Keep in touch with what’s happening in California about assisted living and RCFE legislation and related items.
UPDATE: What DSS's Statewide Waiver means for Assisted Living Resident and Families
This article is designed to provide context and detail for what the PIN 20-08-ASC (dated 3/18/2020) and PIN 20-09-CCLD (dated 4/2/2020) have waived for all Adult and Senior Care facilities in California during this State of Emergency. CARR has read through both PINs created by the Department of Social Service and has provided context for what these waivers mean for residents and their families. All information is current as of April 6th, 2020. For any questions, please contact our offices at (619) 540-1648.
Waiver of Planned Activity Rights:
During this time of social distancing, planned activities are probably the first thing that comes to mind to getting cut. Many facilities have canceled activities that involve outside parties coming into the facility, like school groups or live music. Some have even limited the number of residents in their dining area at the same time.
But seniors can't just be left in their rooms all day. While keeping social distancing in mind, facilities must come up with some kind of activity to keep seniors entertained. Since this will differ between facilities, make sure to contact the administrator of your loved one’s facility to know how they are still providing activities for residents.
Waiver of Visitation Rights (superseded by PIN 20-09-CCLD):
All unnecessary visits to the facility are restricted. This means that unless it is necessary, (for example: end-of-life) in person visits are not allowed. This waiver can also restrict residents from visiting each other within the facility if it is necessary for containment or mitigation purposes. It does not, however, restrict in-person visits required by Medi-Cal, Medicaid, DMC State Plan, specialty health services, court orders, and visits from federal and state agencies like Adult Protective Services and the Long-Term Care Ombudsman.
The waiver of visitation rights does not mean that you cannot contact your loved one in a facility. It is the limitation of in-person visits to limit exposure to residents. Facilities are required to provide alternatives for in-person visits by setting up webcams, FaceTime, Skype, and other forms of video communication as well as increased phone calls. These electronic alternatives are still required to be private and confidential, as required by law.
While there is no replacement for in-person visits, during this pandemic we all need to be careful. Please keep in mind that staff are also at risk and cannot work from home like you might be able to.
Waiver of Building and Grounds/Capacity Rights (superseded by PIN 20-09-CCLD):
Facilities are authorized to waive regulations related to bedroom sharing and capacity as necessary to quarantine someone who is exhibiting symptoms of COVID-19 or a respiratory illness. This means that more than 2 residents may be sharing a room to allow for a symptomatic resident to be isolated in a room by themselves. Quarantine does not mean isolation. Residents who have tested positive must still be allowed to participate in activites that do not put other residents at risk. This is where facilities must get creative with online & video calling activities to keep residents entertained.
While it might be cramped, facilities are still obligated to conduct room assignments in a way that does not put their health and safety at risk. Resident must still be able to maneuver within the bedroom and access any exits safely.
Waiver of Staffing Ratio & Personnel Requirements (superseded by PIN 20-09-CCLD):
The waiver of staffing ratio applies mostly to Adult Residential Care facilities (ARF) as they have staffing ratios during the day as well as at night. For ARFs, they have a ratio of 1 staff to every 3 residents during the day. Residential care facilities for the elderly have no such daytime staffing ratios. During the nighttime, ratios for ARFs and RCFEs are similar, roughly 3 caregivers for 100 residents. There are also requirements for staff to have fulltime responsibilities are activity planners or meal preparation. The waiver of these requirements may allow for more staff to be able to assist residents with their care needs.
PIN 20-09-CCLD requires a written notice to the Dept. of Social Services that describes the adjusted staffing ratio and how the facility will continue to meet the residents' health and safety. It does not waive any staffing ratio requirements for reimbursement from Medi-Cal, Medicaid, DMC State Plan, or specialty health services.
Waiver of Criminal Background Clearance Requirements (superseded by PIN 20-09-CCLD):
This one may be one of the most significant waivers – the waiver of staff background clearance. This waiver allows for previously background cleared staff to begin working earlier than previously allowed. Staff may start working as soon as they request their background clearance and association to be transferred to the facility they plan on working at. New staff must submit proof of background clearance from a state or local government and get fingerprinted to go through the usual background clearance process within 5 days of employment. This waiver will speed up the number of experienced caregivers facilities can employ to care for residents.
Where this waiver really becomes significant is the addition of PIN 20-09-CCLD which allows for new staff who cannot access background clearance services to begin working in residential care facilities. New staff are required to make every effort to get fingerprinted within 5 days of employment. 'Every effort' is not defined and will be up to interpretation. The Dept. of Social Services has linked to the Office of Attorney General's website that has a background clearance services location search.
If staff can access fingerprinting services, they must state, under penalty of perjury, that they have not been convicted of any criminal activity and get fingerprinted within 5 days of employment.
If there are no fingerprinted services available, the facility licensee looking to hire new staff will inform CCLD immediately and send a signed letter that "a good faith effort was made to locate a [fingerprinting] service, but none was available." They will also send documentation about criminal background and a request for fingerprinting to Dept. of Social Services. Non-fingerprinted staff will be supervised by a fingerprinted staff member who will make regular checks with the non-fingerprinted staff during their shift.
Licensees will also be required to make monthly reports to CCLD on the number of staff who are not criminal background cleared with copies of a government-issued ID, the staff's job title, and their start date. This requirement will kick in this month and will apply to staff hired starting in March 2020. Once fingerprinting services are available again, staff must get fingerprinted within 90 days or once the Department of Public Health declares physical distancing is no longer required.
Waiver of Personnel Requirements (superseded by PIN 20-09-CCLD):
A few different regulations have been waived for staffing requirements: training, Tuberculosis testing, and age requirements. For testing, staff are permitted to start caring for residents as soon as they complete first aid training and are trained on universal, droplet, and other precautions mandated by the CDC. They will then be trained on tasks they will need to do and will need to meet initial training requirements within 30 days of employment. As a precaution, new staff under this waiver will not be left alone while residents are still present at the facility and will not be designated for substitute management.
Staff are no longer required to have Tuberculosis clearance to begin working. Facility owners have been told to use the TB Risk Assessment Questionnaire when interviewing potential new staff. The final change to staffing requirements is the lowering of the age of caregivers to allow 17 year olds to provide care. Staff who are minors must provide proof of a work permit and are not allowed to be left unsupervised with residents present and will not be a substitute administrator or facility manager.
Again, these requirements being waived will increase the available caregivers for residents but does not jeopardize resident care. Under-trained, underage staff are not allowed to be left alone if any residents are in the facility. They will be under constant supervision and will still be required to meet all training requirements, just at a later date.
Waiver of Administrator Certification Requirements (superseded by PIN 20-09-CCLD):
Administrator certification training is moving online. Vendors who are currently approved by Dept. of Social Services may live-stream previously approved training courses. Vendors must still meet all regulations regarding administrator training courses, simply changing an in-person training to an online live-stream.
All people looking to become facility administrators for the first time will not be able to complete the Administrator Certification Testing due to its inability to be held online. They must instead apply for a Conditional Administrator Certificate which, if granted, will be valid for 90 days. When the State of Emergency is lifted, all administrators with conditional certificates must take and pass the in-person Administrator Examination.
Finally, for current Administrators who need to complete their in-person Continuing Education hours, the requirement for in-person training has been waived. Training can be taken with live-steam courses by Department-approved vendors, be completed before the Administrator Certificate expiration date (to avoid fees), and cannot complete more than 10 hours a day. Any delinquency fees for administrator certificate renewal applications that expire between March 2020 and June 2020 are being waived.
The waiver of in-person training does not make the training of Administrators any less. Administrators with a Conditional Administrator Certificate have completed the same number of hours of training as those who were able to complete their test before the State of Emergency order.
Waiver to Repurpose Space in Adult Day Program (added by PIN 20-09-CCLD)
Adult Day Programs, which provide day care services for adults (not seniors) who need supervision, are now allowed to convert the space generally used for day care services as a temporary shelter. The owners must inform CCLD about the change in use before providing temporary shelter. This waiver is designed for adult care facilities and does not apply to senior care facilities.
Licensee Initiated Facility Closures (added by PIN 20-09-CCLD)
Facility owners must now get approval from CCLD before closing their facility. They are to submit a written request to close their facility with information regarding any closure plans, if any residents have tested positive for COVID-19, and why the closure of the facility is in the best interests of the residents. This could mean that facilities will be forced to stay open and caring for residents regardless of the licensee's desires.
Any of the above waivers can be modified and rescinded at the Department's discretion based on new guidelines on the federal, state, or local level and if the individual facility does not meet the terms and conditions outlined in the waivers. Please keep in mind that the situation is constantly changing. CARR will be monitoring the DSS website for updates and will be providing updates here on our website and our social media pages. Check back daily for changes.