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licensing and certification


​Center for Health Care Quality (CHCQ)

Meeting Minutes for: 3.5 SNF Staffing Requirements


The following persons were present:

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), Scott Vivona (CHCQ), Chelsea Driscoll (CHCQ), Jean Iacino (CHCQ), CJ Howard (CHCQ), John Montablano (CHCQ), Sharon Simms, Office of Legal Services (OLS), Holly Pearson (OLS), Zainab Shakoor (OLS), Michelle Baass, California Health and Human Services Agency (CHHS), Matthew Shiroi, Department of Health Care Services (DHCS), Annie Leun (DHCS), Michael Singh (DHCS), Rocky Sheffler (DHCS), Krisheidy Guerrero (CHCQ), Kim Washington (CHCQ), Brett Braidman (OLS), Charlet Archuleta (OLS), Karen Halbo (CHCQ), Pia Johnson (CHCQ), Megan Schlager (CHCQ), Joanna Nguyen (CHCQ)

The following participants were present via teleconference:

Mike Connors, California Advocates for Nursing Home Reform (CANHR), Karen Jones, San Luis Obispo Ombudsman (SLO Ombudsman), Vicky Bermuda (California Nurses Association), Amanda Steel, Service Employees International Union (SEIU), Joe Rodriguez, State long Term Care Ombudsman (State LTC Ombudsman)


Kristin Vandersluis


November 17, 2017

​1500 Capitol Ave, BLDG 172 Sacramento, CA 95899 Training Rooms AB


I. Introductions

Kristin Vandersluis opened the meeting at 2.00 pm on November 17, 2017.

Chelsea Driscoll reviewed SB 97 workforce shortage waiver requirements. The bill 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.

II. Assumptions for the waiver:

  • Facilities can request a workforce shortage waiver of the 3.5 direct care service hours and/or the 2.4 CNA requirement
  • Facilities shall not staff below 3.2 direct care service hours during a waiver period
  • The Department will continue to perform annual staffing audits to determine compliance with staffing requirements
  • Facilities seeking a waiver must submit documentation of a staffing shortage and other supporting documentation as specified in the waiver criteria ​​

III. Waiver Application Guidelines: Evidence of workforce shortage

  • DRC commented that because the waiver language uses “may” instead of “shall,” a facility could interpret the language to request information of their individual experience without providing corroborating objective evidence.
  • FATE questioned the validity of the data sources. Does the data include salary? How often do the Office of Statewide Health Planning and Development (OSHPD) and the Department of Labor conduct surveys? If the surveys are conducted once a year, how do you use the data to prove a workforce shortage in real time?
    • CDPH responded that OSHPD conducted surveys annually while the Department of Labor is quarterly.
    • FATE stated the Department of Labor conducts its survey analysis annually and asked how this could be used to obtain accurate figures. FATE stated facilities should never be understaffed and they can use registries.
  • CAHF stated they were generally pleased with guidelines. Because facilities must apply for and renew waivers annually is appropriate to use OSHPD and Department of Labor data updated yearly. One thing that could be added to the criteria is identifying CNA shortage. There are some OSHPD reports designated by county for RN shortages but CAHF is unsure if there is an equivalent for CNAs. CAHF stated that facilities struggle with the availability of training programs and employees are more likely to stay at facilities with good training programs. Could the Department look at the number of local training programs and their retention rates?
  • LeadingAge CA concurred with CAHF about the lack of CNA data from OSHPD and suggested looking at EDD labor market data as it provides data by occupation and projected demands for occupations, which may be useful.
    • CDPH responded they are still researching alternative resources to use and make determinations in an objective way.
  • CANHR voiced concerns that the waiver does not indicate how the Department will evaluate the data or what effect the data will have on the approval of a waiver or whether a facility is deserving of a waiver.
    • CDPH responded that the evaluation of waiver applications is addressed in a later section and will be reviewed later in the discussion.
  • SEIU agreed that there should be data on the CNA shortage. SEIU also expressed hesitation around identifying shortages on a county level; a location like LA County has areas that can differ from one another. SEIU inquired if there was a more precise geographic target to review on a smaller scale.
    • CDPH responded that OSHPD and labor data go to metropolitan and county levels, but will look into the availability of more specified data.
  • SLO Ombudsman stated that the data from the OSHPD report is from 2015 and outdated. It does not seem accurate enough especially when it is critical to patient care.
    • CDPH responded that they could contact colleagues at OSHPD to inquire about updated reports and if there are current data available.
  • SEIU suggested that CDPH replicate OSHPD’s RN shortage data for CNAs. SEIU stated that CDPH could also produce data on a more micro level than county level. SEIU is concerned facilities in designated shortage counties, like LA County which contains about 300 facilities, may all start applying for waivers.
  • CANHR requested clarification on complying with 3.2 staffing requirements. Does the calculation to determine compliance with 3.2 currently include nurse assistant trainees?
    • CDPH confirmed they are currently counting nurse assistant trainee hours. Nurse assistant trainees are currently included in the definition of a direct caregiver.
  • FATE requested clarification on counting nurse assistant trainees in the 3.2 hours as trainees are unlicensed and may not even work at the facilities when facilities get reimbursed for licensed aides.
    • CDPH responded that the definition counts nurse assistant trainees if they are participating in a Department approved training program and confirmed that facilities employ and pay nurse assistant trainees.  

IV. Waiver Application Guidelines: Evidence of efforts to address shortage

  • DRC stated that facilities should have specific recruitment plans and could imagine a facility creating a generic recruitment plan that is not tailored to their facility-specific shortage.
  • SLO Ombudsman stated that in their semi-rural area, the pay scale affects CNA recruitment. Unless the facility is already above the CNA salary average, the facility will need to include a salary increase in the recruitment plan. In addition to providing details on where, when, and how long the facility has advertised the vacancies, the facility should also provide the Department with a copy of the ad to prove that the facility conducted recruitment activities. Lastly, the facility should provide the name and contact information of the applicants so the Department can verify they were actual applicants.
  • DRC suggested that the recruitment plan needs to become more rigorous over time.
  • CAHF stated that registry services should be included in the waiver as use of registry services indicate a workforce shortage and the facility is having trouble finding staff. Facilities also spend more through registry services and would rather have full time staff, as they are familiar with the patients and policies and procedures of the facility.
  • CDPH asked if representatives of the unions had thoughts on how applicants may feel about the release of their information to the state when applying for a job.
  • SLO Ombudsman suggested that facilities could include a disclosure regarding follow up from CDPH in the job application.
  • SEIU agreed about the disclosure if applicant information is not made publicly available.
  • CANHR asked if the Department was going to contact to the Ombudsman, resident and family councils, and union representatives to verify the information facilities present on waiver applications.
  • SEIU suggested that in addition to the waiver requirements, the Department should also request turnover and retention data, ideally on a monthly basis, to gauge turnover and employment trends.
  • FATE again expressed concerns about facilities paying nurse assistant trainees and whether they are conducting background checks and fingerprints.
    • CDPH stated statute requires nurse assistant trainees to submit fingerprints before they have access to patients.

V. Waiver Application Guidelines: Action plans and meeting resident needs

  • SLO Ombudsman stated each step of the action plan needs deadlines and facilities should report their progress to the Department periodically. How many steps of their action plan did facilities complete by the date of the waiver renewal?
  • CANHR expressed concern that SNFs can meet resident needs without staff and asked the Department for examples of how facilities can demonstrate this.
    • CDPH asked CAHF for possible examples.
    • CAHF stated facilities could provide QASP and CMS five-star ratings. However, these ratings are suggestions and not automatic triggers for waivers. There are various factors and guidelines involved in the waiver evaluation.
  • CANHR stated that CMS calculates expected staffing hours for SNFs using MDS assessment data on the acuity needs of residents. Will the Department take this data into account when evaluating a facility? Who will make these decisions?
    • CDPH acknowledged this was a good suggestion and would consider it. The waiver application will be a centralized headquarters function.
  • CANHR reiterated, in case of a staffing shortage, their recommendation for an admission ban to reduce resident population until it matched staffing. CANHR suggested this be a requirement under the detailed action plan.
  • CAHF expressed concerns with banning admissions. Banning admissions will lead to patients being displaced from their community, even though the facility is above 3.2 and meeting other criteria. Displacement is associated with decreased probability of success and significantly increased chance of rehospitalization. CAHF is very opposed to banning admissions.
  • DRC disagreed with CAHF. The risk to safety and quality care measures from admitting new residents to a facility facing a staffing shortage must be considered. DRC recommended that the Department include language defining when and how a facility stop new admissions.
  • CANHR suggested providing incentives for facilities to get enough staff and ensure the residents already in the facility receive the care they need. Medicare pays SNFs because they are supposed to have enough staff to meet resident needs; the government should not be paying facilities for staff they do not have.
  • CAHF stated the Department will be looking at factors that ensure the facility is providing quality care. Based on CMS and state ratings, facilities currently at 3.2 or who will be between 3.2 and 3.5 are providing quality care. CAHF does not see why these facilities should be forced to ban admissions.
  • LeadingAge CA reiterated that when it comes to quality of care, facilities are meeting the 3.2 minimum and are surpassing the 3.5 minimum requirement in general. When reviewing waiver criteria, it is important to consider facilities are staffing at 3.5 but are having trouble meeting the CNA requirement.

VI. Evaluation of waiver requests: Department considerations

  • DRC stated the Department should consider the facility’s quality of care and the facility’s citation history, including the seriousness of those citations. DRC asked if CDPH would be conducting an independent survey of the community’s experience to verify the facility’s shortage. If facilities renew their waivers, the Department should also look at how facilities addressed the shortage. When the waiver is in effect, the Department should also review whether facilities committed any violations pertaining to staffing shortages or quality of care issues.
  • FATE requested clarification on how facilities will know ahead of time that they will need a waiver. If a shortage occurs overnight, how can the facility apply for a waiver beforehand? Are facilities anticipating a shortage when they apply for a waiver? How long will the Department take to approve a waiver? How long can facilities be understaffed as they go through the waiver process?
    • CDPH explained that a facility could be experiencing a shortage and using registry services to meet requirements at that time, but anticipates that is not a long-term solution and may at that point request a waiver. Because this is a new process, CDPH does not currently have a time frame identified.
  • DRC stated that facilities are held to the current staffing requirements until waiver approval, so they could be cited for failing to meet the existing requirements. The Department could sit on a waiver evaluation for months.
    • CDPH responded that it is not the Department’s intent to prolong the review of waiver applications. CDPH recognizes this is a new process and there are currently many unknowns such as processing time for waivers, how much staff is necessary to review waivers, how many facilities will submit applications, how long applications will be, or the effect of new CNA training programs on the shortage. The first year will be a pilot to get documents in order and hire staff, but it is not the Department’s intent to extend the waiver process.
  • State LTC Ombudsman concurred with CANHR and DRC that if a facility cannot meet staffing requirements, then facilities should ban admissions until they can ensure they are able to care for residents.
  • CANHR requested clarification on the waiver requirement that facilities comply with state and federal regulations. CANHR’s understanding is that no facility should be able to get a waiver unless it has a stellar record of compliance. However, the requirement could also mean that a facility must have an extraordinary number of violations to be ineligible for the waiver. Where is the bar set? There needs to be some standard. CANHR also inquired about the meaning of “located in a rural area”.
    • CDPH explained that review of a facility’s compliance would be similar to a license application review and that the Department will review waiver applications on a case-by-case basis. Knowing whether a facility is in a rural area is an important factor the Department needs to be aware of as it is making a determination.
  • California Nurses Association stated that a waiver request should trigger an inspection to allow the Department to verify the facility’s compliance with staffing requirements.
  • SEIU agreed there needs to be some threshold so providers are clear on requirements and there is transparency for patients. The Department could specify a time period for compliance history. Perhaps the waiver process should also include a comparison between facilities in an area to determine if the shortage is facility or area specific.
  • SLO Ombudsman concurred with suggestions to verify if other facilities in the area are requesting waivers. Additionally, few facilities are fully compliant for various reasons. Therefore, the Department should consider the scope and severity when reviewing a facility’s compliance history.
  • CANHR stated the waiver application should trigger an inspection. In situations where facilities already have a waiver, any inspection findings with serious violations should terminate the waiver.

VII. Evaluation of Waiver Requests: Effective implementation of action plan

  • SLO Ombudsman commented that facilities applying for a second-year renewal need to pass higher standards for scope and severity of compliance. If a facility does not complete their first-year action plan, they should not request a renewal.
  • DRC reiterated that the Department should look at facility violations during the waiver period, including violations pertaining to staffing shortages.
  • CAHNR stated that a year for a waiver is too long, and that the draft permits a facility to have a waiver for up to three years. Can the Department elaborate?
    • CDPH responded that they are not suggesting it would be appropriate for a facility to request a waiver for up to three years. Stakeholders previously asked for a maximum; this was to address the comment. CDPH also recognizes that the first year will be challenging for the industry regarding finding personnel to hire, especially if training programs are still expanding. Shortages do not change overnight and there are delays involved in turning around a workforce shortage in a geographic region.
  • SLO Ombudsman stated that if facilities are on the third year of waivers, then the scope and severity of violations need to be tightened up. By year three, facilities need to be fully compliant for an additional waiver. Three years is a long time for residents to not get the care they need.
  • DRC pointed out that it is a four-year period because the waiver can be renewed three times. At that point, facilities should consider reducing admissions. DRC would like to see only one renewal but understands CDPH’s concern about issues during the first year. However, the waiver application applies after the first year and there needs to be a plan that makes sense after the first year.
    • CDPH responded that the waiver should say two consecutive renewals; the facility would be able to have a waiver for three years total.

VIII. Closing Comments

  • FATE asked if there is a waiting period or eligibility for waiver renewals after the third year.
  • SEIU agreed with comments regarding the waiver renewal, stating three years is too long.
  • CANHR stated qualifying for waivers should be difficult as they have direct impact on patients and would like the Department to rewrite its draft.
  • SLO Ombudsman suggested that the Department change the language regarding requesting additional information so they are not limited in method and number of communication during waiver evaluation.
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