1276.65. (a) For purposes of this section, the following definitions shall apply:
(1) “Direct care service hours” means the actual hours of work performed per patient day by a direct caregiver, as defined in paragraph (2). Until final regulations are promulgated to implement this section as amended by the act that added this paragraph, the department shall recognize the hours performed by direct caregivers, to the same extent as those hours are recognized by the department pursuant to Section 1276.5 on July 1, 2017.
(2) “Direct caregiver” means a registered nurse, as referred to in Section 2732 of the Business and Professions Code, a licensed vocational nurse, as referred to in Section 2864 of the Business and Professions Code, a psychiatric technician, as referred to in Section 4516 of the Business and Professions Code, and a certified nurse assistant, or a nursing assistant participating in an approved training program, as defined in Section 1337, while performing nursing services as described in Sections 72309, 72311, and 72315 of Title 22 of the California Code of Regulations, as those sections read on July 1, 2017.
(3) “Skilled nursing facility” means a skilled nursing facility as defined in subdivision (c) of Section 1250.
(b) A person employed to provide services such as food preparation, housekeeping, laundry, or maintenance services shall not provide nursing care to residents and shall not be counted in determining ratios under this section.
(c) (1) (A) Notwithstanding any other law, the department shall develop regulations that become effective August 1, 2003, that establish staff-to-patient ratios for direct caregivers working in a skilled nursing facility.
(B) Effective July 1, 2018, skilled nursing facilities, except those skilled nursing facilities that are a distinct part of a general acute care facility or a state-owned hospital or developmental center, shall have a minimum number of direct care services hours of 3.5 per patient day, except as set forth in Section 1276.9.
(C) Skilled nursing facilities shall have a minimum of 2.4 hours per patient day for certified nurse assistants in order to meet the requirements in subparagraph (B).
(D) The department shall repeal and amend existing regulations and adopt emergency regulations to implement the amendments made by the act that added this subparagraph. The department shall consult stakeholders prior to promulgation of regulations and shall provide a 90-day notice to stakeholders prior to adopting regulations. The adoption of these regulations shall be deemed to be an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare.
(2) The department, in developing staff-to-patient ratios for direct caregivers and licensed nurses required by this section, shall convert the existing requirement under Section 1276.5 of this code and Section 14110.7 of the Welfare and Institutions Code for direct care service hours per patient day of care and shall verify that no less care is given than is required pursuant to Section 1276.5 of this code and Section 14110.7 of the Welfare and Institutions Code. Further, the department shall develop the ratios in a manner that minimizes additional state costs, maximizes resident quality of care, and takes into account the length of the shift worked. In developing the regulations, the department shall develop a procedure for facilities to apply for a waiver that addresses individual patient needs except that in no instance shall the minimum staff-to-patient ratios be less than the 3.5 direct care service hours per patient day required pursuant to subparagraph (B) of paragraph (1).
(d) The direct care service hour requirements to be developed pursuant to this section shall be minimum standards only. Skilled nursing facilities shall employ and schedule additional staff as needed to ensure quality resident care based on the needs of individual residents and to ensure compliance with all relevant state and federal staffing requirements.
(e) No later than January 1, 2006, and every five years thereafter, the department shall consult with consumers, consumer advocates, recognized collective bargaining agents, and providers to determine the sufficiency of the staffing standards provided in this section and may adopt regulations to increase the minimum staffing ratios to adequate levels.
(f) In a manner pursuant to federal requirements, every skilled nursing facility shall post information about staffing levels that includes the current number of licensed and unlicensed nursing staff directly responsible for resident care in the facility. This posting shall include staffing requirements developed pursuant to this section.
(g) (1) Notwithstanding any other law, the department shall inspect for compliance with this section during state and federal periodic inspections, including, but not limited to, those inspections required under Section 1422. This inspection requirement shall not limit the department’s authority in other circumstances to cite for violations of this section or to inspect for compliance with this section.
(2) A violation of the regulations developed pursuant to this section may constitute a class “B,” “A,” or “AA” violation pursuant to the standards set forth in Section 1424. The department shall set a timeline for phase-in of penalties pursuant to this section through all-facility letters or other similar instructions.
(h) The requirements of this section are in addition to any requirement set forth in Section 1276.5 of this code and Section 14110.7 of the Welfare and Institutions Code.
(i) Implementation of the staffing standard developed pursuant to requirements set forth in this section shall be contingent on an appropriation in the annual Budget Act and continued federal approval of the Skilled Nursing Facility Quality Assurance Fee pursuant to Article 7.6 (commencing with Section 1324.20).
(j) In implementing this section, the department may contract as necessary, on a bid or nonbid basis, for professional consulting services from nationally recognized higher education and research institutions, or other qualified individuals and entities not associated with a skilled nursing facility, with demonstrated expertise in long-term care. This subdivision establishes an accelerated process for issuing contracts pursuant to this section and contracts entered into pursuant to this section shall be exempt from the requirements of Chapter 1 (commencing with Section 10100) and Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of the Public Contract Code.
(k) This section shall not apply to facilities defined in Section 1276.9.
(l) The department shall adopt emergency regulations or all-facility letters, or other similar instructions, to create a waiver of the direct care service hour requirements established in this section for skilled nursing facilities by July 1, 2018, to address a shortage of available and appropriate health care professionals and direct caregivers. Waivers granted pursuant to these provisions shall be reviewed annually and either renewed or revoked. The adoption of these regulations shall be deemed to be an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare.
(m) The department shall evaluate the impact of the changes made to this section by the act that added this subdivision regarding patient quality of care and shall work with other state departments, as necessary, to evaluate the workforce available to meet these requirements, including an evaluation of the effectiveness of the minimum requirements of 2.4 hours per patient day for certified nursing assistants specified in subparagraph (C) of paragraph (1) of subdivision (c). The department may contract with a vendor for purposes of conducting this evaluation.
(Amended by Stats. 2017, Ch. 52, Sec. 3. (SB 97) Effective July 10, 2017.)
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