BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1228
AUTHOR: Alquist
INTRODUCED: February 23, 2012
HEARING DATE: April 25, 2012
CONSULTANT: Marchand
SUBJECT : Small house skilled nursing facilities.
SUMMARY : Adds "small house skilled nursing facility" (SHSNF),
as defined, to the skilled nursing facility (SNF) category of
facilities licensed by the Department of Public Health (DPH),
and permits an SHSNF to be licensed by DPH beginning on January
1, 2014, if the SHSNF meets specified requirements.
Existing law:
1.Provides for the licensure of health facilities, including
SNFs, by DPH.
2.Defines "SNF" as a health facility that provides skilled
nursing care and supportive care to patients whose primary
need is for availability of skilled nursing care on an
extended basis.
3.Requires the Office of Statewide Health Planning and
Development (OSHPD), under the Alfred E. Alquist Hospital
Facilities Seismic Safety Act, to assume responsibility for
the enforcement of all building standards related to hospital
buildings, including SNFs.
Existing regulations:
1.Further define "SNF" as a facility providing 24-hour inpatient
care and, at a minimum, includes physician, skilled nursing,
dietary, and pharmaceutical services and an activity program.
2.Require each SNF licensed for 59 or fewer beds to have at
least one registered nurse or a licensed vocational nurse,
awake and on duty, in the facility at all times, day and
night.
3.Require each SNF to employ sufficient nursing staff to provide
a minimum of 3.2 nursing hours per patient day. Requires this
staffing ratio to only include direct caregivers, which is
defined to include registered nurses, licensed vocational
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nurses, psychiatric technicians, or certified nurse
assistants, who are performing nursing services.
4.Specify that while all SNFs are required to maintain
compliance with licensing requirements, these requirements not
to prohibit the use of alternate concepts, methods,
procedures, techniques, equipment, personnel qualifications or
the conducting of pilot projects, as long as such exceptions
have prior written approval of DPH.
This bill:
1.Adds SHSNFs, as defined, to the SNF category of facilities
licensed by DPH, and permits an SHSNF to be licensed by DPH
beginning on January 1, 2014, if the SHSNF meets specified
requirements.
2.Defines "SHSNF" as a SNF that is either a stand-alone home or
that consists of more than one home, licensed pursuant to the
provisions of this bill, for the purposes of providing skilled
nursing care in a home-like, noninstitutional setting.
3.Defines "home" for purposes of a SHSNF as an apartment, home,
or other similar unit that serves 10 or fewer residents.
4.Defines "versatile worker," for purposes of SHSNF licensing
requirements, as a certified nursing assistant who provides
personal care, socialization, meal preparation services, and
housekeeping services. Requires the SHSNF, to the extent
permitted under federal law, to utilize versatile workers for
purposes of resident care.
5.Requires the SHSNF to be certified to participate as a
provider of care either as a SNF under the federal Medicare
Program or as a nursing facility under the federal Medicaid
Program.
6.Requires the SHSNF to comply with all state laws and
regulations that govern SNFs, except to the extent that those
laws and regulations are inconsistent with the provisions of
this bill. Specifies that the provisions of this bill
supersede any conflicting state law or regulation.
7.Requires the SHSNF, to the extent permitted under federal law,
to provide meals cooked on the premises of each home, and not
prepared in a central kitchen and transported to the home.
8.Requires the SHSNF to meet all federal and state direct-care
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staffing requirements for SNFs, or no less than four hours per
resident per day, whichever is greater. Requires all direct
care staff to be onsite, awake, and available within each home
at all times.
9.Requires the SHSNF to provide for consistent staff assignments
and self-directed work teams of direct care staff supervised
by a leadership team member who is not acting as a nurse or
nursing supervisor in the home.
10.Requires the SHSNF to provide training for all staff for not
less than 120 hours for each versatile worker and not less
than 60 hours for each leadership and clinical team member, to
be completed prior to initial operation of the home,
concerning the philosophy, operations, and skills required to
implement and maintain self-directed care, self-managed work
teams, and a noninstitutional approach to long-term care,
among other elements. Requires replacement staff to undergo
the training within six weeks of employment, and exempts staff
employed on a short-term, temporary basis.
11.Requires the SHSNF, to the extent permitted under federal
law, to ensure that the percentage of residents in each
facility who are short-stay rehabilitation residents does not
exceed 20 percent at any time. Exempts long-term residents
returning to a facility after a hospital stay who are
receiving rehabilitation services under the Medicare Program
from counting toward this limitation, and specifies that this
limitation does not apply to a SHSNF that is licensed solely
to provide rehabilitation services.
12.Requires the SHSNF, to the extent permitted under federal
law, to consist of a home-like, rather than institutional,
environment, including having the following characteristics:
a. The home is accessible to disabled persons, and is
designed as a house or apartment that is similar to housing
available in the surrounding community, and that includes
shared areas that would only be commonly shared in a
private home or apartment;
b. The home does not, to the extent practicable, contain
institutional features, such as nursing stations,
medication carts, room numbers, and wall-mounted licenses
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or certificates;
c. The home includes private, single-occupancy bedrooms
that are shared only at the request of a resident to
accommodate a spouse, partner, family member, or friend,
and that contain a full private and accessible bathroom;
d. The home contains a living area where residents and
staff socialize, dine, and prepare food together that
provides, at a minimum, a living room seating area, a
dining area large enough to accommodate all residents and
at least two staff members, and a full kitchen that may be
utilized by residents;
e. The home contains ample natural light with window areas,
not including skylights, being a minimum of 10 percent of
the area of each room;
f. The home has built-in safety features to allow areas of
the facility to be accessible to residents during the
majority of the day and night; and
g. The home provides access to secured outdoor space.
13.Requires DPH, within two months of receipt of a license
application, to notify the applicant of any information
necessary to process the application, and requires DPH to
review each application and render a decision within six
months.
14.Requires DPH and OSHPD, using resources available as of
January 1, 2013, to consult with NCB Capital Impact (NCB) on
the physical, operational, and other aspects of SHSNFs.
15.Requires DPH to adopt regulations to implement this bill.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. According to the author, SHSNFs
implementing the core practices outlined in this bill are an
important development in long-term care options that many
consumers, family, and staff prefer to traditional settings.
The author states that they also deliver better clinical
outcomes, more direct-care time, and greater resident
engagement at the same operating cost as traditional nursing
homes. The author asserts that this deep culture change model
of small house nursing homes is proliferating in many states
and meets all federal nursing home certification requirements.
Unfortunately, these homes are difficult to develop in
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California under current state requirements, and California's
current statutory and regulatory framework did not anticipate
this significant innovation.
According to the author, SHSNFs following the practices outlined
in this bill currently require multiple agency interpretations
and waivers to move forward in California. These
interpretations and waivers add a great deal of time and
expense to implementation - both for the provider
organizations and the state agencies involved. This additional
time and expense discourages their development and deprives
California residents of this important option.
The author states that this bill would create a new health
facility licensing category to assist the development of
SHSNFs implementing the core practices that research has shown
to reliably deliver improved satisfaction, quality and cost
outcomes.
2.The Green House concept. This bill is sponsored by NCB, which
has established The Green House Project, funded by the Robert
Wood Johnson Foundation, to help spur replication of The Green
House concept. NCB describes The Green House concept as an
innovative model for residential long-term care that involves
a total rethinking of the philosophy of care, architecture,
and organizational structure normally associated with
long-term care.
According to NCB, a Green House home is an independent,
self-contained home for six to 12 people (though this bill
limits the number of beds to 10), designed to look like a
private home or apartment in the surrounding community. NCB
states that Green House homes are typically licensed as SNFs
and meet all applicable federal and state regulatory
requirements. Each home is staffed by a team of universal
workers, who have core training as Certified Nurse Assistants
(CNA), plus extensive training in The Green House philosophy,
the self-managed work team structure of The Green House home,
culinary skills, and household management. These CNAs provide
personal care, meal preparation, and light housekeeping and
laundry, among other duties.
According to the author, Green House homes are currently
operating in 21 states. The author states that one California
nursing home provider has been working for three years to
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implement the Green House model, but the provider has
experienced significant delays and added costs because the
Green House model does not fit well with California's current
law.
3.Support. This bill is sponsored by NCB Capital Impact (NCB),
which states that this bill will allow Californians access to
the proven benefits of SHSNFs following Dr. William Thomas'
Green House model. NCB states that current California nursing
home regulations were written for institutional care
approaches, which are not considered to be best practice
today. While California regulations have been incrementally
updated over the years, NCB states that their institutional
origins still pervade SNF requirements and impede best
practices of small home operations and environments.
Mt. San Antonio Gardens (Mt.SAG) also supports this bill, and
states that after operating an SNF in California for more than
fifty years, in recent years it concluded that a
patient-centered de-institutionalized approach to skilled
nursing is a vastly superior way to care for our most frail
residents. Mt.SAG states that after much investigation, it
chose to develop two Green Houses on its existing campus
because it had been extensively tested and proven to be
effective. Mt.SAG states that it has actively pursued approval
to build and operate Green Houses since 2008, meeting and
negotiating with numerous representatives from several
departments at the local and state level, but it has struggled
to obtain approval. Every proposed modification or alternative
suggested has resulted in multiple meetings, countless
clarifications, and several revisions. While Mt.SAG states
that it is close, it still does not have final approval.
Mt.SAG also points out that others will not benefit from their
intense effort because much of its approval will be based on
program flexibility and hence, will be non-transferable.
The California Commission on Aging is also in support, stating
that The Green House model of long-term care has set the
standard across the nation for small, person-centered nursing
home care. This bill opens the door for expanding this
innovative model in California.
4.Support with amendments. Aging Services of California (Aging
Services) writes that while it appreciates that the SHSNF
concept is being brought to the attention of the Legislature,
it states that this bill, as introduced, is counter-productive
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to advancing the SHSNF concept. Many other organizations have
demonstrated that the commitment to the "artifacts" of the
small house concept can be replicated in a variety of ways.
Aging Services also states that this bill requires SHSNFs to
be Medicare/Medicaid certified in order to be licensed, but
that under federal law, Medicare/Medicaid certification occurs
after a facility is licensed by the state.
Aging Services states that this bill fails to recognize the
progress made in California in addressing SHSNF issues. Aging
Services points the California Culture Change Coalition that
has been operating since 2006, composed of consumers,
providers, advocates, and personnel from DPH and OSHPD.
Additionally, Aging Services states that it joined forces in
2005 with the California Association of Health Facilities to
form the Care Delivery and Design Improvement Committee to
systematically review state rules and regulations affecting
the construction of SNFs. This committee includes
representatives from OSHPD and DPH, among others, and Aging
Services asserts that this committee's work led to the new
household model regulations adopted by OSHPD.
Finally, Aging Services states that it appreciates good faith
efforts made by OSHPD and DPH to address issues slowing down
the development of SHSNFs and that this bill demeans those
efforts and would limit California to only one SHSNF model.
While Aging Services states that the Green House is a good
model, one size does not fit all, and other good models are
available.
5. Policy comments.
a. Preemption language too broad? This bill requires the
SHSNF to comply with all state laws and regulations that
govern SNFs, except to the extent that those laws and
regulations are inconsistent with the provisions of this
bill. This bill goes on to specify that the provisions of
this bill supersede any conflicting state law or
regulation.
Some provisions of this bill are clearly in conflict with
requirements that existing SNFs must meet, and therefore
this bill would supersede those requirements. For example,
existing regulations for SNFs require a nursing station to
be maintained in each nursing unit or building, and that
certain consumer information, such as the administrator's
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license, be conspicuously posted in a prominent location
accessible to the public. This bill, on the other hand,
requires SHSNFs, to the extent practicable and permissible
by federal law, to have certain noninstitutional
characteristics, including not containing nursing stations
or wall-mounted licenses.
According to the sponsor, one example of the conflict is the
food service approach. NCB states that current regulations
do not support preparing and cooking food in open kitchens
in the homes with assistance from the residents (if they
desire). NCB states that cooking the food in the house is a
key practice in small homes committed to full
person-directed care, as it allows flexibility in schedules
to meet personal preferences.
However, it is unclear where there might be other conflicts
between this bill and the various requirements for SNFs,
such as the building code and seismic safety requirements
for health facilities. Because this bill states that the
provisions of this bill "supersede any conflicting state
law or regulation," the Committee should consider whether
this broad exemption is appropriate.
a. Directing state agencies to consult with sponsor. This
bill requires DPH and OSHPD, using resources available as
of January 1, 2013, to consult with NCB on the physical,
operational, and other aspects of SHSNFs. According to its
website, NCB is a national nonprofit organization and a
certified Community Development Financial Institution. The
website states that NCB improves access to high-quality
health and elder care, healthy foods, housing, and
education in low-income communities.
Rather than direct state agencies to consult with a
particular organization, it may be more appropriate to
simply require DPH and OSHPD to work with providers,
employee organizations, consumer advocates and other
interested stakeholders.
b. New household model SNF regulations adopted by OSHPD.
Last year, OSHPD adopted new household model SNF
regulations that will become effective on July 1, 2012.
According to OSHPD, these regulations were promulgated by
OSHPD in response to the "culture change movement." OSHPD
developed the building standards in conjunction with a
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committee of stakeholders and proponents of culture change
with the assistance of the Florida Agency for Health Care
Administration (OSHPD's equivalent in Florida). OSHPD
based the new building regulations on the residential
household model standards proposed for use in Florida.
These household model regulations provide for a
cluster/household resident unit, which is designed around
resident support and living areas with a maximum of 20
patients per cluster/household unit, which is permitted to
be grouped into distinct parts or neighborhoods to a
maximum of 60 patients. These regulations go on to
specify, in detail, requirements for resident rooms,
resident support areas, areas for medicine preparation,
etc.
In an ongoing effort to encourage use of the newly adopted
standards, OSHPD is hosting meetings with a stakeholder
group of skilled nursing providers, architects and culture
change proponents.
SUPPORT AND OPPOSITION :
Support: NCB Capital Impact (sponsor)
California Commission on Aging
Mt. San Antonio Gardens
Oppose: None received.
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