Section 1325.5 Of Article 8. Management Of Long-term Health Care Facilities From California Health And Safety Code >> Division 2. >> Chapter 2. >> Article 8.
1325.5
. (a) It is the intent of the Legislature in enacting this
section to empower the state department to take quick, effective
action to protect the health and safety of residents of long-term
health care facilities and to minimize the effects of transfer trauma
that accompany the abrupt transfer of elderly and disabled
residents.
(b) For purposes of this section, "temporary manager" means the
person, corporation, or other entity, appointed temporarily by the
state department as a substitute facility manager or administrator
with authority to hire, terminate, or reassign staff, obligate
facility funds, alter facility procedures, and manage the facility to
correct deficiencies identified in the facility's operation.
(c) The director may appoint a temporary manager when any of the
following circumstances exist:
(1) The residents of the long-term health care facility are in
immediate danger of death or permanent injury by virtue of the
failure of the facility to comply with federal or state requirements
applicable to the operation of the facility.
(2) As a result of the change in the status of the license or
operation of a long-term health care facility, the facility is
required to comply with Section 1336.2, the facility fails to comply
with Section 1336.2, and the state department has determined that the
facility is unwilling or unable to meet the requirements of Section
1336.2.
(d) Upon appointment, the temporary manager shall take all
necessary steps and make best efforts to eliminate immediate danger
of death or permanent injury to residents or complete transfer of
residents to alternative placements pursuant to Section 1336.2.
(e) (1) The appointment of a temporary manager shall become
effective immediately and shall continue until any of the following
events occurs:
(A) The temporary manager notifies the department, and the
department verifies, that the facility meets state and, if
applicable, federal standards for operation, and will be able to
continue to maintain compliance with those standards after the
termination of temporary management.
(B) A receiver is appointed under this article.
(C) The department approves a new management company.
(D) A new operator is licensed.
(E) The state department closes the facility, through an orderly
transfer of the residents.
(F) A hearing or court order ends the temporary manager
appointment.
(G) The appointment is terminated by the department or the
temporary manager.
(2) The appointment of a temporary manager shall authorize the
temporary manager to act pursuant to this section. The appointment
shall be made pursuant to an agreement between the temporary manager
and the state department that outlines the circumstances under which
the temporary manager may expend funds. The temporary manager shall
make no long-term capital investments to the facility without the
permission of the state department. The state department shall
provide the licensee and administrator with a statement of
allegations at the time of appointment. Within 48 hours, the
department shall provide the licensee and the administrator with a
formal statement of cause and concerns. The statement of cause and
concerns shall specify the factual and legal basis for the imposition
of the temporary manager and shall be supported by the declaration
of the director or the director's authorized designee. The statement
of cause and concerns shall notify the licensee of the licensee's
right to petition the Office of Administrative Hearings for a hearing
to contest the appointment of the temporary manager and shall
provide the licensee with a form and appropriate information for the
licensee's use in requesting a hearing.
(f) (1) The licensee of a long-term health care facility may
contest the appointment of the temporary manager by filing a petition
for an order to terminate the appointment of the temporary manager
with the Office of Administrative Hearings, within 60 days from the
date of mailing of the statement of cause and concerns. On the same
day as the petition is filed with the Office of Administrative
Hearings, the licensee shall deliver a copy of the petition to the
office of the director.
(2) Upon receipt of a petition of hearing, the Office of
Administrative Hearings shall set a hearing date and time within five
business days of the receipt of the petition. The office shall
promptly notify the licensee and the state department of the date,
time, and place of the hearing. The office shall assign the case to
an administrative law judge. At the hearing, relevant evidence may be
presented pursuant to Section 11513 of the Government Code. The
administrative law judge shall issue a written decision on the
petition within five business days of the conclusion of the hearing.
The five-day time periods for holding the hearing and rendering a
decision may be extended by the agreement of the parties.
(3) The administrative law judge shall uphold the appointment of
the temporary manager if the state department proves, by a
preponderance of the evidence, that the circumstances specified in
subdivision (c) applied to the facility at the time of the
appointment. The administrative law judge shall order the termination
of the temporary manager if the burden of proof is not satisfied.
(g) The decision of the administrative law judge is subject to
judicial review as provided in Section 1094.5 of the Code of Civil
Procedure by the superior court sitting in the county where the
facility is located. This review may be requested by the licensee of
the facility or the state department by filing a petition seeking
relief from the order. The petition may also request the issuance of
temporary injunctive relief pending the decision on the petition. The
superior court shall hold a hearing within five business days of the
filing of the petition and shall issue a decision on the petition
within five days of the hearing. The state department may be
represented by legal counsel within the state department for purposes
of court proceedings authorized under this section.
(h) If the licensee of the long-term health care facility does not
protest the appointment, it shall continue in accordance with
subdivision (e).
(i) (1) If the licensee of the long-term health care facility
petitions the Office of Administrative Hearings pursuant to
subdivision (f), the appointment of the temporary manager by the
director pursuant to this section shall continue until it is
terminated by the administrative law judge or by the superior court,
or it shall continue for 30 days from the date the administrative law
judge or the superior court upholds the appointment of the temporary
manager, whichever is earlier.
(2) At any time during the appointment of the temporary manager,
the director may request an extension of the appointment by filing a
petition for hearing with the Office of Administrative Hearings and
serving a copy of the petition on the licensee. The office shall
proceed as specified in paragraph (2) of subdivision (f). The
administrative law judge may extend the appointment of the temporary
manager as follows:
(A) Upon a showing by the state department that the conditions
specified in subdivision (c) continue to exist, an additional 60
days.
(B) Upon a finding that the state department is seeking a
receiver, until the state department has secured the services of a
receiver pursuant to this article.
(3) The licensee or the state department may request review of the
administrative law judge's decision on the extension as provided in
subdivision (g).
(j) The temporary manager appointed pursuant to this section shall
meet the following qualifications:
(1) Be qualified to oversee correction of deficiencies on the
basis of experience and education.
(2) Not have been found guilty of misconduct by any licensing
board.
(3) Have no financial ownership interest in the facility and have
no member of his or her immediate family who has a financial
ownership interest in the facility.
(4) Not currently serve, or within the past two years have served,
as a member of the staff of the facility.
(5) Be acceptable to the facility.
(k) Payment of the temporary manager's salary or fee shall comply
with the following requirements:
(1) Shall be paid directly by the facility while the temporary
manager is assigned to that facility.
(2) Shall be equivalent to the sum of the following:
(A) The prevailing salary or fee paid by licensees for positions
of the same type in the facility's geographic area.
(B) Additional costs that reasonably would have been incurred by
the licensee if the licensee had been in an employment relationship.
(C) Any other reasonable costs incurred by the appointed temporary
manager in furnishing services pursuant to this section.
(3) May exceed the amount specified in paragraph (2) if the
department is otherwise unable to attract a qualified temporary
manager.
( l) The state department may use funds from the Health Facilities
Citation Penalties Account, pursuant to Section 1417.2, to operate
the facility after all other facility revenues are exhausted.
(m) The state department shall adopt regulations for the
administration of this section on or before December 31, 2001.