Report 2010-108 Recommendations and Responses in 2015-041

Report 2010-108: Department of Public Health: It Reported Inaccurate Financial Information and Can Likely Increase Revenues for the State and Federal Health Facilities Citation Penalties Accounts

Department Number of Years Reported As Not Fully Implemented Total Recommendations to Department Not Implemented After One Year Not Implemented as of 2014-041 Response Not Implemented as of Most Recent Response
Department of Public Health 5 17 7 7 7

Recommendation To: Public Health, Department of

To ensure that citation review conferences are completed expeditiously, Public Health should continue to take steps to eliminate its backlog of appeals awaiting a citation review conference.

Response

As of August 2014, CDPH has completed citation review conferences for all appealed citations

Recommendation To: Public Health, Department of

To increase revenue for the penalty accounts, Public Health should ensure that it conducts all state surveys of facilities every two years, as required by state law.

Response

In July 2014, CDPH began reviewing its licensing survey methodologies for long-term care facilities to focus on eliminating redundancies between licensing and certification surveys. CDPH anticipates implementing the new survey tool in long-term care facilities by December 2016.

Recommendation To: Public Health, Department of

To ensure that it complies with current state law and increases transparency, Public Health should adopt regulations for the administration of temporary management companies.

Response

Existing law provides the circumstances under which a temporary manager may be needed to safeguard the health and safety of residents. CDPH developed an internal process to select and install a temporary manager, including guidelines for qualifications and a temporary manager template contract that may be modified for each appointment. During its efforts to incorporate the guidelines into CDPH's Licensing and Certification Policy and Procedure Manual, CDPH determined that the guidelines constituted regulations under the rules of the Administrative Procedures Act. In October 2014, CDPH began developing regulations with an anticipated completion date of January 1, 2016.

Recommendation To: Public Health, Department of

To increase revenue for the penalty accounts, Public Health should seek legislation specifying a time frame within which facilities with nonappealed citations that do not qualify for a 35 percent reduction must pay their monetary penalties and allowing Public Health to collect interest on late payments of monetary penalties.

Response

CDPH will no longer pursue legislation specifying a timeframe within which non-appealed citations must be paid. As stated in our initial response, CDPH does not agree with the recommendation to collect interest on citations that are not appealed and will not seek legislation to do so.

Recommendation To: Public Health, Department of

To increase revenue for the penalty accounts, Public Health should seek legislation authorizing it to revise periodically the penalty amounts to reflect an inflation indicator, such as the CPI.

Response

The status of this recommendation is unchanged.

Recommendation To: Public Health, Department of

To increase revenue for the state account, Public Health should seek legislation authorizing it to require facilities that want to contest the monetary penalty to pay the penalty upon its appeal which could then be deposited into an account within the special deposit fund. The original monetary penalty deposited, plus interest accrued in the account, should then be liquidated in accordance with the terms of the decision.

Response

In January 2011, CDPH met with stakeholders to solicit their input on the BSA report. In March 2011, CDPH released those recommendations, as required, via its report to the Legislature. Requiring facilities to pre-pay penalties and placing the penalties in an interest bearing account would cost CDPH approximately $65,000 a year to collect and account for these funds until the appeals were exhausted and liquidate them at that time. To cover these administrative costs, CDPH would need to impose a non-refundable administrative fee upon filing of an appeal or increase licensing fees. Currently, in lieu of contesting a penalty, facilities may pay 65 percent of the penalty within 15 business days of the issuance of the citation. Full payment is due within 30 calendar days of issuance. For these reasons, CDPH will not change the penalty collection process.

Recommendation To: Public Health, Department of

To ensure consistency with federal guidance related to federal requirements, and that it is not creating incentives for facilities to appeal citations issued for noncompliance with state requirements, Public Health should provide guidance to its staff that discourages settling appealed monetary penalties for a better term than had the facility not contested the citation and paid the penalty within the time frame specified in law to receive a 35 percent reduction. If Public Health believes instances occur when it is appropriate to reduce a monetary penalty by more than 35 percent, it should document which statutory or regulatory factors that formed the basis for concluding that the original class of citation and corresponding monetary penalty amount were no longer considered valid or relevant.

Response

CDPH will not implement this recommendation. The right to appeal is a part of the due process afforded to all providers. CDPH does not view the outcome of negotiations as providing an incentive for facilities to appeal. CDPH must maintain maximum flexibility to negotiate citations and weigh all factors in a final settlement. Implementing this recommendation would hinder CDPH's ability to achieve equitable settlements and force CDPH to adhere to a fixed policy that may not be appropriate in all circumstances.

Current Status of Recommendations

All Recommendations in 2015-041