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​Center for Health Care Quality (CHCQ)

Meeting Minutes for: 3.5 Skilled Nursing Facility (SNF) Staffing Requirments with Labor Union

Participants
Date/TimeThe following persons were present:
Scott Vivona (CDPH CHCQ), Janne Olson-Morgan (CHHS), Jean Iacino (CDPH CHCQ), CJ Howard ( CDPH CHCQ),  Chelsea Driscoll (CDPH CHCQ), Sharon Simms (CDPH OLS), Holly Pearson (CDPH OLS), Adam Dorsey (DOF), Phuong La (DOF), Cassie Dunham (CDPH CHCQ) , Brett Braidman (CDPH OLS), Charlet Archuleta (CDPH OLS), Carrie Camarena (CDPH OLS), Leslie Fullerton (CDPH CHCQ),  Debra Gonzales (CDPH CHCQ), Roseliz Kondo (CDPH CHCQ), Kevin Lillard (CDPH CHCQ) and Teresa Calvert (DOF)
The following persons were present via teleconference:
Amanda Spiel (SEIU Local 2015), Vicki Bermudez (California Nurses Association), Saskia Kim (California Nurses Association),  and Kim Catekoni (National Union of Healthcare Workers)

​Friday

August 4, 2017

Location
​73.425

 

 Scott Vivona opened the meeting at 2:00 pm on August 4, 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:

  • The California Nurses Association indicated they were not was not involved in the creation of the SB 97- 3.5 direct care hour proposal and requested the opportunity to submit written comments to the Department.
    • The Department acknowledged the request and stated written comments would be accepted for two weeks and should be directed to Chelsea Driscoll.
  • SEIU stated they were involved with the bill creation. SEIU Local 2015 represents certified nurse assistants (CNAs) throughout California. The bill was developed in discussion with some of the Local 2015 members. They researched different facilities and the burdens placed on workers. Their focus was on the quality of care for both patients and workers.  SEIU also indicated increased staffing is a topic of discussion at the national level.

 

IV. STAFFING REQUIREMENT DISCUSSION QUESTIONS:

QUESTION:

Do you envision direct care hours being converted into a staffing ratio?

  • The Department provided background on the question stating that the prior statute had a requirement that staffing hours (3.2), be converted in a ratio based on shifts.
  • SEIU commented it was something to consider for long term. Establishing shift ratios was considered in early discussions; however, ratios were not included in the bill because the concept is complicated. SEIU’s goal was to increase the 3.2 staffing hours to a higher standard, 3.5.
  • The California Nurses Association commented determining staffing levels is difficult without ratios. Without ratios being established, patients and their family may not be able to ensure their loved ones are receiving adequate care. Nurse to patient ratios are good for day to day monitoring.

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? Is there anything outside of the 2.4 hours for CNAs that should be considered?

  • The California Nurses Association commented that if nurse assistants in training are used in the staffing hour calculation, that it is important to make sure that there is adequate licensed staff available to monitor their work. The California Nurses Association pointed out that nurse assistant trainees are not counted in the staffing ratios in acute care settings.

QUESTION:

What process do you recommend for determining that certified nurse assistants are working 2.4 direct care service hours within 3.5 direct care service hours per patient day?

  • CDPH-Staffing Audits Section (STAAR) explained the current auditing process. STAAR looks at actual time spent on direct patient care. The review includes assignment logs, payroll, and punch in/out times. The hours of licensed nurses and CNAs are not counted separately; STAAR determines whether the overall 3.2 nursing hour minimum is met. Nurse assistants are currently included in the calculation.
  • The California Nurses Association asked whether licensed vocational nurses (LVNs) and RNs hours counted hour for hour, when calculating nursing hours.
    • CDPH-STAAR counts all hours equally, with no classification distinction.
  • The California Nurses Association commented that RNs are treated differently on the federal level, and wanted to see if CDPH used the same process.

QUESTION:

Should there be a minimum requirement of nurses?

  • CDPH posed an expanded question regarding the role of the Minimum Data Set (MDS) coordinator. Since the role of the MDS coordinator includes data entry to CMS and patient assessments, how should CDPH consider the MDS time?
    • The California Nurses Association stated the hours of a MDS coordinator at a skilled nursing facility should only count towards meeting the staffing requirement while providing patient care.
    • SEIU agreed with the California Nurses Association comments.

QUESTION:

What process do you recommend to document the number of direct care service hours provided by licensed nurses, CNAs and nurse assistants, i.e. nurses in training for certification?

  • SEIU commented that they do not have experience with this, but if there are already processes in place to calculate hours, the 3.5 and 2.4 CNA hours should be incorporated into the existing process.
  • The California Nurses Association requested time to evaluate the question and to provide feedback.

QUESTION:

Are there enough trained CNAs to allow facilities can meet the ratio? Are there sufficient training resources to enable facilities to meet 2.4 direct care service hours for certified nurse assistants? If not, what additional resources would be required to meet the required training need?

  • SEIU supports more training opportunities for CNAs.
  • SEIU commented there is a need to train more individuals to become CNAs.

V. WAIVER AUTHORITY DISCUSION QUESTIONS:

QUESTION:

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?

  • SEIU indicated waivers should be only for extenuating circumstances, such as not having enough CNAs to meet 2.4 hours on a particular day. Examples of the circumstances are too many staff called in sick and a documented inability to find replacement CNAs. SEIU stated that while these situations come up, the 3.5 nursing hours should be met, and patients should have their care needs met.
    • CDPH stated it would impractical and laborious to assess waivers on a day to day basis. The waivers will be reviewed and either renewed or revoked annually.
  • The California Nurses Association asked if there would be program flexibility for staffing. This waiver might be needed if additional RN/LVN staff were needed to meet the needs of a higher acuity level patient.
  • NUHCW recommended reviewing waivers on a case by case basis.

QUESTION:

CHHS asked about the California Nurses Association’s position about high acuity facilities needing more licensed staff that would meet 3.5 staff hours but not 2.4 CNA hours.

  • The California Nurses Association stated 2.4 CNA hours per patient day should be maintained at minimum, and requested additional time to think about the issue, the California Nurses Association indicated they would submit written comments.
  • The California Nurses Association asked if existing law allows for waivers and whether there are any procedures in place for approving waivers.
    • CDPH clarified that the requirement to have a waiver is in existing law; however, the waiver process was never implemented because the budget appropriation to implement the requirement was not authorized. As a result, there are currently no procedures to approve this type of waiver.

QUESTION:

In creating a waiver process due to staffing shortages, what criteria or factors should the Department consider in granting an annual waiver?

  • CDPH provided an example of a shortage scenario cited by provider groups, that some facilities may have difficulty hiring CNAs in rural markets. In this case, how should the Department consider reviewing waivers
  • SEIU asked whether the Department has access to system to show where CNAs are, and how they are trained.
    • CDPH indicated this information may be available and would research its availability.
  • The California Nurses Association asked if waivers need an annual review. Could the reviews be every 6 months?
    • CDPH clarified that the statute requires annual waiver reviews.
  • SEIU expressed the need for guidelines to determine whether there is a shortage. They would like clarity about how the Department would determine a staffing shortage exists and how the shortage is measured.
  • SEIU suggested using information on the labor market in the area.
  • Union representatives indicated it is important to monitor patient welfare.

VI. Additional Comments

  • The California Nurses Association requested clarification on the emergency regulations and 90 day time frame.
    • CDPH stated the authority for the emergency regulations allows the regulations to be in place during the comment period. To meet the July 1, 2018 effective date, CDPH must provide notice and make the emergency regulations available to stakeholder by April 1, 2018. The regulations must be available to stakeholders 90 days in advance of placement.
  • The California Nurses Association asked if there is any opportunity to influence or change the regulations during the 90 day comment period.
    • CDPH clarified that the 90 days is not for comments but is a notice period. CDPH stated there would be opportunities to provide comments, possibly a 45 days comment period within the 90 days. The Department will review the comments and make necessary changes with other buy-in.

VII. Adjournment

  • Scott Vivona adjourned the meeting.
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