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​Center for Health Care Quality (CHCQ)

Meeting Minutes for: 3.5 SNF Staffing Requirements with Stakeholders

Participants​
​Date/Time

The following persons were present:

Ellen Goodwin, State Long Term Care Ombudsman (State LTC Ombudsman), Leza Coleman, California Long Term Care Ombudsman Association (CLTCOA), Amanda Steel, Service Employees International Union (SEIU), Carole Herman, Foundation Aiding the Elderly (FATE), Jacob Vargas (FATE), Lisa Hall, California Association of Health Facilities (CAHF), Matt Robinson (CAHF), Jennifer Synder (CAHF), Scott Vivona (CHCQ), Chelsea Driscoll (CHCQ), CJ Howard (CHCQ), Jean Iacino (CHCQ), Michelle Baas, California Health and Human Services Agency (CHHS), Kara Reid-Spangler (CHCQ), Sharon Simms (CHCQ), Kevin Lillard (CHCQ), Dena Iutzi-Mitchell (CHCQ), Krisheidy Guerrero (CHCQ)​ ​ ​ ​

The following persons were present via teleconference:

Mike Connors, California Advocates for Nursing Home Reform (CANHR), Tony Chicotel (CANHR), Holly Pearson (CHCQ), Karen Halbo (CHCQ)

Facilitator: Kristin Vandersluis

​Thursday

February 22, 2018

Location

​2901 K Street,

Sacramento, CA 95816

Room 200


I.  Overview of stakeholder process

Chelsea Driscoll recapped the stakeholder process.

  • The meetings began with individual stakeholder sessions
  • Followed by joint stakeholder sessions. This meeting is the fourth out of four scheduled meetings
     

II. Implementation Timeline

CDPH will post the following documents on March 30, 2018, which will take effect July 1, 2018:

  • Emergency regulations implementing 3.5 direct care service hours with 2.4 performed by CNAs and the patient acuity waiver 
  • Workforce shortage waiver all facilities letter (AFL)

Audit AFL Revision 1 AFL that includes revisions to conform with 3.5, include 2.4 CNA component, and modify enforcement information
Any changes made to the acuity waiver will take effect in January 2019 in the final regulations 


III. Comments on the Implementation Timeline

  • CAHF asked what the acuity waiver would look like, as there has never been regulations in effect for the acuity waiver.
    • CDPH responded that the acuity waiver has not been in effect because the Legislature never allocated funding to implement the requirements. Once the Legislature approves funding for the 3.5 requirement, the regulations will become operative. Facilities that want a patient acuity waiver will use the program flexibility process.
       

IV. Patient Acuity Waiver

  • The language for the acuity waiver already exists in Title 22.
  • The waiver uses the program flexibility process, outlined below:
    • Facilities submit a form, indicating the regulation the facility would like to have flexed.
    • Facilities provide a description of how their proposed alternative will meet the intent of the regulation.
    • Facilities provide any other supporting documentation that will support their request.
    • The department reviews the program flex requests on a case-by-case basis and decides whether to approve or deny the request. 


V. Comments on the Patient Acuity Waiver

  • SEIU expressed concerns that the existing language does not adequately address the new law. The regulation language mentions unimplemented shift ratios. 
    • CDPH responded that the statute authorizes the Department to amend or repeal existing regulations inconsistent with the revised statute so the Department will be eliminating shift ratios in the emergency regulations. The patient acuity waiver will remain and the regulations will include the 3.5 component. 
  • CANHR asked if the Department thinks SB 97 provided direction to the Department to remove staff to patient ratios.
    • CDPH stated the statute removed references to ratios. 
  • CANHR stated the law does not say there is no longer an obligation to establish staff to patient ratios. Is there any legal opinion? This is not how CANHR interpreted the law. If the legislature wanted to delete the requirement, they would have. 
    • CDPH responded there is no legal opinion but the Department has been working closely with counsel on interpreting the statute. CDPH responded that the staff to patient ratios were not operative because there was not an appropriation to fund the staffing ratios. The legislature removed several references to staff to patient ratios in the most recent adoption, forming the basis for removing ratios from the regulations. 
  • SEIU stated they were involved in the conversation with the legislature and administration and it was not their intent to remove the staff to patient ratios. SEIU is concerned that the Department is looking to get rid of the ratios, but keep the patient acuity waiver.
    • CDPH responded that the governor’s budget does not fund ratios. The legislature is clearly identifying how they want the Department to promulgate and develop regulations with stakeholder input.
    • SEIU clarified that they knew there was no funding for staff to patient ratios and that they were only asking for 3.5, but there was no intent to remove existing regulations.
       

VI. Geographic Shortage Designation Tool

One of the considerations in granting a waiver is whether the facility is in a staffing shortage area. The tool does the following:

  • The tool uses EDD data as a proxy for the labor supply of CNAs, RNs, and LVNs. EDD data shows the number of CNAs, RNs, and LVNs by county working in various facilities and can illustrate the percentage of employment in long-term care facilities or in other settings.
  • The tool uses OSHPD data as a proxy for the demand. The tool uses the average daily census to determine how many people are in facilities and determine the number of staffing hours required to meet the 3.5 and 2.4 staffing requirement. This shows the demand for RNs, LVNs, and CNAs.
  • The Department will determine whether there are enough RNs, LVNs, and CNAs in the county to meet the demand. If the demand is greater than the supply, the tool will designate that county as a shortage area. 
  • The staffing shortage designation is one of the factors the Department will take into account when considering a waiver request. Simply being in a region that is a designated shortage area does not automatically qualify a facility for a waiver nor is it an automatic disqualifier if an area is not a designated shortage area. 


VII. Comments on the Geographic Shortage Designation Tool

  • SEIU asked if the tool has identified which areas are shortage areas and whether the areas are smaller than county level. SEIU provided alternatives for sub-county levels in their written comments and asked if CDPH considered their approach. 
    • CDPH responded that the data goes down to the county level. CDPH evaluated SEIU’s comments and concluded the county level data is appropriate. The labor supply is mobile and can move across, or within counties; therefore, county level data is the appropriate size to determine if there is a shortage. 

 

VIII. Workforce Shortage Waiver Revisions

The revised draft includes the following changes:

  • Removed the requirement that facilities submit OSHPD reports and EDD data. CDPH will use the geographic shortage designation tool to demonstrate whether the facility is located in a workforce shortage area. 
  • Removed the requirement that facilities submit individual patient assessments. Facilities will provide information about how they determine the level of staffing needed to meet resident needs. 
  • Revised the submission timeframe. In fiscal year 2018-19, facilities must submit their waiver request by September 1. In subsequent years, facilities must submit waiver requests by April 1. This allows the Department to review each request and provide information to DHCS so they know which facilities have waivers as they develop rates for facilities.
     

IX. Comments on the Workforce Shortage Waiver Revisions

  • DRC requested clarification between the evaluation of an initial and renewal waiver application. 
    • CDPH responded that the initial waiver evaluation will look at certain factors. The renewal evaluation looks at the same factors and evaluate how the facility executed their action plan to address the workforce shortage. The Department will review the waiver language and make the distinction clearer. 
  • DRC stated that the Department requests salary information but does not specify in the waiver whether it is something they will evaluate. Will the Department evaluate the competitiveness of salaries offered?
    • CDPH responded that was the intent and would make the waiver language clearer. 
  • FATE stated that their experience in filing complaints is that the Department is not using Title 22 so why does the Department not consider federal violations under their ineligibility for waiver criteria.
    • CDPH responded that the Department would consider both state and federal violations when evaluating the facility’s compliance history. 
  • FATE disagreed and stated it is more punitive to include federal violations under ineligibility for waiver criteria. What time period will the Department review a facility’s compliance history. 
    • CDPH responded that they will be conducting a three-year look back and will rewrite the Evaluation of Waiver Requests section so that the three-year period is clearly identified.
  • FATE asked if stakeholders would have an opportunity to review the final waiver language.
    • CDPH responded that the statue requires the Department to share the language on March 30. Before that, the waiver needs to go through the Department’s approval process. The Department will accept final comments from stakeholders and clean up the waiver language before routing a final document up for approvals. However, there will be no further opportunities to review the final waiver before March 30.
  • FATE inquired as to why facilities are not required to ban admissions if they have a waiver and cannot staff according to the new regulations. 
    • CDPH responded that the legislature stated that the Department must adopt and develop a waiver process. Banning admissions would mean there would be no waiver process. Before a facility receives a waiver, they must demonstrate to the Department that they are able to care for their patients and their plans for providing appropriate care while the waiver is in effect. 
  • FATE asked how the Department would monitor facilities. Since the Department is not investigating FATE’s complaints, does the Department plan to hire more staff?
    • CDPH responded that they have sufficient staff. The Staffing Audits Section will be looking at the staffing component during their survey for compliance with the new law. District office staff will continue to conduct complaint investigations and recertification surveys so the Department believes they will adequately enforce the new statute. 
  • SEIU stated the waiver includes violations of level G or higher under the Revocations section but does not include it under the Evaluation of Waiver Requests section. 
    • CDPH explained that the Department’s consideration of a facility’s compliance history under the Evaluation of Waiver Requests section includes both state and federal regulations and will encompass the level G violations. 
  • SEIU asked if the Department knew how many counties are workforce shortage areas and how the Department will allocate the 4.5 million for CNA training.
    • The Department is currently refining the shortage tool and does not have final numbers. However, whether a facility lies within a shortage area does not mean they automatically get a waiver. CDPH is unable to comment on the budget for CNA training. 
  • CLTCOA stated that not all facilities will meet the new staffing standard immediately, but will ramp up to 3.5 so why does the Department not have a waiver end date. How many SNFs are currently out of compliance with 3.2? 
    • CDPH responded that about 90% of facilities meet the 3.2 standard. The statute requires a waiver process to exist and does not set a time limit on the waiver process. The Department limits the number of consecutive waivers a facility can obtain by including language in the waiver criteria that the Department will not grant more than two consecutive waiver renewals. 
  • CAHF estimated that out of the 1039 facilities subjected to SB 97, over 600 facilities will submit waivers July 1st. Currently, 463 facilities do not meet 2.4, 145 facilities do not meet 3.5, and 549 facilities do not meet both 2.4 and 3.5. SNFs lose CNAs to higher paying jobs even if they train CNAs or recruit them from community colleges. CAHF estimates that they will need over 1600 new CNAs to meet the new staffing requirement. CAHF expressed the following concerns with the waiver language:
    • The quality metrics are outside the scope of SB 97. HSC 1276.65(l) does not mention compliance history and CAHF disagrees that it should be included in the workforce shortage waiver. Based on their estimates with 2017 data, over 300 facilities will automatically be ineligible for a waiver. 
  • The acuity waiver should be available April 1. A facility at 3.5 or above should receive an acuity waiver and should not face penalties for having more qualified and licensed staff. 
    • CAHF disagreed that there is any statutory authority to limit the waiver to a two-year renewal. 
    • The Department does not have the authority to eliminate appeals and in doing so, is inviting judicial reviews of the waivers.
    • CAHF asked that the Department delay the implementation of 3.5 and 2.4 and carry out a phase-in approach so that facilities can staff up accordingly.
  • CDPH thanked CAHF for their comments and explained that the Department has worked very hard to have a transparent process. It is difficult to find middle ground, but everyone is getting something they want and the Department will continue to listen to comments. The Department is appreciative of everyone’s comments.
  • CANHR made the following comments:
    • The bill is about resident safety and the Department should not compromise resident safety. It is fair that the Department consider safety issues and quality of care concerns in the waiver.
    • There is no reference to CMS expected staffing levels under the Evaluation of Waiver Requests section and no reference to a ban on admissions. 
    • There is no reference to on-site investigations nor mention of the Department talking to residents and family member about quality of care at the facilities. 
    • CANHR is concerned about facilities having a yearlong waiver without any check-ins.
    • What happens to facilities with denied waiver requests who were staffing under 3.5 during the waiver review process?
    • CANHR expressed disappointment that the Department removed language that the Department will post the waiver status on the website and that facilities are required to provide a detailed plan on how facilities will meet resident needs. 
  • CDPH responded that the Department will post information regarding an approved waiver on the website by pulling data from the Electronic Licensing Management System database. CDPH explained that facilities are still required to conduct resident assessments, but instead of submitting those assessments with the waiver application, the Department requires facilities to submit information on the methodology used to determine the facility can meet resident needs despite the shortage. 
  • DRC concurred with CANHR about engaging residents or alerting them that a facility is applying for a waiver. There should be notification of an initial application and an attempt to engage resident input. DRC asked if the Department would make the geographic shortage areas publicly available.
    • CDPH committed to making the information available following finalization of the methodology. 
  • FATE stated there is no indication of the timeline for review of waiver applications.
    • CDPH responded it is unknown how many facilities will apply for waivers and is unable to provide a timeline at this point. However, the Department understands the importance of processing the waivers as quickly as possible.
  • CAHF requested clarification on the intent of the second revision of the Audit AFL. 
    • CDPH explained that the Department did not have any specific changes at this time. However, if there are any future changes, CDPH will discuss the changes in a different stakeholder process. 
  • SEIU requested that the Department post the PowerPoint slides. 
    • CDPH stated that they would post slides after the meeting and when the Department posts new documents, they will send out an email alert.
  • CAHF requested clarification on consequences if a facility is not staffing at 3.5 but has submitted a waiver request that is under review.
    • CDPH responded they are still determining how to address the issue.
  • CAHF reiterated that facilities are currently having problems recruiting CNAs. CAHF is creating new training programs and helping facilities recruit and train new CNAs and working with facilities to ensure they can be as compliant as possible.

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