Existing law provides for the licensing and regulation of long-term health care facilities, including, among others, skilled nursing facilities and intermediate care facilities, by the State Department of Public Health. A violation of those provisions is generally a crime. Existing law establishes the Medi-Cal program, which is administered by the State Department of Health Care Services and under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid program provisions.

Existing law prohibits a long-term health care facility that participates as a provider under the Medi-Cal program from discriminating against a Medi-Cal patient on the basis of the source of payment for the facilitys services that are required to be provided to individuals entitled to services under the Medi-Cal program. Existing law prohibits that facility from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing their manner of purchasing the services from private payment or Medicare to Medi-Cal, except as specified.

This bill would require the facility to provide aid, care, service, and other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. The bill would find and declare that this requirement is declaratory of existing law and thus not reimbursable under the Medi-Cal Long-Term Care Reimbursement Act or any other Medi-Cal ratesetting provisions, as specified. The bill would specify that if reimbursement is found to be required by state or federal law or regulation, as specified, the above requirement shall only become operative upon appropriation by the Legislature. The bill would also provide that this requirement and the above-described prohibition against discrimination on the basis of payment source be implemented only to the extent that these provisions do not conflict with federal law, that any necessary federal approvals are obtained, and that federal financial participation for the Medi-Cal program is available and is not otherwise jeopardized.

Existing federal regulations require certain nursing facilities to post their resident census and specified nurse staffing data on a daily basis.

This bill would require a skilled nursing facility that participates as a provider under the Medi-Cal program to make publicly available its current daily resident census and nurse staffing data, as defined. The bill would require the facility to make the information available either by posting it on the facilitys internet website or by providing the information to a requester by telephone or email, as specified. The bill would exempt these requirements from the above-described and other related criminal penalties. The bill would find and declare that these requirements are not reimbursable under the Medi-Cal Long-Term Care Reimbursement Act, but that if reimbursement is found to be required by state or federal law or regulation, as specified, the above provision shall only become operative upon appropriation by the Legislature.

Existing law requires that a contract of admission to a long-term health care facility state that, except in an emergency, a resident may not be involuntarily transferred or discharged from the facility unless the resident and, if applicable, the residents representative, are given reasonable notice in writing and transfer or discharge planning as required by law. Existing law requires that the written notice state the reason for the transfer or discharge.

This bill would require that the notice also include a specified statement relating to, among other things, restrictions on discharge from the facility or transfer within the facility solely as a result of changing the manner of purchasing services from private payment or Medicare to Medi-Cal payment, and certain resource information about facilities participating in Medi-Cal.

Existing law provides for the licensing and regulation of long-term health care facilities, including, among others, skilled nursing facilities and intermediate care facilities, by the State Department of Public Health. A violation of those provisions is generally a crime. Existing law establishes the Medi-Cal program, which is administered by the State Department of Health Care Services and under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid program provisions.

Existing law prohibits a long-term health care facility that participates as a provider under the Medi-Cal program from discriminating against a Medi-Cal patient on the basis of the source of payment for the facilitys services that are required to be provided to individuals entitled to services under the Medi-Cal program. Existing law prohibits that facility from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing their manner of purchasing the services from private payment or Medicare to Medi-Cal, except as specified.

This bill would require the facility to provide aid, care, service, and other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. The bill would find and declare that this requirement is declaratory of existing law and thus not reimbursable under the Medi-Cal Long-Term Care Reimbursement Act or any other Medi-Cal ratesetting provisions, as specified. The bill would specify that if reimbursement is found to be required by state or federal law or regulation, as specified, the above requirement shall only become operative upon appropriation by the Legislature. The bill would also provide that this requirement and the above-described prohibition against discrimination on the basis of payment source be implemented only to the extent that these provisions do not conflict with federal law, that any necessary federal approvals are obtained, and that federal financial participation for the Medi-Cal program is available and is not otherwise jeopardized.

Existing federal regulations require certain nursing facilities to post their resident census and specified nurse staffing data on a daily basis.

This bill would require a skilled nursing facility that participates as a provider under the Medi-Cal program to make publicly available its current daily resident census and nurse staffing data, as defined. The bill would require the facility to make the information available either by posting it on the facilitys internet website or by providing the information to a requester by telephone or email, as specified. The bill would exempt these requirements from the above-described and other related criminal penalties. The bill would find and declare that these requirements are not reimbursable under the Medi-Cal Long-Term Care Reimbursement Act, but that if reimbursement is found to be required by state or federal law or regulation, as specified, the above provision shall only become operative upon appropriation by the Legislature.

Existing law requires that a contract of admission to a long-term health care facility state that, except in an emergency, a resident may not be involuntarily transferred or discharged from the facility unless the resident and, if applicable, the residents representative, are given reasonable notice in writing and transfer or discharge planning as required by law. Existing law requires that the written notice state the reason for the transfer or discharge.

This bill would require that the notice also include a specified statement relating to, among other things, restrictions on discharge from the facility or transfer within the facility solely as a result of changing the manner of purchasing services from private payment or Medicare to Medi-Cal payment, and certain resource information about facilities participating in Medi-Cal.

Existing law provides for the licensing and regulation of long-term health care facilities, including, among others, skilled nursing facilities and intermediate care facilities, by the State Department of Public Health. A violation of those provisions is generally a crime. Existing law establishes the Medi-Cal program, which is administered by the State Department of Health Care Services and under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid program provisions.

Existing law prohibits a long-term health care facility that participates as a provider under the Medi-Cal program from discriminating against a Medi-Cal patient on the basis of the source of payment for the facilitys services that are required to be provided to individuals entitled to services under the Medi-Cal program. Existing law prohibits that facility from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing their manner of purchasing the services from private payment or Medicare to Medi-Cal, except as specified.

This bill would require the facility to provide aid, care, service, or and other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. The bill would find and declare that this requirement is declaratory of existing law and thus not reimbursable under Medi-Cal Long-Term Care Reimbursement Act or any other Medi-Cal ratesetting provisions, as specified. The bill would specify that if reimbursement is found to be required by state or federal law or regulation, as specified, the above requirement shall only become operative upon appropriation by the Legislature. The bill would also provide that this requirement and the above-described prohibition against discrimination on the basis of payment source be implemented only to the extent that these provisions do not conflict with federal law, that any necessary federal approvals are obtained, and that federal financial participation for the Medi-Cal program is available and is not otherwise jeopardized.

Existing federal regulations require certain nursing facilities to post their resident census and specified nurse staffing data on a daily basis.

This bill would require a skilled nursing facility that participates as a provider under the Medi-Cal program to make publicly available its current daily resident census and nurse staffing data, as defined. The bill would require the facility to make the information available either by posting it on the facilitys internet website or by providing the information to a requester by telephone or email, as specified. The bill would exempt these requirements from the above-described and other related criminal penalties. The bill would find and declare that these requirements are not reimbursable under the Medi-Cal Long-Term Care Reimbursement Act, but that if reimbursement is found to be required by state or federal law or regulation, as specified, the above provision shall only become operative upon appropriation by the Legislature.

Existing law requires that a contract of admission to a long-term health care facility state that, except in an emergency, a resident may not be involuntarily transferred or discharged from the facility unless the resident and, if applicable, the residents representative, are given reasonable notice in writing and transfer or discharge planning as required by law. Existing law requires that the written notice state the reason for the transfer or discharge.

This bill would require that the notice also include a specified statement relating to, among other things, restrictions on discharge from the facility or transfer within the facility solely as a result of changing the manner of purchasing services from private payment or Medicare to Medi-Cal payment, and certain resource information about facilities participating in Medi-Cal.

Existing law provides for the licensing and regulation of long-term health care facilities, including, among others, skilled nursing facilities and intermediate care facilities, by the State Department of Public Health. A violation of those provisions is generally a crime. Existing law establishes the Medi-Cal program, which is administered by the State Department of Health Care Services and under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid program provisions.

Existing law prohibits a long-term health care facility that participates as a provider under the Medi-Cal program from discriminating against a Medi-Cal patient on the basis of the source of payment for the facilitys services that are required to be provided to individuals entitled to services under the Medi-Cal program. Existing law prohibits that facility from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing their manner of purchasing the services from private payment or Medicare to Medi-Cal, except as specified.

This bill would require the facility to provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source.

Existing federal regulations require certain nursing facilities to post their resident census and specified nurse staffing data on a daily basis.

This bill would require a long-term health care skilled nursing facility that participates as a provider under the Medi-Cal program to make publicly available its current daily resident census, census and nurse staffing data, as defined. The bill would require the facility to make the information available either by posting it on the facilitys internet website or by providing the information to a requester within 24 hours of a request, by telephone or email, as specified. The bill would exempt these requirements from the above-described and other related criminal penalties.

Existing law requires that a contract of admission to a long-term health care facility state that, except in an emergency, a resident may not be involuntarily transferred or discharged from the facility unless the resident and, if applicable, the residents representative, are given reasonable notice in writing and transfer or discharge planning as required by law. Existing law requires that the written notice state the reason for the transfer or discharge.

This bill would require that the notice also include a specified statement relating to, among other things, restrictions on discharge from the facility or transfer within the facility solely as a result of changing the manner of purchasing services from private payment or Medicare to Medi-Cal payment, and certain resource information about facilities participating in Medi-Cal.

Existing law provides for the licensing and regulation of long-term health care facilities, including, among others, skilled nursing facilities and intermediate care facilities, by the State Department of Public Health. A violation of those provisions is generally a crime. Existing law establishes the Medi-Cal program, which is administered by the State Department of Health Care Services and under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid program provisions.

Existing law prohibits a long-term health care facility that participates as a provider under the Medi-Cal program from discriminating against a Medi-Cal patient on the basis of the source of payment for the facilitys services that are required to be provided to individuals entitled to services under the Medi-Cal program. Existing law prohibits that facility from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing their manner of purchasing the services from private payment or Medicare to Medi-Cal, except as specified.

This bill would require the facility to provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source.

Existing federal regulations require certain nursing facilities to post their resident census on a daily basis.

This bill would require a long-term health care facility that participates as a provider under the Medi-Cal program to make publicly available its current daily resident census, excluding any personally identifiable information. as defined. The bill would require the facility to make the information available either by posting it on the facilitys internet website, if one exists, and website or by providing the information to a requester within 24 hours of a request, as specified. The bill would exempt these requirements from the above-described and other related criminal penalties.

Existing law requires that a contract of admission to a long-term health care facility state that, except in an emergency, a resident may not be involuntarily transferred or discharged from the facility unless the resident and, if applicable, the residents representative, are given reasonable notice in writing and transfer or discharge planning as required by law. Existing law requires that the written notice state the reason for the transfer or discharge.

This bill would require that the notice also include a specified statement relating to, among other things, restrictions on transfer or discharge from the facility because of a change discharge from the facility or transfer within the facility solely as a result of changing the manner of purchasing services from private payment or Medicare to Medi-Cal payment, and certain resource information about facilities participating in Medi-Cal.

Existing law prohibits a long-term health care facility that participates as a provider under the Medi-Cal program from transferring or seeking to evict out of the facility any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal benefits and for whom an eligibility determination has not yet been made, except as specified.

This bill would require a long-term health care that participates as a provider under the Medi-Cal program to provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source.

 UNFINISHED BUSINESS  

Bill No: SB 1354

Author: Wahab (D), et al.

Amended: 8/19/24

Vote: 21

SENATE HEALTH COMMITTEE: 9-2, 4/24/24

AYES: Roth, Glazer, Gonzalez, Hurtado, Limón, Menjivar, Rubio, Smallwood-Cuevas, Wiener

NOES: Nguyen, Grove

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 30-9, 5/21/24

AYES: Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NOES: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

NO VOTE RECORDED: Allen

ASSEMBLY FLOOR: 75-0, 8/27/24 - See last page for vote

SUBJECT: Long-term health care facilities: payment source and resident census

SOURCE: California Advocates for Nursing Home Reform

Office of the State Long-Term Care Ombudsman

DIGEST:

This bill requires a long-term care facility participating in the Medi-Cal program to provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal recipients in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. Requires skilled nursing facilities to post a daily resident census and nurse staffing data on their website or provide daily resident census information upon request. Requires a notice when transferring or discharging a patient to contain specified information regarding restrictions on transfer or discharge due to change in payer and information about the facility’s participation in Medi-Cal.

Assembly Amendments

(1) declare that the estimated cost of complying with this bill is de minimus and therefore not a new state mandate; (2) clarify that should reimbursement to facilities be required as determined by a court of the Centers for Medicare and Medicaid Services then this bill shall only become operative upon an appropriation by the Legislature; (3) clarify that the bill does not limit a facility’s ability to provide aid, care, service, and other benefits available under Medi-Cal in the manner, method, scope, and level appropriate based on the resident’s needs; (4) add nurse staffing data to the information required to be made publicly available, (5) limit the requirement to make specified information publicly available to skilled nursing facilities; and (6) other technical changes.

ANALYSIS:

Existing federal law:

1. Prohibits LTC facilities from requesting or requiring oral or written assurance that residents or potential residents state that they are not eligible for, or will not apply for, Medicare or Medicaid benefits. [Title 42 Code of Federal Regulations (CFR) §483.15]
2. Prohibits LTC facilities that participate in the Medicaid or Medicare program from transferring or discharging a resident from the facility unless under one of the following conditions:
   1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
   2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
   3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
   4. The health of individuals in the facility would otherwise be endangered;
   5. The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. Specifies that for a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
   6. The facility ceases to operate. [Title 42 CFR §483.15]

Existing state law:

1. Licenses and regulates health care facilities by the California Department of Public Health (CDPH), including LTC facilities, which are defined, in part, as skilled nursing facilities (SNFs), intermediate care facilities, and congregate living health facilities. [Health and Safety Code (HSC) §1250 et seq., §1418]
2. Requires all contracts of admission to LTC facilities to state that except in an emergency, a resident cannot be involuntarily transferred within, or discharged from, the facility unless the resident is given reasonable notice in writing and transfer or discharge planning as required. Requires the written notice to state the reason for the transfer or discharge, and requires the facility to immediately notify the Office of the State Long-Term Care Ombudsman (LTC Ombudsman) in every case of involuntary discharge, as specified. [HSC §1599.78]
3. Requires an LTC facility, if a resident is notified in writing of a facility-initiated transfer or discharge, to also send a copy of the notice to the local LTC Ombudsman at the same time the notice is provided to the resident. Requires the facility, if the resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, to provide a copy of the notice to the LTC Ombudsman as soon as practicable. Requires the copy of the notice to be sent by fax or email, as directed by the local LTC Ombudsman, unless the facility does not have fax or email capability, in which case the copy of the notice is required to be sent by mail. [HSC §1439.6]
4. Prohibits a LTC facility that participates as a Medi-Cal provider from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except that a facility is permitted to transfer a resident from a private room to a semi-private room. [Welfare and Institutions Code §14124.7]

This bill:

1. Requires a SNF facility participating as a provider in the Medi-Cal program to make publicly available its current daily resident census in either of the following ways:
   1. By posting on its website the facility’s current daily resident census and nurse staffing data; and,
   2. Upon request by telephone, based on the preference of the requester, either a verbal response within 24 hours or by emailing within two business days the current daily resident census and nurse staffing data.
2. Exempts violations of 1) above, from penalty and misdemeanor provisions in existing state law regarding LTC facilities.
3. Declares that the estimated cost of complying with this bill is de minimus and therefore not a new state mandate; however, should reimbursement to facilities be required as determined by a court of the Centers for Medicare and Medicaid Services then this bill shall only become operative upon an appropriation by the Legislature.
4. Requires that the written notice already required when involuntarily transferring or discharging a resident from a LTC facility to include the following statement:

“At the time of admission, this facility is an enrolled provider with the following: ____ Medi-Cal ____ Medicare.

If we participate in Medi-Cal, you will not be discharged from the facility or transferred within the facility, solely as a result of changing your manner of purchasing the services from private payment or Medicare to Medi-Cal, except for a potential transfer within the facility from a private room to a semiprivate room.

If we participate in Medi-Cal, you may be eligible for the Long-Term Care Medi-Cal program to help pay for your stay in the facility. For more information, refer to the attached notice DHCS 7077, Notice Regarding Standards for Medi-Cal Eligibility, from the State Department of Health Care Services. Medi-Cal, Medicare, or a private payor may require that the resident pay a copayment, coinsurance, or a deductible, all of which the facility considers to be the resident’s share of cost.”

1. Prohibits a LTC facility participating as a Medi-Cal provider from discriminating against a Medi-Cal patient on the basis of the source of payment for the facility’s services that are required to be provided to individuals entitled to services under the Medi-Cal program.
2. Requires a LTC facility participating as a Medi-Cal provider to provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. States that this requirement applies to, but is not limited to, admission practices, room selection and placements except as specified in existing law, and meal provision.

Comments

1. Author’s statement. According to the author, one of the most disturbing violations of state and federal laws is the pervasive discrimination against Medi-Cal beneficiaries who need nursing home care. Imagine calling nursing home after nursing home for a loved one who is on Medi-Cal and not being able to find one. Meanwhile, if they are on Medicare, a place can be found right away. Medicare reimbursements are higher than the Medi-Cal daily rates – because of that, discriminating against Medi-Cal residents has become the standard way nursing homes try to increase their profits. Participation in the Medi-Cal program is voluntary; facilities who participate must sign a provider agreement certifying under penalty of perjury that they will adhere to all state and federal laws, which include a prohibition against Medi-Cal discrimination. This bill strengthens the alignment of laws with regulation codes that currently oversee the administration of agreements with providers in the operations of their facilities. The residents, families of residents, and the public have been demanding greater accountability of SNFs for many years now. This bill will enhance the rights residents are entitled to under law.
2. Recent state efforts addressing nursing home payer discrimination. The California Attorney General has brought lawsuits against two large LTC providers alleging violations of existing state law on LTC discharges. In January 2023, a judge granted a preliminary injunction against 19 SNFs operated under Mariner Health for a number of violations, including failure to provide the appropriate notices at discharge or transfer, copies of the notices to the local LTC Ombudsman, or to provide timely notice, along with other violations compromising the health and safety of residents. In March 2023, the Attorney General announced a settlement with the Brooksdale Senior Living who operated ten SNFs in which Brooksdale Senior Living agreed to stop discharging or transferring residents without following the current law regarding discharge and transfer, including the timeliness and notice requirements, as well as the requirements on permissible reasons for discharge or transfer. In addition, Brooksdale agreed to have its compliance monitored and to pay $2.4 million in penalties, $550,000 in costs and $300,000 to the Kern County LTC Ombudsman.

As recently as December 2023, CDPH issued an all-facilities letter (AFL 23-37) to SNFs reminding SNFs that they provide continuous skilled nursing care and supportive care to patients whose primary need is for skilled nursing care on an extended basis. SNFs must provide residents with equal access to quality care regardless of diagnosis, severity of condition, or payment source. SNF discharges of residents admitted for short-term rehabilitation who communicate they are not ready to leave the facility may be investigated for discrimination.​ AFL 23-37 reiterated the requirements that SNFs not seek or receive assurances that residents are not eligible for or will not apply for Medicare or Medicaid and reiterated state and federal transfer and discharge requirements.

AB 1309 (Reyes, Chapter 835, Statutes of 2023) was passed in response to complaints received by California’s LTC Ombudsman programs regarding unlawful evictions of nursing home residents. AB 1309 increased the documentation required in resident notices when residents are involuntarily transferred or discharged.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Committee on Appropriations:

1. Likely minor and absorbable costs to DHCS.
2. Likely minor and absorbable costs to CDPH to ensure facilities are complying with the provisions of this bill.

SUPPORT: (Verified 8/20/24)

California Advocates for Nursing Home Reform (co-source)

Office of the State Long-Term Care Ombudsman (co-source)

AARP

Alameda County Democratic Central Committee

Association of Regional Center Agencies

Bet Tzedek Legal Services

California Alliance for Retired Americans

California Long-Term Care Ombudsman Association

California Retired Teachers Association

Disability Rights California

Imperial County Long-Term Care Ombudsman Program

Justice in Aging

Ventura County Long-Term Care Ombudsman Program

Two individuals

OPPOSITION: (Verified 8/20/24)

None received

ARGUMENTS IN SUPPORT: Co-sponsor California Advocates for Nursing Home Reform write that when residents are denied skilled nursing services because of their payment source, they suffer significant harm. Admissions discrimination effectively requires patients to be hospitalized before they will be admitted, forcing them to delay custodial care until they have a medical crisis. Similarly, evictions motivated by a change in payment source, are often hurried, inappropriate, and unsafe. Residents end up dumped into homeless shelters, motels, or homes with clearly inadequate care and supervision. They also write that Medi-Cal beneficiaries face discrimination in the type of care they receive and those that are admitted into LTC facilities are often segregated in sections of the facility that offer inferior care and accommodations and they are denied services such as physical therapy and basic hygiene and grooming services. They cite a recent example of the closure of the Laguna Honda LTC facility in San Francisco and the difficulties the staff had placing Medi-Cal patients in other facilities despite nursing home resident census data available at the time showing available beds.

Co-sponsor Office of the State Long-Term Care Ombudsman write that LTC Ombudsman representatives are regularly called upon to advocate for nursing home residents who are on Medi-Cal and their families desperate to find a bed, often forced settle for placement hundreds of miles away from their support networks. This situation is repeated numerous times every year and, on the increase, due to the recent uptick in skilled nursing facility closures across the state. They cite a recent example in San Diego where after the closure of one facility, despite having other large facilities in the area, many residents risked being forced to move to Riverside County because their families were told no beds were available. Only through extraordinary collaborative efforts between Health Plan Case Managers, Social Workers from the closing SNF, representatives from

CDPH, DHCS, and the LTC Ombudsman program, were these residents able to stay near their loved ones.

ASSEMBLY FLOOR: 75-0, 8/27/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Cervantes, Lee, Ortega, Jim Patterson

Prepared by: Jen Flory / HEALTH / (916) 651-4111

8/27/24 19:51:27

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1354

Author:(Wahab)

As Amended Ver:August 19, 2024

Majority vote

SUMMARY

Imposes requirements to increase accountability for and compliance with existing law, regulation, and policy related to nondiscrimination of payer source for admissions to, discharges from, and transfers within or from long-term health care facilities (LTC facilities). Specifies nondiscrimination requirements are declaratory of existing law and provider requirements, and not considered a new state mandate for rate-setting or other purposes.

Major Provisions

1. Requires a skilled nursing facility (SNF) participating as a Medi-Cal provider to make publicly available its current daily resident census and nurse staffing data, as specified.
2. Requires specific language be added to a notice be provided when a resident is involuntarily transferred or discharged from a LTC facility.
3. Codifies language in the Medi-Cal provider agreement that prohibits discrimination based on payer source, for polices including but not limited to admissions, meals, room selection, and placements within facilities, unless otherwise specified by law.

COMMENTS

1. Insurance-Based Discrimination. Insurance-based discrimination refers to inequitable treatment that patients receive from health care providers because of the type of insurance they have, or because they do not have insurance. Many health care providers and institutions routinely provide differential access to services based on insurance status. For instance, many providers can choose whether to accept Medicaid or uninsured patients and can choose whether to contract with Medicaid managed care plans. Patients may experience different appointment availability and overall access to care depending on their insurance status.
2. Existing Nondiscrimination Protections Based on Insurance Status. Despite insurance-based discrimination being fairly common, some health care providers and institutions are bound by nondiscrimination protections that apply as a condition of participation in Medicare and Medicaid (Medi-Cal in California). Since Medicare and Medicaid pay for the vast majority of patient days in SNFs, these facilities are bound by rules that apply as a condition of participation in these programs.

Medi-Cal provider agreements include language prohibiting discrimination “against Medi-Cal beneficiaries in any manner, including, but not limited to, admission practices, room selection and placement, [and] meals provision,” as well as requiring a provider to “agree that it shall provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public.” This bill codifies these non-discrimination protections as they apply to LTC facilities.

In addition, state law prohibits a LTC facility that participates as a Medi-Cal provider from seeking to evict out of the facility, or transfer within the facility, a resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except the law explicitly permits a facility to transfer a resident from a private room to a semi-private room. Finally, state law prohibits a Medi-Cal provider from discriminating against a Medi-Cal patient on the basis of the source of payment for services covered by Medi-Cal. Recent Department of Public Health (DPH) guidance, All-Facilities Letter (AFL) 23-37 issued on December 22, 2023, reiterated nondiscrimination protections and expectations under state and federal rules.

1. Experience from the Field. Cosponsor California Advocates for Nursing Home Reform (CANHR) asserts that Medi-Cal discrimination has long been a problem in LTC facilities despite the prohibitions on discrimination noted above. CANHR indicates Medi-Cal discrimination in these facilities manifests in two primary ways: admissions and discharge decisions. CANHR cites, for instance, the difficulty in finding placements for 681 residents affected by the closure of a SNF called Laguna Honda in 2022.

By codifying nondiscrimination provisions of the provider agreement, informing individuals as they are admitted of their rights to not be discharged or transferred from the facility based on insurance status, and improving access to information about average daily census and nurse staffing, this bill seeks to increase compliance with nondiscrimination rules, improve the ability of Medi-Cal enrolled individuals to find SNF placements, and reduce inappropriate transfers and discharges.

According to the Author

One of the most disturbing violations of state and federal laws is the pervasive discrimination against Medi-Cal beneficiaries who need nursing home care. The author cites examples of calling nursing home after nursing home for a loved one who is on Medi-Cal and not being able to find one and, meanwhile, if the person is on Medicare, a place can be found right away. Medicare reimbursement rates are higher than Medi-Cal rates; the author declares that, therefore, discriminating against Medi-Cal residents has become the standard way nursing homes try to increase their profits. Participation in the Medi-Cal program is voluntary; facilities who participate must sign a provider agreement certifying under penalty of perjury that they will adhere to all state and federal laws, which include a prohibition against Medi-Cal discrimination. This bill seeks to tighten and improve accountability to current nondiscrimination requirements in order to make it easier for Medi-Cal members seeking LTC services to find a LTC placement, and to prevent inappropriate discharges of Medi-Cal members.

Arguments in Support

Numerous disability, aging, and consumer rights advocacy organizations support this bill, asserting that despite antidiscrimination laws, for decades, nursing homes have found numerous ways of discriminating to reduce their Medi-Cal population and free beds up to make way for more lucrative private pay or Medicare residents. Supporters note the situation has prompted DPH to publish an AFL reminding facilities of their obligation to provide the same level of care and accommodation to all residents, regardless of their payment source. Cosponsor Office of the State LTC Ombudsman states this bill would address the growing problem of systemic discrimination faced by Medi-Cal beneficiaries by SNFs that often refuse their admission or terminate their services when their payment source is switched to Medi-Cal.

Arguments in Opposition

There is no known opposition. Prior opposition was removed based on June 17, 2024, amendments to this bill.

FISCAL COMMENTS

According to the Assembly Committee on Appropriations:

1. Likely minor and absorbable costs to the Department of Health Care Services.
2. Likely minor and absorbable costs to DPH to ensure facilities are complying with the provisions of this bill.

VOTES

SENATE FLOOR: 30-9-1

YES: Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Allen

ASM HEALTH: 16-0-0

YES: Bonta, Waldron, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Wood, Jackson, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Schiavo, Weber

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: August 19, 2024

CONSULTANT: Lisa Murawski / HEALTH / (916) 319-2097 FN: 0004096

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1354

Author:(Wahab) – As Amended Ver:June 17, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires a skilled nursing facility (SNF) participating as a provider in the Medi-Cal program to make publicly available its current daily resident census and nurse staffing data. The bill also requires a long term care (LTC) facility to treat a Medi-Cal beneficiary in the same manner as it treats a resident with a different source of payment, and to provide specified information to a resident upon admission.

Specifically, this bill:

1. Requires a SNF participating as a provider in the Medi-Cal program to make publicly available its current daily resident census and nurse staffing data by doing one of the following:
   1. Posting the information on its website.
   2. For a request by telephone, providing the information verbally, by telephone, within 24 hours of the request, or by email, within two business days of the request, as preferred by the person requesting the information.
2. Defines “current daily resident census” and “nurse staffing data” as the information specified federal regulations require the SNF to post.
3. Exempts a failure to comply with the above requirements from specified penalties and misdemeanor charges.
4. Requires the addition of a specified statement to the written notice a LTC facility that is a Medi-Cal provider must provide when a resident is involuntarily transferred or discharged. The statement affirms the resident will not be discharged from or transferred within the facility solely as a result of a change to Medi-Cal as a payer, except for a potential transfer from a private room to a semiprivate room, and the resident may be eligible for the Long-Term Care Medi-Cal program to help pay for their stay in the facility. The statement also refers to an attached notice regarding Medi-Cal eligibility.
5. Requires a LTC facility participating as a Medi-Cal provider to provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner as provided to the general public, regardless of payment source, as specified.

FISCAL EFFECT:

1. Costs to the Medi-Cal program are likely minor and absorbable. However, the Department of Health Care Services (DHCS) notes DHCS may face legal risk from providers to provide census and nurse staffing data as required by this bill, which could result in an unknown fiscal impact. DHCS further contends the lack of specificity regarding non-discrimination with regards to intent of application, measurement, and enforcement in the LTC provisions make it difficult to estimate the fiscal impact of the bill, and there could potentially be significant fiscal impacts to the Medi-Cal program if LTC facilities are required to change service levels for Medi-Cal members.
2. Costs to CDPH to ensure facilities are complying with the provisions of this bill are unknown, but likely minor and absorbable.

COMMENTS:

1. Purpose. This bill is sponsored by California Advocates for Nursing Home Reform (CANHR) and the Office of the State Long-Term Care Ombudsman. According to the author:

Imagine calling nursing home after nursing home for a loved one who is on Medi-Cal and not being able to find one. Meanwhile, if they are on Medicare, a place can be found right away. Medicare reimbursements are higher than the Medi-Cal daily rates – because of that, discriminating against Medi-Cal residents has become the standard way nursing homes try to increase their profits. Participation in the Medi-Cal program is voluntary; facilities who participate must sign a provider agreement certifying under penalty of perjury that they will adhere to all state and federal laws, which include a prohibition against Medi-Cal discrimination. This bill strengthens the alignment of laws with regulation codes that…oversee the administration of agreements with providers in the operations of their facilities. This bill will enhance the rights residents are entitled to under law.

1. Background. Some health care providers and institutions are bound by nondiscrimination protections that apply as a condition of participation in Medicare and Medi-Cal. Medi-Cal provider agreements include language prohibiting discrimination “against Medi-Cal beneficiaries in any manner, including, but not limited to, admission practices, room selection and placement, [and] meals provision,” and requiring a provider to agree to “provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public.” This bill codifies these non-discrimination protections as they apply to LTC facilities.
   
   In addition, state law prohibits a LTC facility that participates as a Medi-Cal provider from seeking to evict or transfer within the facility a resident as a result of the resident changing from private payment or Medicare to Medi-Cal, except the law explicitly permits a facility to transfer a resident from a private room to a semi-private room. Finally, state law prohibits a Medi-Cal provider from discriminating against a Medi-Cal patient on the basis of the source of payment for services covered by Medi-Cal.
   
   Pursuant to federal regulations, SNFs must provide residents with equal access to quality care regardless of diagnosis, severity of condition, or payment source. CDPH cited this requirement in a December 22, 2023 All-Facilities Letter (AFL) 23-37 that reiterated nondiscrimination protections and expectations under state and federal rules, and reminded SNFs that:
   
   1. Both federal and state regulations limit the circumstances under which a SNF can initiate a transfer or discharge.
      
   2. Discharges of residents admitted for short-term rehabilitation who communicate they are not ready to leave the facility may be investigated for discrimination.
      
   3. SNFs may not seek to transfer or discharge residents solely due to a change in their source of payment, or to open a bed for residents with insurance coverage that provides a higher rate of reimbursement.

Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081

Date of Hearing: June 25, 2024

ASSEMBLY COMMITTEE ON HEALTH

Mia Bonta, Chair

SBPCA Bill Id:SB 1354

Author:(Wahab) – As Amended Ver:June 17, 2024

SENATE VOTE: 30-9

SUBJECT: Long-term health care facilities: payment source and resident census.

SUMMARY: Imposes requirements to increase accountability for and compliance with existing law, regulation, and policy related to nondiscrimination of payer source for admissions to, discharges from, and transfers within or from long-term health care facilities (LTC facilities). Specifically, this bill:

1. Requires a skilled nursing facility (SNF) participating as a Medi-Cal provider to make publicly available its current daily resident census and nurse staffing data by meeting either of the following conditions:
   1. The facility posts on its website the facility’s current daily resident census and nurse staffing data; or,
   2. Upon request by telephone, the facility provides the data through either or both of the following ways based on the preference of the requestor: verbally, within 24 hours; or by email within two business days. Allows the facility to comply with the request to provide data by email by emailing a photo of its posted data.
      
2. Defines “current daily resident census” and “nurse staffing data” as data required to be posted by the facility pursuant to federal regulations, as specified, that corresponds to a given day, in the case data is posted on a website pursuant to 1) a) above, or the day a request is made pursuant to 1) b) above.
3. Specifies the reporting requirement established by 1) above does not preclude the provision of any information by a LTC facility otherwise required by state or federal law.
4. Exempts a failure to comply with 1) above from specified penalties and misdemeanor charges.
5. Requires the addition of the following statement to the written notice required to be provided when a resident is involuntarily transferred or discharged from a LTC facility:

“At the time of admission, this facility is an enrolled provider with the following: ____ Medi-Cal ____ Medicare.

If we participate in Medi-Cal, you will not be discharged from the facility or transferred within the facility, solely as a result of changing your manner of purchasing the services from private payment or Medicare to Medi-Cal, except for a potential transfer within the facility from a private room to a semiprivate room.

If we participate in Medi-Cal, you may be eligible for the Long-Term Care Medi-Cal program to help pay for your stay in the facility. For more information, refer to the attached notice DHCS 7077, Notice Regarding Standards for Medi-Cal Eligibility, from the State Department of Health Care Services. Medi-Cal, Medicare, or a private payor may require that the resident pay a copayment, coinsurance, or a deductible, all of which the facility considers to be the resident’s share of cost.”

1. Requires a LTC facility participating as a Medi-Cal provider to provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. Specifies this applies to, but is not limited to, admission practices, room selection and placements except as otherwise specified in law, and meal provision.
2. Makes a technical conforming change.

EXISTING FEDERAL LAW:

1. Prohibits nursing facilities that participate in the Medicaid or Medicare program from requesting or requiring oral or written assurance that residents or potential residents state that they are not eligible for, or will not apply for, Medicare or Medicaid benefits. [42 Code of Federal Regulations (CFR) §483.15]
2. Prohibits nursing facilities that participate in the Medicaid or Medicare program from transferring or discharging a resident from the facility unless under one of the following conditions:
   1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
   2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
   3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
   4. The health of individuals in the facility would otherwise be endangered;
   5. The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. Specifies that for a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
   6. The facility ceases to operate. [Ibid.]
3. Requires nursing facilities that participate in Medicaid or Medicare to post the following information on a daily basis:
   1. The total number and the actual hours worked by the following categories of licensed and unlicensed nursing staff directly responsible for resident care per shift, as specified; and,
   2. Resident census.
      

Requires posting of nurse staffing data on a daily basis at the beginning of each shift. Requires data to be posted in a clear and readable format and in a prominent place readily accessible to residents and visitors. Requires a facility, upon oral or written request, to make nurse staffing data available to the public for review at a cost not to exceed the community standard. Requires a facility to maintain the posted daily nurse staffing data for a minimum of 18 months, or as required by State law, whichever is greater. [42 CFR §483.35(g)]

EXISTING STATE LAW:

1. Licenses and regulates health care facilities by the California Department of Public Health (DPH), including SNFs. [Health and Safety Code (HSC) §1250 et seq.]
2. Defines LTC facilities, in part, as SNFs, intermediate care facilities (ICFs), and congregate living health facilities. [HSC §1418]
   
3. Requires all contracts of admission to LTC facilities to state that except in an emergency, a resident cannot be involuntarily transferred within, or discharged from, the facility unless the resident is given reasonable notice in writing and transfer or discharge planning as required. Requires the written notice to state the reason for the transfer or discharge, and requires the facility to immediately notify the Office of the State Long-Term Care Ombudsman (LTC Ombudsman) in every case of involuntary discharge, as specified. [HSC §1599.78]
   
4. Requires an LTC facility, if a resident is notified in writing of a facility-initiated transfer or discharge, to also send a copy of the notice to the local LTC Ombudsman at the same time the notice is provided to the resident. Requires the facility, if the resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, to provide a copy of the notice to the LTC Ombudsman as soon as practicable. [HSC §1439.6]
   
5. Regulates contracts of admission to LTC facilities, and requires that SNFs, ICFs, and nursing facilities use a standard admission agreement developed and adopted by DPH. [HSC §1599.60, et seq.]
6. Regulates involuntary transfers and discharges from LTC facilities. Prohibits a contract of admission from listing any ground for involuntary transfer or discharge of the resident except those grounds which are specifically enumerated in either federal or state law. [HSC §1599.76]
7. Requires every contract of admission to a LTC facility that participates in Medi-Cal to state that the facility may not transfer or seek to evict any resident solely as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal. [Ibid.]
8. Establishes the Medi-Cal program, administered by the Department of Health Care Services (DHCS), under which low-income individuals are eligible for medical coverage. [Welfare and Institutions Code (WIC) §14000, et seq.]
9. Establishes a schedule of benefits under the Medi-Cal program, which includes LTC services, as specified. [WIC §14132]
10. Prohibits a LTC facility that participates as a Medi-Cal provider from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except that a facility is permitted to transfer a resident from a private room to a semi-private room. [WIC §14124.7]
    
11. To the extent not prohibited by federal law, prohibits a Medi-Cal provider from discriminating against a Medi-Cal patient on the basis of the source of payment for the facility’s services that are required to be provided to individuals entitled to services under the Medi-Cal program. [WIC §14124.10]
    

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, one of the most disturbing violations of state and federal laws is the pervasive discrimination against Medi-Cal beneficiaries who need nursing home care. The author cites examples of calling nursing home after nursing home for a loved one who is on Medi-Cal and not being able to find one, and meanwhile, if the person is on Medicare, a place can be found right away. Medicare reimbursement rates are higher than Medi-Cal rates; the author declares that, therefore, discriminating against Medi-Cal residents has become the standard way nursing homes try to increase their profits. Participation in the Medi-Cal program is voluntary; facilities who participate must sign a provider agreement certifying under penalty of perjury that they will adhere to all state and federal laws, which include a prohibition against Medi-Cal discrimination. This bill seeks to tighten and improve accountability to current nondiscrimination requirements in order to make it easier for Medi-Cal members seeking LTC services to find a LTC placement, and to prevent inappropriate discharges of Medi-Cal members.
2. BACKGROUND.
   1. Insurance-Based Discrimination. Insurance-based discrimination refers to inequitable treatment that patients receive from health care providers because of the type of insurance they have, or because they do not have insurance. Many health care providers and institutions routinely provide differential access to services based on insurance status. For instance, many providers can choose whether to accept Medicaid or uninsured patients and can choose whether to contract with Medicaid managed care plans. Patients may experience different appointment availability and overall access to care depending on their insurance status.

According to “Insurance-Based Discrimination Reports and Access to Care Among Nonelderly US Adults, 2011–2019,” a peer-reviewed 2023 study published in the American Journal of Public Health of survey data from 4,000 adults aged 18 to 64 years who reported their experiences with insurance-based discrimination:

• • 1. Research consistently shows dramatically higher rates of insurance-based discrimination among people with public rather than private insurance;
    2. Research also consistently demonstrates that reports of insurance-based discrimination are tied to delayed and forgone care, lack of confidence in getting needed care, reports of poor-quality care, and receipt of suboptimal care; and,
    3. Compared with adults with private insurance (4% on average), insurance-based discrimination was five or six times higher for adults with public insurance (21% on average) and about seven times higher for adults with no insurance (27% on average).

The study recommends monitoring insurance-based discrimination and enforcing nondiscrimination policies.

• 1. Existing Nondiscrimination Protections Based on Insurance Status. Despite insurance-based discrimination being fairly common, some health care providers and institutions are bound by nondiscrimination protections that apply as a condition of participation in Medicare and Medicaid (Medi-Cal in California). Since Medicare and Medicaid pay for the vast majority of patient days in SNFs, these facilities are bound by rules that apply as a condition of participation in these programs.
     
     Medi-Cal provider agreements include language prohibiting discrimination “against Medi-Cal beneficiaries in any manner, including, but not limited to, admission practices, room selection and placement, [and] meals provision,” as well as requiring a provider to “agree that it shall provide aid, care, service, or other benefits available under Medi-Cal to Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public.” This bill codifies these non-discrimination protections as they apply to LTC facilities.

In addition, state law prohibits a LTC facility that participates as a Medi-Cal provider from seeking to evict out of the facility, or transfer within the facility, a resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except the law explicitly permits a facility to transfer a resident from a private room to a semi-private room. Finally, state law prohibits a Medi-Cal provider from discriminating against a Medi-Cal patient on the basis of the source of payment for services covered by Medi-Cal.

• 1. Recent DPH Guidance Reiterates Nondiscrimination Rules. Pursuant to federal regulations, SNFs must provide residents with equal access to quality care regardless of diagnosis, severity of condition, or payment source. This requirement was cited in a December 22, 2023, All-Facilities Letter (AFL) 23-37 issued by DPH, among other requirements, to reiterate nondiscrimination protections and expectations under state and federal rules. AFL 23-37 also reminded SNFs that:
     1. Both federal and state regulations limit the circumstances under which a SNF can initiate a transfer or discharge, thus protecting SNF residents from facility-initiated transfers and discharges that would violate those regulations;
     2. Discharges of residents admitted for short-term rehabilitation who communicate they are not ready to leave the facility may be investigated for discrimination; and,
     3. SNFs may not seek to transfer or discharge residents solely due to a change in their source of payment, e.g., Medicare to Medi-Cal, or to open a bed for residents with insurance coverage that provides a higher rate of reimbursement.
  2. Experience from the Field. Cosponsor California Advocates for Nursing Home Reform (CANHR) asserts that Medi-Cal discrimination has long been a problem in LTC facilities despite the prohibitions on discrimination noted above. CANHR indicates Medi-Cal discrimination in these facilities manifests in two primary ways: admissions and discharge decisions.
     1. Admissions. CANHR asserts that in admissions, nursing homes uniformly refuse to admit residents from anywhere other than a hospital, given that hospital stays trigger lucrative Medicare coverage that is only available for a benefit period of 100 days.
     2. Discharges. CANHR asserts Medi-Cal discrimination results in residents being chased out and subject to unsafe, inappropriate discharges the instant their Medicare coverage ends and they switch to Medi-Cal reimbursement.

According to CANHR, the standard business plan of nursing home chains is to maximize the number of residents on Medicare and minimize the number on Medi-Cal, and this is evident when viewed at a broad level despite difficulty conclusively demonstrating discrimination on a case-by-case basis. CANHR cites, for instance, the difficulty in finding placements for 681 residents affected by the closure of a SNF called Laguna Honda in 2022. Although nursing home resident census data that was available at the time showed that hundreds of nursing home beds were available in the City of San Francisco alone, CANHR notes 14,480 calls made by Laguna Honda staff seeking placements led to only 41 successful transfers, 35 of which were to a single facility.

By codifying nondiscrimination provisions of the provider agreement, informing individuals as they are admitted of their rights to not be discharged or transferred from the facility based on insurance status, and improving access to information about average daily census and nurse staffing, this bill seeks to increase compliance with nondiscrimination rules, improve the ability of Medi-Cal enrolled individuals to find SNF placements, and reduce inappropriate transfers and discharges.

1. SUPPORT. Numerous disability, aging, and consumer rights advocacy organizations support this bill, asserting that despite antidiscrimination laws, for decades, nursing homes have found numerous ways of discriminating to reduce their Medi-Cal population and free beds up to make way for more lucrative private pay or Medicare residents. Supporters note the situation has prompted DPH to publish an AFL reminding facilities of their obligation to provide the same level of care and accommodation to all residents, regardless of their payment source. Cosponsor Office of the State LTC Ombudsman states this bill would address the growing problem of systemic discrimination faced by Medi-Cal beneficiaries by SNFs that often refuse their admission or terminate their services when their payment source is switched to Medi-Cal.
   
2. RELATED LEGISLATION. SB 1033 (Menjivar) requires a study on reimbursement of licensed congregate living health facilities and private duty nursing services. SB 1033 is pending in this Committee.
3. PREVIOUS LEGISLATION.
   1. AB 1309 (Reyes), Chapter 835, Statutes of 2023, requires nursing homes, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident with a copy of certain discharge-related documents, including a description of specific needs that cannot be met when the basis of the transfer or discharge is because the resident’s needs cannot be met in the facility.
      
   2. AB 895 (Holden), Chapter 577, Statutes of 2022, requires SNFs and residential care facilities for the elderly to provide a written notice to a prospective resident, or their representative, that includes the contact information for the local LTC ombudsman, and links to specified websites governing licensing and quality of care.
      
   3. AB 133 (Committee on Budget), Chapter 143, Statutes of 2022, health trailer bill that, among other things, requires an LTC facility to timely comply with a hearing decision that finds that the facility improperly transferred, discharged, or refused to readmit a resident. Allows DHCS to assess penalties of $750 a day for each calendar day the facility fails to comply with the hearing decision. 
      
   4. AB 940 (Weber), Chapter 274, Statues of 2017, requires a LTC facility to notify the local LTC ombudsman when a resident is notified in writing of a facility-initiated transfer or discharge from the facility.
      
   5. SB 526 (Alquist) of 2005, among other things, would have prohibited SNFs from discriminating on the source of payment against a current or prospective Medi-Cal recipient and required that applicants for admission to a SNF be admitted on a first come, first serve basis. SB 526 was referred to the Senate Health Committee and was not heard.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Office of the State Long-Term Care Ombudsman (cosponsor)

California Advocates for Nursing Home Reform (cosponsor)

AARP

Alameda County Democratic Central Committee

Association of Regional Center Agencies

Bet Tzedek Legal Services

California Advocates for Nursing Home Reform

California Alliance for Retired Americans

California Long Term Care Ombudsman Association (CLTCOA)

California Retired Teachers Association

Disability Rights California

Elderly Care Everywhere

Imperial County Long-Term Care Ombudsman Program

Justice in Aging

Long Term Care Services of Ventura Co, Ombudsman

Opposition

None on file.

Analysis Prepared by: Lisa Murawski / HEALTH / (916) 319-2097

 THIRD READING  

Bill No: SB 1354

Author: Wahab (D)

Amended: 4/29/24

Vote: 21

SENATE HEALTH COMMITTEE: 9-2, 4/24/24

AYES: Roth, Glazer, Gonzalez, Hurtado, Limón, Menjivar, Rubio, Smallwood-Cuevas, Wiener

NOES: Nguyen, Grove

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Long-term health care facilities: payment source and resident census

SOURCE: California Advocates for Nursing Home Reform

Office of the State Long-Term Care Ombudsman

DIGEST:

This bill requires a long-term care (LTC) facility participating in the Medi-Cal program to provide aid, care, service, or other benefits available under Medi-Cal-to-Medi-Cal recipients in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. Requires LTC facilities to post a daily resident census on their website or provide daily resident census information upon request. Requires a notice when transferring or discharging a patient to contain specified information regarding restrictions on transfer or discharge due to change in payer and information about the facility’s participation in Medi-Cal.

ANALYSIS:

Existing federal law:

1. Prohibits LTC facilities from requesting or requiring oral or written assurance that residents or potential residents state that they are not eligible for, or will not apply for, Medicare or Medicaid benefits. [Title 42 Code of Federal Regulations (CFR) §483.15]
2. Prohibits LTC facilities that participate in the Medicaid or Medicare program from transferring or discharging a resident from the facility unless under one of the following conditions:
   1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
   2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
   3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
   4. The health of individuals in the facility would otherwise be endangered;
   5. The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. Specifies that for a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
   6. The facility ceases to operate. [Title 42 CFR §483.15]

Existing state law:

1. Licenses and regulates health care facilities by the California Department of Public Health (CDPH), including LTC facilities, which are defined, in part, as skilled nursing facilities (SNFs), intermediate care facilities, and congregate living health facilities. [Health and Safety Code (HSC) §1250 et seq., §1418]
2. Requires all contracts of admission to LTC facilities to state that except in an emergency, a resident cannot be involuntarily transferred within, or discharged from, the facility unless the resident is given reasonable notice in writing and transfer or discharge planning as required. Requires the written notice to state the reason for the transfer or discharge, and requires the facility to immediately notify the Office of the State Long-Term Care Ombudsman (LTC Ombudsman) in every case of involuntary discharge, as specified. [HSC §1599.78]
3. Requires an LTC facility, if a resident is notified in writing of a facility-initiated transfer or discharge, to also send a copy of the notice to the local LTC Ombudsman at the same time the notice is provided to the resident. Requires the facility, if the resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, to provide a copy of the notice to the LTC Ombudsman as soon as practicable. Requires the copy of the notice to be sent by fax or email, as directed by the local LTC Ombudsman, unless the facility does not have fax or email capability, in which case the copy of the notice is required to be sent by mail. [HSC §1439.6]
4. Prohibits a LTC facility that participates as a Medi-Cal provider from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except that a facility is permitted to transfer a resident from a private room to a semi-private room. [Welfare and Institutions Code §14124.7]

This bill:

1. Requires a LTC facility participating as a provider in the Medi-Cal program to make publicly available its current daily resident census in the following ways:
   1. By posting on its website the facility’s current daily resident census; and,
   2. By providing via telephone or email, as requested and within 24 hours of request, the facility’s daily resident census.
2. Defines “current daily residence census” as the total number of patients residing at the LTC facility on a given day.
3. Exempts violations of 1) from penalty and misdemeanor provisions in existing state law regarding LTC facilities.
4. Requires that the written notice already required when involuntarily transferring or discharging a resident from a LTC facility to include the following statement:

“At the time of admission, this facility is an enrolled provider with the following: ____ Medi-Cal ____ Medicare.

If we participate in Medi-Cal, you will not be discharged from the facility or transferred within the facility, solely as a result of changing your manner of purchasing the services from private payment or Medicare to Medi-Cal.

If we participate in Medi-Cal, you may be eligible for the Long-Term Care Medi-Cal program to help pay for your stay in the facility. For more information, refer to the attached notice DHCS 7077, Notice Regarding Standards for Medi-Cal Eligibility, from the State Department of Health Care Services. Medi-Cal, Medicare, or a private payor may require that the resident pay a copayment, coinsurance, or a deductible, all of which the facility considers to be the resident’s share of cost.”

1. Requires a LTC facility participating as a Medi-Cal provider to provide aid, care, service, or other benefits available under Medi-Cal-to-Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. States that this requirement applies to, but is not limited to, admission practices, room selection and placements except as specified in existing law, and meal provision.

Comments

1. Author’s statement. According to the author, one of the most disturbing violations of state and federal laws is the pervasive discrimination against Medi-Cal beneficiaries who need nursing home care. Imagine calling nursing home after nursing home for a loved one who is on Medi-Cal and not being able to find one. Meanwhile, if they are on Medicare, a place can be found right away. Medicare reimbursements are higher than the Medi-Cal daily rates – because of that, discriminating against Medi-Cal residents has become the standard way nursing homes try to increase their profits. Participation in the Medi-Cal program is voluntary; facilities who participate must sign a provider agreement certifying under penalty of perjury that they will adhere to all state and federal laws, which include a prohibition against Medi-Cal discrimination. This bill strengthens the alignment of laws with regulation codes that currently oversee the administration of agreements with providers in the operations of their facilities. The residents, families of residents, and the public have been demanding greater accountability of SNFs for many years now. This bill will enhance the rights residents are entitled to under law.
2. Recent state efforts addressing nursing home payer discrimination. The California Attorney General has brought lawsuits against two large LTC providers alleging violations of existing state law on LTC discharges. In January 2023, a judge granted a preliminary injunction against 19 SNFs operated under Mariner Health for a number of violations, including failure to provide the appropriate notices at discharge or transfer, copies of the notices to the local LTC Ombudsman, or to provide timely notice, along with other violations compromising the health and safety of residents. In March 2023, the Attorney General announced a settlement with the Brooksdale Senior Living who operated ten SNFs in which Brooksdale Senior Living agreed to stop discharging or transferring residents without following the current law regarding discharge and transfer, including the timeliness and notice requirements, as well as the requirements on permissible reasons for discharge or transfer. In addition, Brooksdale agreed to have its compliance monitored and to pay $2.4 million in penalties, $550,000 in costs and $300,000 to the Kern County LTC Ombudsman.

As recently as December 2023, CDPH issued an all-facilities letter (AFL 23-37) to SNFs reminding SNFs that they provide continuous skilled nursing care and supportive care to patients whose primary need is for skilled nursing care on an extended basis. SNFs must provide residents with equal access to quality care regardless of diagnosis, severity of condition, or payment source. SNF discharges of residents admitted for short-term rehabilitation who communicate they are not ready to leave the facility may be investigated for discrimination.​ AFL 23-37 reiterated the requirements that SNFs not seek or receive assurances that residents are not eligible for or will not apply for Medicare or Medicaid and reiterated state and federal transfer and discharge requirements.

AB 1309 (Reyes, Chapter 835, Statutes of 2023) was passed in response to complaints received by California’s LTC Ombudsman programs regarding unlawful evictions of nursing home residents. AB 1309 increased the documentation required in resident notices when residents are involuntarily transferred or discharged.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 5/9/24)

California Advocates for Nursing Home Reform (co-source)

Office of the State Long-Term Care Ombudsman (co-source)

AARP

Alameda County Democratic Central Committee

Bet Tzedek Legal Services

California Alliance for Retired Americans

California Long-Term Care Ombudsman Association

California Retired Teachers Association

Disability Rights California

Imperial County Long-Term Care Ombudsman Program

Justice in Aging

Ventura County Long-Term Care Ombudsman Program

2 individuals

OPPOSITION: (Verified 5/9/24)

None received

ARGUMENTS IN SUPPORT: Co-sponsor California Advocates for Nursing Home Reform write that when residents are denied skilled nursing services because of their payment source, they suffer significant harm. Admissions discrimination effectively requires patients to be hospitalized before they will be admitted, forcing them to delay custodial care until they have a medical crisis. Similarly, evictions motivated by a change in payment source, are often hurried, inappropriate, and unsafe. Residents end up dumped into homeless shelters, motels, or homes with clearly inadequate care and supervision. They also write that Medi-Cal beneficiaries face discrimination in the type of care they receive and those that are admitted into LTC facilities are often segregated in sections of the facility that offer inferior care and accommodations and they are denied services such as physical therapy and basic hygiene and grooming services. They cite a recent example of the closure of the Laguna Honda LTC facility in San Francisco and the difficulties the staff had placing Medi-Cal patients in other facilities despite nursing home resident census data available at the time showing available beds.

Co-sponsor Office of the State Long-Term Care Ombudsman write that LTC Ombudsman representatives are regularly called upon to advocate for nursing home residents who are on Medi-Cal and their families desperate to find a bed, often forced settle for placement hundreds of miles away from their support networks. This situation is repeated numerous times every year and, on the increase, due to the recent uptick in skilled nursing facility closures across the state. They cite a recent example in San Diego where after the closure of one facility, despite having other large facilities in the area, many residents risked being forced to move to Riverside County because their families were told no beds were available. Only through extraordinary collaborative efforts between Health Plan Case Managers, Social Workers from the closing SNF, representatives from

CDPH, DHCS, and the LTC Ombudsman program, were these residents able to stay near their loved ones.

Prepared by: Jen Flory / HEALTH / (916) 651-4111

5/15/24 11:16:53

**** END ****

SENATE COMMITTEE ON HEALTH

Senator Richard Roth, Chair

BILL NO: SB 1354

SUBJECT: Long-term health care facilities: payment source and resident census

SUMMARY:

Requires a long-term care (LTC) facility participating in the Medi-Cal program to provide aid, care, service, or other benefits available under Medi-Cal-to-Medi-Cal recipients in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. Requires LTC facilities to post a daily resident census on their website and provide resident census information upon request. Requires a notice when transferring or discharging a patient to contain specified information regarding restrictions on transfer or discharge due to change in payer and information about the facility’s participation in Medi-Cal.

Existing federal law:

1. Prohibits LTC facilities from requesting or requiring oral or written assurance that residents or potential residents state that they are not eligible for, or will not apply for, Medicare or Medicaid benefits. [42 CFR §483.15]
2. Prohibits LTC facilities that participate in the Medicaid or Medicare program from transferring or discharging a resident from the facility unless under one of the following conditions:
   1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
   2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
   3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
   4. The health of individuals in the facility would otherwise be endangered;
   5. The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. Specifies that for a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
   6. The facility ceases to operate. [42 CFR §483.15]

Existing state law:

1. Licenses and regulates health care facilities by the California Department of Public Health (CDPH), including LTC facilities, which are defined, in part, as skilled nursing facilities (SNFs), intermediate care facilities, and congregate living health facilities. [HSC §1250 et seq., §1418]
2. Requires all contracts of admission to LTC facilities to state that except in an emergency, a resident cannot be involuntarily transferred within, or discharged from, the facility unless the resident is given reasonable notice in writing and transfer or discharge planning as required. Requires the written notice to state the reason for the transfer or discharge, and requires the facility to immediately notify the Office of the State Long-Term Care Ombudsman (LTC Ombudsman) in every case of involuntary discharge, as specified. [HSC §1599.78]
3. Requires an LTC facility, if a resident is notified in writing of a facility-initiated transfer or discharge, to also send a copy of the notice to the local LTC Ombudsman at the same time the notice is provided to the resident. Requires the facility, if the resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, to provide a copy of the notice to the LTC Ombudsman as soon as practicable. Requires the copy of the notice to be sent by fax or email, as directed by the local LTC Ombudsman, unless the facility does not have fax or email capability, in which case the copy of the notice is required to be sent by mail. [HSC §1439.6]
4. Prohibits a LTC facility that participates as a Medi-Cal provider from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except that a facility is permitted to transfer a resident from a private room to a semi-private room. [WIC §14124.7]

This bill:

1. Requires a LTC facility participating as a provider in the Medi-Cal program to make publicly available its daily resident census in the following ways:
2. By posting on its website, if one exists, the facility’s daily resident census dating back at least 18 months; and,
3. By providing, to someone who requests it, the facility’s daily resident census dating back to a time specified by the requester within 24 hours. Permits the facility to charge a reasonable fee to cover necessary administrative costs incurred by the facility in providing the requested information.
4. Exempts violations of 1) from penalty and misdemeanor provisions in existing state law regarding LTC facilities.
5. Requires that the written notice already required when involuntarily transferring or discharging a resident from a LTC facility to include the following statement:

“Our facility is required to provide continuous skilled nursing care and supportive care to residents whose primary need is for availability of skilled nursing care on an extended basis.

We have been approved to receive payment from the following government health care programs: ____ Medi-Cal ____ Medicare.

If we participate in Medi-Cal, we will not transfer you from the facility or discharge you solely because you change from private payment or Medicare to Medi-Cal payment or to open a bed for residents with health care coverage that provides a higher rate of reimbursement.

If we participate in Medi-Cal, you may be eligible for the Long-Term Care Medi-Cal program to help pay for your stay in the facility. For more information, refer to the attached notice DHCS 7077, Notice Regarding Standards for Medi-Cal Eligibility, from the State Department of Health Care Services. Medi-Cal, Medicare, or a private payer may require that the resident pay a copayment, coinsurance, or a deductible, all of which the facility considers to be the resident’s share of cost.”

1. Requires a LTC facility participating as a Medi-Cal provider to provide aid, care, service, or other benefits available under Medi-Cal-to-Medi-Cal beneficiaries in the same manner, by the same methods, and at the same scope, level, and quality as provided to the general public, regardless of payment source. States that this requirement applies to, but is not limited to, admission practices, room selection and placements, meal provision, and wait times for surgical procedures.

FISCAL EFFECT:

This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, one of the most disturbing violations of state and federal laws is the pervasive discrimination against Medi-Cal beneficiaries who need nursing home care. Imagine calling nursing home after nursing home for a loved one who is on Medi-Cal and not being able to find one. Meanwhile, if they are on Medicare, a place can be found right away. Medicare reimbursements are higher than the Medi-Cal daily rates – because of that, discriminating against Medi-Cal residents has become the standard way nursing homes try to increase their profits. Participation in the Medi-Cal program is voluntary; facilities who participate must sign a provider agreement certifying under penalty of perjury that they will adhere to all state and federal laws, which include a prohibition against Medi-Cal discrimination. This bill strengthens the alignment of laws with regulation codes that currently oversee the administration of agreements with providers in the operations of their facilities. The residents, families of residents, and the public have been demanding greater accountability of SNFs for many years now. This bill will enhance the rights residents are entitled to under law.
2. Recent state efforts addressing nursing home payer discrimination. The California Attorney General has brought lawsuits against two large LTC providers alleging violations of existing state law on LTC discharges. In January 2023, a judge granted a preliminary injunction against 19 SNFs operated under Mariner Health for a number of violations, including failure to provide the appropriate notices at discharge or transfer, copies of the notices to the local LTC Ombudsman, or to provide timely notice, along with other violations compromising the health and safety of residents. In March 2023, the Attorney General announced a settlement with the Brooksdale Senior Living who operated ten SNFs in which Brooksdale Senior Living agreed to stop discharging or transferring residents without following the current law regarding discharge and transfer, including the timeliness and notice requirements, as well as the requirements on permissible reasons for discharge or transfer. In addition, Brooksdale agreed to have its compliance monitored and to pay $2.4 million in penalties, $550,000 in costs and $300,000 to the Kern County LTC Ombudsman.

As recently as December 2023, CDPH issued an all-facilities letter (AFL 23-37) to SNFs reminding SNFs that they provide continuous skilled nursing care and supportive care to patients whose primary need is for skilled nursing care on an extended basis. SNFs must provide residents with equal access to quality care regardless of diagnosis, severity of condition, or payment source. SNF discharges of residents admitted for short-term rehabilitation who communicate they are not ready to leave the facility may be investigated for discrimination.​ AFL 23-37 reiterated the requirements that SNFs not seek or receive assurances that residents are not eligible for or will not apply for Medicare or Medicaid and reiterated state and federal transfer and discharge requirements.

AB 1309 (Reyes, Chapter 835, Statutes of 2023) was passed in response to complaints received by California’s LTC Ombudsman programs regarding unlawful evictions of nursing home residents. AB 1309 increased the documentation required in resident notices when residents are involuntarily transferred or discharged.

1. Related legislation. SB 1033 (Menjivar) requires a study of the operational costs associated with licensed congregate living health facilities and requires the department to raise rates if the outcome of the study meets specified conditions. SB 1033 is set for hearing on April 24, 2024 in this Committee.

AB 3161 (Bonta) among other things, prohibits hospitals from discriminating on the basis of payer type. AB 3161 is pending in the Assembly Appropriations Committee.

1. Prior legislation. AB 1309 (Reyes, Chapter 835, Statutes of 2023) requires nursing homes, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident with a copy of certain discharge-related documents, including a description of specific needs that cannot be met when the basis of the transfer or discharge is because the resident’s needs cannot be met in the facility.

AB 895 (Holden, Chapter 577, Statutes of 2022) requires SNFs and residential care facilities for the elderly to provide a written notice to a prospective resident, or their representative, that includes the contact information for the local LTC ombudsman, and links to specified websites governing licensing and quality of care.

AB 133 (Committee on Budget, Chapter 143, Statutes of 2022) health trailer bill that among other things, requires an LTC facility to timely comply with a hearing decision that finds that the facility improperly transferred, discharged, or refused to readmit a resident. Allows DHCS to assess penalties of $750 a day for each calendar day the facility fails to comply with the hearing decision. 

AB 940 (Weber, Chapter 274, Statues of 2017) requires a LTC facility to notify the local LTC ombudsman when a resident is notified in writing of a facility-initiated transfer or discharge from the facility.

SB 526 (Alquist of 2005) among other things, would have prohibited SNFs from discriminating on the source of payment against a current or prospective Medi-Cal recipient and required that applicants for admission to a SNF be admitted on a first come, first serve basis. SB 526 was not heard in this Committee.

1. Support. Co-sponsor California Advocates for Nursing Home Reform write that when residents are denied skilled nursing services because of their payment source, they suffer significant harm. Admissions discrimination effectively requires patients to be hospitalized before they will be admitted, forcing them to delay custodial care until they have a medical crisis. Similarly, evictions motivated by a change in payment source, are often hurried, inappropriate, and unsafe. Residents end up dumped into homeless shelters, motels, or homes with clearly inadequate care and supervision. They also write that Medi-Cal beneficiaries face discrimination in the type of care they receive and those that are admitted into LTC facilities are often segregated in sections of the facility that offer inferior care and accommodations and they are denied services such as physical therapy and basic hygiene and grooming services. They cite a recent example of the closure of the Laguna Honda LTC facility in San Francisco and the difficulties the staff had placing Medi-Cal patients in other facilities despite nursing home resident census data available at the time showing available beds.

Co-sponsor Office of the State Long-Term Care Ombudsman write that LTC Ombudsman representatives are regularly called upon to advocate for nursing home residents who are on Medi-Cal and their families desperate to find a bed, often forced settle for placement hundreds of miles away from their support networks. This situation is repeated numerous times every year and, on the increase, due to the recent uptick in skilled nursing facility closures across the state. They cite a recent example in San Diego where after the closure of one facility, despite having other large facilities in the area, many residents risked being forced to move to Riverside county because their families were told no beds were available. Only through extraordinary collaborative efforts between Health Plan Case Managers, Social Workers from the closing SNF, representatives from CDPH, DHCS, and the LTC Ombudsman program, were these residents able to stay near their loved ones.

1. Oppose unless amended. The California Association of Health Facilities writes requesting the following: 1) that the daily resident census requirement not be a requirement on the LTC facilities, but a requirement that CDPH respond to public requests for numerical daily and historical resident census data, for individual facilities. They state that individual facilities are not equipped to do daily website updates and that this amounts to a public records act request on a private entity; 2) technical changes to the notice regarding the resident’s right to nondiscrimination with regard to payment source in order to more accurately reflect state law; and, 3) removal of the provisions codifying the antidiscrimination language of the existing provider agreement out of concerns for increasing the civil liability risk for facilities. They state it would be more effective to educate individuals who believe they have faced payment discrimination on where to complain.
2. Opposition. LeadingAge California writes in opposition to this bill citing the additional administrative burdens and legal liability risks. They also state that there are many reasons why an LTC facility cannot accept residents, including workforce issues, thus publicly sharing their daily census only provides point in time data, not the full story.
3. Policy comment. The author understandably seeks to enable enforcement of the existing provider agreement by placing the non-discrimination provisions of that agreement into statute. In doing so, however, it becomes apparent that the current provider agreement language does not comport with existing state law that permits a LTC facility to move a patient from a private room to a semi-private room when Medi-Cal becomes the payer. This incongruence highlights the fact that consumers are being told that they have rights that in some cases cannot be enforced. It also calls to question how DHCS plans to enforce its own agreement. Additionally, some of the language in the provider agreement is not specific to LTC facilities, such as the language regarding wait times for surgical procedures as LTC facilities do not perform surgical procedures and should be amended to reflect this reality.
4. Amendments. The author and committee have agreed to amendments that 1) limit the provision of a facility’s daily census to just the current daily census and to be provided either on their website or over the phone or email, 2) make technical changes to the notice language, 3) remove from the nondiscrimination language reference to surgical procedures and add exceptions for current provisions in law that do allow for a bed change when changing payer source.

SUPPORT AND OPPOSITION:

Support: California Advocates for Nursing Home Reform (co-sponsor)

Office of the State Long-Term Care Ombudsman (co-sponsor)

AARP

Alameda County Democratic Central Committee

Bet Tzedek Legal Services

California Alliance for Retired Americans

California Long-Term Care Ombudsman Association

California Retired Teachers Association

Disability Rights California

Imperial County Long-Term Care Ombudsman Program

Justice in Aging

Ventura County Long-Term Care Ombudsman Program

Two individuals

Oppose: California Association of Health Facilities (unless amended)

LeadingAge California

-- END --