Existing law provides for the licensure and regulation of health facilities by the State Department of Public Health and prohibits a health facility from providing a special service without the approval of the department. Under existing law, a violation of these provisions is a crime. Existing law defines a special service to mean a functional division, department, or unit of a health facility that is organized, staffed, and equipped to provide a specific type of patient care and that has been identified by regulations of the department and for which the department has established special standards for quality of care. Under existing law, special services includes physical therapy services, occupational therapy services, or speech pathology and audiology services provided by a nursing facility to outpatients.

This bill would additionally define special services to mean special dialysis, peritoneal, and infusion services as may be approved by the department for nursing facilities and skilled nursing facilities that are not identified in regulations of the department, if the licensee can demonstrate to the department that the special service will operate in accordance with a minimum standard of care. for quality of care. The bill would require a licensee applying to the department for approval of special services that are not identified by regulations of the department to submit an application and other information, as specified. By expanding the application of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensure and regulation of health facilities by the State Department of Public Health and prohibits a health facility from providing a special service without the approval of the department. Under existing law, a violation of these provisions is a crime. Existing law defines a special service to mean a functional division, department, or unit of a health facility that is organized, staffed, and equipped to provide a specific type of patient care and that has been identified by regulations of the department and for which the department has established special standards for quality of care. Under existing law, special services includes physical therapy services, occupational therapy services, or speech pathology and audiology services provided by a nursing facility to outpatients.

This bill would additionally define special services to mean special services as may be approved by the department for nursing facilities and skilled nursing facilities that are not identified in regulations of the department, if the licensee can demonstrate to the department that the special service will operate in accordance with a minimum standard of care. The bill would require a licensee applying to the department for approval of special services that are not identified by regulations of the department to submit an application and other information, as specified. By expanding the application of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2341 (Obernolte) - Allocation of vacant judgeships

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2341 would authorize up to five vacant judgeships to be reallocated to superior courts with fewer authorized judgeships than their assessed judicial need, as specified.

Fiscal Impact:

Major future cost pressure of about $6.5 million (General Fund) annually to fund up to five judgeships and the required complement of staff sooner than otherwise would occur under the existing allocation of these positions to courts with more judgeships than their assessed judicial need. The one-time facilities and overhead costs to establish a new judgeship would vary based on the receiving courts’ ability to accommodate a judgeship, and are not included in the cost estimate above.

Background:

Existing law specifies the number of superior court judges in each of the 58 counties (Government Code (GC) §§ 69580-69611.) and allocates additional judgeships to the various counties in accordance with uniform standards for factually determining additional judicial need in each county, as updated and approved by the Judicial Council, based on the following criteria: (1) court filings data averaged over a period of three years, (2) workload standards that represent the average amount of time of bench and nonbench work required to resolve each type of case, and (3) a ranking methodology that provides consideration for courts that have the greatest need relative to their current complement of judicial officers. (GC § 69614(b).)

The Judicial Council is required to report to the Legislature and Governor by November 1^st of every even-numbered year on the factually determined need for new judgeships in each superior court using the uniform criteria for allocation of judgeships described above, as updated and applied to the average of the prior three years’ filings. (GC § 69614(c).)

Based on the Judicial Council biennial report, The Need for New Judgeships in the Superior Courts: 2014 Update of Judicial Needs Assessment (November 2014), nearly 270 new judicial officers are needed to meet the workload-based need for new judgeships. Courts whose assessed judicial need, as measured in the biennial Judicial Needs Assessment, is greater than those courts’ number of authorized judicial positions are each eligible for consideration for a new judgeship. Currently, courts must have a need for at least 1.0 FTE judicial officer to become eligible for a new judgeship.

Last year, the Governor vetoed SB 229 (Roth), a bill that would have appropriated $5 million General Fund (1/2 year funding) to fund 12 new judgeships and accompanying staff. In his veto message, the Governor stated that he intended to work with the Judicial Council to develop a system wide approach to balance the workload and the distribution of judgeships around the state.

The 2016-17 Governor’s Budget included a trailer bill proposal to reallocate four vacant superior court judgeships (two each from Santa Clara and Alameda superior courts reallocated to San Bernardino and Riverside superior courts), however, the reallocation of judgeships was rejected by the Budget Conference Committee and was not adopted as part of the final 2016 Budget Act.

Proposed Law:

This bill would upon notice to the applicable courts, authorize up to five vacant judgeships to be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need, pursuant to the following requirements:

• Requires the allocation of vacant judgeships to be in accordance with a methodology approved by the Judicial Council after solicitation of public comments. The determination of a superior court’s assessed judicial need shall be in accordance with the uniform standards for factually determining additional judicial need in each county, as updated and approved by the Judicial Council, pursuant to the Update of Judicial Needs Study, as specified.
• Provides that if a judgeship in a superior court becomes vacant, the Judicial Council shall determine whether the judgeship is eligible for allocation to another superior court under the methodology, standards, and criteria. If the judgeship is eligible for allocation to another superior court, the Judicial Council shall promptly notify the applicable courts, the Legislature, and the Governor that the judgeship vacated in one court shall be allocated to another court.
• Provides that for purposes of this section only, a judgeship shall become “vacant” when an incumbent judge relinquishes the office through resignation, retirement, death, removal, or confirmation to an appellate court judgeship during either of the following:
  • At any time before the deadline to file a declaration of intention to become a candidate for a judicial office pursuant to Section 8023 of the Elections Code.
  • After the deadline to file a declaration of intention to become a candidate for a judicial office pursuant to Section 8023 of the Elections Code if no candidate submits qualifying nomination papers by the deadline pursuant to Section 8020 of the Elections Code.
• For purposes of this section, a judgeship shall not become “vacant” when an incumbent judge relinquishes the office as a result of being defeated in an election for that office.
• States the legislative intent that this act shall not be construed to limit any of the following:
  • The authority of the Legislature to create and fund new judgeships pursuant to Section 4 of Article VI of the California Constitution.
  • The authority of the Governor to appoint a person to fill a vacancy pursuant to subdivision (c) of Section 16 of Article VI of the California Constitution.
  • The authority of the Chief Justice of California to assign judges pursuant to subdivision (e) of Section 6 of Article VI of the California Constitution.

Related Legislation:

SB 1023 (Committee on Judiciary) 2016 would have appropriated $5 million from the General Fund for the purpose of funding 12 new superior court judgeships, and accompanying staff, as specified. This bill was held on the Suspense File of this Committee.

Prior Legislation: SB 229 (Roth) 2015 would have appropriated $5 million from the General Fund for the purpose of funding 12 new superior court judgeships, and accompanying staff, as specified. This bill was vetoed by the Governor with the following message:

I am returning Senate Bill 229 without my signature. This bill appropriates $5 million from the General Fund for 12 new superior court judgeships and accompanying staff.

I am aware that the need for judges in many courts is acute - Riverside and San Bernardino are two clear examples. However, before funding any new positions, I intend to work with the Judicial Council to develop a more systemwide approach to balance the workload and the distribution of judgeships around the state.

AB 159 (Jones) Chapter 722/2007 authorized, upon legislative appropriation in the 2007-08 fiscal year, 50 new superior court judgeships to be allocated pursuant to uniform criteria as updated and approved by the Judicial Council for assessing the need for additional trial court judges. AB 159 permitted, upon subsequent legislative authorization, the conversion of 146 existing subordinate judicial officer (SJO) positions to judgeships in eligible superior courts upon a vacancy of a SJO position. These 50 judgeships were not funded.

SB 56 (Dunn) Chapter 390/2006 authorized, upon legislative appropriation in FY 2006-07, 50 additional superior court judgeships to be allocated to various county courts in accordance with uniform standards established by the Judicial Council. These 50 judgeships were funded.

Staff Comments:

By authorizing the reallocation of up to five vacant judgeships to be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer than their assessed judicial need, the provisions of this bill could result in future cost pressure to fund judgeships sooner than otherwise may have occurred in the absence of the reallocation, assuming the judgeships would have remained vacant and unfunded for a longer period of time in the court jurisdictions with more authorized judgeships than their assessed judicial need.

Based on information from the Judicial Council, the total on-going cost of a new judgeship with a full staffing complement (including support staff salaries, benefits, and operating costs) is estimated at approximately $1.3 million per judge. To the extent the receiving courts agree to a reduced staffing formula below the full staffing complement as estimated above, the annual costs would be somewhat lower.

Additional one-time facilities and overhead costs to establish a new judgeship could be incurred and would vary depending on the receiving courts’ ability to accommodate the judgeship, as some courts have existing space to accommodate a new judgeship, while others do not.

Staff notes the 2016-17 Governor’s Budget included a trailer bill proposal to reallocate four vacant superior court judgeships (two each from Santa Clara and Alameda superior courts reallocated to San Bernardino and Riverside superior courts), however, the reallocation of judgeships was rejected by the Budget Conference Committee and was not adopted as part of the final 2016 Budget Act.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 2341 (Author:Obernolte)

Version: May 18, 2016

Hearing Date: June 28, 2016

Fiscal: Yes

Urgency: No

Consultant: ME

SUBJECT

Allocation of vacant judgeships

DESCRIPTION

Existing law authorizes 50 additional judges, upon appropriation by the Legislature, to be allocated to various county superior courts, pursuant to uniform criteria approved by the Judicial Council of California. This bill would require that up to five vacant judgeships be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need. This bill would also require that the allocation of vacant judgeships be in accordance with a methodology approved by the Judicial Council, as specified.

BACKGROUND

This Committee is the author of Senate Bill 1023, a bill that would appropriate $5 million from the General Fund for the purpose of funding 12 of the 50 previously authorized superior court judgeships and accompanying staff, and require the Judicial Council to determine the allocation of the funded judgeships pursuant to uniform criteria.^[1] SB 1023 was held on suspense in the Senate Appropriations Committee this year. Last year, the Governor vetoed SB 229 (Roth, 2015), a bill that was identical to SB 1023. In his veto message the Governor stated that he intended to work with the Judicial Council to develop a system wide approach to balance the workload and the distribution of judgeships around the state. As part of this year’s budget, the Governor proposed a budget trailer bill to reallocate two vacant judgeships each from the counties of Santa Clara and Alameda and transfer two judgeships each to the counties of Riverside and San Bernardino. The Governor’s proposal was not part of the final Budget.

According to the Judicial Council’s November 2014 report, “Based on the 2014 Judicial Needs Assessment, 35 courts need new judgeships, for a total need of 269.8 [(full-time equivalent judicial positions)]. This is nearly 14 percent higher than the 1,963.3 authorized and funded judicial positions. The need estimate does not include judicial vacancies resulting from retirement, elevations, or other changes, that have not yet been filled.” (Jud. Council of Cal., Rep. on the 2014 Update of Judicial Needs Assessment (Nov. 2014) pp. 1, 3.)

This bill is the latest in a series of bills to attempt to increase the number of judgeships in the superior courts that have the most need. This bill would require that up to five vacant judgeships be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need. This bill would also require that the allocation of vacant judgeships be in accordance with a methodology approved by the Judicial Council, as specified.

CHANGES TO EXISTING LAW

Existing law provides that the Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court. (Cal. Const., art. VI, Sec. 4.)

Existing law specifies the number of superior court judges in each of the 58 counties. (Gov. Code Secs. 69580-69611.)

Existing law establishes that in the County of:

• Alameda there are 69 judges. (Gov. Code Sec. 69580.)
• Santa Clara there are 79 judges. (Gov. Code Sec. 69600.)
• Riverside there are 49 judges. (Gov. Code Sec. 69592.)
• San Bernardino there are 63 judges of the superior court. (Gov. Code Sec. 69594.)

Existing law authorizes 50 additional superior Court judges to be allocated to the various superior courts pursuant to uniform criteria adopted by the Judicial Council, upon appropriation in the 2007-08 fiscal year. Existing law requires that the uniform criteria for determining additional judicial need take into account the following: (1) court filings data averaged over a three-year period; (2) workload standards that represent the average amount of time of bench and non-bench work required to resolve each case type; and (3) a ranking methodology that provides consideration for courts that have the greatest need relative to their current complement of judicial officers. (Gov. Code Secs. 69614, 69614.2.)

Existing law specifies the composition and duties of the Judicial Council (Council), requires judges to report to the Council as the Chief Justice directs concerning the condition of judicial business in their courts, requires judges to cooperate with the Council and hold court as assigned, and specifies that the Chief Justice:

• shall seek to expedite judicial business and to equalize the work of judges;
• may provide for the assignment of any judge to another court but only with the judge’s consent if the court is of lower jurisdiction.
• may assign a retired judge who consents to any court. (Cal. Const., art. VI, Sec. 6.)

Existing law specifies the process for electing superior court Judges, and for their appointment by the Governor. (Cal. Const., art. VI, Sec. 16.)

This bill would state that is the intent of the Legislature that this act shall not be construed to limit the authority of:

• the Legislature to create and fund new judgeships pursuant to Section 4 of Article VI of the California Constitution;
• the Governor to appoint a person to fill a vacancy pursuant to subdivision (c) of Section 16 of Article VI of the California Constitution; or
• the Chief Justice of California to assign judges pursuant to subdivision (e) of Section 6 of Article VI of the California Constitution.

This bill would require that up to five vacant judgeships be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need to provide for a more equitable distribution of judgeships and upon notice to the applicable courts.

This bill would require that the allocation of vacant judgeships be in accordance with a methodology approved by the Judicial Council after solicitation of public comments, and that the determination of a superior court’s assessed judicial need be in accordance with the uniform standards for factually determining additional judicial need in each county, as updated and approved by the Judicial Council, pursuant to the Update of Judicial Needs Study, based on the criteria set forth in subdivision (b) of Section 69614.

This bill would provide that if a judgeship in a superior court becomes vacant, the Judicial Council shall determine whether the judgeship is eligible for allocation to another superior court under the methodology, standards, and criteria described above, and if the judgeship is eligible for allocation to another superior court, the Judicial Council must promptly notify the applicable courts, the Legislature, and the Governor that the judgeship vacated in one court shall be allocated to another court.

This bill would specify that a judgeship becomes “vacant” when an incumbent judge relinquishes the office through resignation, retirement, death, removal, or confirmation to an appellate court judgeship during either of the following:

• at any time before the deadline to file a declaration of intention to become a candidate for a judicial office, as specified; or
• after the deadline to file a declaration of intention to become a candidate for a judicial office if no candidate submits qualifying nomination papers by the deadline.

This bill would provide that a judgeship shall not become “vacant” when an incumbent judge relinquishes the office as a result of being defeated in an election for that office.

COMMENT

1. Stated need for this bill

According to the author:

In August 2001, the Judicial Council approved a statewide methodology for determining the number of trial court judges needed based on workload standards developed by the National Center for State Courts. When it created and funded the first set of 50 new judgeships in 2006, the Legislature directed that new judgeships would be allocated according to the assessed judicial need and prioritization methodology approved by the council.

In addition, Government Code section 69614(c)(1) required that the council report by November 1 of every even numbered year “on the factually determined need for new judgeships in each superior court using the uniform criteria for allocation of judgeships” established in the judicial workload model. These biennial reports show that the statewide need for judicial officers has remained consistently greater than the number of authorized judicial positions.

The most recent Judicial Needs Assessment Report (2014) shows an overall shortage of 270 judges statewide. The report also demonstrates that there is an uneven statewide distribution of judgeships and some courts have proportionately fewer judges than others to handle their workload. For example, the trial courts in Riverside and San Bernardino have only 60 percent of the judicial officers they need. But the trial courts in Alameda and Santa Clara have more judges than necessary to handle their assessed needs, 14 and 19 more judicial officers, respectively. Currently, Alameda has three vacant judgeships and Santa Clara has two.

Presently, no mechanism is available to transfer vacant judgeships from one court to another. Courts with fewer judges than their assessed needs have had to spread their workload among their existing authorized judicial officers, which has created a backlog and limits the time that a judge can spend on each case, particularly for family law and civil cases.

Governor Brown has been reluctant to fund new judgeships until action is taken to distribute judge positions based on workload needs. In his veto message for SB 229 (Roth 2015), which would have appropriated $5 million from the General Fund to fund 12 of the second set of 50 authorized judgeships, Governor Brown stated a desire to “work with the Judicial Council to develop a more system-wide approach to balance the workload and the distribution of judgeships around the state” before funding any new positions.

2. Opposition

In opposition, the California Federation of Interpreters writes that “this bill further intensifies the growing atmosphere of instability among our courts as underfunded courts are forced to compete for resources against other underfunded courts.” Writing in opposition, a coalition of Labor Unions and the California Labor Federation note:

There are indeed courts throughout California which have too few judges. These courts also have too few employees who are critical to the processing and expediting of justice in California. Every single court in California is underfunded and to take resources from one underfunded and understaffed court and give to another is extremely shortsighted and pits one trial court against another.

Our members know all too well about the ongoing shortage of funds in the judicial branch and the funding methodology referred to as the WAFM model which has created an atmosphere of instability and competition for dollars among the trial courts. The WAFM model essentially takes resources from one underfunded court and gives them to another more underfunded court. AB 2341 would only exacerbate the current funding instability among the trial courts.

A more honest and fair approach to resolving the problem of severely understaffed and under-resourced courts is to provide funding equalization dollars to bring those courts up to an appropriate level of operation, as well as to provide dedicated dollars for courts with severe shortages in judgeships versus robbing Peter to pay Paul.

3. Superior court judge shortage throughout California

Under existing law, the Judicial Council is required to report to the Legislature on or before November 1^st of every even-numbered year on the need for new judgeships in each superior court. The most recent report, The Need for New Judgeships in the Superior Courts: 2014 Update of the Judicial Needs Assessment, found that a critical need for new judgeships remains and that nearly 270 new judgeships are needed to meet the workload-based need in the trial courts. The report asserted that: “The public’s right to timely access to justice is contingent on having adequate judicial resources in every jurisdiction. The number of judgeships authorized and funded by the Legislature has not kept pace with workload, leaving many courts with serious shortfalls —as high as nearly 70 percent — between the number of judgeships needed and the number that have been authorized and filled.” (Jud. Council of Cal., Rep. on the Need for New Judgeships in the Superior Courts: 2014 Update of the Judicial Needs Assessment (Dec. 2014) p. 3.) The report further noted that:

Consistent with reports submitted in previous years, the 2014 Judicial Needs Assessment shows that there is a critical shortage of judges relative to the workload needs in California’s trial courts. [The report] summarizes the statewide judicial need compared to available resources based on a three-year average of filings from fiscal years 2010 – 2011 through 2012 – 2013, showing that 2,171.3 [full-time equivalent judicial positions (FTEs)] are needed statewide, compared to 1,963.3 FTE authorized and funded positions. While Assembly Bil1 159 (Stats. 2007, Ch. 722) authorized 50 new judgeships for the superior courts, those positions have neither been funded nor filled. [The report] shows the total assessed statewide need for judicial officers has declined by 5 percent since the 2012 Judicial Needs Assessment. Lower overall filings counts in recent years account for the slight decline in statewide assessed judicial need. (Id. at p. 4.)

In support of this bill, the Judicial Council of California notes that this bill is intended to address the Governor’s veto message of SB 229 in 2015, where he wrote, “I am aware that the need for judges in many courts is acute – Riverside and San Bernardino are two clear examples. However, before funding any new positions, I intend to work with the Judicial Council to develop a more systemwide approach to balance the workload and the distribution of judgeships around the state.”

The Superior Court of California County of Riverside’s Presiding Judge, in support asserts that “[a]lthough I believe the better approach would be to fund additional positions, Governor Brown has made it clear that he believes there are sufficient funded positions statewide but that there are perhaps too many in certain counties and of course too few in Riverside and San Bernardino.”

In response to the continued need for additional judgeships, and faced with the reality that the Legislature’s recent attempts to fund authorized judgeships have failed, this bill seeks to allow the Judicial Council to move up to five vacant judgeships from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need.

4. The Legislature has the Constitutional authority to prescribe the number of judges in each superior court

The California Constitution vests the Legislature with the duty to “prescribe the number of judges and provide for the officers and employees of each superior court.” (Cal. Const., art. VI, Sec. 4.) Opponents, the Alliance of California Judges, assert that it would be “highly inappropriate and clearly unconstitutional for the Legislature to provide [Judicial Council]” with the authority to allocate vacant judgeships among the superior courts of this state.

The Legislature has set the number of superior court judges in each of the 58 counties. However, the legislature has also authorized new superior court judgeships without specifying in which particular counties those judges should be allocated. The legislature has previously given the Judicial Council a role in determining where new judicial positions would be located. Indeed, current law authorizes 50 new superior court judgeships, upon funding, and authorizes the allocation of the judgeships to particular counties to be determined pursuant to uniform criteria as updated and approved by the Judicial Council. Existing law requires that the uniform criteria for determining additional judicial need take into account the following: (1) court filings data averaged over a three-year period; (2) workload standards that represent the average amount of time of bench and non-bench work required to resolve each case type; and (3) a ranking methodology that provides consideration for courts that have the greatest need relative to their current complement of judicial officers.

The Committee has not been provided with any examples where the Legislature has given the Judicial Council the authority to move judgeships, whether vacant or filled, from one county to another. The authority given to the Judicial Council to make determinations regarding locations of judgeships has only been given when new judgeships were created and funded.

If the Committee is inclined to allow up to five vacant judgeships to be moved from one superior court to the another, the Committee may wish to amend this bill to make clear which vacant judgeships should be taken from one county and given to another. Additionally, this Committee may wish to consider amending the bill to ensure that no staff funding is removed from the courts that would lose the vacant judgeships. The Committee may wish also wish to seek an amendment to make clear that the courts receiving vacant judgeships also receive funding to adequately staff the new judges.

Support: Superior Court of California County of Riverside

Opposition: Alliance of California Judges; American Federation of State County and Municipal Employees; California Federation of Interpreters (CFI); California Labor Federation; California Official Court Reporters Association; Laborers International Union of North America, Locals 777 & 792; Orange County Employees Association; San Diego County Court Employees Association; San Luis Obispo County Employees Association; Service Employees International Union; Teamsters;

HISTORY

Source: Judicial Council of California

Related Pending Legislation:

AB 2882 (Committee on Judiciary), among other things, would authorize the Judicial Council to convert 10 subordinate judicial officer positions to judgeships in the 2016-17 fiscal year when the conversion will result in a judge being assigned to a family law or juvenile law assignment previously presided over by a subordinate judicial officer. This bill is in the Senate Committee on Judiciary.

SB 1023 (Committee on Judiciary) would appropriate $5 million from the General Fund for the purpose of funding 12 of the 50 previously authorized superior court judgeships and accompanying staff, and require the Judicial Council to determine the allocation of the funded judgeships pursuant to uniform criteria, as specified. This bill was held on suspense in the Senate Appropriations Committee.

Prior Legislation:

AB 1519 (Committee on Judiciary, Ch. 416, Stats. 2015), among other things, authorized Judicial Council to convert 10 subordinate judicial officer positions, as specified.

SB 229 (Roth, 2015) See Background.

AB 159 (Jones, Ch. 722, Stats. 2007) See Background.

Prior Vote:

Assembly Floor (Ayes 76, Noes 1)

Assembly Appropriations Committee (Ayes 20, Noes 0)

Assembly Health Committee (Ayes 18, Noes 0)

**************

1. AB 159 (Jones, Chapter 722, Statutes of 2007), authorized the creation of 50 judgeships to be filled but did not fund them. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2341

Author:(Lackey)

As Amended Ver:April 4, 2016

Majority vote

SUMMARY: Authorizes the California Department of Public Health (DPH) to allow nursing facilities (NFs) and skilled nursing facilities (SNFs) to provide dialysis, peritoneal, and infusion services that are not defined in regulation, if certain quality-of-care and other criteria are met. Defines the minimum standard for quality of care for these identified services to be equivalent to, or greater than, that of current community standards for quality of care for that type of service.

FISCAL EFFECT: According to the Assembly Appropriations Committee, costs to DPH Licensing and Certification are expected to be minor and absorbable, assuming the availability of this new option does not lead to a large number of facilities pursuing the delivery of these services (Licensing and Certification Fund). Any costs are supported by nursing facility licensure fees.

COMMENTS: According to the author, this bill provides nursing facilities with flexibility to be innovative in their provision of care to residents, and increases access to care to communities. This bill will allow facilities to provide additional, targeted services to individuals both inside the facility and on an outpatient basis. The author argues authorizing these services in a way that explicitly does not require DPH to issue regulations will enhance care without the cost and burden of the regulatory process. This bill is sponsored by Leading Age California, an advocacy organization representing nonprofit senior living and care facilities.

California's Title 22 regulations relating to optional services have not been updated by DPH since the federal changes were made, and specify that physical therapy, occupational therapy, speech therapy, speech pathology, audiology, social work services, and special treatment program services are "special," or "optional services," and as such must be listed on a facilities licensing application. The regulations also specify that outpatient services that are provided for the special services mentioned above must meet certain operational conditions, such as ensuring that the special service units do not traverse a nursing unit, and providing waiting areas with sufficient space for patients. In order to be able to provide special services, all SNFs must receive approval from DPH. DPH evaluates applications and either approves or denies the request on a case-by-case basis, using all relevant state and federal requirements for the special service. Additionally, DPH regulations require SNFs to comply with all licensing requirements. However, these regulations also allow SNFs to use alternate procedures, equipment, personnel qualifications, or conduct pilot projects, as long as these additional activities are carried out to the same standards of safety and care listed in statute and through regulation. These exceptions are only authorized with prior written approval of DPH and must be accompanied with substantiating evidence supporting the request. In August of 2007, DPH published a memo stating that peritoneal and hemodialysis services may be provided in SNFs, and that the services will be delivered in compliance with DPH regulations on optional or special services. Neither the regulations nor the memo waived the statutory requirements for the development of regulations for these services to be provided by SNFs.

The services authorized by this bill include dialysis, peritoneal, and infusion services. Hemodialysis is a life-support treatment that uses a machine to filter harmful wastes, salt, and excess fluid from the blood. Peritoneal dialysis is a different means to clean the blood, which can be done while sleeping or going about daily activities. Infusion is a process whereby medicine, nutrients or special fluids are delivered through a needle directly into the body.

LeadingAge California, the sponsor of this bill, contends that by allowing SNFs and NFs to provide special services as authorized by this measure, the continuity of care for residents could be enhanced. The sponsor maintains that the inability of DPH to adopt or update regulations has been a barrier to the expansion of services that can be provided by SNFs and NFs to residents and members of the community-at-large and forces residents to obtain services outside the SNF and NF community.

The California Advocates for Nursing Home Reform (CANHR), in opposition, contends that this bill would allow SNF and NFs to create special services of their own design and establish the standards of care for their delivery. CANHR also states that DPH would be required to approve these special services without any regulatory or statutory standards to guide its determinations.

The California Dialysis Council, in opposition of this bill, states that current law and regulations establish a robust set of licensure standards for dialysis clinics which are intended to ensure appropriate and safe multi-disciplinary services to the dialysis patients and this bill will put dialysis patients at risk. While current law sets forth various equipment, facility, personnel and care team standards, this bill makes vague references to current community standards for quality of care but would not require these facilities to meet current requirements for licensure as a dialysis clinic.

Please see the policy committee analysis for full discussion of this bill.

Analysis Prepared by: Kristene Mapile / HEALTH / (916) 319-2097 FN: 0002762

Date of Hearing: April 13, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2341

Author:(Lackey) – As Amended Ver:April 4, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill authorizes the California Department of Public Health (CDPH) to allow nursing and skilled nursing facilities to provide dialysis, peritoneal, and infusion services that are not defined in regulation, if certain quality-of-care and other criteria are met.

FISCAL EFFECT:

Costs to CDPH Licensing and Certification are expected to be minor and absorbable, assuming the availability of this new option does not lead to a large number of facilities pursuing the delivery of these services (Licensing and Certification Fund). Any costs are supported by nursing facility licensure fees.

COMMENTS:

1. Purpose. According to the author, this bill provides nursing facilities with flexibility to be innovative in their provision of care to residents, and increases access to care to communities. This bill will allow facilities to provide additional, targeted services to individuals both inside the facility and on an outpatient basis. The author argues authorizing these services in a way that explicitly does not require CDPH to issue regulations will enhance care without the cost and burden of the regulatory process. This bill is sponsored by Leading Age California, an advocacy organization representing nonprofit senior living and care facilities.
2. Background. Nursing facilities are required to provide certain services to their patients. Existing law also authorizes them to provide "special services" that are optional, including, for example, certain therapy, speech pathology, and audiology services. CDPH regulations specify requirements for the provision of such services, but have not been recently updated. Despite the lack of regulations, CDPH has authorized, through a 2007 memo, the services this bill would authorize through statute. The authorization pursuant to the CDPH memo was limited to provision of services to facility residents, while this bill would allow the facility to serve outpatients as well. Despite the availability of the option to provide these services, only a handful of facilities have sought authorization.
3. Services authorized by this bill. Hemodialysis is a life-support treatment that uses a machine to filter harmful wastes, salt, and excess fluid from the blood. Peritoneal dialysis is a different means to clean the blood, which can be done while sleeping or going about daily activities. Infusion is a process whereby medicine, nutrients or special fluids are delivered through a needle directly into the body.
4. Prior Legislation. AB 1974 (Quirk), Chapter 288, Statutes of 2014, specifies that a “special service” does not include a functional division, department, or unit of a nursing facility that is organized, staffed, and equipped to provide inpatient physical therapy services, occupational therapy services, or speech pathology and audiology services to residents of the facility if these services are provided solely to meet CMS certification requirements.
5. Support and Opposition. This bill is supported by Leading Age California. The California Advocates for Nursing Home Reform (CANHR) opposes this bill, citing a lack of evidence of need for SNFs to deliver these services, and concern about the following: 1) that current oversight of dialysis providers is notoriously weak, whether SNFs would deliver these services safely to outpatients; and 2) that the bill does not identify the standard of care for these services.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: March 29, 2016

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 2341 (

Author:Lackey) – As Introduced Ver:February 18, 2016

SUBJECT: Health facilities: special services.

SUMMARY: Authorizes licensees of nursing facilities (NFs) and skilled nursing facilities (SNFs) to provide special services under specified conditions without regulatory authorization by the Department of Public Health (DPH). Specifically, this bill:

1. Authorizes licensees of NFs and SNFs to seek approval from DPH to provide special services without the need for the development of regulations by DPH, if the licensee can demonstrate that the special service will operate in accordance with a minimum standard of quality of care, as specified. Requires all approved special services to be listed on the facility license.
   
2. Requires DPH to revoke approval for a NF or SNF to provide a special service if the facility fails to meet a minimum standard of quality of care.
   
3. Requires a NF or SNF licensee applying for DPH approval to provide a special service to submit the following information to DPH:
   
   1. A completed DPH application form, and any additional information requested by DPH, which clearly defines the scope of the special service proposed to be provided;
      
   2. The hours of operation for the special service;
      
   3. Information on the population to be served by the special service, i.e., solely to the residents of the facility or also on an outpatient basis;
      
   4. A copy of the special service policies and procedures for review and approval;
      
   5. The minimum staffing levels and qualifications for the proposed special service, sufficient to meet the needs of the residents and patients;
      
   6. Information on the equipment and supplies necessary to meet the needs of residents and patients receiving the special service care;
      
   7. Information regarding the space within the facility in which the special service will be provided and prohibits outpatient special services to be provided in a space that would require outpatients to pass through areas where resident sleeping rooms are located; and,
   8. Confirmation of compliance with relevant building, zoning, and fire safety standards.

EXISTING LAW:

1. Establishes DPH, which, among other things is responsible for licensing, regulating and inspecting certain health facilities.
2. Defines “special service” as part of a health facility that is organized, staffed, and equipped to provide a specific type of patient care for which DPH has developed regulations and established special standards for quality for care.
   
3. Specifies that “special service” does not include a part of a NF that provides inpatient physical therapy services, occupational therapy services, or speech pathology and audiology services to residents of the facility if the services are provided solely to meet federal Centers for Medicare and Medicaid Services (CMS) certification requirements.
   
4. Authorizes NFs to provide physical therapy, occupational therapy, speech pathology, and audiology services to outpatients as special services.
   
5. Authorizes DPH to evaluate a NF and SNF’s compliance with state and federal therapy requirements during inspections.
   
6. Requires a health facility to apply to DPH for a special permit, in addition to a license, in order to be authorized to provide one or more special services, including radiation therapy department, burn center, emergency center, hemodialysis center or unit, psychiatric, intensive care newborn nursery, cardiac surgery, cardiac catheterization laboratory, renal transplant, and other special services as DPH has established by regulation.
   
7. Requires DPH to only approve a special permit after it has determined that the health facility has met the standards of quality of care established via regulation by DPH.
   

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, with the aging of the baby boomer population, there will be a significant increase in the number of individuals who require long-term care (LTC) services, including skilled nursing. The author points to a recent report by the California HealthCare Foundation which suggests that the demand for LTC beds in SNFs and NFs may exceed supply by 2030. The author contends that the increase in population will be a particular challenge for SNFs and NFs in rural areas, and those rural communities would benefit from the ability to have SNFs and NFs transition to be a focal point for health care services. The author concludes that this bill provides SNFs and NFs with the flexibility necessary to be innovative in their provision of care to residents and increases access to care.
   
2. BACKGROUND.
   
   1. Nursing Home Services. There are existing certified NFs in California which provide services to 350,000 residents annually. NFs and SNFs typically provide the next highest level of care to patients outside of a hospital, including physical therapy, intravenous injections, and speech language pathology services. LTC facilities in California are licensed, regulated, inspected, and/or certified by a number of public and private agencies at the state and federal levels, including the DPH Licensing and Certification Program and CMS. These agencies have separate, yet sometimes overlapping, jurisdictions. DPH is responsible for ensuring health care facilities comply with state laws and regulations. In addition, DPH cooperates with CMS to ensure that LTC facilities accepting Medicare and Medi-Cal (California’s Medicaid program) payments meet federal requirements.
      

In 1987 the federal Omnibus Budget Reconciliation Act was implemented, under which to be federally certified and meet Medicare and Medicaid requirements, a SNF must offer physical therapy, occupational therapy, and speech pathology. Medicare certification surveyors annually review facilities for compliance with these requirements. California's Title 22 regulations relating to optional services have not been updated by DPH since the federal changes were made, and specify that physical therapy, occupational therapy, speech therapy, speech pathology, audiology, social work services, and special treatment program services are "special,” or "optional services," and as such must be listed on a facilities licensing application. The regulations also specify that outpatient services that are provided for the special services mentioned above must meet certain operational conditions, such as ensuring that the special service units do not traverse a nursing unit, and providing waiting areas with sufficient space for patients.

• 1. Special Rules for Special Services. In order to be able to provide special services, all SNFs must receive approval from DPH. DPH evaluates applications and either approves or denies the request on a case-by-case basis, using all relevant state and federal requirements for the special service. For any SNF that does not employ qualified persons to provide special services, DPH regulations require the SNF to make arrangements through a written agreement with outside resources to meet the standards for providing special services.
     

DPH regulations require SNFs to comply with all licensing requirements. However, these regulations also allow SNFs to use alternate procedures, equipment, personnel qualifications, or conduct pilot projects, as long as these additional activities are carried out to the same standards of safety and care listed in statute and through regulation. These exceptions are only authorized with prior written approval of DPH and must be accompanied with substantiating evidence supporting the request. In August of 2007, DPH published a memo stating that peritoneal and hemodialysis services may be provided in SNFs, and that the services will be delivered in compliance with DPH regulations on optional or special services. However, neither the regulations nor the memo waived the statutory requirements for the development of regulations for these services to be provided by SNFs.

Despite the lack of specific regulations, DPH has authorized a number of SNFs to operate with special services not explicitly listed as a special or optional service in statute, according to figures provided by DPH in response to a public records request by LeadingAge California. Four facilities provide peritoneal dialysis (a procedure to remove waste products from a person’s blood when the kidneys malfunction); seven offer hemodialysis services; and, two provide nursing care services. In addition, the data show that 212 SNFs provide at least one type of outpatient service. While the data indicate that many of them provide occupational therapy, physical therapy, and other services allowable under existing statute, several of the outpatient services were unspecified, and thus several SNFs could be providing outpatient services for care that does not have regulations for SNF services, as required under existing law.

• 1. Saving State Costs and Improving Access to Rural Areas. This bill allows DPH to authorize SNFs and NFs to provide special services not listed in statute without the need for the development of regulations. Establishment of regulations is a very time and cost-intensive process. Based on the data from the public records request previously described, there are a very limited number of SNFs that may request this type of authorization, should this bill become law. Provided that the standards for quality of care agreed to by the SNF and DPH for the new special services provided at SNFs are the same as those provided at other health care facilities, waiving the requirement for DPH to establish regulations could be an efficient use of state resources.

In addition, this bill is consistent with the goals of the Patient Protection and Affordable Care Act, which in part is intended to eliminate inequities in the availability of health care services in rural areas by increasing access to quality, affordable health coverage, and support care coordination. Multiple peer-reviewed studies have found that rural communities have less access to specialized services such as peritoneal and hemodialysis, and as a result have a higher mortality rate. By allowing DPH to authorize select facilities to provide such services in very controlled environments, this bill could increase access to care in communities and increased coordination between hospitals and LTC facilities for some special services.

1. SUPPORT. LeadingAge California, the sponsor of this bill, states there is a clear individual preference within California’s health care system for receiving long-term care in the least restrictive environment, preferably in home and community-based settings. The sponsor contends that by allowing SNFs and NFs to provide special services as authorized by this measure, the continuity of care for residents could be enhanced. Specifically, the sponsor contends that SNFs seeking approval for special services other than physical therapy, occupational therapy, speech therapy, speech pathology, audiology, social work services, and specialty treatment program services will alleviate the burden on DPH to create new regulations. The sponsor maintains that the inability of DPH to adopt or update regulations has been a barrier to the expansion of services that can be provided by SNFs and NFs to residents and members of the community-at-large and forces residents to obtain services outside the SNF and NF community.
2. OPPOSITION. The California Advocates for Nursing Home Reform (CANHR) contends that this bill would allow SNF and NFs to create special services of their own design and establish the standards of care for their delivery. CANHR also states that DPH would be required to approve these special services without any regulatory or statutory standards to guide its determinations.
3. PREVIOUS LEGISLATION.
   
   1. AB 1974 (Quirk), Chapter 288, Statutes of 2014, specifies that a “special service” does not include a functional division, department, or unit of a nursing facility that is organized, staffed, and equipped to provide inpatient physical therapy services, occupational therapy services, or speech pathology and audiology services to residents of the facility if these services are provided solely to meet CMS certification requirements.
      
   2. SB 276 (Corbett) of 2011 would have required DPH to promulgate regulations regarding the type of medical procedures which can be performed in the cardiac catheterization laboratory of a hospital that also has on-site cardiac surgery services, and allowed hospitals to perform certain specified procedures until such regulations are adopted. SB 276 died on the Assembly Floor.
      
4. SUGGESTED AMENDMENTS.
   
   1. Flexibility for DPH. This bill requires a NF or SNF licensee to provide DPH with specific information to review when applying to add a special service to the facility license; however it does not provide DPH with any flexibility to request any additional information. The Committee may wish to consider amending this bill to include a provision that would require the applicant to provide any other relevant information DPH deems necessary for review.
      
   2. Standard for Quality of Care. This bill authorizes a NF or SNF licensee to request to provide additional special services if certain minimum standards for quality of care is met. However this measure does not specify a baseline for the minimum standard for quality of care. To ensure the safety and protection of SNF and NF residents, the author is proposing to define the minimum standard for quality of care.

While this bill does not identify the types of special services and relevant standards for quality of care for each of the identified special services, CMS appears to set forth requirements for acceptable quality in the operation of health care entities through its Medicare Conditions of Participation, Conditions for Coverage and Requirements for SNFs and NFs.  The author may wish to explore identifying these special services to define the minimum standard for quality of care.

REGISTERED SUPPORT / OPPOSITION:

Support

LeadingAge California (sponsor)

Opposition

California Advocates for Nursing Home Reform

Analysis Prepared by: Kristene Mapile / HEALTH / (916) 319-2097