habilitative
providing care for six or fewer residents or an intermediate care
facility/developmentally disabled--nursing serving six or fewer
persons or a congregate living health facility.
1267.9. (a) The Legislature hereby declares it to be the policy of
the state to prevent overconcentrations of intermediate care
facilities/development ally disabled habilitative, intermediate care
facilities/developmentally disabled-nursing, congregate living health
facilities, or pediatric day health and respite care facilities, as
defined in Section 1760.2, which impair the integrity of residential
neighborhoods. Therefore, the director shall deny an application for
a new intermediate care facility/developmentally disabled
habilitative license, a new intermediate care
facility/developmentally disabled-nursing license, a congregate
living health facility, or a pediatric day health and respite care
facility license if the director determines that the location is in
such proximity to an existing intermediate care
facility/developmentally disabled habilitative, an intermediate care
facility/developmentally disabled-nursing, a congregate living health
facility, or a pediatric day health and respite care facility as
would result in overconcentration.
(b) As used in this section, "overconcentration" means that if a
new license is issued, either of the following will occur:
(1) There will be intermediate care facilities/developmentally
disabled habilitative, intermediate care facilities/developmentally
disabled-nursing, residential care facilities, as defined in Section
1502, or pediatric day health and respite care facilities which are
separated by a distance of less than 300 feet, as measured from any
point upon the outside walls of the structures housing the
facilities.
(2) There will be congregate living health facilities serving
persons who are terminally ill, diagnosed with a life-threatening
illness, or catastrophically and severely disabled, as defined in
Section 1250, which are separated by a distance of less than 1,000
feet, as measured from any point upon the outside walls of the
structures housing the facilities.
Based on special local needs and conditions, the director may
approve a separation distance of less than 300 feet or 1,000 feet,
whichever is applicable, with the approval of the city or county in
which the proposed facility will be located.
(c) At least 45 days prior to approving any application for a new
intermediate care facility/developmentally disabled habilitative, a
new intermediate care facility/developmentally disabled-nursing, a
congregate living health facility, or a pediatric day health and
respite care facility, the director shall notify, in writing, the
city or county planning authority in which the facility will be
located, of the proposed location of the facility.
(d) Any city or county may request denial of the license applied
for on the basis of overconcentration of intermediate care
facilities/developmentally disabled habilitative, intermediate care
facilities/developmentally disabled-nursing, a congregate living
health facility, or a pediatric day health and respite care facility.
(e) Nothing in this section authorizes the director, on the basis
of overconcentration, to refuse to renew an intermediate care
facility/development ally disabled habilitative license, an
intermediate care facility/developmental ly disabled-nursing license,
a congregate living health facility license, or a pediatric day
health and respite care facility license, or to refuse to grant a
license upon a change of ownership of an existing intermediate care
facility/developmentally disabled habilitative, intermediate care
facility/developmentally disabled-nursing, a congregate living health
facility, or a pediatric day health and respite care facility where
there is no change in the location of the facility.
(f) Foster family homes and residential care facilities for the
elderly shall not be considered in determining overconcentration of
intermediate care facilities/developmentally disabled-habilitative,
intermediate care facilities/developmentally disabled-nursing,
residential care facilities, as defined in Section 1502, congregate
living health facilities, or pediatric day health and respite care
facilities.
1267.11. Each intermediate care facility/developmentally
disabled-habilitative shall designate direct care staff persons to
supervise the direct care services to clients for at least 56 hours
per week. The hours of these supervisory staff persons shall be
applied against the