Center for Health Care Quality (CHCQ)
Meeting Minutes for 3.5 SNF Staffing Requirements with Stakeholders
The following persons were present:
Amanda Steel, Service Employees International Union (SEIU), Matt Robinson, California Association of Health Facilities (CAHF), Jen Synder (CAHF), Lisa Hall (CAHF), Carole Herman, Foundation Aiding the Elderly (FATE), Leslie Morrison, Disability Rights California (DRC), Jedd Hampton (LeadingAge CA), Leza Coleman, California Long Term Care Ombudsman Association (CLTCOA), Tony Chicotel, California Advocates for Nursing Home Reform (CANHR), Scott Vivona (CHCQ), Chelsea Driscoll (CHCQ), CJ Howard (CHCQ), Sharon Simms, Office of Legal Services (OLS), Kevin Lillard (CHCQ), Joanna Nguyen (CHCQ), Megan Schlager (CHCQ), John Montalbano (CHCQ), Pia Johnson (CHCQ)
The following persons were present via teleconference:
Mike Connors (CANHR), Michelle Baass, California Health and Human Services Agency (CHHS), Leslie Fullerton (CHCQ), Muree Larson-Bright (CHCQ)
Facilitator: Kristin Vandersluis
January 22, 2018
2901 K Street,
Sacramento, CA 95816
Kristin Vandersluis opened the meeting at 2:00PM.
Kristin Vandersluis provided an overview of the meeting objectives.
- Review updates to the workforce shortage waiver
- Discuss the patient acuity waiver
- Highlight important dates from the emergency regulations timeline and the final implementation of Senate Bill (SB) 97
II. Workforce Shortage Waiver Updates
Chelsea Driscoll presented the updates to the draft waiver.
- SB 97 requires the Department to develop a waiver of the direct care service hour requirements if there is a shortage of health care professionals and direct caregivers.
- The Department will create the workforce shortage waiver through an all-facilities letter (AFL).
III. Changes to Guidelines
The revised draft includes the following changes:
- Previous workforce shortage waiver draft identified the RN shortage, but did not identify a CNA shortage. The Department is planning to develop a tool that will help identify areas where there are CNA shortages
- CDPH will use EDD data to address salary information instead of Department of Labor Statistics data since EDD data is updated more frequently
- Revise language from “may include” to “shall include” so that it is clear the Department requires facilities to submit documentation
- Request that facilities include a copy of their advertisement for the position
- Require facilities to provide information on the level of staffing the facility is currently providing, their anticipated need, and current number of vacancies
- Clarify that the retention and recruitment plan be specific in addressing the workforce shortage
- Require that facilities also include a patient assessment for each resident in the plan to address resident needs
IV. Comments on Changes to Guidelines
- CAHF asked whether, based on the change from “may” to “shall”, will the Department still consider the criteria factors for granting a waiver or are the criteria now requirements the facilities must meet for waiver approval?
- CDPH stated the Department wanted to have some objective criteria to determine that there is a shortage. The facility must demonstrate there is a need for a waiver.
- CAHF noted that the OSHPD data is from 2015 and that changes have occurred since then. There is nothing on identifying an LVN shortage. The data is also not SNF-specific, but applies to RNs countywide. Is the Department taking that into consideration?
- CDPH is looking at a method to determine a CNA shortage and whether this can be limited to CNAs working in SNFs.
- CAHF stated that another concern with EDD data is that the pay scale is an average for CNAs in the area, not average pay for CNAs working in SNFs.
- CDPH asked if CAHF had other suggestions for determining the salaries for CNAs in SNFs.
- CAHF responded that they do not have immediate suggestions but would submit written comments. CAHF also commented that the Department be clear about which plan (recruitment/action/detailed) they are referring to in the waiver so there is consistency with terminology. While CAHF agreed that facilities should demonstrate they could provide quality of care without meeting the 3.5, they believed it would be impossible for facilities to conduct patient assessments for each patient in the facility.
- CDPH asked CAHF if they had suggestions about how the Department could address concerns in identifying the needs of the patients without being overly burdensome.
- CAHF responded that they would provide suggestions.
- SEIU asked if the Department is considering a facility’s turnover and retention rate. SEIU also expressed concern that county level data may not be the best representation of a shortage and wanted to see data on a sub-county level.
- CANHR inquired if the Department would post other written comments on the website and requested clarification on why documentation of an RN shortage is required since SB 97 did not increase RN staffing requirements.
- CDPH responded that they would verify that written comments are posted on the website. The statute allows the waiver to cover a shortage of direct care service workers, which includes RNs, LVNs, and CNAs.
V. Changes to Evaluation of Waiver Requests
The updated waiver language:
- Clarifies compliance history to state that during the prior three years, if a facility has had a substantiated finding of abuse or neglect, two or more A or AA citations, or quality of care violations with scope and severity of G or higher, the facility would be non-compliant with state and federal regulations and is ineligible for a waiver.
- Includes a statement that the Department has the option to conduct an onsite visit to investigate the quality of care being provided
- Adds a statement that the Department would look at a facility’s compliance with staffing requirements during the waiver renewal process
VI. Comments on Evaluation of Waiver Requests
- FATE requested clarification on why the Department is not considering B citations in the compliance history and whether the Department will count citations that are going through the review or appeal process as the process can take several years.
- CDPH responded that the Department will consider B citations in the overall compliance history but is not an automatic ineligibility. The Department will also consider the appeals process when reviewing waiver requests.
- CAHF expressed concerns with a three-year look back on facilities that have had violations listed under the Evaluation of Waiver Requests. A facility could have had an isolated incident, or there could have been a change in ownership. A facility could be completely different than it was two years ago. CAHF prefers that the Department have the ability to consider a facility’s compliance history. The Department immediately denying the facility a waiver based on the facility’s compliance history puts the facility’s ability to stay open in jeopardy. The facility could have made significant improvements during those years as well. CAHF wants the compliance history to be consideration factors, not denials for a waiver.
- CLTCOA acknowledged CAHF’s concerns but as long as the waiver includes “the Department will consider”, then the history of a facility is important and an indication of how things may be in the future.
- DRC expressed agreement with the waiver language and stated that “substantiated complaints or findings” encompasses B citations.
- FATE disagreed and stated that the waiver should also list B citations clearly. FATE also had concerns with “had its license suspended or revoked” waiver language. If the Department revoked the facility’s license, why would a facility have a license?
- CANHR stated that the wording “the Department substantiated a complaint or finding” could be confusing. Does the Department mean they substantiated a finding or the Department made a finding? CANHR also stated that the wording for “The Department will consider a facility’s history of compliance with staffing requirements” is ambiguous. A facility’s non-compliance with staffing requirements could be a factor against granting a waiver or could be a factor for granting a waiver.
- FATE stated that they do not know what type of treatment patients will get if the facility receives a waiver and they do not have enough staff. Why will the Department not ban admissions?
- CDPH responded that they considered all suggestions for the workforce shortage waiver and included the most feasible suggestions. The Department is willing to take additional comments.
- CANHR stated their top recommendation is to include a ban on admissions when the facility is understaffed.
- CAHF stated their understanding of the waiver is to help facilities come into compliance with the new staffing requirements. Their concern is that the new requirements begin in July 2018 and many facilities are struggling to find staffing. They do not think the waiver is an excuse to provide substandard care but the waiver allows the facilities and the Department to work together until there are enough CNAs to hire and the facilities can move toward compliance. CAHF also pointed out that an appeal is not a final decision. The Department should consider a facility’s compliance history, but an appeal should not rule out the facility’s eligibility for the waiver.
- LeadingAge CA concurred with CAHF regarding departmental discretion. Facilities want to meet the new requirements and be in compliance. The CNA shortage is a huge issue, and the waiver allows the Department and the facilities to work together.
- DRC stated that the challenge is the language portrays the waiver as a permanent waiver process, and not a temporary process to help facilities reach compliance. DRC also agrees with CANHR about the ambiguity surrounding the “facility’s history of compliance with staffing requirements.” It could mean that the facility is experiencing a chronic workforce shortage in the area and the Department should grant the facility a waiver. It could also mean that the facility is unable to meet staffing requirements and the department should not grant the facility the waiver. In response to comments about facilities and the Department working together, DRC stated that patients are also a part of that partnership.
- CAHF reiterated that the Department clarify the different uses of plan in the waiver language.
- CANHR stated that the Department should conduct on-site investigations for all waiver requests. CANHR requested clarification on “underserved area” and the impact of being in an underserved area on the Department’s decision on waiver requests.
- CDPH explained that an underserved area is an area where there may be limited access to facilities. This can be in rural areas or in non-rural areas where there are a limited number of health facilities. Being in an underserved area is one of the factors the Department will take into consideration, but is not the only consideration in granting a waiver. The Department will consider the facility’s circumstances and all other factors when making a decision.
VII. Changes to Processing Waiver Requests
The revised draft includes:
- Notification to the Ombudsman requesting information about any quality of care concerns or complaints
- Statement that the Department will review whether the facility met its targets for resolving its workforce shortage at waiver renewal
VIII. Comments on Processing Waiver Requests
- FATE asked who would handle oversight of the waiver requests.
- CDPH responded that headquarters would review the waiver applications.
- CAHF stated there is nothing in the waiver that addresses turnaround time regarding approval or denial.
- CDPH responded that is something the Department is still working on.
- CAHF disagreed with the facility’s inability to appeal the Department’s decision on the waiver request. CAHF does not believe there is statutory authority for this provision.
- DRC requested clarification on the Department’s expectations for facilities during the waiver review process. Will the facility need to meet staffing requirements until granted the waiver?
- CDPH responded that is correct.
- SEIU commented that in addition to notifying the local Ombudsman, the Department should also notify the facility’s resident council, family council, and other involved parties who should know about the facility’s waiver request.
- LeadingAge CA asked why a waiver is necessary if facilities must meet requirements while waiting for a waiver, and therefore will be meeting staffing requirements.
- CANHR requested clarification on the length of the waiver. Is it the initial year plus two additional years for renewals, therefore extending the waiver up to three years?
- CDPH responded that is correct.
- CANHR expressed concern that three years was too long and that the waiver should be no longer than a year. CANHR agreed with SEIU that the Department should also notify the union and resident and family councils about the facility’s waiver request so they may be able to provide input.
IX. Changes on Waiver Approvals and Waiver Revocations
The revised draft includes:
- A separate Waiver Approval and Waiver Revocation sections for clarity
- Provisions that facilities must meet 3.2 during the waiver period and that facilities must provide notice of waivers to potential residents prior to admission
- A waiver Revocation that clarifies the Department shall terminate the waiver if facilities do not meet the terms of the waiver and if the facility receives one of the following: substantiated findings of substandard quality of care related to insufficient staffing, substantiated findings of abuse or neglect, A or AA citations, or quality of care violations with a scope and severity of G or higher.
X. Comments on Waiver Approvals and Revocations
- FATE requested clarification on the process after a waiver denial. Since facilities cannot appeal the decision, will facilities stop admissions? What happens during that time since facilities are in violation of requirements? What will the facility and Department do if the facility does not have enough staffing?
- CDPH responded that at that time, the facility could make the decision to stop admissions and lower its census. The Department could conduct an investigation and cite the facility for non-compliance. The Department would be aware of the staffing requirement violation, but would validate it with a survey.
- CANHR requested clarification on what happens during the time the waiver is under review if the Department denies the waiver request. During that time, the facility is understaffed and not meeting requirements. Would the Department give the facility a pass during the waiver review period for being below 3.5?
- CDPH acknowledged that was a good question and that the Department did not have an answer yet. The Department could do a retrospective review and look at the last 90 days or the Department could validate the facility’s compliance on certain days. The Department is still considering options at this point.
- CAHF reiterated that the Department should have discretion in terminating a waiver.
XI. Patient Acuity Waiver
- The statute requires the Department to develop a waiver to meet individual patient needs while maintaining the 3.5 direct care service hours.
- The patient acuity waiver can only be changed through the traditional regulatory process.
- The existing language in Title 22 for the patient acuity waiver uses the program flexibility process.
- The program flex process allows facilities to identify the regulation they would like program flexibility for, the reason for the request, how they will meet the intent of the regulation through an alternative method, and submit supporting documentation.
XII. Patient Acuity Waiver Questions
Kristin prompted participants with the following questions:
- What criteria would you like to see included in the patient acuity waiver?
- What standards would facilities need to meet to qualify for the waiver?
- In facilities with both regular SNF level and subacute patients, should an RN overseeing subacute patients also oversee regular SNF level patients?
- Should facilities that have both regular SNF level patients and subacute patients have different considerations in determining the patient acuity waiver? If so, what considerations are most important?
- Which direct care staff should be included or counted when determining eligibility for the acuity waiver?
XIII. Comments to Patient Acuity Waiver Questions
- CAHF stated that the Department could look at a subacute unit. They have higher acuity patients and have licensed staffing well above the 3.5.
- FATE requested clarification on whether the acuity waiver affects the higher staffing ratios in subacute settings.
- CDPH clarified subacutes meet 5.8 staffing and the acuity waiver has no effect on subacute staffing.
- LeadingAge CA stated facilities should provide evidence of higher licensed staff and provide a census on their patients and their acuity levels.
- CAHF suggested basing criteria on quality of care ratings, such as QASP ratings or the CMS five-star rating.
XIV. Patient Acuity Waiver Questions Continued
Kristen prompted participants with the following questions:
- How frequently should the Department reassess eligibility for the patient acuity waiver?
- Should there be a limit on the number of waiver renewals?
- Should subacute facilities have a different approval period for a patient acuity waiver?
- Should there be a limit on the number of patient acuity waivers? Should the consideration be different for a subacute facility?
- What grounds, if any should be used for revoking a patient acuity waiver?
XV. Comments to Patient Acuity Waiver Questions Continued
- DRC stated they would need to become more familiar with the criteria for the acuity waiver before making any comments.
- CDPH clarified that currently, criteria does not exist for the acuity waiver and hoped to have a discussion to develop criteria for the waiver.
- Stakeholders commented they would comment in writing.
XVI. Emergency Regulation Timeline
- At the end of March 2018, The Department will post the following on the website:
- Emergency regulations on the 3.5 direct care service hours with 2.4 performed by CNAs
- Workforce Shortage Waiver AFL
- Updated version of the Audit AFL with minimal changes to revise 3.2 to 3.5 and incorporates the 2.4 CNA components
- The Department intends to submit the regulations package to OAL in June 2018.
- The regulations would take effect on July 1, 2018.
XVII. Final implementation of SB 97
- After emergency regulations are in effect, the Department has 180 days to adopt the final regulations, due in January 2019.
- Any changes to the Audit AFL will take effect in July 2019. CDPH will begin working with stakeholders on any anticipated revisions to the Audit AFL.
The next stakeholder meeting will be on February 22, 2018.