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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