BILL ANALYSIS                                                                                                                                                                                                    






                                   SENATE HEALTH
                                 COMMITTEE ANALYSIS
                          Senator Elaine K. Alquist, Chair


            BILL NO:       AB 950                                       
            A
            AUTHOR:        Hernandez                                    
            B
            AMENDED:       June 3, 2010                                
            HEARING DATE:  June 30, 2010                                
            9
            CONSULTANT:                                                 
            5
            Dean/                                                       
            0
                                          

                                       SUBJECT
                                           
                   Hospice providers: licensed hospice facilities

                                       SUMMARY  

            This bill establishes a new health facility licensing  
            category of hospice facility, and permits a licensed and  
            certified hospice services provider to provide inpatient  
            hospice services through the operation of a hospice  
            facility, either as free-standing health facility, or  
            adjacent to, physically connected to, or on the building  
            grounds of another health facility or a residential care  
            facility.

                               CHANGES TO EXISTING LAW  

            Existing law:
            Existing law provides for the licensure and regulation by  
            the Department of Public Health (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  
            an individual diagnosed with a terminal illness, and  









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            provide supportive care to the primary caregiver and the  
            family.

            Existing law requires that, to the extent appropriate,  
            hospice services are provided in the patient's home or  
            primary place of residence, based on the medical needs of  
            the patient.  Existing law also requires hospices to make  
            arrangements for inpatient care as needed by the patient.

            Existing law establishes DPH Licensing and Certification  
            (L&C) program fees for hospices and health facilities.

            This bill:
            This bill establishes a new category of hospice facility to  
            be licensed by DPH L&C, through which a licensed and  
            certified hospice provider would provide inpatient care to  
            hospice patients.  The bill requires the hospice facility  
            licensure fee to be equivalent to the licensure fee for a  
            congregate living health facility (CLHF) in the first year  
            of hospice facility licensure, and to be set thereafter  
            pursuant to state law that establishes fees based on DPH  
            L&C costs. 

            This bill establishes minimum requirements for services  
            that a hospice facility must provide to its patients,  
            including minimum nursing staff hours, direct care  
            staff-to-patient ratios, inclusion of palliative care  
            services, patient rights, and disaster preparedness, among  
            other requirements.

            This bill requires DPH to adopt regulations that establish  
            the standards for the provision of these minimum services.   
            Until DPH adopts regulations, this bill permits DPH to use  
            the federal Medicare Conditions of Participation for  
            Hospice Programs, set forth in Title 42 of the Code of  
            Federal Regulations Section 418 et seq., as the basis for  
            hospice facility licensure.

            This bill requires the hospice facility to meet fire  



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            protection standards set forth in the federal Medicare  
            Conditions of Participation for Hospice Programs.  The bill  
            also requires hospice facilities to meet the same local  
            building code standards as congregate living health  
            facilities (CLHFs), as defined in the California Health and  
            Safety Code.

            This bill requires hospice facility regulations adopted by  
            DPH to apply uniformly throughout the state, and prohibits  
            local jurisdictions from adopting or enforcing local rules  
            and regulations that are inconsistent with the rules and  
            regulations of hospice facilities.

            This bill requires hospice facility licensees to obtain and  
            pay for the criminal background checks for employees,  
            volunteers, and contractors in accordance with federal  
            Medicare Conditions of Participation regulations, and as  
            may be required by state law.

                                    FISCAL IMPACT  

            According to the Assembly Committee on Appropriations  
            analysis of a prior but similar version of the bill, the  
            fiscal impact was estimated to include one-time  
            fee-supported special fund costs of $250,000 to DPH to  
            promulgate regulations and to license 5 to 10 free-standing  
            hospice facilities.  The analysis also stated that there  
            were unknown potential savings to Medi-Cal to the extent  
            that patients would shift from inpatient medical  
            intervention-heavy settings to hospice.

                              BACKGROUND AND DISCUSSION  

            Purpose of bill
            According to the author, when hospice services are provided  
            within another licensed health, or residential care  
            facility, the hospice provider is dependent on the licensed  
            health, or residential care, facility for much of the  
            patient's care, which can lead to discontinuity of care.   



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            According to California Hospice and Palliative Care  
            Association (CHAPCA), the sponsor of this bill, hospice  
            providers must contract with other licensed facilities to  
            provide inpatient hospice care which can create conflicts  
            in regulatory oversight and philosophies of care.   
            According to the author, this bill would allow a licensed  
            and certified hospice program to operate a licensed hospice  
            facility under a new licensing category.  The author  
            contends that the new hospice facility license category  
            would create another option for patients, and would allow  
            hospice programs to operate their own facility with  
            standards that are unique to hospice care.  Furthermore,  
            the author asserts that the bill maintains the portability  
            of hospice services, which would continue to be available  
            to patients in their own homes or within other licensed  
            facilities.
             
            Hospice
            Hospice services include four levels of care - routine home  
            care, continuous home care, inpatient respite care, and  
            general inpatient care - that are provided to its patients,  
            caregivers, and family members.

            Routine home care and continuous home care can be provided  
            in the hospice patient's home, which can include a licensed  
            health or residential care facility through a contract with  
            a hospice program.

            Currently, when a hospice patient in California needs  
            inpatient respite care because the patient's caregiver  
            needs a short break, most hospices must contract with a  
            licensed health facility (hospital, skilled nursing  
            facility or congregate living health facility) or with a  
            licensed residential care facility for the elderly (RCFE),  
            which is licensed by the Department of Social Services  
            (DSS) and which has a Hospice Waiver from DSS in order to  
            provide these services.  

            When a hospice patient needs general inpatient care due to  



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            the need for 24 hour pain control and symptom management,  
            hospices generally must contract with a licensed health  
            facility.  RCFEs are prohibited under their Hospice Waiver  
            from having general inpatient hospice patients, due to the  
            high acuity level of these patients.

            According to the author and sponsor, the provision of  
            hospice care within other licensed facility settings leads  
            to confusion and a lack of assurance that quality  
            end-of-life care is being provided to patients in need of  
            inpatient care.

            Current inpatient hospice settings in California
            While a specific hospice facility license does not  
            presently exist in California, several licensed and  
            certified hospice programs currently own and operate  
            inpatient facilities, licensed by DPH under a Special  
            Hospital:  Hospice license, or a congregate living health  
            facility license. The Special Hospital: Hospice license  
            category was established in 1980 as a pilot project to  
            determine the need of hospice patients for acute inpatient  
            hospital care.  According to CHAPCA, at least one hospice,  
            San Diego Hospice, owns and operates a 24-bed inpatient  
            facility under this license category.  According to DPH, 11  
            hospice programs operate inpatient facilities throughout  
            California under the Congregate Living Health Facility  
            (CLHF) license category.

            CLHFs provide inpatient care to persons who are diagnosed  
            with a terminally illness or a life-threatening illness,  
            who are catastrophically and severely disabled, and/or who  
            are mentally alert but physically disabled within a  
            non-institutional, homelike residential setting.  The care  
            is generally less intense than that provided in general  
            acute care hospitals but more intense than that provided in  
            skilled nursing facilities.

            CLHFs that are operated by a city or county are permitted  
            to have a maximum of 59 beds.  



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            CLHFs that are not operated by a city or county are  
            permitted to have a maximum of 12 beds, or if the CLHF is  
            located in a county with a population of 500,000 or more,  
            25 beds is the maximum number permitted.
            
            According to CHAPCA, CLHFs and other licensed facilities  
            are subject to various regulations that are inconsistent  
            with the hospice philosophy of care.  CHAPCA further  
            asserts that the CLHF license bed limit requirement and the  
            requirement that CLHFs can only be freestanding, make  
            operating an inpatient facility cost-prohibitive under this  
            license category.

            Related bills
            SB 1164 (Corbett) requires the definition of congregate  
            living health facility to include facilities that provide  
            services to children who have a diagnosis of terminal  
            illness or a diagnosis of life-threatening illness.  In  
            Senate Health Committee, put over at the request of the  
            author.

            Prior legislation
            AB 1142 (Salas) of 2007 requires the Department of Public  
            Health to select and distribute end-of-life and palliative  
            care model programs to nursing home and residential care  
            for the elderly facilities.  Vetoed by the Governor.
            
            AB 892 (Alquist), Chapter 528, Statutes of 1999, requires  
            all health plans to offer as an explicit hospice benefit,  
            that patients may elect to receive care in a licensed,  
            certified hospice program. Requires reimbursement and  
            services for this benefit to be equal to that provided by  
            Medicare.

            Arguments in support
            Vitas Innovative Hospice Care supports this bill because  
            providing inpatient hospice care within other licensed  
            facilities is limiting and incongruent to what hospice  
            patients need and want at their end of life.  According to  



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            Vitas, the bill would allow hospices to operate more  
            appropriately sized facilities under a comprehensive set of  
            federal regulations that are specific to hospice.  Hospice  
            of the Valley and Pathways Home Health and Hospice support  
            this bill because they state it would expand the choices  
            available to terminally ill patients and would ensure that  
            patients receive palliative and comfort care in a homelike  
            setting, instead of care within a hospital or skilled  
            nursing facility that focuses on curative treatment and  
            rehabilitation.  Hoffman Hospice and Hospice of Santa Cruz  
            County support the bill because it would save money by  
            keeping terminally ill patients out of hospitals.  Cottage  
            Health System supports this bill because hospices need  
            flexibility to provide services in their own homelike  
            facilities, especially when a patient cannot remain at home  
            due to unsafe conditions or lack of a caregiver.

            Arguments in opposition
             The Service Employees International Union (SEIU) opposes  
            this bill unless amended to conform with existing seismic  
            safety law.  According to SEIU, the bill should require  
            that hospice facilities comply with seismic safety under  
            OSHPD to assure that these facilities where patients stay  
            overnight will not collapse in an earthquake.  The  
            California Nurses Association (CNA) also opposes the bill  
            for exempting hospice facilities from seismic safety and  
            other building standards under OSHPD.  CNA further states  
            that the bill does not adequately address scope of practice  
            conflicts for licensed vocational nurses, improperly bases  
            staffing ratios on CLHF patients instead of hospice  
            facility patients, and indefinitely substitutes federal  
            regulations for state regulations.

                                           
                                   PRIOR ACTIONS

                        (Reflects prior versions of the bill)
            Assembly Floor:          70-4
            Assembly Appropriations: 17-0



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            Assembly Health:         17-0

                                       COMMENTS
             
            1.  Exemption from OSHPD Review of Facility Construction  
            Plans and Seismic Safety Standards
            This bill exempts all hospice facilities from OSHPD review  
            of renovation or new construction plans, and from  
            compliance with seismic safety standards.

             OSHPD Review of Facility Construction Plans
             OSHPD is responsible for overseeing all aspects of health  
            facility construction and renovation in California, with  
            some limited exceptions.  This bill requires a hospice  
            facility to comply with local building codes rather than  
            OSHPD building standards.  In order for the hospice  
            facility to ensure the safety of its terminally ill  
            patients, staff recommends amendments to:
               a.   Require a freestanding hospice facility above a  
                 certain size to submit plans for new construction and  
                 renovation to OSHPD for review; 
               b.   Allow a hospice facility to co-locate only with  
                 another licensed health facility, not a residential  
                 care facility; and,
               c.   Require a hospice facility that co-locates with a  
                 health facility regulated by OSHPD to submit plans for  
                 new construction and renovation to OSHPD for review.

             Compliance with Seismic Safety Standards
             OSHPD is responsible for ensuring the seismic safety of  
            hospital buildings containing patients who have less than  
            the capacity of normally healthy persons to protect  
            themselves in the event of an earthquake.  This bill  
            exempts a hospice facility, which would be licensed to  
            treat terminally ill patients with high acuity levels, from  
            complying with seismic safety standards.  Staff recommend  
            amendments to: 
                 a.     Require a hospice facility to comply with  
                   seismic safety standards with exemption for the  



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                   following type of hospice facility:
                    1)        A freestanding hospice facility that has  
                      15 beds or fewer and that is a single-story,  
                      wood-frame, or light steel frame building.

            2.  Minimum staffing
            This bill requires DPH to establish minimum staffing  
            standards that mandate at least one licensed nurse to be on  
            duty 24-hours per day and a maximum of six patients at any  
            given time per direct care staff person.  The minimum nurse  
            staffing standards within a CLHF require at least one  
            registered nurse to be awake and on duty for 8 hours per  
            day, 5 days per week, and a registered nurse or licensed  
            vocational nurse to be awake and on duty at all times.  In  
            order to ensure adequate staffing within the hospice  
            facility, staff suggest amendments to: 
                 a.     Require the same nurse staffing standards as a  
                   CLHF, at a minimum; and
                 b.     Define direct care staff person as a registered  
                   nurse, licensed vocational nurse, certified nurse  
                   assistant, or home health aide who is also a  
                   certified nurse assistant.
            
            3.  Patient rights
            This bill requires DPH to establish certain patient rights,  
            including full information regarding health status and  
            options for end-of-life care, the right to refuse  
            treatment, the right to treatment with dignity and respect,  
            and the right to visitors of the patient's choice.  Since,  
            under certain circumstances, a patient treated within a  
            hospice facility could be subject to room and board and  
            other costs not covered by insurance, Medicare, or  
            Medi-Cal, the author should amend the bill to ensure that  
            patient rights include the right to full disclosure of  
            hospice options, and adequate notice of any out-of-pocket  
            costs that a patient may incur as a patient in a hospice  
            facility.
            
            4.  Bed limit



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            This bill does not limit the number of beds for a hospice  
            facility, but requires the hospice facility to provide a  
            home-like environment that is comfortable and accommodating  
            to both the patient and the patient's visitors.  In order  
            to ensure a home-like environment, staff suggest amendments  
            to state that a licensed hospice facility shall be  
            non-institutional and shall not exceed 36 beds.

            5.  DPH regulations
            This bill requires DPH to adopt regulations that govern the  
            provision of services by a hospice facility, and permits  
            DPH to use federal Medicare Hospice Conditions of  
            Participation regulations as the basis for hospice facility  
            licensure until such time as DPH promulgates regulations.   
            Since state regulations protect the health and safety of  
            Californians, staff suggest amendments to specify a date by  
            which DPH shall develop regulations.  DPH should also be  
            required to use federal Medicare Hospice Conditions of  
            Participation regulations as the basis for hospice facility  
            licensure until DPH promulgates regulations.

            6.  Sunset date and limited number of licenses
            This bill creates a new "hospice facility" license category  
            that has never been tested or analyzed in California.   
            Because this is a new facility category in California with  
            no clear state precedent, staff suggests that the bill be  
            structured to contain a sunset date of eight years, to cap  
            the number of licenses to be issued by DPH L&C during the  
            first four years at twenty-four, and, after the first four  
            years, to require DPH L&C to prepare an evaluation of  
            licensed hospice facilities, to paid for by hospice  
            facility license fees.
             
                                     POSITIONS  
                                          
            Support:  California Hospice and Palliative Care  
            Association (CHAPCA)
                              Aging Services of California
                   California Catholic Conference, Inc.



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                   Cottage Health System
                   Hoffman Hospice
                   Hospice of Santa Cruz County
                   Hospice of the Valley
                   Pathways Home Health and Hospice
                   Vitas Innovative Hospice Care
                   Several individuals

            Oppose:  California Nurses Association
                             Service Employees International Union,  
            California


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