On October 4, 2021, the California Senate Bill 650 (“SB 650”), also known as the Corporate Transparency in Elder Care Act of 2021, was signed by Governor Gavin Newsom. As described below, SB 650 is designed to provide the public with greater transparency as to skilled nursing facility ("SNF") ownership and finances.
Currently, an organization that operates, conducts, owns, or maintains a SNF, and the officers thereof, are required to file with the Office of Statewide Health Planning and Development (“OSHPD”) specified reports relating to the organization’s finances, including, among other things, a balance sheet detailing the assets, liabilities, and net worth of SNF at the end of its fiscal year.
Pursuant to SB 650 and commencing on fiscal years ending on or after December 31, 2023, the SNF reporting requirements are greatly expanded such that a California-licensed SNF owner and operator is required to file a single consolidated financial report that not only includes SNF owner/operator information but also includes data from all related parties in which the SNF owner/operator has an ownership or control interest of 5% or more and that provides any service, facility, or supply to the SNF.
Background
The large number of COVID-19-related deaths and massive outbreaks in California nursing homes last year have led California state legislators to focus heavily on what have been considered by some to be long-embedded issues in the nursing home industry. In an effort to specifically address issues on healthcare funding and corporate profiting in nursing homes, multiple legislators joined together to introduce a package of bills, collectively referred to as the Priorities Responsible Ownership, Treatment, Equity and Corporate Transparency (PROTECT Plan).[1] Among this series of measures, SB 650 was introduced by Democratic Senator Henry Stern of Los Angeles on February 19, 2021 [2] and is co-sponsored by the California Advocates for Nursing Home Reform (CANHR), SEIU California, and AARP California.[3] Other Bills introduced as part of the PROTECT Plan include:
- AB 279 (Muratsuchi): Prohibiting Resident Eviction During the Pandemic. AB 279 prohibits intermediate care homes or nursing homes from terminating services to residents or from transferring a resident to another facility without consent during a declared state of emergency relating to COVID-19.
- AB 323 (Kalra): Nursing Home Citations. Increases nursing home citation penalties and updates the criteria for AA citations (those that cause the death of a resident) from the old “direct proximate cause of death” standard to a “substantial factor” standard.
- AB 749 (Nazarian): Certification of Nursing Home Medical Directors. Requires nursing home medical directors to be certified by the American Board of Post-Acute and Long-Term Care Medicine.
- AB 849 (Reyes): Nursing Home Resident Rights. Restores facility liability to up to $500 for each violation of a resident’s rights.
- AB 1042 (Jones Sawyer): Related Party Accountability. Establishes shared liability for entities that share ownership or control of nursing homes. Related parties will be liable for unpaid state monetary penalties for citations and unpaid Quality Assurance Fees.
- AB 1502 (Muratsuchi): Nursing Home Ownership and Management Reform. Establishes suitability standards for persons and entities seeking to run nursing homes and ends nursing home squatting, where persons or entities run nursing homes with no approval from the state.
Sponsors’ Concerns as Reflected in SB 650
The sponsors of Section 650 argue that large, for-profit SNFs are using complex ownership structures to increase profitability by shielding funds behind the corporate family so that these funds cannot be fully considered by the state when it sets rates and reimbursements for care. According to Stern, a UCSF research study has shown that “83.6% of SNFs were operated by for-profit owners in California and 74.7% were owned by chains, or operating more than one facility.”[4]
Moreover, the sponsors of Section 650 also believe that transparency is urgently needed to improve quality of care and SB 650 would close the transparency loophole in existing laws. “This shines the bright light of day on this practice by requiring nursing home chains to place consolidated financial reports on each individual facility’s website,” Stern stated.[5] The sponsors argue that the information required by SB 650 will allow the state and the public to evaluate whether large corporate entities owning and operating SNFs are using all available financial resources for patient care, rather than diverting revenues into related entities.
SB 650 Highlights
Among other things, SB 650 would require the following:
- As noted above, an organization that operates, conducts, owns, manages, or maintains a SNF must prepare and file with the OSHPD an annual consolidated financial report that includes data from all operating entities, license holders, and related parties in which the organization has an ownership or control interest of 5% or more and that provides any service, facility, or supply to the SNFs;
- Such an organization must also provide documents outlining a visual representation of the organization’s structure as attachments to the consolidated financial report;
- A duly authorized official of the organization must certify the report; and
- OSHPD must develop policies and procedures to outline the format of information to be submitted, determine if the annual consolidated financial report is complete, and post those reports and related documents to its internet website.[6]
Moving Forward
Given the delay in enforcement, SNFs and other stakeholders will likely voice their concerns as to the new responsibilities created by SB 650. It remains to be seen as to whether such concerns will result in changes in the law or the issuance of implementing regulations that alleviate some of the SNF reporting burdens created by SB 650.
We will be watching!
*Kara Du is a law clerk in Sheppard Mullin’s Century City office.
FOOTNOTES
[1] CANHR Legislation, “2021 Nursing Home Reform Protect Plan,” March 23, 2021, PROTECT PLAN - CANHR Legislation
[2] Open States SB 650 2021-2022 Regular Session, SB 650 - California Senate (20212022) - Open States
[3] Press Release, “Stern’s SB 650, The Corporate Transparency in Elder Care Act of 2021, Clears Senate Health Committee,” April 27, 2021, One Step Closer to Protecting California’s Most Vulnerable | Senator Henry Stern
[4] Id.
[5] Id.
[6] SB-650 Skilled Nursing Facilities (2021-2022), California Legislative Information, September 14, 2021, Bill Text - SB-650 Skilled nursing facilities. (ca.gov)