BILL ANALYSIS �
AB 1821
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Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
Sharon Quirk-Silva, Chair
AB 1821 (Gordon) - As Amended: April 22, 2014
SUBJECT : Medical foster homes.
SUMMARY : Establishes the Medical Foster Home Pilot Program.
Specifically, this bill :
1)Authorizes, until January 1, 2018, a United States Department
of Veterans Affairs (USDVA) facility to establish a Medical
Foster Home (MFH) that is not subject to licensure or
regulation under the California Residential Care Facilities
for the Elderly Act provided that specified federal
requirements are satisfied, the USDVA facility establishing
the home agrees to be subject to the jurisdiction of the
California State Auditor, and the USDVA obtains criminal
background information for caregivers and specified
individuals residing in the home.
2)States the intent of the Legislature that the California State
Auditor, through a request to the Joint Legislative Audit
Committee, conduct an audit evaluating the program created by
this bill no sooner than January 1, 2016, as specified.
EXISTING LAW :
1)Establishes the Department of Veterans Affairs, which is
responsible for administering various programs and services
for the benefit of veterans.
2)Provides for the licensure of residential care facilities for
the elderly by the State Department of Social Services under
the California Residential Care Facilities for the Elderly
Act.
3)Exempts from these provisions specified facilities, including
general acute care hospitals, clinics, and recovery houses for
individuals with drug or alcohol addiction.
4)Authorizes the California State Auditor, upon the request by
the Joint Legislative Audit Committee and to the extent
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funding is available, to audit a state or local governmental
agency, as defined, or any other publicly created entity.
FISCAL EFFECT : Unknown at this time.
COMMENTS : According to the Author:
MFHs are home-based care models for mostly older and
medically frail veterans needing assisted living care. MFHs
provide 24-hour a day, 7-days a week care for up to a
maximum of 3 eligible veterans in a private home. MFHs are
currently operational at more than 83 sites in 39 states.
To qualify for the MFH program, a veteran must first be
enrolled in the Veterans Health Administration's (VHA's)
Home Based Primary Care program (HBPC). In this program the
veteran's medical care is provided by an interdisciplinary
team of physicians, nurses, aides, and others which are all
provided by the VHA. The private home, where the veteran is
placed, is also monitored closely by the VHA under strict
standards required of the caregivers. Families who
volunteer to participate in the MFH program must be
approved by the VHA's interdisciplinary team as well as
submit income statements, and train in CPR.
Additionally, the MFHs are routinely inspected by the VHA.
Veterans pay room and board in the MFH program; however,
the Veterans Benefits Administration's "Aid and Attendance"
benefit and Social Security benefits are generally
anticipated to cover these costs. MFHs are distinguished
from other typical residential care homes or facilities
because a MFH caregiver is required to reside in their own
private home while providing 24-hour personal care and
supervision to the veteran. The veteran, in turn, receives
their medical care through the VHA in a highly regulated,
yet independent, community-based setting.
Currently, the federal Medical Foster Home program can only
exist in California if operated as and under the
Residential Care Facilities for the Elderly (RCFE) law.
Unfortunately, that law does not envision the MFH model
under traditional assisted living care such that all
potential MFH caregivers would need to have their personal
home licensed, they would have to become a Certified
Administrator for RCFE, and they would also incur all the
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costs associated with their training and licensure. This
creates a barrier for caregivers to open their home to a
veteran and limits the growth of the program in our state.
In addition, placements in existing RCFEs are not
financially feasible due to the 3 veteran limitation, as
most "board and care" RCFEs have up to 6 residents residing
in one location. Therefore, the RCFE requirements impede
California veterans from having similar opportunities as
veterans in other states who are able to "age in place"
with dignity and independence, in a home-like environment
with a loving and caring foster family.
To ensure the MFH is a feasible alternative to
institutionalization for California's veterans, the bill
would establish the Medical Foster Home Pilot Program.
Under the pilot program, a United States Department of
Veterans Affairs (USDVA) facility, such as a VA hospital,
may establish a Medical Foster Home program as long as the
following conditions are met: the MFH meets the
requirements of the federal regulations; the USDVA facility
submits a proposal to establish a medical foster home
program to the Director of Home and Community-Based Care in
Geriatrics and Extended Care Services in the Central Office
of the USDVA and that director authorizes the program; and
finally that the USDVA facility establishing the MFH agrees
to be subject to the jurisdiction of the California State
Auditor and agrees to provide data, information, and case
files as requested by the California State Auditor to
perform all of his or her duties in evaluating the MFH
pilot program.
The MFHs in the pilot program are not subject to existing
RCFE law; however, it is the intention of the author and
stated in the bill that a request will be made to the Joint
Legislative Audit Committee for the California State
Auditor to audit and evaluate the success of the pilot
program providing a safeguarding mechanism to protect
California's veterans. In addition, the State Auditor will
make recommendations regarding the continuation of the
program in order to determine if the state should have a
role in the federal MFH program as the pilot program will
sunset on January 1, 2018. This bill would allow the MFH
program to be a viable option for our veterans who want to
live and receive care in a smaller setting that feels more
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like home.
The concept of providing veterans with an additional
federally-funded health care delivery setting option from which
to choose is an excellent one. Being treated in a home-like
setting will surely be an attractive option for many veterans.
Staff is aware that the program is running successfully in other
states. Furthermore, this model of care seems in keeping with
the United States Supreme Court's decision in Olmstead v. L.C.,
a ruling that requires states to eliminate unnecessary
segregation of persons with disabilities and to ensure that
persons with disabilities receive services in the most
integrated setting appropriate to their needs.
The step of exempting MFH's from state regulation and oversight
should be carefully evaluated. The author realizes this and has
proposed a pilot program, sunset, audit, and certain other steps
as safeguards, as well as noted the rigorous federal regulatory
and oversight scheme. Still, removing care from state oversight
and regulation in this way for our some of our most vulnerable
veterans, even as a pilot program, should give pause.
Policy Question for Members and Suggested Amendments :
Should MFHs be exempted from state regulation and oversight,
even with the bill's proposed safeguards and limits? There have
been several recent media reports alleging serious misconduct at
the USDVA Veterans Health Administration (VHA) including
destruction of patient records (which has been the subject of
investigation by the U.S. House Veterans Affairs Committee) and
the VHA has allegedly refused state inspectors in Florida access
to patient records.
Will our veterans will be properly and safely cared for without
state oversight during the pilot program?
If the MFH model does not fit within the RCFE rubric, rather
than exempting it from state regulation, why are the relevant
state agencies not proposing a new a regulatory model? The
pilot program will provide a testing period for the new program,
but is it good policy to test this program on California
veterans first and then later decide what the state's role
should be?
Proposed Amendments:
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All proposed amendments are to the Military and Veterans Code.
Amendment 1.
Section 1851. No sooner than June 1, 2015 a USDVA facility may
establish a medical foster home program in this state. A medical
foster home established pursuant to that program is not subject
to licensure or regulation under the California Residential Care
Facilities for the Elderly Act (Chapter 3.2 (commencing with
Section 1569) of Division 2 of the Health and Safety Code)
unless all of the following requirements are satisfied?
Rationale : It takes some time to safely and carefully launch a
new program, Assuming this bill proceeds to the Governor, it
might not considered by the Governor until September 2014, which
is not enough time to launch a program on January 1. Further
this bill would not take effect until January 1, 2015, so an
additional small delay is not unreasonable.
According to the Author:
The author has no concerns with the first proposed
amendment and is happy to accept the amendment to delay
establishing a Medical Foster Home program until June 1,
2015.
Amendment 2.
Section 1851 (e) The medical foster home complies with and
provides for the basic health and safety standards as determined
by the Department of Social Services. In implementation of this
section, the Department of Social Services shall consult with
the USDVA to determine with which provisions of Chapter 3.2 of
Division 2 (Commencing with Section 1560) of the Health and
Safety Code Medical Foster Homes shall comply to provide for the
health and safety of its residents. Notwithstanding the
Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code) the Department of Social Services shall
implement this section through all-county letters or similar
instructions from the director no later than May 31, 2015.
Rationale : The proposed amendment retains a basic "floor" of
health and safety standards during this pilot period so the bare
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health and safety minimums are being met, yet still preserves
the author's intent to exempt MFHs from state regulation to the
maximum extent. The Author has provided a comparison of the
RCFE state regulations and the MFH federal regulations. The
federal regulatory scheme appears very rigorous. It may even be
more rigorous than the RCFE scheme. If that is the case then
this proposal should not impose a burden other than an official
verification before the pilot starts. This proposal also
requires compliance before the implementation date proposed
above so as not to delay implementation.
According to the Author:
The author believes that if the second amendment is taken
to require Department of Social Services (DSS) to determine
what provisions from RCFE law should be complied with and
requires DSS to implement this through county letters or
similar instructions, this amendment will add substantial
costs to the bill effectively killing it and not allowing
veterans this option.
The reason the author would even consider exempting state
oversight is that fact that the federal VA standards for
the Medical Foster Home program are higher and more
stringent than are offered under RCFE. DSS has told the
author's office this directly and even mentioned that if
the state were to have oversight it could be duplicative.
Moreover, if this amendment were taken, would VA have to
lower their standards to be in compliance with RCFE, if DSS
was involved in determining what provision from the RCFE
law would have to be followed?
In addition, the state has no oversight over VA hospitals.
Veterans under the Medical Foster Home program are
receiving the exact same care as if they were in the VA
hospital; the only difference is that the veteran is in the
private medical foster home receiving care from an
interdisciplinary team.
The author is cognizant of the policy question of exempting
state regulation and oversight; however, the bill proposes
multiple safeguards and limits. First, this is a pilot
program so the number of Medical Foster Homes would be
limited. Second, the bill has a sunset date requiring the
policy to be reexamined. Third, the bill requires federal
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and state background checks on Medical Foster Home
caregivers and residents of the Medical Foster Home over
the age of 18. Lastly, and most importantly, the bill
states the author's intent for the state auditor to conduct
an audit of the Medical Foster Home pilot program and
evaluate the program and determine whether the state should
have a role in this federal program. Further, as a
condition of establishing the Medical Foster Home program
in California, USDVA facilities must agree to be subject to
the jurisdiction of the California State Auditor for the
purpose of evaluating the program. This means that the
USDVA facility must provide data, information, and case
files as requested by the California State Auditor to
perform all of his or her duties in evaluating the program.
Therefore, this provides an essential safeguard in that
the VA must comply with the audit and provide all necessary
information to be evaluated effectively.
This bill does not leave California's veterans on their own
with no protections, in fact the higher federal protections
justify why this worthwhile program should be piloted. AB
1821 attempts to strike a balance between ensuring that
there are protections for our veterans (after all our first
priority is the health and safety of California's veterans)
while providing a Medical Foster Home that is a viable
model.
Amendment 3.
Section 1852. It is the intent of the Legislature that the
Department of Social Services, in consultation with the
Department of Veterans Affairs, shall assess and evaluate, the
pilot program created by this chapter no sooner than January 1,
2017. ?
Rationale : An entity with regulatory compliance expertise in
these kinds of health care models (or their closest analogues)
should be the one assessing the pilot program. DSS is the most
logical entity to entrust with this step of protecting the
health and safety of what are likely to be some of our most
vulnerable veterans. Substantially similar oversight is already
one mission of the DSS. The proposed amendment also gives an
additional year to run the pilot, compensating for the delayed
implementation.
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According to the Author :
The author has concerns with the [DSS] conducting the
evaluation. The first concern is the fiscal cost this
would entail. But, more importantly, the author believes
that the state auditor is the appropriate entity to conduct
the evaluation because the state auditor does not have skin
in the game and would be a neutral entity best able to
evaluate the program without any biases. Furthermore, the
state auditor conducts many audits on a range of topics.
If the state auditor feels that they may not have the
needed subject expertise, the state auditor has and can
contract to get an expert to assist in the audit.
Amendment 4.
Section 1852(b) Make recommendations to the Legislature ?
Rationale : This requires a report to the Legislature so it may
make an informed decision about the pilot program.
According to the Author :
The author has no concerns with the fourth proposed
amendment and is happy to accept the amendment to report to
the Legislature the findings and recommendations of the
state audit.
REGISTERED SUPPORT / OPPOSITION :
Support
Public Law Center
Leading Age California
California Commission on Aging
Opposition
None.
Analysis Prepared by : John Spangler / V. A. / (916) 319-3550
AB 1821
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