Keep in touch with what’s happening in California about assisted living and RCFE legislation and related items.
Frequently Asked Questions
Title 22, Section 87101(u)(1) defines "universal precautions" as ". . . an approach to infection control that treats all human blood and body fluids [mucous, saliva, urine, etc.] as if they were infectious."
Title 22, §87101(v)1) a "vendor" means a CCLD-approved ". . . institution, association, individual(s), or other entity that assumes full responsibility or control over a [CCLD]-approved Initial Certification Training Program or a Continuing Education Training Program."
Title 22, §87101(v)(3), "'voluntary' means resulting from free will."
A waiver, per Title 22, §87101(w)(1), allows for ". . . variance to a specific regulation based on a facility-wide need or circumstance which is not typically tied to a specific resident or staff persons. Requests for waivers are made to the licensing agency, in advance, by an applicant or Licensee. "
The most common waiver requested is a hospice waiver. When a facility requests a hospice waiver, it is requesting permission to accept, or retain any resident, at any time in the future, who may require hospice services. The facility must submit a written request for a waiver. Typically, Community Care Licensing (CCL) will approve the waiver if the facility is determined, through a case management visit, to be in substantial compliance.
A waiver is in contrast to an "exception" , which is a variance from the regulations based on a unique need or circumstance of a specific resident or staff person. An exception cannot be transferred or applied to any other individual.
According to Title 22, §87101(s)(9), "substantial compliance" means the absence of any deficiencies which would threaten the physical health, mental health, safety and/or welfare of the residents.
Throughout our reviews, CARR found that "substantial compliance" was a subjective, rather than objective, designation. This, we concluded, was due to the discretionary nature with which the regulations are enforced. For example, one Licensing Program Analyst (LPA) may deem a water temperature or food service violation, if corrected at the time of visit, as not worthy of a deficiency, where as another LPA may cite the deficiency regardless of whether the deficiency was corrected on-the-spot.
Licensing Program Analysts, or LPAs, are the employees of Community Care Licensing Division (CCLD) responsible for licensing, evaluating, and investigating Residential Care Facilities for the Elderly (RCFEs). They conduct site visits and, in the presence of deficiencies, have the authority to issue citations and civil penalties.
A full description of their duties is available at : http://www.ccld.ca.gov/Res/pdf/LPA-Residential.pdf
Title 22, §87101(r)(6) defines "responsible person" as the ". . . individual or individuals, including a relative, health care surrogate decision maker or placement agency, who assist the resident in placement, or assume varying degrees of responsibility for the resident's well-being."
Title 22, Section 87101(d)(7) defines "direct care staff" to mean ". . . the Licensee, or those individuals employed by the Licensee, who provide direct care to the residents, including but not limited to, assistance with activities of daily living."
Caregivers are direct care staff.
According to Title 22, §87101(n)(2), a non-ambulatory person "means a person who is unable to leave a building unassisted under emergency conditions. It includes, but is not limited to, those persons who depend upon mechanical aids such as crutches, walkers and wheelchairs. It also includes persons who are unable, or likely to be unable, to respond physically or mentally to an oral instruction relating to fire danger and, unassisted, take appropriate action relating to such danger."
Residents with dementia, and bedridden residents are considered non-ambulatory. A facility's license reflects the number of ambulatory and non-ambulatory residents a facility may serve at any one time. Additionally, some facility rooms may not be cleared to house non-ambulatory residents per the Fire Marshal.
Title 22, §87101(r)(5) defines a "Residential Care Facility for the Elderly" (RCFE), as ". . . a housing arrangement chosen voluntarily by the resident, the resident's guardian, conservator or other responsible person; where 75% of the residents are sixty years of age or older and where varying levels of care and supervision are provided, as agreed to at time of admission or as determined necessary at subsequent times of reappraisal. Any younger residents must have needs compatible with other residents.
Title 22, §87101 (l)(1) and H&SC §1569.2(g) defines "license" to ". . . mean a basic permit to operate a residential care facility for the elderly."
The license should be posted prominently in every facility, demonstrating Community Care Licensing's (CCLD's) care parameters approved by the state.
Title 22, §87101 (l)(3) " 'Licensee' means the individual, firm, partnership, corporation, association, or county having the authority and responsibility for the operation of a licensed facility."
The Licensee's name appears on each License.
The Licensee is the individual, partnership or corporation that has the authority and responsibility for the operation of the licensed RCFE. To become a Licensee, the individual or 'legal entity' must attend the mandatory orientations, and successfully complete the application process. The License to operate an RCFE is issued in the name of the Licensee.
According to the regulations, the Licensee may, or may not, act as the administrator of the RCFE. It is very common in smaller facilities (1-6 bed facilities), for the Licensee to also act as the Administrator. In larger facilities, an Administrator is usual hired by the Licensee. The individual serving as the Administrator of an RCFE must meet the educational and experience requirements of Title 22.
Title 22, §87101(s)(2) states that "'may' means permissive."
Title 22, §87101(h)(1), defines "healing wounds include cuts, stage one and two dermal ulcers [bedsores] as diagnosed by a physician, and incisions that are being treated by an appropriate skilled professional with the affected area returning to its normal state."
Healing wounds are sometimes referred to as 'decubitus ulcers," "pressure sores," or "bed sores."
Title 22, §87101(s)(2), " 'shall' means mandatory."
All facilities must have a certified administrator. The RCFE administrator is the individual designated by the Licensee to oversee the management of the facility. The administrator must have sufficient freedom from other responsibilities (i.e. caregiving) and be on the premises a sufficient number of hours to permit adequate attention to the management of the facility. Title 22 (§ 87405 & 87406)
Title 22 states "that CCLD can require the administrator to devote additional hours to their responsibilities in the facility if substantiated by written documentation" and CCLD "reserves the right to revoke the license of the facility for an administrator's failure to comply with regulations."
[If you are concerned with the performance of an administrator, contact CCLD.]
According to Title 22, administrators must possess the following qualifications:
- Knowledge of providing appropriate care and supervision,
- Knowledge of and ability to conform to applicable laws and regulations,
- Ability to maintain financial and other records,
- Ability to direct the work of others,
- Good character and a reputation for personal integrity,
- Be at least 21 years old,
- Have a high school diploma or GED for 1-6 bed facilities; 15 college credits and one year's experience for 16-49 bed facilities; two years of college and three years experience for 50+bed facilities.
To become a certified RCFE administrator, and as a result of 2014 legislation, individuals must receive 80-hours of training from an accredited vendor, pass a test administered by CCLD, receive a criminal record clearance from the Department of Justice, and pay a processing fee.
Administrator certificates must be renewed every two years. To maintain the certification, administrators must receive at least 40 hours of continuing education annually and pay a renewal processing fee. Title 22 also requires that appropriate documentation be maintained demonstrating an administrator's certificate is valid and current (Title 22 §87412).
[Proof of an administrator's qualifications and training is not usually available in the public file, however the consumer can verify whether an Administrator's Certificate is current by viewing the "List of Active Certificates" on CCLD's website.]
Title 22, §87101(t)(2), defines "transfer trauma" ". . . means the consequences of the stress and emotional shock caused by an abrupt, involuntary relocation of a resident from one facility to another."
As defined by Title 22, §87101(c)(2), capacity of a facility refers to the ". . .maximum number of persons authorized to be provided services at any one time in any licensed facility." A facility's capacity is printed on its license. A facility's capacity is determined during the licensing process, and is based on the competency of the Licensee, the physical features of the facility, and the number of staff available, and the stipulations, if any, on the Fire Marshal Clearance. Any facility wishing to serve more than the number of persons authorized on their license must first receive approval from Community Care Licensing. When the capacity increases, a new license should be issued.
According to Title 22 a skilled professional (aka a licensed professional (Title 22 §87101(l)(2), or medical professional (Title 22, §87101(m)(1)) refers to a person licensed in California to provide medical care or therapy, or to perform necessary medical procedures, each acting within their individual scope of practice. This includes:
- Physicians/surgeons/physician's assistants,
- RNs/LVNs/Nurse practitioners,
- Physical/occupational/respiratory therapists,
- Psychiatric technicians, etc.
[RCFEs are non-medical facilities and are not required to have appropriately skilled professionals on-staff. However, there are stipulations in the regulations that certain types of care can only be provided by appropriately skilled professionals (i.e. administering medications, injections, oxygen, etc.) if the resident is unable to provide the care himself. CARR advocates that consumers closely review a resident's current and potential care needs in conjunction with what types of care the RCFE can provide, consistent with Title 22 regulations. ]
An "ambulatory person" (Title 22, §87101(a)(6) ) ". . . means a person who is capable of demonstrating the mental competence and physical ability to leave a building without assistance of any other person or without the use of any mechanical aid in case of an emergency."
Facility licenses reflect the number of ambulatory and non-ambulatory residents a facility is authorized to serve at any one time. Additionally, some facilities may have rooms that only ambulatory residents may occupy, pursuant to the facility's Fire Marshal Clearance.
Title 22 §87606 and the H&S Code §1569.72(b)(1) : Bedridden means any of the following:
(1) A resident who requires ". . . assistance in turning and repositioning in bed", and is unable to leave a building unassisted under emergency conditions.
(2) A resident who is ". . . unable to independently transfer to and from bed. . ." and is unable to leave a building unassisted under emergency conditions.
The home page of the Hospice Foundation of America describes Hospice as a ". . . special concept of care designed to provide comfort, pain relief and support to residents and their families when a life-limiting illness no longer responds to cure-oriented treatments. This type of care neither prolongs life nor hastens death, but rather has the goal to improve the quality of a resident's last days (or months) by offering comfort and dignity." Source: http://www.hospicefoundation.org
RCFEs caring for residents receiving hospice services must meet specific qualifications as stipulated in Title 22, §87633. Providing Hospice Care.
Title 22 §87621
The facility shall be permitted to accept or retain a resident who has a colostomy or ileostomy under the following circumstances:
(1) The resident is mentally and physically capable of providing all routine care for his/her ostomy; and the physician has documented that the ostomy is completely healed; OR
(2) If assistance in the care of the ostomy is provided by an appropriately skilled professional.
(3) Privacy is afforded when care is provided.
(4) The used bags are discarded appropriately.
Additionally, the bag and adhesive may be changed by facility staff who have been instructed by the appropriately skilled professional. The facility must maintain written documentation provided by the appropriately skilled professional, outlining the instruction of the procedures delegated, and the names of the facility staff who have been instructed. The appropriately skilled professional shall review the procedures and techniques no less than twice a month.
Title 22, §87101(c)(11): "Conservator" means a person appointed by the Superior Court pursuant to Probate Code section 1800 et. seq. or Welfare and Institutions Code §5350, to care for the person, or estate, or person and estate, of an adult."
". . . No Licensee or employee of a facility shall . . . (1) accept appointment as guardian or conservator of the person and/or estate of any resident *. . . " (Title 22, §87217(d)(1).*Except as provided in agreements with continuing care facilities.
Title 22, §87101(c)(2), defines "capacity" as the ". . . maximum number of persons authorized to be provided services at any one time in any licensed facility."
If a facility wishes to change its capacity, it must request a Change in Capacity from CCLD, via a LIC 200. One approved for additional residents, the state issues to the Licensee a new license reflecting the change. The Capacity a facility is licensed for appears on each License (LIC 203). Providing care to more residents than stated on the License is a violation of Title 22, §87204(a).
According to Title 22, §87101(d)(2), "deficiency" ". . . means any failure to comply with any provision of the Residential Care Facilities Act for the Elderly and regulations adopted by the Department pursuant to the Act."
A licensee must give 30 days written notice delivered in person or via mail to the resident and/or resident's responsible party. Three (3) day evictions (aka expedited evictions) are possible with approval from the Department. Approval for an expedited eviction will only be granted if the Department finds good cause. Good cause exists if the facility can prove the resident is engaging in behaviors threatening to the well-being of other residents.
Title 22 87224: A facility may evict a resident for 1 or more of the following reasons:
1) Non-payment of the rate for basic services within 10 days of due date. Basic services at a minimum are defined in Title 22, §87464 (LINK) and services considered basic by the facility are to be specified in the signed admissions agreement. If a resident becomes a recipient of SSI/SSP during their stay, the facility cannot evict the resident for a change in the resident's income status and must continue to provide basic services as stated in the admissions agreement to the resident at the SSI/SSP basic rate. (For Fee Schedule SEE SSI (LINK) (family not make up difference FAQ:)
2) Failure of a resident to comply with state or local law after a written notice of the alleged violation has been issued from the appropriate authorities. The violation must be deemed as one that affects the well-being of other residents. For example, a driving violation would not be grounds for eviction unless the resident was responsible for driving other residents.
3) Failure of a resident to comply with the written policies of the facility. These policies must be contained in the signed admissions agreement. Said policies must be in place for the purpose of making communal living possible.
4) If a resident is deemed through a reappraisal to be no longer appropriate for the facility. While the licensee can conduct the reappraisal (§87463), they must bring any significant changes in a resident's condition to the attention of the resident's physician, family and responsible party and must arrange a meeting to include all parties. It has been noted that some facilities attempt to misuse this section as an opportunity to dump a difficult or high-needs resident. If the facility should have reasonably predicted the resident's current condition during the admissions process and admitted them in spite of, than the facility remains responsible for providing the necessary care. For example, if the resident is admitted with a diagnosis of dementia and begins to wander, it is the facility's responsibility to properly address this behavior. They cannot seek the remedy of eviction since this is not a change in condition but rather a behavior that should have been anticipated by the licensee given the resident's diagnosis of dementia.
Should a reappraisal determine that the resident has a developed a prohibited health condition (link) then the facility may request a waiver to retain the resident or the resident will need to be moved to a higher level of care.
Note to consumer: LPAs are not medical professionals and are, therefore, limited in their ability to determine whether or not a facility is truly qualified for a waiver that expands the scope of care of a facility. CARR recommends families discuss with a trusted physician or nurse, the specific requirements and attention necessary to ensure the health of a medically-compromised resident living in a non-medical environment. Additionally, families’ continued vigilance is paramount in all circumstances surrounding changes in conditions.
5) A change in the use of the facility.
Eviction notices must include:
- Reasons for the eviction, specific facts, dates, places, witnesses and circumstances
- Information about resources to assist in locating alternative housing and care options (i.e. public & private placement agencies & care managers)
- Information about a resident's rights to file a complaint with the Department regarding the eviction alongside contact information for State & Local Long-term Care Ombudsman offices (LINK)
Contesting an Eviction
- Residents have the right to file a complaint regarding evictions. Residents and/or their families can contact the local Community Care Licensing Office. The Department is mandated to investigate a complaint within 10 days. Click here for a list of Program Offices and contact information.
- Should a resident remain after the effective date of the eviction, then the facility must file an unlawful detainer action with the superior court and get a written judgment signed by a judge to have the resident evicted. Only a sheriff or sheriff's deputy is authorized to physically evict a resident. A licensee is not authorized to take any physical action to remove the resident and/or their belongings from the facility or deny them access.
- During the 30 days and after (should the resident remain) it is still the facility's responsibility to provide uninterrupted care and services to the resident.
More information on enforcement of these polices can be found in CANHR's archive.
Notes in italics represent the views and/or experience of CARR regarding this topic and/or regulation.
Title 22, §87101(d)(4) defines "dementia" to mean ". . . the loss of intellectual function (such as thinking, remembering, reasoning, exercising judgment and making decisions) and other cognitive functions, sufficient to interfere with an individual's ability to perform activities of daily living or to carry out social or occupational activities. Dementia is not a disease itself, but rather a group of symptoms that may accompany certain conditions or diseases, including Alzheimer's Disease. Symptoms may include changes in personality, mood and/or behavior. Dementia is irreversible when caused by disease or injury, but may be reversible when caused by depression, drugs, alcohol, or hormone/vitamin imbalances."
There is a regulatory difference between Licensees providing care of residents with dementia (Title 22, Section 87705), and Licensees who "advertise, promote, or otherwise hold themselves out as providing special care, programming and/or environments for residents with dementia (Title 22, Section 87706). Also, not all facilities are approved by the state to provide dementia care; CARR's review of 354 files revealed that Licenses (LIC 203) issued by CCLD frequently do not state whether a facility provides Dementia care. If it is unclear from the License whether Dementia care is provided, the consumer should ask for clarification.
The state once required Dementia waivers before Licensees could care for residents with dementia; Dementia Waivers are no longer required.
As defined by Title 22, §87101(e)(1), an "egress alert device" means ". . . a wrist band or other device which may be worn by a resident or carried on a resident's person, which triggers a visual or auditory alarm when the resident leaves the facility building or grounds."
(Title 22, §87202)
- Prior to accepting any residents, the licensee must notify CCLD and obtain an appropriate fire clearance for the clients the RCFE plans to serve.
- All facilities must maintain an appropriate fire clearance approved by the fire department having jurisdiction over the area the facility is located in.
The request (STD 850) for Fire Marshal Clearance (FMC) is forwarded to the local Fire Marshal Office, or Fire Protection Jurisdiction. The agency then schedules a tour of the facility, and notes any approvals or special conditions on the body of the STD 850. The completed document is signed by the agency and returned to CCLD for its action. Fire clearances are required for non-ambulatory, hospice and bedridden resident acceptance and retention.