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​Center for Health Care Quality (CHCQ)

Meeting Minutes for 3.5 Skilled Nursing Facility (SNF) Staffing Requirements with Stakeholders

​Participants
Date/Time​The following persons were present:
Jedd Hampton (LeadingAge CA), Matt Robinson, California Association of Health Facilities (CAHF), Jen Synder (CAHF), Travis Jennings (Westgate Gardens), Trevor Bruce (Rock Creek Care Center), Brad Truhar (Midtown Oaks Post-Acute), Matt Ham (Life Care Centers of America), Sam Magtanong (Life Care Centers of America), Nancy Murish (Congress of California Seniors), Amanda Steel, Service Employees International Union (SEIU), Scott Vivona (CHCQ), Chelsea Driscoll (CHCQ), Theresa Calvert, Department of Finance (DOF), CJ Howard (CHCQ), Janne Olson-Morgan, California Health and Human Services (CHHS), Matthew Shiroi, Department of Health Care Services (DHCS), Jessica Jenkins (DHCS), Michael Singh (DHCS), Phu Hoang (DHCS), Krisheidy Guerrero (CHCQ), John Montalbano (CHCQ), Karen Jacoby (CHCQ), Leslie Fullerton (CHCQ), Debra Gonzales (CHCQ), Holly Pearson (CDPH), Sharon Simms (CDPH), Karen Halbo (CHCQ), Joanna Nguyen (CHCQ)

The following persons were present via teleconference: 
Mike Connors, California Advocates for Nursing Home Reform (CANHR), Tony Chicotel (CANHR), Matt Flay (Oak River Rehab), Karen Jones, Long Term Care Ombudsman San Luis Obispo (SLO Ombudsman), Sonia Peddik, Legislative Analyst Office (LAO), Dion Jimenez (SEIU), Spencer Christiansen (Arlington Gardens), Rocky Point Care Center

​Tuesday

July 10, 2018 

2:00PM to 3:00PM

​Location
​1500 Capitol Ave, Sacramento, CA 95899, Hearing Room

 

I. Introductions

Kristin Vandersluis opened the meeting at 2:00PM.

Chelsea Driscoll provided an overview of the meeting.

  • Recap of stakeholder process
  • Updates of emergency regulations
  • Patient needs waiver discussion
  • Final adoption 

II. 3.5 Stakeholder Process

  • Began stakeholder process in August 2017 when the Department initially met with individual stakeholders.
  • The Department held a series of meetings with all stakeholders beginning October 2017 to discuss issues related to implementation.
  • The Department received a lot of feedback and posted all meeting minutes, meeting materials, and written comments on the SB 97 Stakeholder website.
  • The Department sent out notifications to stakeholders when updates were available.

III. Emergency Regulations Timing

  • Emergency regulations adopted on June 29, 2018 are now in effect.
  • The Department posted a draft of the emergency regulations on the website in March.

IV. Senate Bill (SB) 97

  • SB 97 increased the minimum staffing requirements in SNFs from 3.2 to 3.5 direct care hours with 2.4 of those hours performed by CNAs.
  • The legislation authorized two waivers: workforce shortage waiver and patient needs waiver.

V. Final Regulations

  • Two planned stakeholder meetings to discuss the patient needs waiver: July 10 and July 24.
  • Final adoption planned for January 2019. There is an aggressive implementation timeline because the timeline to adopt final regulations is very short.

VI. Patient Needs Waiver Requirements

  • The Department is required to develop a waiver to address individual patient needs. Facilities requesting this waiver must meet 3.5 direct care hours, but may do so with a different staffing mix.

VII. Emergency Regulations Content

  • Subdivision (a) reiterates the statute and applicability of regulatory requirements.
  • Subdivision (b) covers the patient needs waiver requirements and process. 
  • Subdivision (c) directs facilities to the AFL for the workforce shortage waiver requirements and process.

VIII. Emergency Regulations Comments

  • Life Care Centers of America asked in regard to the letter of acknowledgement from the Department confirming receipt of a waiver request, what is the time frame from when the facility submits the request to when the facility will receive the letter of acknowledgement or when the waivers will be approved?
    • CDPH responded that staff send acknowledgement letters within a week of the Department receiving the waiver request. However, the Department has received a large influx of waiver requests at this time and is processing them as quickly as possible; there is no set time frame for making a decision.
  • CANHR asked if the Department is planning to leave section 72329.1 in place?
    • CDPH stated they were not planning to do anything with the section at this time.
  • CANHR asked if there is really a patient needs waiver created by SB 97. Prior legislation created the authority related to staff to patient ratios. CANHR does not interpret the language as creating new authority for the patient needs waiver and questioned how the Department has reconciled the fact that the current statutory language still references staff to patient ratios rather than the new SB 97 requirements. HSC 1276.65 (c)(2) still leaves in staff to patient ratios.
    • CDPH responded that the Department has reviewed the statute in its entirety and the legislature struck staffing ratios in several places in the section. This demonstrates intent to remove the staffing ratios concepts and move toward direct care hours.

IX. Existing Patient Needs Language

  • The existing language for the patient needs waiver uses the program flex process described in Title 22 section 72213.
  • Program flexes require the facility to provide:
    • The regulations being waived
    • The proposed alternative methods for meeting the intent of the regulation
    • Documentation supporting the request

X. Patient Needs Waiver Questions

QUESTION:

Is there a need to have a more specific process than the program flex?

  • SEIU stated that there should be a more specific process than the program flex. The current guidelines are vague and up to interpretation on what facilities should submit. SEIU is not opposed to SNFs hiring more licensed staff to meet resident needs but wants to make sure that the intent of SB 97, to hire more CNAs, is not compromised. There should be robust criteria when the Department is evaluation patient needs waivers. There should be a time limit on the waivers. Resident needs are changing constantly in facilities so the waiver should not be permanent fixture, but should be related to the needs of the facility at that particular time for a certain time period.
  • SLO Ombudsman agreed with SEIU that there should be limited term waivers. The Department should also review the facility’s eligibility for the waivers often due to changing resident needs, at least on a monthly to quarterly basis.

QUESTION:

Are there alternative processes that CDPH should consider?

  • CAHF stated that they understand the program flex is an annual renewal and believes that is appropriate. Patient needs can change daily but under the patient needs waiver, the facility is staffing above 3.5 with more licensed staff. CAHF does not have an alternative process, but it is important that the Department review the waivers on a case-by-case basis. The facility should be able to provide facility-specific facts on why they qualify for the waiver. CAHF would like to see definitive turn-around time for processing waivers.


QUESTION:

How frequently should the Department reassess eligibility for the patient needs waiver? Should there be a limit on the number of waiver renewals?

  • SEIU stated they did not have a specific answer but in general, they believe there should be a limit on waiver renewals. They currently do not have an exact answer but there should be further discussion to determine whether a facility needs the patient needs waiver.
    • CDPH reminded stakeholders that this is an opportunity for stakeholders to provide input. There is a very short time period to move to final adoption. 
  • CAHF stated that they do not believe there should be criteria facilities should meet to qualify for the waiver. The Department should review the facts that the facility presents, demonstrating that they are meeting resident needs. CAHF believes the program flex allows a facility to present their case.
  • LeadingAge CA stated they would be concerned if there was a limit on waiver renewals. As long as facilities are meeting 3.5 and are meeting patient needs with licensed staff they should be eligible for the waiver. Placing a limit on renewals would change the dynamic of these facilities that are staffing at or above 3.5.
  • Midtown Oaks Post-Acute agreed with LeadingAge Ca. Care in SNFs is changing. SNFs are now responsible for providing higher acuity level of care as length of stays in hospitals shortens. If facilities have to increase CNA hours, there is a chance licensed staffing hours will decrease, diluting the quality of care for patients.

XI. Special Patient Populations

Subacute Consideration
  • Subacute patients are medically fragile and require special services.
  • Subacute care units employ a higher level of licensed staff, specified in Title 22 section 51215.5. They must provide a minimum of 3.8 minimum licensed nursing hours and 2.0 CNA hours per patient day.

QUESTION:

Should there be different rules for subacute units related to the patient needs waiver? Because subacute facilities use fewer than 2.4 CNAs, should these facilities have specialized consideration for the patient needs waiver?

  • CAHF stated that standalone subacute facilities should automatically receive a waiver.
  • SEIU requested clarification on how the Department evaluates staffing if the facility has a subacute unit. Because subacute units have different staffing requirements, does subacute unit staffing count toward the facility’s overall 3.5 and 2.4?
    • CDPH responded that the Department currently audits to the 3.2 and will audit to 3.5 with the upcoming fiscal year. Subacute facilities contracted with DHCS are required to staff at 5.8 direct care hours, with 3.8 licensed hours and 2.0 hours performed by CNAs.
  • SEIU stated that nursing staff assigned to subacute care units should not be assigned duties outside of subacute care units during any given shift. The Department should not include subacute staff in the 3.5/2.4 calculation.
    • CDPH responded that if a facility contracts with DHCS, the facility is required to staff the subacute care unit pursuant to the subacute unit staffing standards set by DHCS. DHCS regulations provide that nursing staff assigned to the subacute unit shall not be assigned to other duties outside the subacute care unit during any given shift. However, as written in HSC 1276.65(c)(1)(B) and (C), the 3.5/2.4 standard applies to the facility as a whole, so the Department’s calculation of 3.5/2.4 would include any qualifying direct care service hours performed by subacute staff.
  • SEIU asked if freestanding subacute facilities needed to submit a waiver. Would the Department automatically approve waiver requests submitted by only subacute facilities?
    • CDPH responded that with the program flex, waiver requests are considered on a case-by-case basis so the Department does not automatically approve waivers. While CDPH welcomed the clarification questions, CDPH also encouraged stakeholders to make specific suggestions about the waiver criteria.
  • SEIU commented that the lack of engagement was due to the uncertainty of the timeline and number of stakeholder meetings. Could the Department move the January deadline and hold additional stakeholder meetings? Stakeholders can discuss the questions with their teams and then have constructive discussions with the Department.
    • CDPH responded that there was no plan to have additional stakeholder meetings. The Department will accept written comments until the end of July.
  • CAHF requested clarification on whether the facility would need to submit separate waiver requests if the subacute unit has already requested a waiver.
    • CDPH responded that the Department would review the facility in its entirety to determine compliance.
  • CANHR commented that the Department should not perceive their silence as acceptance for the Departments regulatory path. CANHR has expressed repeatedly that there should be a ban on admissions for any waiver.

Small House SNFs (SHSNFs)
  • Defined in HSC 1325.5 (c)(2), SHSNFs are facilities that provide skilled nursing and supportive care in small, homelike residential settings to patients whose primary need is for the availability of skilled nursing care on an extended basis.
  • Direct care staff includes: Registered nurses (RNs), licensed psychiatric technicians, and CNAs employed as versatile workers (VWs)
    • VWs are CNAs providing residents with both direct care and non-direct care.
  • SHSNFs have the option to request a waiver of any requirement as part of their pilot application.

QUESTION:

Should special consideration be given to SHSNFs applying for a patient needs waiver? 

  • LeadingAge CA expressed appreciation that SHSNFs have the option to apply for a patient needs waiver. LeadingAge CA would like to request an amendment to SHSNF pilot program standards for the definition of non-direct care activities and non-direct care services so that services such as food preparation, housekeeping, laundry, or maintenance services count as direct care hours.

XII. Final Adoption - Path 1

  • Hold two stakeholder meetings in July and accept written comments until the end of July.
  • Department will incorporate suggestions and revise regulations and submit for approvals.
  • Submit the package to OAL by mid-September and available for the 45-day public comment period.
  • Depending on written comments, if there are no substantive changes, then the Department will move the package for final approvals and submit to OAL for final adoption around mid-November.
  • Regulations would become operative January 2019.

XIII. Final Adoption - Path 2

  • If there are substantial changes due to public comments, the Department would make changes and have a second comment period. The Department may need to make additional changes depending on additional comments during the second comment period.
  • These additional changes and comment period will push the final adoption date out to April 2019.

XIV. Final Adoption Comments

  • SEIU favored path 2 and recommended that CDPH add another stakeholder meeting after releasing the draft regulatory language.
    • CDPH responded that that the short timeframe makes it difficult to add a third meeting, but will consider this suggestion.
  • SEIU stated that some facilities have notified SEIU that because penalties are not issued until next year, facilities do not need to staff up. The facilities have also mentioned receiving communication from CAHF regarding these issues that facilities do not need to staff up immediately. SEIU understands that facilities will still receive the add-on payments and SEIU does not want this to encourage facilities to delay staffing up.  
  • CAHF responded that there is no facility add-on unless the facility is staffing up accordingly. Every facility wants to be at 3.5, but there is a workforce shortage to meet 3.5 and 2.4 in every facility. Facilities are doing their best to staff up but it will take several years, which is why CAHF appreciates the phase-in for penalties. CAHF would like to make it clear that they have not been instructing any facility not to staff up accordingly.
  • SEIU requested clarification on whether facilities receive citations if they do not meet 3.5 and do not apply for the waiver. Would the 3.2 penalty stay in place?
    • CDPH responded that the facility would receive a deficiency for not meeting 3.5 this year. If facilities are below 3.2, they would get a penalty.
  • SEIU asked if the Department could send out an AFL with this information, as facilities believe they do not need to comply with 3.5 since there is no penalty.
    • CDPH responded that the Department released an AFL with updated audit procedures on June 29, 2018, which included this information.
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