BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   March 29, 2016


                            ASSEMBLY COMMITTEE ON HEALTH


                                   Jim Wood, Chair


          AB 2341  
          (Lackey) - As Introduced February 18, 2016


          SUBJECT:  Health facilities:  special services.


          SUMMARY:  Authorizes licensees of nursing facilities (NFs) and  
          skilled nursing facilities (SNFs) to provide special services  
          under specified conditions without regulatory authorization by  
          the Department of Public Health (DPH).  Specifically, this bill:



          1)Authorizes licensees of NFs and SNFs to seek approval from DPH  
            to provide special services without the need for the  
            development of regulations by DPH, if the licensee can  
            demonstrate that the special service will operate in  
            accordance with a minimum standard of quality of care, as  
            specified.  Requires all approved special services to be  
            listed on the facility license.

          2)Requires DPH to revoke approval for a NF or SNF to provide a  
            special service if the facility fails to meet a minimum  
            standard of quality of care.



          3)Requires a NF or SNF licensee applying for DPH approval to  
            provide a special service to submit the following information  








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            to DPH:



             a)   A completed DPH application form, and any additional  
               information requested by DPH, which clearly defines the  
               scope of the special service proposed to be provided;

             b)   The hours of operation for the special service;



             c)   Information on the population to be served by the  
               special service, i.e., solely to the residents of the  
               facility or also on an outpatient basis;



             d)   A copy of the special service policies and procedures  
               for review and approval;



             e)   The minimum staffing levels and qualifications for the  
               proposed special service, sufficient to meet the needs of  
               the residents and patients;



             f)   Information on the equipment and supplies necessary to  
               meet the needs of residents and patients receiving the  
               special service care; 



             g)   Information regarding the space within the facility in  
               which the special service will be provided and prohibits  
               outpatient special services to be provided in a space that  
               would require outpatients to pass through areas where  








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               resident sleeping rooms are located; and, 





             h)   Confirmation of compliance with relevant building,  
               zoning, and fire safety standards.  



          








          EXISTING LAW:  



          1)Establishes DPH, which, among other things is responsible for  
            licensing, regulating and inspecting certain health  
            facilities.



          2)Defines "special service" as part of a health facility that is  
            organized, staffed, and equipped to provide a specific type of  
            patient care for which DPH has developed regulations and  
            established special standards for quality for care.

          3)Specifies that "special service" does not include a part of a  
            NF that provides inpatient physical therapy services,  
            occupational therapy services, or speech pathology and  
            audiology services to residents of the facility if the  








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            services are provided solely to meet federal Centers for  
            Medicare and Medicaid Services (CMS) certification  
            requirements.



          4)Authorizes NFs to provide physical therapy, occupational  
            therapy, speech pathology, and audiology services to  
            outpatients as special services.



          5)Authorizes DPH to evaluate a NF and SNF's compliance with  
            state and federal therapy requirements during inspections.



          6)Requires a health facility to apply to DPH for a special  
            permit, in addition to a license, in order to be authorized to  
            provide one or more special services, including radiation  
            therapy department, burn center, emergency center,  
            hemodialysis center or unit, psychiatric, intensive care  
            newborn nursery, cardiac surgery, cardiac catheterization  
            laboratory, renal transplant, and other special services as  
            DPH has established by regulation.



          7)Requires DPH to only approve a special permit after it has  
            determined that the health facility has met the standards of  
            quality of care established via regulation by DPH.



          FISCAL EFFECT:  This bill has not yet been analyzed by a fiscal  
          committee.


          COMMENTS:  








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          1)PURPOSE OF THIS BILL.  According to the author, with the aging  
            of the baby boomer population, there will be a significant  
            increase in the number of individuals who require long-term  
            care (LTC) services, including skilled nursing.  The author  
            points to a recent report by the California HealthCare  
            Foundation which suggests that the demand for LTC beds in SNFs  
            and NFs may exceed supply by 2030.  The author contends that  
            the increase in population will be a particular challenge for  
            SNFs and NFs in rural areas, and those rural communities would  
            benefit from the ability to have SNFs and NFs transition to be  
            a focal point for health care services.  The author concludes  
            that this bill provides SNFs and NFs with the flexibility  
            necessary to be innovative in their provision of care to  
            residents and increases access to care.
          
          2)BACKGROUND.



             a)   Nursing Home Services.  There are existing certified NFs  
               in California which provide services to 350,000 residents  
               annually.  NFs and SNFs typically provide the next highest  
               level of care to patients outside of a hospital, including  
               physical therapy, intravenous injections, and speech  
               language pathology services.  LTC facilities in California  
               are licensed, regulated, inspected, and/or certified by a  
               number of public and private agencies at the state and  
               federal levels, including the DPH Licensing and  
               Certification Program and CMS.  These agencies have  
               separate, yet sometimes overlapping, jurisdictions.  DPH is  
               responsible for ensuring health care facilities comply with  
               state laws and regulations.  In addition, DPH cooperates  
               with CMS to ensure that LTC facilities accepting Medicare  
               and Medi-Cal (California's Medicaid program) payments meet  
               federal requirements.
             








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               In 1987 the federal Omnibus Budget Reconciliation Act was  
               implemented, under which to be federally certified and meet  
               Medicare and Medicaid requirements, a SNF must offer  
               physical therapy, occupational therapy, and speech  
               pathology.  Medicare certification surveyors annually  
               review facilities for compliance with these requirements.   
               California's Title 22 regulations relating to optional  
               services have not been updated by DPH since the federal  
               changes were made, and specify that physical therapy,  
               occupational therapy, speech therapy, speech pathology,  
               audiology, social work services, and special treatment  
               program services are "special," or "optional services," and  
               as such must be listed on a facilities licensing  
               application.  The regulations also specify that outpatient  
               services that are provided for the special services  
               mentioned above must meet certain operational conditions,  
               such as ensuring that the special service units do not  
               traverse a nursing unit, and providing waiting areas with  
               sufficient space for patients.


               
             b)   Special Rules for Special Services.  In order to be able  
               to provide special services, all SNFs must receive approval  
               from DPH.  DPH evaluates applications and either approves  
               or denies the request on a case-by-case basis, using all  
               relevant state and federal requirements for the special  
               service.  For any SNF that does not employ qualified  
               persons to provide special services, DPH regulations  
               require the SNF to make arrangements through a written  
               agreement with outside resources to meet the standards for  
               providing special services.
             
               DPH regulations require SNFs to comply with all licensing  
               requirements.  However, these regulations also allow SNFs  
               to use alternate procedures, equipment, personnel  
               qualifications, or conduct pilot projects, as long as these  
               additional activities are carried out to the same standards  
               of safety and care listed in statute and through  








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               regulation.  These exceptions are only authorized with  
               prior written approval of DPH and must be accompanied with  
               substantiating evidence supporting the request.  In August  
               of 2007, DPH published a memo stating that peritoneal and  
               hemodialysis services may be provided in SNFs, and that the  
               services will be delivered in compliance with DPH  
               regulations on optional or special services.  However,  
               neither the regulations nor the memo waived the statutory  
               requirements for the development of regulations for these  
               services to be provided by SNFs.



               Despite the lack of specific regulations, DPH has  
               authorized a number of SNFs to operate with special  
               services not explicitly listed as a special or optional  
               service in statute, according to figures provided by DPH in  
               response to a public records request by LeadingAge  
               California.  Four facilities provide peritoneal dialysis (a  
               procedure to remove waste products from a person's blood  
               when the kidneys malfunction); seven offer hemodialysis  
               services; and, two provide nursing care services.  In  
               addition, the data show that 212 SNFs provide at least one  
               type of outpatient service.  While the data indicate that  
               many of them provide occupational therapy, physical  
               therapy, and other services allowable under existing  
               statute, several of the outpatient services were  
               unspecified, and thus several SNFs could be providing  
               outpatient services for care that does not have regulations  
               for SNF services, as required under existing law.
               
             c)   Saving State Costs and Improving Access to Rural Areas.   
               This bill allows DPH to authorize SNFs and NFs to provide  
               special services not listed in statute without the need for  
               the development of regulations.  Establishment of  
               regulations is a very time and cost-intensive process.   
               Based on the data from the public records request  
               previously described, there are a very limited number of  
               SNFs that may request this type of authorization, should  








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               this bill become law.  Provided that the standards for  
               quality of care agreed to by the SNF and DPH for the new  
               special services provided at SNFs are the same as those  
               provided at other health care facilities, waiving the  
               requirement for DPH to establish regulations could be an  
               efficient use of state resources.



               In addition, this bill is consistent with the goals of the  
               Patient Protection and Affordable Care Act, which in part  
               is intended to eliminate inequities in the availability of  
               health care services in rural areas by increasing access to  
               quality, affordable health coverage, and support care  
               coordination.  Multiple peer-reviewed studies have found  
               that rural communities have less access to specialized  
               services such as peritoneal and hemodialysis, and as a  
               result have a higher mortality rate.  By allowing DPH to  
               authorize select facilities to provide such services in  
               very controlled environments, this bill could increase  
               access to care in communities and increased coordination  
               between hospitals and LTC facilities for some special  
               services.





          3)SUPPORT.  LeadingAge California, the sponsor of this bill,  
            states there is a clear individual preference within  
            California's health care system for receiving long-term care  
            in the least restrictive environment, preferably in home and  
            community-based settings.  The sponsor contends that by  
            allowing SNFs and NFs to provide special services as  
            authorized by this measure, the continuity of care for  
            residents could be enhanced.  Specifically, the sponsor  
            contends that SNFs seeking approval for special services other  
            than physical therapy, occupational therapy, speech therapy,  
            speech pathology, audiology, social work services, and  








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            specialty treatment program services will alleviate the burden  
            on DPH to create new regulations.  The sponsor maintains that  
            the inability of DPH to adopt or update regulations has been a  
            barrier to the expansion of services that can be provided by  
            SNFs and NFs to residents and members of the  
            community-at-large and forces residents to obtain services  
            outside the SNF and NF community.



          4)OPPOSITION.  The California Advocates for Nursing Home Reform  
            (CANHR) contends that this bill would allow SNF and NFs to  
            create special services of their own design and establish the  
            standards of care for their delivery.  CANHR also states that  
            DPH would be required to approve these special services  
            without any regulatory or statutory standards to guide its  
            determinations.  



          5)PREVIOUS LEGISLATION.

             a)   AB 1974 (Quirk), Chapter 288, Statutes of 2014,  
               specifies that a "special service" does not include a  
               functional division, department, or unit of a nursing  
               facility that is organized, staffed, and equipped to  
               provide inpatient physical therapy services, occupational  
               therapy services, or speech pathology and audiology  
               services to residents of the facility if these services are  
               provided solely to meet CMS certification requirements.
             
             b)   SB 276 (Corbett) of 2011 would have required DPH to  
               promulgate regulations regarding the type of medical  
               procedures which can be performed in the cardiac  
               catheterization laboratory of a hospital that also has  
               on-site cardiac surgery services, and allowed hospitals to  
               perform certain specified procedures until such regulations  
               are adopted.  SB 276 died on the Assembly Floor.









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          6)SUGGESTED AMENDMENTS.

             a)   Flexibility for DPH.  This bill requires a NF or SNF  
               licensee to provide DPH with specific information to review  
               when applying to add a special service to the facility  
               license; however it does not provide DPH with any  
               flexibility to request any additional information.  The  
               Committee may wish to consider amending this bill to  
               include a provision that would require the applicant to  
               provide any other relevant information DPH deems necessary  
               for review.
             
             b)   Standard for Quality of Care.  This bill authorizes a NF  
               or SNF licensee to request to provide additional special  
               services if certain minimum standards for quality of care  
               is met.  However this measure does not specify a baseline  
               for the minimum standard for quality of care.  To ensure  
               the safety and protection of SNF and NF residents, the  
               author is proposing to define the minimum standard for  
               quality of care.





               While this bill does not identify the types of special  
               services and relevant standards for quality of care for  
               each of the identified special services, CMS appears to set  
               forth requirements for acceptable quality in the operation  
               of health care entities through its Medicare Conditions of  
               Participation, Conditions for Coverage and Requirements for  
               SNFs and NFs.  The author may wish to explore identifying  
               these special services to define the minimum standard for  
               quality of care.  


          








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          REGISTERED SUPPORT / OPPOSITION:




          Support


          LeadingAge California (sponsor)




          Opposition


          California Advocates for Nursing Home Reform




          Analysis Prepared by:Kristene Mapile / HEALTH / (916) 319-2097