CA Health & Safety Code Section 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.