FAQs: Facility Licensing & Certification

I see that the California Department of Public Health (CDPH) issued All Facilities Letter (AFL) 20-26.3, which notifies hospitals of a temporary waiver of licensing requirements from July 1, 2020, through March 1, 2021. Does this AFL waive all hospital licensing requirements?  

No, it doesn’t. It is a narrower waiver than the one in effect from March 20 through June 30, 2020, although it still waives significant requirements, including:

Space. Requirements related to the configuration and use of physical space and classification of beds in a hospital.

Discharge planning. Requirements for detailed discharge planning and the provision of nonmedical services to homeless individuals.

Services. Requirements for detailed public notification when a hospital plans to downgrade, change, or eliminate a level of service are modified (not eliminated).

License. Hospitals seeking initial licensure or to change beds/services on their license must submit an online application, but do not need CDPH approval before providing care.

Some of the requirements that were previously waived, but are no longer waived include:

  • Nurse staffing ratios. Hospitals must bring staffing levels into state ratio compliance by July 17. A hospital experiencing a COVID-19-related patient surge or staff shortage may request a waiver of nurse-staffing ratios or any other hospital licensing requirement from CDPH by submitting CDPH form 5000A and providing supporting documentation to the CDPH Center for Health Care Quality duty officer at and to the hospital’s CDPH district office.
  • Requirement to report privacy breaches to CDPH (although the deadline to report breaches related to telehealth is lengthened from 15 days to 60 days pursuant to the Governor’s Executive Order)
  • Requirement to give handouts: Patients’ Rights, observation, Sudden Infant Death Syndrome, brain death
  • Requirement to post signage in observation units
  • Quarterly reporting of health-care-associated MRSA bloodstream, clostridium difficile, and Vancomycin-resistant enterococcal bloodstream infections
  • Requirements regarding family caregivers
  • RN orientation to unit and demonstrated competency
  • Administrative penalties
  • Medical staff and credentialing

What else is not waived by this AFL?

  • Federal laws (although many federal agencies have also issued waivers)
  • State requirements to report infectious diseases, including COVID-19 positive test results, to the local public health officer and to the hospital’s CDPH district office. However, hospitals that complete the CHA COVID-19 Tracking Tool do not need to report COVID-positive patients to their CDPH district office.
  • Cal/OSHA requirements
  • Wage and hour laws
  • Requirements about involuntary mental health patients
  • Other state laws not under CDPH’s jurisdiction (although other state agencies have also issued waivers)
  • Local ordinances, including the Los Angeles ordinance about discharging patients across state lines (7/5)

What acute care hospital surveys are being conducted by CDPH?

CDPH is currently conducting surveys on behalf of the Centers for Medicare & Medicaid Services (CMS) where it evaluates hospitals for compliance with federal laws. In addition, CDPH is conducting limited surveys to evaluate hospitals for compliance with state laws.

Federal – survey activity on behalf of CMS

On March 23, CMS announced general regulatory enforcement discretion for at least three weeks – later extended indefinitely. The enforcement discretion applies to hospitals, long-term care facilities, home health agencies, hospices, and laboratories. No surveys will be conducted except: 

  • In response to complaints and facility-reported incidents that CMS believes may constitute an immediate jeopardy. A streamlined infection control review tool will be used during these surveys, regardless of the allegation. Hospitals are, therefore, able to prioritize infection control and responding to the COVID-19 pandemic over less important regulatory requirements.
  • Targeted infection control surveys of acute and long-term care providers. The streamlined infection control review tool included with the CMS announcement will be used. The California Department of Public Health (CDPH), as the CMS contractor, may use this entrance checklist as it conducts infection control surveys of both skilled-nursing facilities (SNFs) and hospitals. While the checklist is labeled for SNFs and references “residents,” it is being used for both SNFs and hospitals. CHA has received clarification that CDPH surveyors may use the hospital-specific information on “Focused Survey for Acute and Continuing Care Providers” on pages 19-28 of CMS’ Survey and Certification Memo to State Survey Agencies QSO 20-20.
  • Initial certification surveys.

In addition, on June 1 CMS issued a memo allowing states, at their discretion, to also perform the following hospital surveys:

  • Complaint investigations that are triaged as Non-Immediate Jeopardy-High
  • Revisit surveys of any facility with removed Immediate Jeopardy (but still out of compliance)

CDPH has told CHA that when its surveyors visit a hospital for a CMS infection control survey, the surveyors may also bring older complaints or facility-reported events that haven’t been closed out, so they can try to complete any work needed on them. The surveyors have been directed to be doing as much work off-site as possible and enter hospitals as infrequently as possible.

State survey activity

The Governor’s Executive Order of March 15 directs CDPH and Cal/OSHA staff to focus on providing technical assistance and support to health care facilities. It also limits agencies’ enforcement activity to allegations of the most serious violations impacting health and safety.

CDPH has told CHA that it is configuring data to create various indicators to proactively identify facilities that may be having patient surges, staffing shortages, or other problems. CDPH staff will call these facilities to see how they’re doing and ask what CDPH can do to help. These calls are expected to be supportive and provide technical assistance, in line with the Governor’s Executive Order. They are not supposed to be punitive or enforcement-oriented. CDPH expects this to begin in in mid-August.

CDPH has no plans to undertake relicensing surveys at this time. (7/27)

Has CMS issued any waivers for California health care facilities?

Yes. CMS has issued many waivers, including waivers for hospitals related to EMTALA, verbal orders, reporting requirements, patient rights, sterile compounding, discharge planning, medical staff, medical records, and physical environment. Additional waivers have also been issued for skilled-nursing facilities, home health, and hospice. In addition, many federal agencies have issued flexes or enforcement discretion. See CHA’s list of federal waivers.

CMS on March 23 announced a three-week suspension of all survey activity except to investigate complaints and facility-reported events that appear to be “immediate jeopardy” violations (“immediate jeopardy” as interpreted by the federal government, not the state – which is a high threshold). The agency may also conduct targeted infection control surveys of providers identified through collaboration with the CDC and the U.S. Health and Human Services Assistant Secretary for Preparedness and Response. (They will use a streamlined checklist to minimize the impact on providers.) Hospitals are, therefore, able to prioritize infection control and responding to the COVID-19 pandemic over less important regulatory requirements. As of June 8, CMS had not announced whether it has extended its survey suspension or proceed in a different manner. The Joint Commission has announced a plan to commence surveys in appropriate geographic areas in mid-June. (7/20)

Is the requirement to report privacy breaches to CDPH waived?

No. This requirement – found in Health and Safety Code Section 1280.15 – was waived between March 20 and June 30, 2020. CDPH has told CHA it does not expect hospitals to go back and report breaches that were discovered during that time period. Starting July 1, hospitals were again required to comply with this breach reporting requirement, except that if a breach is related to telehealth, the hospital’s deadline to report to CDPH and to the patient is extended from 15 days to 60 days pursuant to Gov. Newsom’s Executive Order of April 3, 2020. (7/1)

What is the status of Medicaid requests?

The Department of Health Care Services (DHCS) has submitted three 1135 waiver requests to CMS, seeking temporary relief of existing federal requirements — service authorization and utilization controls, program eligibility, telehealth, administrative activities, targeted payment rates, and request for flexibility with IMD exclusion. The first request was submitted on March 16; the second request on March 19; and the third on April 10.

On March 23, DHCS received the approval from CMS in response to its 1135 waiver requests submitted the week before. DHCS received its second 1135 approval on May 8. Both approvals consist of flexibilities for the Medi-Cal program, seeking temporary relief of existing administrative requirements to rapidly increase access to medical services. 

Based on guidance received from CMS, DHCS also submitted a state plan amendment requesting additional flexibilities to waive or modify certain requirements of California’s State Plan. CMS approved the request on May 13. (6/11)

Can patients be moved from an acute care bed to a swing bed without the 72-hour hospitalization requirement? 

CMS issued a Section 1135 waiver to allow critical access hospitals (CAHs) and rural (non-CAH) swing-bed hospitals to move patients from their acute care beds to swing beds for extended care services without a 72-hour prior hospitalization. This clarification will help utilization review processes in rural hospitals to better maximize use of patient care beds. The waiver does not allow non-rural (urban) prospective payment system hospitals to transfer patients to a swing bed without a 72-hour qualifying stay. (4/9)