BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 135
S
AUTHOR: Hernandez
B
AMENDED: April 25, 2011
HEARING DATE: April 27, 2011
1
CONSULTANT:
3
Trueworthy
5
SUBJECT
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 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.
CHANGES TO EXISTING LAW
Existing law:
Provides for the licensure and regulation of health
facilities, including hospitals, skilled nursing
facilities, and congregate living health facilities (CLHFs)
by the Department of Public Health (DPH).
Provides for the licensure and regulation by the 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
Continued---
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of an individual diagnosed with a terminal illness, and to
provide supportive care to the primary caregiver and the
family.
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.
Establishes DPH Licensing and Certification (L&C) program
fees for health facilities, including hospice.
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 expectancy is six months or less.
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.
Provides that the primary need of CLHF residents shall be
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
skilled nursing facilities.
This bill:
Establishes a new licensure category of a "hospice
facility" defined as a facility with no more than 24 beds
that is licensed by 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
for a hospice facility license.
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.
Allows a hospice provider that provides short-term
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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).
Requires a hospice facility to meet the fire protection
standards set forth in Medicare conditions of
participation, and to meet the same building standards as a
congregate living health facility.
Prohibits a hospice facility from submitting construction
plans to the Office of Statewide Health Planning and
Development (OSHPD) for new construction or renovation and
instead requires a hospice facility to meet local building
codes as part of the licensure application.
Requires the hospice facility to be responsible for
obtaining criminal background checks for employees,
volunteers, and contractors in accordance with federal
Medicare conditions of participation and in accordance with
state law. Further requires the hospice facility licensee
to pay the costs of obtaining a criminal background check.
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.
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, 2016, to
establish these standards, and requires the regulations to
include the following:
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.
Patient rights provisions, mirroring the patients'
rights information provided to
skilled nursing facilities, as well as all of
the following:
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o Full information regarding his or her
health status and options for end-
of-life care.
o Care that reflects individual
preferences regarding end-of-life care,
including the right to refuse any
treatment or procedure.
o Treatment with consideration,
respect, and full recognition of dignity
and individuality, including
privacy in treatment and care of personal
needs.
o Entitlement to visitors of the
patient's choosing, at any time the patient
chooses, and ensured privacy for
those visits.
A disaster preparedness plan for both internal and
external disasters that protect
hospice patients, employees, and visitors.
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 the
federal Centers for Medicare and Medicaid Services hospice
care regulations for hospice facility licensure
requirements.
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.
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.
Requires DPH to conduct a licensing inspection on each
hospice facility, at least once every three years, and
establishes penalties for licensing violations that are
equivalent to existing CLHF licensing violation penalties.
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Further establishes penalties for medical privacy breeches
that are currently applicable to CLHFs.
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.
Establishes several definitions, including defining an
"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.
Makes several legislative declarations related to hospice
care, including a declaration 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.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
However, SB 135 is similar to AB 950 (Hernandez) of 2010.
According to the Assembly Committee on Appropriations
analysis for AB 950, 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 an
inpatient hospital setting to a hospice facility.
BACKGROUND AND DISCUSSION
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According to the author, SB 135 would allow a licensed and
certified hospice program to operate an inpatient facility
within its hospice license. The author states that
California does not allow hospice providers to operate an
independent, stand-alone inpatient hospice facility.
According to the sponsors, approximately 95 percent 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 presently, 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 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 SB 135 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, 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.
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 patients,
caregivers, and family members.
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Routine home care and continuous home care can be provided
in the patient's home, and can include a licensed health or
residential care facility through a contract with a hospice
program.
In 2008, there were 1,041,845 hospice patients nationally
and 86,678 hospice patients in California paid for by
Medicare.
Hospice growth
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 percent
increase. For-profit hospices grew by 128 percent compared
with 1 percent in nonprofit hospices and 25 percent in
hospices with government ownership. Freestanding hospices
also grew significantly from 2001 to 2008, with an 87
percent growth rate compared to a 9 percent increase in
home-health-based hospices and a 2 percent decrease in
hospital-based hospices. Growth occurred in both rural and
urban areas.
Other facilities
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.
When a hospice patient needs general inpatient care due to
the need for 24-hour pain control and symptom management,
hospices generally must contract with a licensed health
facility such as a hospital, SNF, or a CLHF. RCFEs are
prohibited under their Hospice Waiver from having general
inpatient hospice patients, due to the high acuity level of
these patients.
SNFs, CLHFS, and intermediate care facilities are currently
regulated by DPH and have established licensure
requirements including bed limits for CLHFs, RCFEs, and
ICFD's, licensing inspection requirements that include a
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one to three year frequency cycle, nurse staffing ratios,
and fine structures for medical breeches and licensing
violations.
Other states
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.
Federal Medicare Hospice Conditions of Participation
The Medicare Conditions of Participation (CoPs) for hospice
care have been in place since 1983 and establish the rules
for all Medicare certified hospice facilities. The CoPs
establish definitions, eligibility, duration of benefits,
covered services and other requirements a hospice facility
must meet. For example, the CoPs require a hospice to
ensure that staffing for services reflects its volume,
their acuity, and the level of intensity of services
needed. Under the CoPs, a registered nurse (RN) would be
required to be on duty 24-hours a day whenever general
inpatient care is provided.
Medicare CoPs require hospices that provide inpatient care
to meet provisions of the Life Safety Code of the National
Fire Protection Association (NFPA). The NFPA 101 currently
prescribes standards for allowable building areas, types of
construction, height, and number of stories for health care
facilities that participate in the Medicare or Medicaid
programs. The CoPs also provide that these provisions do
not apply if CMS finds that fire and safety code
requirements imposed by a state adequately protect
patients.
CLHFs that serve terminally ill persons
CLHFs are residential-based care facilities that provide
inpatient care, medical supervision, 24-hour skilled
nursing and supportive care, and other services to one of
three categories of persons: (1) persons who are mentally
alert who have physical disabilities, who may be ventilator
dependent; (2) persons who have a diagnosis of terminal
illness, or life-threatening illness, or both; or (3)
persons who are catastrophically and severely disabled.
According to DPH, 53 CLHFs are currently licensed in
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California to provide services to these populations. Of
these, 12 serve terminally ill patients. CLHFs that serve
terminally ill patients are sometimes referred to as
CLHF-Bs, which denotes the subparagraph of the statute that
refers to them. CLHFs are allowed to be on the premise of
a hospital but are required to be freestanding and
separately licensed. CLHF-B's must meet specific licensing
requirements including a licensing inspection once every
two years, staffing ratios, and building standards as
described below. SB 135 applies many of these standards to
hospice facilities.
CLHFs must meet specific staffing ratios based on the
number of beds serving persons who are terminally ill,
catastrophically and severely disabled, mentally alert but
physically disabled, or any combination of these persons.
A CLHF with more than six beds must have an RN or LVN awake
and on duty at all times and is required to have an RN be
awake and on duty eight hours a day, five days a week. For
a facility with fewer than six beds, an RN is required to
visit each patient at least twice a week for two hours or
as the patient care requires. CLHFs are also required to
have an RN be available for consultation and able to come
into the facility within 30 minutes, if necessary, when no
RN is on duty. CLHFs are required to meet a ratio of six
patients per direct-care staff person with some exceptions.
CLHFs are required to have a licensing inspection once
every two years and are subject to penalties for licensing
violations. Penalties are divided by three categories:
Class AA, Class A, and Class B. Class AA violations are
violations that have a direct link to the cause of death of
a patient and penalties are $5,000 to $25,000. Class A
violations are violations that led to imminent danger or
substantial probability that death would result from the
violation and penalties are $1,000 to $10,000. Class B
violations are violations that have a direct or immediate
relationship to the health, safety, or security of the
patient and penalties are $100 to $1,000. These fines
would also apply to hospice facilities.
CLHFs are also subject to fines for medical privacy
breeches including a $25,000 fine for the first violation
and $17,500 for each subsequent violation. The facility is
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also subject to a $100 per day fine for each day the
violation is not reported to DPH. These fines would also
apply to hospice facilities.
Under current law, building standards for CLHFs are
developed by the State Fire Marshall and are published in
the California Building Code (CBC). Under those standards,
CLHF-Bs currently fall into one of three building occupancy
groups or categories, depending on the total number, and
the number of nonambulatory or bedridden, patients they
serve. CLHF buildings housing more than six nonambulatory
patients (Group R-2.1 buildings) must include smoke
barriers (for larger buildings), sprinkler systems, smoke
alarms, fire alarm systems, a minimum of two exits, 60 inch
wide corridors for portions of the building housing
nonambulatory patients, and enclosed exits. The allowable
size and building height of these buildings is dependent on
the type of construction and whether construction consists
of fire resistive or non-combustible materials. Building
standards for CLHFs are currently enforced by local
building departments.
Related bills
SB 177 (Strickland) 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. SB 177 is pending before the
Senate Appropriations Committee.
SB 804 (Corbett) requires the Department of Health Care
Services to allow CLHFs, as defined, that solely provide
pediatric subacute care services and do not provide
Medicare services, to participate in the Medi-Cal subacute
care program. SB 804 is pending before the Senate Health
Committee set to be heard on May 4, 2011.
Prior legislation
AB 950 (Hernandez) of 2009-10 Session was substantially
similar to SB 135. Held under submission in Senate
Appropriations Committee.
AB 2523 (Nava) of 2009-10 Session in its final amended form
would have made the same changes as SB 177. Died in Senate
Rules Committee.
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SB 1164 (Corbett) of 2009-10 Session 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.
Referred to Senate Health Committee, hearing canceled at
the request of the author.
SB 666 (Aanestad), Chapter 443, Statutes of 2005, increases
the capacity of a CLHF from no more than six beds to no
more than twelve 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.
AB 3535 (Wright), Chapter 1459, Statutes of 1986, created
the CLHF licensure category, and defined a CLHF as a
residential home with a capacity of no more than six beds,
which provides inpatient care to mentally alert, physically
disabled residents, who may be ventilator dependent.
AB 4536 (Polanco), Chapter 1478, Statutes of 1988, created
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.
AB 68 (Polanco), Chapter 1393, Statutes of 1989,
established 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.
Arguments in support
The sponsor, California Hospice and Palliative Care
Association, writes that they are sponsoring SB 135 because
currently, if a patient cannot remain safely in his or her
own home, they are frequently moved to a skilled nursing or
other facility even though their symptoms may not warrant
that level of care. Hospice patients have waived seeking or
being provided curative treatment, and are provided
palliative care; thus many elements of the regulations for
other licensed facilities are incongruent to the needs of
the terminally ill. Few hospice programs seek to create or
provide facility-specific care due to the limited and
incompatible licensing requirements for operating hospice
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facilities. SB 135 will save patients, their families and
the state money. Hospice is a cost-saving form of health
care to one of the most costly categories in health care
spending, end of life care. As California's population
continues to age, it will be increasingly important to have
resources available to provide services in many different
settings, and SB 135 accomplishes that purpose.
Supporters contend that by creating a new health facility
licensing category, SB 135 will increase efficiencies for
both the state and hospice providers, and expand the
available options to terminally ill patients and their
families.
Arguments in opposition
The California Nurses Association (CNA) questions the
necessity of the 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 SB 135, 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
further states that appropriate building standards must be
established to ensure the safety of patients and staff, and
therefore, OSHPD should be responsible for overseeing
hospice facility construction and renovation. Finally, CNA
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.
COMMENTS
1. Staffing requirements. SB 135 requires at least one
licensed nurse to be on duty 24-hours a day and a maximum
of six patients per direct care staff person. Under the
federal CMS hospice care regulations, a facility must also
have one RN on duty when a patient requires general
inpatient care. However, a hospice patient's level of care
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may change at any time and if the RN is not on duty, a
patient may endure unnecessary discomfort as LVNs cannot
perform patient assessments under their license. The
author may wish to add language to require an RN to be
on-call within 30 minutes, should a patient's level of care
change. This would be similar to the current CLHF
requirement that an RN be available for consultation and
able to come into the facility within 30 minutes, if
necessary, when no RN is on duty.
2. Co-location of facilities. SB 135 allows a hospice
facility to operate as a freestanding health facility and
also allows a hospice facility to be located adjacent to,
physically connected to, or on the building grounds of
another health facility or residential care facility. SB
135 is silent on what building standards would apply in
these situations. To ensure adequate building standards
are met, the author may wish add new language to require
the building standards of the facility it is co-located to
to also apply to the hospice facility, to the extent the
facility has higher building standards.
3. Overlapping licensure requirements. Under this bill,
two similar licensing categories for hospice facilities
would exist, the existing CLHF-B category and the new
hospice facility category created by this bill. Because
the intent of this bill is to make a licensing category
that is tailored to the needs of hospice patients and the
bill also mirrors many of the CLHF-B requirements, the
author may wish to add language to phase-out current CLHF-B
facilities and instead require they be licensed as a
hospice provider.
4. Licensing inspections. SB 135 requires a hospice
facility be inspected by DPH once every three years.
Currently, the inspection frequency for comparable
facilities, such as CLHFs, is two years. The author may
wish to change the inspection frequency to two years to be
consistent.
5. Technical amendment - Co-location. On Page 22, line 4
the bill currently references a "residential care
facility". The author may wish to reference instead a
residential care facility for the elderly (RCFE).
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6. Technical amendment - State fire marshal. On Page 21,
lines 35-40 outline the requirements for fire protection
standards and meeting certain building standards. The
author may wish to amend this section as follows:
(d) The hospice facility shall meet the fire
protection standards set forth in federal Medicare
conditions of participation (42 C.F.R. 418 et seq.).
A hospice facility shall meet the same building
standards as a congregate living health facility as
described in subparagraph (B) of paragraph (2) of
subdivision (i) of Section 1250 until the State Fire
Marshall develops building code standards for hospice
facilities.
POSITIONS
Support: California Hospice & Palliative Care Association
(sponsor)
Alzheimer's Association
Visiting Nurse and Hospice Care of Santa Barbara
Oppose: California Nurses Association
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