BILL ANALYSIS
AB 950
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
AB 950 (Hernandez) - As Amended: April 22, 2009
SUBJECT : Hospice providers: licensed hospice facilities.
SUMMARY : Establishes a new health facility licensing category
of hospice facility (HF), as specified. Specifically, this
bill :
1)Establishes the HF as a new type of health facility, defined
as a freestanding health facility, which has been licensed by
the Department of Public Health (DPH) as a hospice facility
for the provision of all levels of hospice care, including
routine care, continuous care, inpatient respite care, and
general inpatient care, and as a hospice program, under
existing law.
2)Requires a HF to be both licensed as a hospice provider and
certified to participate as a provider of hospice care under
the federal Medicare program, and authorizes existing hospice
providers that are licensed and certified by DPH as a hospice
program, to apply for a HF license as an optional component of
the hospice program.
3)Establishes minimum services and requirements that a HF must
meet as follows:
a) Medical direction/staff;
b) Skilled nursing services;
c) Palliative care;
d) Social services/counseling services;
e) Bereavement services;
f) Volunteer services;
g) Dietary services;
h) Pharmaceutical services;
i) Physical therapy, occupational therapy, and
speech-language therapy;
j) Patient rights;
aa) Disaster preparedness;
bb) An adequate, safe, and sanitary physical environment;
cc) Housekeeping;
dd) Patient medical records; and,
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ee) Other administrative requirements.
4)Requires DPH to adopt regulations for HFs and to prescribe
standards for the provision of services outlined in 3) above.
5)Requires the HF regulations adopted by DPH to include, but not
be limited to:
a) Minimum staffing standards that require at least one
licensed nurse to be on duty 24 hours per day and that
prohibit direct care staff from taking care of more than
six patients at any given time;
b) Patient rights so that each patient is:
i) Fully informed of his or her total health status and
the options for end-of-life care;
ii) Provided care that reflects individual preferences
regarding end-of-life care, including the right to refuse
any treatment or procedure;
iii) Treated with consideration, respect, and full
recognition of dignity and individuality, including
privacy in treatment and in the care of personal needs;
and,
iv) Entitled to visitors of his or her own choosing, at
any time the patient chooses, and ensured privacy for
those visits.
c) Disaster preparedness for both internal and external
disasters that protect hospice patients, employees, and
visitors, and reflects coordination with local agencies
that are responsible for disaster preparedness and
emergency response; and,
d) Additional qualifications and requirements for
licensure.
6)Requires a HF to obtain and to pay the costs of, criminal
background checks for employees, volunteers, and contractors
in compliance with the Medicare conditions of participation
(COP) and as may be required in state law.
7)Requires a licensed HF to provide a home-like environment that
is comfortable and accommodating to both the patient and the
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patient's visitors and to continue to provide services to
family and friends after the patient's stay in the HF, in
accordance with the patient's plan of care. Authorizes the
hospice program operating the HF to provide the follow-up
services to the family.
8)Requires a HF to demonstrate the ability to meet licensing
requirements and to be fully responsible for meeting all
licensing requirements, regardless of whether those
requirements are met through direct provision by the HF or
under contract with another entity. Specifies that a HF's
reliance on contractors to meet the licensing requirements
does not exempt the HF or in any way mitigate the HF's
responsibilities.
9)Exempts HFs from the requirement generally applicable to
licensed health facilities in this state to submit to Office
of Statewide Health Planning and Development (OSHPD) new
construction and renovation plans.
10)Requires an HF to submit evidence, as part of the application
for licensure submitted to DPH, that the HF is in compliance
with local building codes and that the physical environment of
the HF is adequate to provide the level of care and service
required by the residents of the HF, as determined by DPH.
11)Requires a HF to meet, on or after the effective date of
regulations to implement this bill, the fire protection
standards set forth in the Medicare COP for hospice services.
12)Requires building standards adopted by DPH relating to fire
and panic safety, and other HF regulations, to apply uniformly
throughout the state, and prohibits local jurisdictions from
adopting or enforcing any ordinance or local rule or
regulation relating to fire and panic safety in HF buildings
or structures that is inconsistent with the rules and
regulations for HFs adopted by DPH.
13)Eliminates the requirement for DPH to draft regulations
required by this bill if the California Hospice and Palliative
Care Association (CHAPCA) drafts the necessary regulations, in
consultation with DPH, other state departments, and
stakeholders, and submits the draft regulations as a petition
for regulation pursuant to the Administrative Procedures Act
(APA).
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14)Makes legislative findings and declarations related to the
need for and importance of hospice services to provide
supportive care to terminally ill patients, their primary
caregivers and families. Finds that permitting the
establishment of licensed hospice facilities is consistent
with federal legal affirmations of the right of an individual
to refuse life-sustaining treatment and with United State
Supreme Court in Olmstead v. L. C. by Zimring (1999) 527 U.S.
581, which held that persons with disabilities have the right
to live in the most integrated setting possible with
appropriate access to care and choice of community-based
services and placement options.
15)Expresses legislative intent to permit the licensure of
hospice inpatient facilities in order to improve access to
care, to provide additional care options, and to provide for a
home-like environment within which to provide care and
treatment for persons who are experiencing the last phases of
life.
16)Makes other technical and clarifying changes.
EXISTING LAW :
1)Provides for licensure and regulation by DPH of persons or
agencies providing hospice services, and defines hospice as a
specialized form of interdisciplinary health care that is
designed to provide palliative care; alleviate the physical,
emotional, social, and spiritual discomforts of a terminally
ill individual; and provide supportive care to caregivers and
family members, according to specified criteria.
2)Requires licensed hospice providers to provide, or make
provision for, specified basic services, including skilled
nursing services, inpatient care, home health aide services,
social services and counseling, bereavement, medical
direction, and volunteer services.
3)Includes hospice care as a covered benefit under Medicare and
Medi-Cal, under specified conditions, including that an
individual is certified as terminally ill and his or her life
expectancy is six months or less.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
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committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill
will improve the options patients and their families have to
obtain hospice services. According to CHAPCA, the sponsor of
this bill, hospice providers must currently contract with
other licensed facilities to provide inpatient hospice which
can create conflicts in regulations and philosophies of care.
CHAPCA points out that 95% of all hospice care is provided to
patients in their own home, but when a patient can no longer
remain safely at home, hospices need the flexibility to
provide their services in facilities that are as home-like and
residential as possible, as in the new licensing category of
HF proposed in this bill.
2)BACKGROUND . Under current California law, hospice is a
licensed service and not a facility type. DPH evaluates
hospice programs and certifies that they meet federal COP for
Medicare and Medicaid (Medi-Cal in California). Health
facilities may arrange for the provision of hospice services
in settings such as: general acute care beds; skilled nursing
facility beds; and, congregate living health facility beds
through an agreement with a licensed hospice provider who will
provide the hospice services. Those facilities, however, must
still follow the regulations for which the facility bed is
licensed. This bill allows for the creation of HFs which
would presumably be dedicated specifically to the provision of
hospice services and designed and staffed to meet the
specialized needs of dying patients and their families.
Hospice is generally for patients whose illnesses are no longer
responding to cure-oriented treatments, and who need pain
relief and management of physical symptoms, as well as
emotional and spiritual support. Hospice patients are
typically in their last six months of life. They may suffer
from cancer or end-stage heart, lung, or neurological
disorders. Hospice care focuses on maintaining patients'
quality of life, as opposed to the primary focus on
aggressively treating illness. Hospice care essentially aims
to make death a pain-free process which includes support,
comfort, and relief of symptoms, making it possible for people
to die with dignity. Psychological, emotional, and spiritual
support is offered to help patients and their families cope
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with the dying process. Hospice services are typically
characterized by a team-oriented approach that includes expert
pain and symptom management, along with emotional and
spiritual support tailored to the patient's wishes.
3)HOSPICE COVERAGE . Hospice care is a covered benefit under
Medicare. Federal Medicare COP for hospice services generally
set the standards followed nationally for the definition and
delivery of hospice care and form the basis for California's
hospice licensing statute. The Medicaid programs of more than
35 states also provide hospice coverage, including California
through the Medi-Cal Program. Many private health insurance
policies cover hospice, and it is required coverage as a basic
health care service for health care service plans licensed by
the Department of Managed Health Care (health maintenance
organizations and some preferred provider organization plans).
Hospice can be provided in a patient's residence, a licensed
and certified skilled nursing facility, an intermediate care
facility, a general acute care hospital, or a licensed
residential care facility licensed by Department of Social
Services (DSS). Some agencies licensed as home health
agencies are certified to provide hospice services. Medicare
and Medi-Cal pay for hospice services with one of four fixed
reimbursement rates per day, according to level of care:
routine home care; continuous care; general inpatient care;
and, inpatient respite care. These rates cover all of the
services that are covered under the Medicare and Medi-Cal
benefit.
4)MEDICARE CONDITIONS OF PARTICIPATION . The most recent update
of the federal Medicare COP for hospice were finalized June 5,
2008. According to the final rule, the new COP is based on
the following principles:
a) Focus on the continuous, integrated health care process
that a patient/family experiences across all aspects of
hospice care, and on activities that center around patient
assessment, care planning, service delivery, and quality
assessment and performance improvement;
b) Use a patient-centered, interdisciplinary approach that
recognizes the contributions of various skilled
professionals and other support personnel and their
interaction with each other to meet the patient's needs;
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c) Incorporate an outcome-oriented quality assessment and
performance improvement program;
d) Facilitate flexibility in how a hospice meets
performance expectations;
e) Require that patient rights are ensured; and,
f) Use performance measurement systems to evaluate and
improve care.
The COP require a hospice providing inpatient care directly to
meet specific national fire protection standards applicable to
nursing homes, subject to waiver by the federal Centers for
Medicare and Medicaid Services (CMS) or a finding by CMS that
state fire and safety codes adequately protect hospice
patients.
5)SUPPORT . CHAPCA, the sponsor of this bill, states that this
bill will expand the choices available to terminally ill
patients and their families. CHAPCA contends this bill will
also save money for patients, families, and the state. CHAPCA
points out that currently when hospice patients cannot remain
safely at home, they often move to a skilled nursing facility
even though their symptoms and plan of care may not warrant
that level of care. CHAPCA maintains that, as California's
population continues to age, it will be increasingly important
to have resources available to provide services in many
different settings. The Alliance for Catholic Health Care
writes in support that this bill would address concerns
relative to the current limitations on hospice care, such as
conflicting regulations and philosophies of care, lack of
adequate staffing levels to meet hospice COP requirements, and
increasing difficulty in obtaining contracts for hospice care.
The American Federation of State, County and Municipal Employees
argues that quality of life care should be available to
everyone, and that hospice care specializes in easing the pain
of terminally ill patients, ensuring as much comfort as
possible at the end of life for the patient, their family, and
loved ones. Many supporters write in agreement that when a
patient is no longer able to be safely cared for at home, they
are often transferred to skilled nursing facilities, even
though their symptoms may not warrant that level of care;
therefore, hospices need flexibility to provide their services
in facilities that are as homelike and residential as
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possible. Supporters assert that giving hospices this
flexibility of care will save patients, their families, and
the state money.
6)OPPOSE UNLESS AMENDED . Service Employees International Union
(SEIU) is opposed unless this bill is amended. SEIU is
concerned because this bill exempts HFs from the requirement
to comply with seismic safety and other building requirements
under OSHPD. According to SEIU, these requirements assure
that any facility where patients stay overnight will not
collapse in an earthquake. In the 1994 Northridge quake, more
than 7,000 hospital beds were put out of service and hospitals
literally collapsed into rubble. SEIU is opposed to the
exemption in this bill from the building safety requirements
imposed after 1994. In addition, SEIU is opposed because
this bill eliminates the public process for developing
regulations under the APA and instead substitutes draft
regulations to be proposed by the industry to be regulated.
SEIU objects to industry self-regulation. SEIU suggests that
after the debacles in the banking industry, as well as the
long sorry history of the Joint Commission on the
Accreditation of Health Organizations, the lesson has been
learned that industries cannot be trusted to regulate
themselves.
7)POLICY QUESTIONS .
a) Need for new licensing category . According to the
author and sponsor, this bill is necessary because existing
facility licensing programs are inconsistent with the
hospice concept. However, there are several freestanding
inpatient hospice programs in California successfully
operating with a skilled nursing facility license. The
services required in a HF under this bill include skilled
nursing services and many other services typical in a
skilled nursing facility. What specific requirements in
existing law and regulations limit the ability of
freestanding facilities to operate inpatient hospice
programs? How will the new licensing category both provide
for adequate patient protection and facilitate hospice
services in a manner not possible under existing licensing
programs?
DPH also licenses congregate living health facilities (CLHFs)
in California to provide 24-hour skilled nursing and
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supportive care in a home-like setting. CLHFs are small
facilities with six beds or less that serve people who: i)
Are mentally alert but physically disabled-including those
with substance abuse problems or eating disorders; ii) Are
terminally ill with a life expectancy of six months or
less; or, iii) Suffer from a catastrophic illness or injury
resulting in severe disability-for example, a traumatic
brain injury, neuromuscular disease, spinal cord injury, or
birth defect, such as cerebral palsy. Services vary among
CLHFs, depending on the characteristics and needs of the
clients they serve. For example, a facility that serves
patients who have eating disorders and provides more
supportive psychiatric treatment, while one serving
severely disabled patients provides more skilled nursing,
rehabilitation, durable medical equipment, radiology, and
pharmacy services.
Given the challenges California (and other states) have
experienced in ensuring basic patient safety and quality of
care in skilled nursing facilities, does the Legislature
want to establish a new facility category for individuals
who are very sick, and near the end of life, with
potentially fewer requirements in place to protect such
patients? Could the author's intent be fulfilled by
establishing a new category of nursing facility, as
California has done in the past, for example, by
establishing nursing facilities that focus on hospice care
with many of the core services and patient protections
applicable to nursing facilities, but with modifications
appropriate to the care of hospice patients? Can the
existing CLHF category of licensure be modified in some way
to meet the intent of the author and sponsor?
b) Exemption from OSHPD review . This bill exempts HFs from
OSHPD review of construction and renovation plans. OSHPD's
review is intended to ensure compliance with seismic safety
and fire and life safety standards in the building and the
renovation of health facilities. The author may wish to
address the impact of exempting freestanding HFs from the
building standards review.
c) Local preemption in fire protection . This bill
prohibits local jurisdictions from adopting or enforcing
local fire and panic safety ordinances inconsistent with
the regulations developed by DPH pursuant to this bill. In
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current law, health facilities are either subject to OSHPD
for plan review and enforcement of fire and panic safety
standards (hospitals and nursing facilities) or subject to
the jurisdiction of local fire marshals for this purpose
(such as clinics, congregate living facilities and
residential care facilities). The author may wish to
clarify the purpose and the effect of this local preemption
language.
d) Licensing fees . Generally the costs DPH incurs for
licensing facilities are borne by the licensees through
licensing fees. This bill does not authorize or require
DPH to establish fees to support the proposed HF licensing
program. The author may wish to address how funding and
support for licensing HFs will be provided.
REGISTERED SUPPORT / OPPOSITION :
Support
California Hospice and Palliative Care Association (sponsor)
California Catholic Conference
Professional Fiduciary Association of California
One individual
OPPOSE UNLESS AMENDED
Service Employees International Union
Opposition
None on file.
Analysis Prepared by : Deborah Kelch / HEALTH / (916) 319-2097