BILL ANALYSIS Ó
SB 135
Page 1
Date of Hearing: July 3, 2012
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
SB 135 (Ed Hernandez) - As Amended: June 19, 2012
SENATE VOTE : 31-2
SUBJECT : Hospice facilities.
SUMMARY : 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 a
free-standing health facility, or adjacent to, physically
connected to, or on the building grounds of another health
facility or a residential care facility. Specifically, this
bill :
1)Establishes a new licensure category of a "hospice facility"
defined as a facility with no more than 24 beds that is
licensed by the Department of Public Health (DPH), and is
operated by a licensed and certified provider of hospice
services. Provides that only a hospice licensed and certified
in California may apply with DPH for a hospice facility
license.
2)Requires a hospice facility to be separately licensed,
irrespective of the location of the facility. Allows a
hospice facility to operate as a freestanding health facility,
and also to be located adjacent to, physically connected to,
or on the building grounds of another health facility or
residential care facility.
3)Allows a hospice provider, that provides short-term inpatient
respite or inpatient care directly in the hospice provider's
facility prior to the effective date of regulations to
implement this bill, to continue to be licensed as a specialty
hospital, skilled nursing facility (SNF), or congregate living
health facility (CLHF).
4)Requires a hospice facility to meet the fire protection
standards set forth in the Medicare Conditions of
Participation (COP), and to meet the same building standards
as a CLHF, until of the Office of Statewide Health and
SB 135
Page 2
Planning Development (OSHPD), in consultation with the Office
of the State Fire Marshall, develops and adopts building
standards for hospice facilities.
5)Requires a hospice facility to provide evidence of compliance
with local building codes or if a hospice facility is located
adjacent to, physically connected to, or on the building
grounds of another facility to provide evidence of compliance
with building standards for the other facility if those are
more stringent.
6)Requires the hospice facility to be responsible for obtaining
criminal background checks for employees, volunteers, and
contractors in accordance with federal Medicare COP and in
accordance with state law. Further requires the hospice
facility licensee to pay the costs of obtaining a criminal
background check.
7)Requires a hospice facility to provide a home-like environment
that is comfortable and accommodating to both the patient and
the patient's visitors, and to continue to provide services to
family and friends after the patient's stay in the hospice
facility in accordance with the patient's plan of care.
8)Establishes the services and requirements required by a
hospice program to be licensed as a hospice facility.
Requires DPH to adopt regulations by January 1, 2017, to
establish these standards, and requires the regulations to
include the following:
a) Minimum staffing standards that require 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. Requires a registered nurse to be available for
consultation and able to come into the facility within 30
minutes, if necessary, when no registered nurse is on duty.
b) Patient rights provisions, mirroring the patients'
rights information provided to skilled nursing facilities,
as well as all of the following:
i) Full information regarding the patient's health
status and options for end-of-life care;
ii)
Care that reflects individual preferences regarding
SB 135
Page 3
end-of-life care, including the right to refuse any
treatment or procedure;
iii)
Treatment with consideration, respect, and full
recognition of dignity and individuality, including
privacy in treatment and care of personal needs; and,
iv)
Entitlement to visitors of the patient's choosing, at any
time the patient
chooses, and ensured privacy for those visits.
c) A disaster preparedness plan for both internal and
external disasters that protect hospice patients,
employees, and visitors.
9)Requires facilities to comply with the federal Centers for
Medicare and Medicaid Services (CMS) hospice care regulations.
Further allows DPH, until it adopts regulations to implement
this bill's provisions, to use CMS hospice care regulations
for hospice facility licensure requirements.
10)Requires a hospice facility 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 of
services by the facility or under contract with another
entity.
11)Requires DPH to establish a licensure fee for hospice
facilities. Allows the licensure fee to be equivalent to the
licensure fee of a CLHF during the first year of licensure for
hospice facilities.
12)Requires DPH to conduct a licensing inspection on each
hospice facility at least once every two years and establishes
penalties for licensing violations that are equivalent to
existing CLHF licensing violation penalties. Further
establishes penalties for medical privacy breeches that are
currently applicable to CLHFs.
13)Requires hospice facilities to report data elements such as
assets, liabilities, a statement of income, revenue by payer,
and other data elements defined in current statute.
14)Establishes several definitions, including defining an
SB 135
Page 4
"interdisciplinary team" that is to be coordinated by a
registered nurse and under medical direction. Defines
"multiple location" to mean a location or site from which a
hospice makes available basic hospice services within the
service area of the parent agency. Further defines "parent
agency" to be the part of the hospice that is licensed
pursuant to this chapter and that develops and maintains
administrative control of multiple locations. Also defines
"palliative care" as services that have the primary purpose of
preventing or relieving suffering and enhancing the quality of
life, rather than curing the disease.
15)Makes several legislative declarations related to hospice
care, including 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 that each person's preferences
about his or her end-of-life care should be considered.
EXISTING LAW :
1)Provides for the licensure and regulation of health
facilities, including hospitals, skilled nursing facilities,
and CLHFs by DPH.
2)Requires persons or agencies providing hospice services to be
licensed by DPH 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 to provide supportive care to the
primary caregiver and the family.
3)Requires, to the extent appropriate, that hospice services be
provided in the patient's home or primary place of residence,
based on the medical needs of the patient. Also requires
hospices to make arrangements for inpatient care as needed by
the patient.
4)Establishes DPH Licensing and Certification (L&C) program fees
for health facilities, including hospice.
5)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
SB 135
Page 5
expectancy is six months or less.
6)Defines a CLHF to be a residential home with a capacity of no
more than 12 beds that provides inpatient care, medical
supervision, 24-hour skilled nursing, and supportive care.
7)Provides that the primary needs of CLHF residents is for
skilled nursing care on a recurring, intermittent, extended,
or continuous basis, and provides that this care is generally
less intense than that provided in general acute care
hospitals but more intense than that provided in SNFs.
FISCAL EFFECT : According to the Senate Appropriations
Committee, this bill will result in the following costs:
1)$200,000 in fiscal year (FY) 2012-13 and $350,000 in FY
2013-14 to DPH's L&C Program Fund for DPH to promulgate
regulations;
2)Unknown costs, fully supported by licensing fees, for ongoing
DPH licensing and investigations; and,
3)Unknown costs due to potential increased Medi-Cal utilization
and potential reduced costs to Medi-Cal (costs shared 50%
General Fund, 50% federal funds).
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill
would allow a licensed and certified hospice program to
operate an inpatient facility within its hospice license. The
author states that California currently does not allow hospice
providers to operate an independent, stand-alone inpatient
hospice facility. The author maintains that approximately 95%
of all hospice care is provided to patients residing in their
own home because that is where most people wish to be. In
those instances, however, where a patient cannot remain in
their own home due to safety concerns or lack of caregivers,
hospices need the flexibility to provide their services in
facilities that are as homelike and residential as possible.
The author states that currently, hospice providers who wish to
provide inpatient hospice directly must be licensed as a CLHF,
a SNF, or a specialty hospice, none of which are consistent
with the provision of hospice care. If the hospice is
providing care in another health or residential care facility,
the hospice program can only provide hospice services, and may
SB 135
Page 6
not provide any other services to the patient. This makes the
hospice dependent on the health or residential facility for
much of the patient's care. The author believes that this can
lead to discontinuity of care in some cases.
The author states that this bill does not change the available
options, but simply adds another option. By establishing a
new category of hospice facility, hospice programs will be
able to operate their own facility with standards that are
tailored to hospice care. This will result in continuity of
care that is consistent with the patient's wishes and
appropriate for end-of-life care in a home-like environment
that permits visitors at any time of day, a safe environment
for those who may not have family or friends to provide care,
and the opportunity for patients to stay in their residential
community, if they live in a residential care setting.
2)BACKGROUND . According to the 2009 report, "Medicare Payment
Policy," by the Medicare Payment Advisory Commission, the
number of hospice providers nationally has grown substantially
in recent years. From 2001 to 2008, the total number of
hospices increased from 2,300 to 3,400, a 47% increase.
For-profit hospices grew by 128% compared with 1% in nonprofit
hospices and 25% in hospices with government ownership.
Freestanding hospices also grew significantly from 2001 to
2008, with an 87% growth rate compared to a 9% increase in
home-health-based hospices and a 2% decrease in hospital-based
hospices. Growth occurred in both rural and urban areas. In
2008, there were more than one million hospice patients
nationally and close to 87,000 hospice patients in California
paid for by Medicare.
Currently, when a hospice patient needs inpatient respite care,
most hospices must contract with a licensed health facility
such as a hospital, SNF, CLHF, 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. Some
agencies licensed as home health agencies are certified to
provide hospice services.
Thirty-five other states have a separate licensing category of
hospice facility. States without a separate licensing
category reportedly permit hospice services to be provided in
accordance with federal Medicare requirements.
SB 135
Page 7
3)HOSPICE PROGRAMS . 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 multiple settings, however, hospice must still follow the
regulations for which the facility bed is licensed. This bill
allows for the creation of hospice facilities which would 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
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.
4)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).
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
SB 135
Page 8
care; and, inpatient respite care. These rates cover all of
the services that are covered under the Medicare and Medi-Cal
benefit.
5)MEDICARE COP . 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;
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 CMS or a finding by CMS
that state fire and safety codes adequately protect hospice
patients.
6)SUPPORT . According to the sponsors of this bill, California
Hospice and Palliative Care Association (CHPCA), this bill
will permit a hospice program to operate their own facility
that serves only hospice patients. CHPCA maintains that
current law permits hospices to either contract with a
hospital, SNF, or other facility to utilize their beds for the
terminally ill, however, the need for a facility unique to
hospice is growing due to the aging of our population. CHPCA
asserts that hospice programs are experiencing decreasing
access to existing bed space in facilities with which they
would contract and the current statutory and regulatory
construct is prohibitive for a hospice program to operate a
SNF or CLHF. CHPCA argues that hospice facilities have
successfully operated in the United States since 1977 and
SB 135
Page 9
California patients should have the same access to hospice
facilities at the end of life as residents of 30 other states
enjoy.
The Alzheimer's Association (AA) writes that hospice provides
palliative care to individuals in the final phases of life.
AA maintains that hospice offers patients the ability to live
their final days with dignity in their setting of choice.
While the majority of patients remain in their home, AA
asserts that hospices need the flexibility to provide care in
facilities in instances where the individual can no longer
stay in their home. AA argues that under current law, a
licensed hospice that chooses to build and operate a
free-standing facility must obtain two separate licenses: a
hospice license and a license for the place of service, be it
a SNF, hospital, or CLHF. AA maintains that by creating a new
health facility licensing category, this bill will increase
efficiencies for both state and hospice providers and expand
the available options to terminally ill patients and their
families.
7)OPPOSITION . The California Nurses Association (CNA) questions
the necessity of this bill, given the variety of settings
currently available for hospice patients to receive care. CNA
states they are concerned about the staffing standards
established under this bill, and believe any staffing ratio
proposed for hospice patients should be based on the acuity
levels and minimum staffing needs of hospice patients and not
based on the costs to provide that level of care. CNA also
argues there must be a timeline implementing the regulations
and believes that standards for hospice facilities should be
thoroughly vetted with adequate stakeholder input and analysis
by DPH through the regulatory process.
The California Advocates for Nursing Home Reform (CANHR) write
in opposition that California already has over 320 licensed
hospice programs in the state, in addition to eight hospice
licensed as CLHF and another 1,600+ RCFEs that have hospice
programs. Thus, hospice services can currently be provided in
any setting under existing regulations, and California already
has the capacity to expand existing hospice services without a
new license category. CANHR argues that California consumers
would be better served by allocating limited state funds and
administrative resources to ensuring that current hospice
programs are providing adequate care and that they are meeting
SB 135
Page 10
state and federal licensing and certification standards.
8)RELATED LEGISLATION . SB 177 (Strickland), Chapter 331,
Statutes of 2011 raises the bed limit for congregate living
health facilities that serve terminally ill patients in
counties that have populations of more than 400,000 but less
than 500,000 persons.
9)PRIOR LEGISLATION .
a) AB 950 (Hernandez) of 2010 was substantially similar to
this bill. AB 950 died in Senate Appropriations Committee.
b) AB 2523 (Nava) of 2010 in its final amended form would
have made the same changes as SB 177. AB 2523 died in
Senate Rules Committee.
c) SB 1164 (Corbett) of 2010 would have required the
definition of a CLHF to include facilities that provide
services to children who have a diagnosis of terminal
illness or a diagnosis of life-threatening illness. SB
1164 was held in Senate Health Committee.
d) SB 666 (Aanestad), Chapter 443, Statutes of 2005,
increases the capacity of a CLHF from no more than six beds
to no more than 12 beds. Maintains an exception to allow
CLHFs which serve terminally ill patients and which are
located in counties with 500,000 or more persons to have 25
beds.
e) AB 68 (Polanco), Chapter 1393, Statutes of 1989,
establishes a third category of CLHFs, to serve persons who
are catastrophically and severely disabled, which were
allowed to have 12 beds in counties with more than 500,000
persons.
f) AB 4536 (Polanco), Chapter 1478, Statutes of 1988,
creates a second category of CLHFs, to provide 24-hour
inpatient care to terminally ill patients. These
facilities were allowed to have 25 beds in counties which
have a population of 500,000 or more persons.
g) AB 3535 (Wright), Chapter 1459, Statutes of 1986,
creates the CLHF licensure category, and defines a CLHF as
a residential home with a capacity of no more than six
beds, which provides inpatient care to mentally alert,
SB 135
Page 11
physically disabled residents, who may be ventilator
dependent.
10)TECHNICAL AMENDMENT . On Page 16, lines 24 and 26 the author
may wish to amend this section to provide clarification
regarding the hospice licensure fee as follows:
1266(b) (2) (B) In the first year of licensure for hospice
facilities, the licensure fee shall be equivalent to the
licensure fee for congregate living health facilities during
the same that year . Thereafter, the licensure fee for hospice
facilities shall be established pursuant to subdivision (c)
and (d) this section.
REGISTERED SUPPORT / OPPOSITION :
Support
California Hospice and Palliative Care Association (sponsor)
Alzheimer's Association
California Association of Physician Groups
Roze Room Hospice
Opposition
California Nurses Association
California Advocates for Nursing Home Reform
One Individual
Analysis Prepared by : Tanya Robinson-Taylor / HEALTH / (916)
319-2097