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​Center for Health Care Quality (CHCQ)

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

​Participants
Date/Time​The following persons were present:
Chelsea Driscoll (CHCQ), Ben Menzies (DOF), Holly Pearson (CDPH-OLS), CJ Howard (CHCQ), Cassie Dunham (CHCQ), Brett Braidman (OLS), Leslie Fullerton (CDPH), Carole Herman (FATE), Tony Chicotel (CANHR), Sharon Simms (OLS), Teresa Calvert (DOF), Phuong La (DOF), Scott Vivona (CHCQ), Adam Lawrence Dorsey (DOF) and Janne Olson-Morgan (CHHS).
The following persons were present via teleconference:
Leza Coleman (CALCHOA), Ellen Goodwin (Long Term Care Office) Mike Connors (CANHR), Charlene Harrington (UCSF), Leslie Morrison (Disability Rights of CA) and Karen Jones (LTC Ombudsman).

​Tuesday

August 1, 2017

​Location
​73.425

 

I. Introductions

Scott Vivona opened the meeting at 3:00 pm on August 1, 2017.

II. Overview of Staffing Requirements

Chelsea Driscoll provided an overview of the 3.5 staffing requirement as amended by SB 97 (Chapter 52, Statutes of 2017). 

  • Effective July 1, 2018, SB 97 requires SNFs, except those that are a distinct part of a general acute care hospital or a state-owned hospital or developmental center, to have a minimum of 3.5 direct care hours
  • The 3.5 staffing requirement is only operative upon appropriation in the annual budget act and on continued approval of the Skilled Nursing Facility Quality Assurance Fee. 
  • CDPH must develop emergency regulations in consultation with stakeholders to implement the 3.5 direct care services of per patient day with a minimum of 2.4 hours performed by CNAs
  • Must provide notice to stakeholders at least 90 days prior to adopting regulations – by April 1, 2018
  • The bill authorizes two types of waivers:
    • A waiver to meet individual patient needs while maintaining the 3.5 direct care service hours
    • A waiver process due a shortage of appropriate health care personnel and direct caregivers

 

Penalties

  • Authorizes the department to develop a schedule to issue penalties for violations of the staffing requirements resulting in harm or has the potential to cause harm
  • Prohibits CDPH from issuing penalties for failure to comply with the staffing requirements until FY 2019-20.

QASP Impact

  • Allows a SNF that receives a waiver from the California Department of Public Health for meeting staffing requirements pursuant to HSC section 1276.65 to remain eligible for a supplemental payment if the facility meets the 3.2 minimum staffing, to the extent the Department of Health Care Services determines federal financial participation is available and not otherwise jeopardized.
  • Prohibits the 3.5 staffing standard from being used to determine eligibility for a supplemental payment until fiscal year (FY) 2019-20.  

Evaluation

  • Requires the department to evaluate the impact of the staffing changes on quality of care, the workforce, and the effectiveness of the 2.4 CNA staffing minimum, and authorizes the department to contract for the evaluation. 

III. General Comments:

  • Advocates requested the minutes for all stakeholder sessions be shared along with the history of legislation. Advocates expressed concern over not being able to participate in the process.
    • Janne Olson-Morgan explained the changes came late in the budget process, and the issue was discussed at a high level in the Governor’s office. CDPH provided technical assistance in the process.
  • CANHR asked for details about the type of technical assistance CDPH provided and CDPH’s role in developing the policy change.
    • Janne Olson-Morgan clarified that the technical assistance included providing factual information and the specific conversations are confidential.
  •  Advocates expressed concern that stakeholders were not convened together in one meeting and requested the opportunity to know what the other stakeholders are saying.
  • Advocates asked if CDPH will post the minutes from all stakeholder meetings on the Department’s website. CDPH responded that we would check with CDPH lawyers to see if CDPH can post minutes of the meetings.
  • Advocates stated the staffing in skilled nursing facilities has not been increased in 20 years and did not feel the increase to 3.5 direct care hours is enough staffing.
  • FATE expressed concern surrounding a lack of staffing and lack of monitoring in facilities.
  • CANHR asked for clarification regarding the existing, non-operative regulations (Title 22 section 72329.1), and whether CDPH intends to amend them for the new requirement. 
    • CDPH explained it is very early in the development process and no decisions have been made about the best approach to implementing the new requirement.

 

IV. STAFFING REQUIREMENT DISCUSSION QUESTIONS:

QUESTION:

Considering the requirement to maintain 3.5 direct care hours with a minimum of 2.4 hours performed by CNAs, what are the minimum standards needed to ensure safe patient care?

  • Disability Rights of California commented that there are minimum CNA hours set by the requirement but there is no maximum number of CNA hours.
  • FATE and the LTC Ombudsman commented that if students’ hours count toward the direct care hours, the regulations should set a maximum of the 3.5 hours counted for students (i.e. maximum should be .5 hours to 1 hour). The use of students should be minimal. CNAs should get to know the residents and understand their needs.
  • CANHR stated when students are in facilities there should be a sufficient number of licensed nurses for supervision.
  • CANHR suggested a separate hour requirements for licensed nurses (i.e., .75 RN .55 LVN = 1.3 licensed hours.
  • UCSF commented that not all nursing hours have to be direct care hours; some of the nursing hours could be administrative hours.
  • UCSF stated it is preferred to have (nurse) hours/payroll data online. The information should be viewable online to see what facilities are doing (regarding their staffing; licensed vs. unlicensed staff).
  • CDPH’s current staffing audits count the hours of nurse assistant trainees.

QUESTION:
Do you envision the 3.5 direct care hours being converted into a nurse to patient ratio?

  • Yes (CANHR/UCSF/FATE)
  • If there are ratios, the ratio should be no less than current (FATE)
  • Compliance with the regulations would be difficult to monitor without ratios (UCSF)

V. WAIVER AUTHORITY DISCUSION QUESTIONS:

There are two waivers authorized in the bill.
In creating a waiver process to meet individual patient needs while maintaining the 3.5 direct care service hours, what would you anticipate being waived? What criteria or factors should the Department consider in granting a waiver?

  • The advocates asked for clarification about what the waiver meant.
    • CDPH responded that one scenario is having a facility request a waiver to use more licensed nurses because they have higher acuity patients.
  • Disability Rights California stated it is unlikely that facilities would choose to use more licensed nurses in lieu of CNAs.
  • Advocates commented that a waiver should not be included that affects the level of care given to lower acuity residents.
  • The LTC Ombudsman stated it would be difficult to meet the needs of higher acuity patients with 3.5 staffing hours, using this level of staffing for higher acuity patients is not safe.
  • FATE commented that facilities should not have the discretion of waivers. If the acuity level is too high, the facility should not accept the patient.
  • CALCHOA commented that a waiver used for licensed nurses to cover CNA hours is good from advocate standpoint.
  • CANHR and FATE indicated if facilities had higher patient acuity then staffing at 3.5, regardless of using more licensed nurses would be unsafe.

QUESTION:
In creating a waiver process due to staffing shortages, what criteria or factors should the Department consider in granting an annual waiver? What documentation should the Department accept in support of a waiver request?

  • CANHR stated if there are staffing shortages, the facility should lower its census. If a facility were not able to hire enough nurses to provide care, the staffing would be at a dangerous level. Facilities with staffing shortages should try cutting the amount of residents by not admitting new residents over a certain period of time.
  • CANHR stated if a facility is on a waiver the facility should post notices at all entrances so that the public knows the facility has a waiver.
  • Advocates stated there should be an evaluation of due diligence for recruiting by the facilities. There should be a review of other SNFs in the area. Other alternatives should be considered instead of the waiver. 
  • Disability Rights California asked if a facility has a waiver, what safeguards are there to ensure facilities meet standards?
  • CANHR requested clarification about whether the shortage waiver required 3.5 staffing hours.
  • CDPH responded the staffing shortage waiver is for the 3.5 requirement.
  • The LTC Ombudsman asked who will determine there is a lack of staff availability and whether the department would do research or a survey.
  • CDPH indicated a desire to hear from stakeholders their thoughts about how the determination should be made.
  • FATE commented that registries are available to find nurses and expressed concern regarding how SNFs would prove the need for a waiver.
  • Advocates commented that there may not be a shortage of CNAs or nurses in the area but some facility operators may have difficulty attracting staff due to the way they operate their business and not paying competitive wages.

The advocates participating in the meeting made the following suggestions related to waivers:

  • The local ombudsman should receive a copy of the waiver while the waiver is being evaluated by CDPH
  • Notice that a facility has a waiver be made public (e.g. posted on the website and in the facility
  • Annual review of waviers is too long an should be bi-annually.
  • Facilities with compliance problems should not be eligible for waivers
  • Establish 3.2 as the minimum staffing regardless of a waiver

QUESTION:
Do advocates have suggestions about other waiver options?

  • Disability Rights California stated patients are able to hire full time caregiver and asked if CDPH would consider a waiver to allow a patient that hires a private caregiver to not be included in the staffing hours count.
    • CDPH noted the comment. 
  • Could another licensing type be included other than an RN?  

V. Additional Comments

  • For future meetings, questions should be sent out in advance
  • CANHR request a timeline for the regulation process.
    • CDPH committed to allowing advocates until August 15, 2017 to submit written comments related to regulations development.
    • CDPH must provide 90 days notice prior to adopting the 3.5 direct care hour regulations.
  • CDPH told the stakeholders they could submit additional written comments within the next two weeks.

V. Adjournment

  • Scott Vivona adjourned the meeting.
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