BILL ANALYSIS Ó
AB 2341
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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