2009 California Health and Safety Code - Section 1743-1743.37 :: Chapter 8.3. Private Duty Nursing Agencies

HEALTH AND SAFETY CODE
SECTION 1743-1743.37

1743.  (a) The Legislature finds and declares all of the following:
   (1) There is currently a crisis in accessing home health care.
   (2) Approximately 300 home health agencies have closed in the past
two years.
   (3) The reduction in the number of home health agencies has made
it difficult for many children and adults needing skilled nursing
services provided on a shift basis under home- and community-based
waivers to receive the services they need, and also jeopardizes the
ability of people with disabilities and others from remaining in
home- and community-based settings.
   (4) Home health agencies have historically been designed as a
model of care for elderly Medicare beneficiaries, but this model is
not well-suited for the kind of care required by adults and children
with disabilities.
   (b) It is the intent of the Legislature in enacting this chapter
to ensure adequate access to home- and community-based skilled
nursing services provided on a shift basis for people who need these
services, including people with disabilities.
   (c) It is the intent of the Legislature, in adopting a new
licensure category for private duty nursing agencies, to provide
appropriate nursing care while upholding the same strong consumer
protections applicable to home health agencies under Title 22 of the
California Code of Regulations.

1743.2.  (a) "Private duty nursing agency" means a private or public
organization, including, but not limited to, any partnership,
corporation, political subdivision of the state, or other government
agency within the state, that provides, or arranges for the provision
of, private duty nursing services, as described in Section 1743.3.
   (b) "Private duty nursing services" means skilled nursing services
provided on a shift basis for patients who require individual and
continuous nursing care, and that meets all of the following
requirements:
   (1) Is provided by a registered nurse or a licensed vocational
nurse, except that any person accepted for service whose care
requires medical orders shall be under the care of a physician,
dentist, podiatrist, or other licensed practitioner within his or her
scope of practice.
   (2) Is provided to the patient in his or her temporary or
permanent place of residence or other community-based setting and
includes, one or both of the following locations:
   (A) The patient's home.
   (B) Outside of the patient's home, as necessitated by normal life
activities.

1743.3.  Each private duty nursing agency providing services shall
do all of the following:
   (a) Provide for a plan of treatment for patients receiving private
duty nursing services.
   (b) Maintain clinical records on all patients.
   (c) Maintain policies regarding the delivery and supervision of
patient care that are reviewed annually by a group of professional
personnel including a physician and surgeon and a registered nurse
and revised as needed.
   (d) Meet all applicable federal, state, and local requirements.
   (e) Maintain, and revise as needed, and implement policies
regarding the purchase, storage, furnishing, and transportation of
legend devices that are reviewed annually by a group of professional
personnel, including a physician and surgeon, pharmacist, and a
registered nurse. As used in this subdivision, "legend devices" means
any device that bears the label "Caution: federal law restricts this
device to sale by or on the order of a ____" or words of similar
meaning.
   (f) Meet other standards, rules, and regulations adopted by the
department in order to implement this chapter.

1743.7.  Any person, organization, political subdivision of the
state or governmental agency desiring a license under this chapter,
or any health facility as defined in Section 1250 that desires to
establish, conduct, or maintain a private duty nursing agency, shall
file with the department a verified application on a form prescribed,
prepared, and furnished by the department, containing information as
may be required by the department for the proper administration and
enforcement of this chapter.

1743.9.  (a) To qualify for a private duty nursing agency license,
the following requirements shall be met:
   (1) Every applicant shall satisfy the following conditions:
   (A) Be of good moral character. If the applicant is a firm,
association, organization, partnership, business trust, corporation,
or company, all principal managing members thereof, and the person in
charge of the agency for which application for a license is made,
shall satisfy this requirement. If the applicant is a political
subdivision of the state or other governmental agency, the person in
charge of the agency for which application for a license is made
shall satisfy this requirement.
   (B) Possess and demonstrate the ability to comply with this
chapter and the rules and regulations adopted under this chapter by
the department.
   (C) File his or her application pursuant to and in full compliance
with this chapter.
   (2) (A) The following persons shall submit to the department an
application, and shall submit fingerprint images and related
information to the Department of Justice, for the furnishing of the
person's criminal record to the department, at the person's expense
as provided in subdivision (b), for the purpose of a criminal record
review:
   (i) The owner or owners of a private agency if the owners are
individuals.
   (ii) If the owner of a private agency is a corporation,
partnership, or association, any person having a 10 percent or
greater interest in that corporation, partnership, or association.
   (iii) The administrator of a private duty nursing agency.
   (3) When the conditions set forth in paragraph (3) of subdivision
(a) of Section 1265.5, subparagraph (A) of paragraph (1) of
subdivision (a) of Section 1338.5, and paragraph (1) of subdivision
(a) of Section 1736.6 are met, the licensing and certification
program shall issue an All Facilities Letter (AFL) informing facility
licensees. After the AFL is issued, facilities shall not allow newly
hired administrators, program directors, and fiscal officers to have
direct contact with clients or residents of the facility prior to
completion of the initial record clearance. A criminal record
clearance shall be complete when the department has obtained the
person's criminal offender record information search response from
the Department of Justice and has determined that the person is not
disqualified from engaging in the activity for which the clearance is
required.
   (b) Notwithstanding any other provision of law, the department may
provide an individual with a copy of his or her state or federal
level criminal offender record information search response as
provided to that department by the Department of Justice if the
department has denied a criminal background clearance based on this
information and the individual makes a written request to the
department for a copy specifying an address to which it is to be
sent. The state or federal level criminal offender record information
search response shall not be modified or altered from its form or
content as provided by the Department of Justice and shall be
provided to the address specified by the individual in his or her
written request. The department shall retain a copy of the individual'
s written request and the response and date provided.
   (4) An applicant and any other person specified in this
subdivision, as part of the background clearance process, shall
provide information as to whether or not the person has any prior
criminal convictions, has had any arrests within the past 12-month
period, or has any active arrests, and shall certify that, to the
best of his or her knowledge, the information provided is true. This
requirement is not intended to duplicate existing requirements for
individuals who are required to submit fingerprint images as part of
a criminal background clearance process. Every applicant shall
provide information on any prior administrative action taken against
him or her by any federal, state, or local government agency and
shall certify that, to the best of his or her knowledge, the
information provided is true. An applicant or other person required
to provide information pursuant to this section that knowingly or
willfully makes false statements, representations, or omissions may
be subject to administrative action, including, but not limited to,
denial of his or her application or exemption or revocation of any
exemption previously granted.
   (c) The persons specified in paragraph (2) of subdivision (a)
shall be responsible for any costs associated with capturing or
transmitting the fingerprint images and related information. The fee
to cover the processing costs of the Department of Justice, not
including the costs associated with capturing or transmitting the
electronic fingerprint images and related information, shall not
exceed thirty-two dollars ($32) per submission.
   (d) If the criminal record review conducted pursuant to paragraph
(2) of subdivision (a) discloses a conviction for a felony or any
crime that evidences an unfitness to provide private duty nursing
services, the application for a license shall be denied, or the
person shall be prohibited from providing service in the private duty
nursing agency applying for a license. This subdivision shall not
apply to deny a license or prohibit the provision of service if the
person presents evidence satisfactory to the department that the
person has been rehabilitated and presently is of that good character
that justifies the issuance of the license or the provision of
service in the private duty nursing agency.

1743.11.  (a) If a private duty nursing agency or an applicant for a
license has not been previously licensed, the department may only
issue a provisional license to the agency as provided in this
section.
   (b) A provisional license to operate a private duty nursing agency
shall terminate six months from the date of issuance.
   (c) Within 30 days prior to the termination of a provisional
license, the department shall give the agency a full and complete
inspection, and, if the agency meets all applicable requirements for
licensure, a regular license shall be issued. If the private duty
nursing agency does not meet the requirements for licensure, but has
made substantial progress towards meeting the requirements, as
determined by the department, the initial provisional license shall
be renewed for six months.
   (d) If the department determines that there has not been
substantial progress towards meeting licensure requirements at the
time of the first full inspection provided by this section, or, if
the department determines upon its inspection made within 30 days of
the termination of a renewed provisional license that there is lack
of full compliance with the requirements, no further license shall be
issued.
   (e) If an applicant for a provisional license to operate a private
duty nursing agency has been denied provisional licensing by the
state department, the applicant may contest the denial by filing a
request for a hearing pursuant to Section 100171.
   (f) The department shall not apply less stringent criteria when
granting a provisional license pursuant to this section than it
applies when granting a permanent license.

1743.13.  (a) Notwithstanding Sections 1743.9 and 1743.15, if a
private duty nursing agency or an applicant for a license has been
previously licensed as a home health agency, the department may issue
a provisional license to the private duty nursing agency if all of
the following conditions are satisfied:
   (1) The agency and the applicant for licensure substantially meet
the standards specified by this chapter and regulations adopted
pursuant to this chapter.
   (2) No violation of this chapter or regulations adopted under this
chapter exists in the agency that jeopardizes the health or safety
of patients.
   (3) The applicant has adopted a plan for correction of any
existing violations that is satisfactory to the department.
   (b) A provisional license issued under this section shall expire
not later than six months after the date of issuance, or at an
earlier time as determined by the department at the time of issuance,
and may not be renewed.
   (c) The department shall not apply less stringent criteria when
granting a provisional license pursuant to this section than it
applies when granting a permanent license.

1743.15.  (a) Upon filing an application for a private duty nursing
agency license as provided for in, and upon the full compliance with,
the provisions of this chapter and the rules and regulations
promulgated under this chapter by the department, the department
shall issue a private duty nursing agency license to the applicant.
   (b) Notwithstanding subdivision (a), any health facility, as
defined in Section 1250 that is licensed under Chapter 2 (commencing
with Section 1250) is not required to obtain a license. In order for
a health facility to establish, conduct, or maintain a private duty
nursing agency, it shall comply with all the provisions of this
chapter and be approved by the department. The approval shall be
deemed to be licensure and shall not extend past midnight on the 31st
day of December of each calendar year. The fee set forth in Section
1743.17 shall be paid before approval is granted. Approval may be
denied or withdrawn by the department on the same grounds as provided
for denial, suspension, or revocation of a private duty nursing
agency license. The department may take the same action against any
approved health facility private duty nursing agency as it may
against any licensed private duty nursing agency under this chapter.
   (c) As an alternative to subdivision (a), the department may issue
a license to a private duty nursing agency that meets the
requirements for a home health agency as provided in subdivision (a)
of Section 1728.7, including accreditation, except the application
and fees shall be submitted pursuant to this chapter. If the
department issues a license pursuant to this subdivision,
subdivisions (b), (c), and (d) of Section 1728.7 as they apply to
home health agencies shall apply to private duty nursing agencies.
   (d) A currently licensed home health agency may apply for
conversion of that license to a private duty nursing license by
filing a written request with the department. If the home health
agency holds a valid license and is in good standing, the department
shall issue a private duty nursing agency license to that applicant
within 30 days of receiving the application.

1743.17.  Each application for a private duty nursing agency license
under this chapter, except applications by this state or any state
department, authority, bureau, commission, or officer, shall be
accompanied by a Licensing and Certification Program fee for the
headquarters or main office of the agency and for each additional
branch office maintained and operated by the agency in the amount set
in accordance with Section 1266.

1743.19.  Each private duty nursing agency license issued under this
chapter shall expire 12 months from the date of its issuance.
Application for renewal of license accompanied by the necessary fee
shall be filed with the department annually, not less than 30 days
prior to expiration date. Failure to make a timely renewal shall
result in expiration of the license.

1743.21.  (a) Every private duty nursing agency for which a license
has been issued, except a facility that is certified to participate
either in the Medicare program under Title XVIII (42 U.S.C. Sec. 1395
et seq.) of the federal Social Security Act, or the medicaid program
under Title XIX (42 U.S.C. Sec. 1396 et seq.) of the federal Social
Security Act, or both, shall be periodically inspected by a duly
authorized representative of the department. Reports of each
inspection shall be prepared by the representative conducting it upon
forms prepared and furnished by the department and filed with the
department. These inspections shall be for the purpose of ensuring
that the provisions of this chapter and the rules and regulations of
the department are being followed. The department is directed to
ensure by these inspections that the private duty nursing agency is
providing high quality care to its patients in accordance with the
orders of the patient's physician.
   (b) Nothing in this chapter shall be deemed to require a private
duty nursing agency to comply with federal Medicare conditions of
participation, if the agency is not serving medicare beneficiaries.

1743.23.  (a) The department shall apply its current regulations
governing home health agencies to home health agencies and to private
duty nursing agencies and may thereafter modify, amend, or rescind,
reasonable rules and regulations to carry out the purposes of this
chapter, including, the prohibition of specific conduct, determined
by the department to be inimical to the public health, morals,
welfare, or safety of the people of the State of California in the
maintenance and operation of a private duty nursing services agency
for which a license is issued. In adopting, modifying, amending, or
rescinding the rules and regulations, the department shall consult
with, and receive recommendations from, among others, physicians and
surgeons, pharmacists, public health nurses, and persons representing
hospitals, nonprofit home health and private duty nursing agencies,
proprietary home health and private duty nursing agencies, and
counties whose health department or hospital has a home health or
private duty nursing agency. The department shall also comply with
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
   (b) The department shall apply current rules and regulations
governing home health agencies regarding the purchase, storage,
furnishing, and transportation of legend devices for a patient of a
private duty nursing agency. As used in this subdivision, "legend
devices" means any device that bears the label "Caution: federal law
restricts this device to sale by or on the order of a ____" or words
of similar meaning.
   (c) It is the intent of the Legislature that the department apply
current regulations governing home health agencies to private duty
nursing facilities that are similar to those that govern home health
agencies including, but not limited to, those regulations related to
services and the scope and duration of benefits, except to the extent
the regulations would be inconsistent with the authority provided
under, and the restrictions prescribed by, this chapter.

1743.25.  (a) The department may deny any application for, or
suspend or revoke, any private duty nursing license issued under this
chapter upon any of the following grounds and in the manner provided
in this chapter:
   (1) Violation by the licensee of any of the provisions of this
chapter or of any other law of this state or of the rules and
regulations promulgated under this chapter.
   (2) Aiding, abetting, or permitting the commission of any illegal
act.
   (3) Misrepresentation of a material fact in the application for a
license.
   (b) (1) Proceedings for the denial, suspension, or revocation of
licenses or the denial or withdrawal of approval under this chapter
shall be conducted in accordance with Section 100171.
   (2) The suspension, expiration, or forfeiture by operation of law
of a license issued by the department; its suspension, forfeiture, or
cancellation by order of the department or by order of a court of
law; or its surrender without the written consent of the department,
shall not deprive the department of its authority to institute or
continue a disciplinary proceeding against the licensee upon any
ground provided by law or to enter an order suspending or revoking
the license or otherwise taking disciplinary action against the
licensee on any ground provided by law.

1743.27.  (a) Any license revoked pursuant to this chapter may be
reinstated pursuant to Section 11522 of the Government Code.
   (b) Any licensee may, with the approval of the department,
surrender his or her license for suspension or cancellation by the
department. Any license suspended or canceled pursuant to this
section may be reinstated by the department on receipt of an
application showing compliance with the requirements of Section
1743.7.

1743.29.  The provisions of this chapter do not apply to the
adherents of any well recognized church or religious denomination
that provides for the care or treatment of the sick who depend upon
prayer or spiritual means for healing in the practice of the religion
of the church or denomination.

1743.31.  Any person who violates any of the provisions of this
chapter, or of the rules and regulations promulgated under this
chapter, is guilty of a misdemeanor and upon conviction thereof shall
be punished by a fine not to exceed one thousand dollars ($1,000),
by imprisonment in a county jail for a period not to exceed 180 days,
or by both the fine and imprisonment.

1743.33.  The director may bring an action to enjoin the violation
or threatened violation of Section 1743 in the superior court in and
for the county in which the violation occurred or is about to occur.
Any proceeding under this section shall conform to the requirements
of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of
the Code of Civil Procedure, except that the director shall not be
required to allege facts necessary to show or tending to show lack of
adequate remedy at law or to show or tending to show irreparable
damage or loss.

1743.35.  Any officer, employee, or agent of the department may
enter and inspect any building, premises, record, or file of a
private duty nursing agency licensee at any reasonable time to secure
compliance with, or to prevent a violation of, any provision of this
chapter.

1743.37.  The district attorney of every county shall, upon
application by the department or its authorized representative,
institute and conduct the prosecution of any action for violation
within the district attorney's county or any provisions of this
chapter.


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