BILL ANALYSIS �
AB 1821
Page 1
ASSEMBLY THIRD READING
AB 1821 (Gordon)
As Amended May 23, 2014
Majority vote
VETERANS AFFAIRS 9-0 APPROPRIATIONS 16-0
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|Ayes:|Quirk-Silva, Ch�vez, |Ayes:|Gatto, Bigelow, |
| |Dababneh, Brown, Eggman, | |Bocanegra, Bradford, Ian |
| |Fox, Melendez, | |Calderon, Campos, Eggman, |
| |Muratsuchi, Salas | |Gomez, Holden, Jones, |
| | | |Linder, Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Establishes the Medical Foster Home Pilot Program.
Specifically, this bill :
1)Authorizes, no sooner than June 1, 2015, and only 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)General Fund costs to the State Auditor in the range of
$250,000 for the equivalent of two limited term personnel
years to evaluate the MFH program and prepare an audit.
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2)Unknown out-year cost-avoidance to the extent the MFH concept
is successful in California without the cost of state
Department of Social Services licensing, regulations and
review..
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
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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 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
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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 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.
Amendments suggested in the Assembly Veterans Affairs Committee
would:
1)Delay implementation until June 1, 2015. 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.
The author has no concerns with the first proposed amendment
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and is happy to accept the amendment to delay establishing a
Medical Foster Home program until June 1, 2015.
2)Require the California Department of Veterans Affairs to
consult with the USDVA to determine with which provisions of
the Health and Safety Code MFHs shall comply with to provide
for the health and safety of residents. Set a reasonable date
by which this shall be accomplished. The proposed amendment
retains a basic "floor" of health and safety standards during
this pilot period so the bare 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.
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
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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 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.
3)Have DSS rather than the State Auditor evaluate the pilot
program. 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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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.
4)Require reporting to the Legislature. This requires a report
to the Legislature so it may make an informed decision about
the pilot program.
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.
Analysis Prepared by : John Spangler / V.A. / (916) 319-3550
FN: 0003593