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Licensing and Certification


​Center for Health Care Quality (CHCQ)

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


​The following persons were present:
Rita Marseille (Wilson Getty), Cayce Pereira (University Retirement), Leza Coleman, California Long-Term Care Ombudsman Association (CalCOA), Sam Magtanong (Life Care Centers of America), Rose Narasse (Life Care Centers of America), Jennifer Haas (Life Care Centers of America), Ryan McCormack (Rock Creek), Edward Burtee, Service Employees International Union (SEIU), Jedd Hampton (LeadingAge CA), Matt Robinson, California Association of Health Facilities (CAHF), Jen Synder (CAHF), Amanda Steel (SEIU), Jeff Jamison (Auburn Oaks), Jeff Smith (Westview Healthcare), Mike Smith (Crystal Ridge), Kenneth Blankenfield (Wolf Creek Care Center), Jorin Larsen (Marysville Post Acute), Dustin Murray (Yuba City Post Acute), Scott Vivona (CHCQ), Chelsea Driscoll (CHCQ), CJ Howard (CHCQ), Theresa Calvert, Department of Finance (DOF), Sharon Simms (CDPH), Debra Gonzales (CDPH), Leslie Fullerton (CDPH), Jasmine Wong (CDPH), Shelby Hoerner, Department of Health Care Services (DHCS), Richard Sanchez (DHCS), Matthew Shiroi (DHCS), Michael Singh (DHCS), Krisheidy Guerrero (CHCQ), Kevin Lillard (CHCQ), John Montalbano (CHCQ), Karen Jacoby (CHCQ), Holly Pearson (CDPH), Joanna Nguyen (CHCQ)

The following persons were present via teleconference: 
Carole Herman, Foundation Aiding the Elderly (FATE), Tony Chicotel, California Advocates for Nursing Home Reform (CANHR), LA County Health Department, Roseville Care Center, White Blossom Care Center, Long Term Care Ombudsman San Luis Obispo

Facilitator: Kristin Vandersluis


July 24, 2018 

2:30PM to 4:00PM

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


I. Introductions

Kristin Vandersluis opened the meeting at 2:00PM and provided an overview of the meeting:

  • Overview of Senate Bill (SB) 97
  • Recap of stakeholder process
  • Updates on emergency regulations
  • Patient needs waiver discussion
  • Final adoption timeline

II. Senate Bill (SB) 97

  • SB 97 increased 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- process and criteria covered in All Facilities Letter (AFL) 18-16
    • Patient needs waiver - process and criteria in emergency regulations

​​III. 3.5 Stakeholder Process

  •  Began stakeholder process in August 2017 when the Department 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 feedback and posted all meeting minutes, meeting materials, and written comments on SB 97.
  • The Department sent out notifications to stakeholders when updates were available.

IV. Emergency and Final Regulations

  • Emergency regulations went into effect July 1, 2018.
  • The Department has 180 days to adopt the final regulations and the July stakeholder meetings are to discuss the criteria and additional information to include in the final regulations.
  • The Department has a very aggressive timeline to adopt final regulations by January 2019.

V. Patient Needs Waiver Requirements

  • The existing language for the patient needs waiver uses the program flex process, authorized 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

VII. Patient Needs Waiver Questions

Question: Is there a need to have a more specific process than the program flex? Are there alternative processes that CDPH should consider?

  • SEIU stated their belief that program flexes are mainly used in a hospital setting, not nursing home, and reiterated they would like to see more robust criteria than the program flex requirements. SEIU suggested the Department review the facility's resident mix, staffing used, and patient needs as these criteria suggest the facilities require higher level of care. SEIU also asked why an overall facility with only a handful of residents with higher acuity would receive a patient needs waiver for the overall facility. Most of a facility's patients should have higher acuity before requiring the patient needs waiver. SEIU asked if the patient needs waiver would have limitations or criteria that would make the facility ineligible for a waiver, similar to the workforce shortage waiver.
    • CDPH responded that part of the conversation is to determine what limitations or criteria stakeholders want to see. CDPH received SEIU's letter and has posted it on the website. CDPH asked that SEIU also bring up their written comments during the meeting.
  • CAHF stated that many facilities apply for program flex and are familiar with the program flex process. The criteria should work around the program flex process. CAHF would like to know what percentage of waivers are for the patient needs waiver. How will the waiver process work until final adoption, what is the approval timeline, and how long would the approval last? Would the waiver be retroactive to July 1, 2018?
    • CDPH responded that the plan is to have the program flex approved for the current fiscal year so the waiver would not expire until the end of the fiscal year. The waiver would apply when it is approved going forward.
  • CAHF asked if the Department would review and approve/disapprove waivers within 60 days?
    • CDPH responded that they have received a large influx of waiver requests and while it would be unlikely that all the waivers are approved/ disapproved within 60 days, the Department is working on the requests as quickly as possible.
  • CAHF stated that there could be additional criteria other than the program flex, but the program flex allows each facility to demonstrate why they should be granted the waiver. CAHF has stated previously that every facility is different and other stakeholders have mentioned that patient needs change daily so defining criteria or setting a time period on the waiver is difficult. CAHF previously proposed back in October 2017 that if facilities are staffing above 3.6 or 3.7, they should be granted a waiver and not be penalized for having more licensed staff. The Department could also consider Quality and Accountability Supplemental Payment (QASP) metrics and CMS five-star ratings when evaluating waivers. Lastly, subacute facilities or subacute units should be granted the patient needs waiver. If that is not the case, patient care will suffer. Having 2.4 CNAs does not mean that quality of care is improving.
  • CalCOA agreed with CAHF. CalCOA does not want to see patient care suffer due to lower qualified staff. The intent was not to replace care with lower qualified staff. The ombudsman is supportive of any waivers or processes the Department needs to put in place to protect facilities from being penalized for having more qualified staff. The Department needs to prioritize the waiver requests from subacute facilities to ensure the highest quality of care.
  • CAHF stated that the waiver should be retroactive. If the waiver request is submitted now, the waiver date should go back to July 1, 2018.
  • SEIU asked if the Department could share the criteria they used and the useful information they received when evaluating the waiver requests.
    • CDPH stated they have received both workforce shortage and patient needs waiver requests. The Department requested supplemental information for many of the applications to ensure the required  information to evaluate the request is submitted. The Department is following the AFL guidelines. The Department looks at the facility's recruitment plan, advertising, how the facility intends to provide care to residents, and compliance history.
  • Yuba City Post-Acute shared how the 59-bed facility has worked to meet the new staffing requirements. With the new payroll based journaling (PBJ) and staffing requirements, the facility has been working with hospitals to get more licensed staff. They have reduced readmissions since they are taking on a higher level of care. The facility is doing everything possible to meet the staffing requirements and has four CNA schools using their facility for their clinical hours. The requirements have pushed the facility to provide better quality of care and the facility is doing everything it can to meet the PBJ and five-star rating requirements, which have no correlation to CNA staffing.

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 that the average resident stay is 3 months or less so patient needs are constantly changing. The assessment period should be frequent. A stakeholder suggested at the previous meeting that reassessment should be 6 months or a year, but SEIU thinks it should be more frequent. The waiver is meant to address the needs of specific residents. The Department should know when those needs and higher acuity change. There should be a limit on the waiver renewals. SEIU does not want to compromise patient care but the 3.5/2.4 requirements are the new baseline and that is the level of staffing all facilities should eventually provide.
  • Sacramento Post-Acute stated that state departments tend to move slowly so it is unlikely that the Department will be able to reevaluate waivers every 3 or 6 months. A waiver limit does not seem fair when facilities have different needs. If the waiver is needs or qualitative based, there should not be a limit.
  • LeadingAge CA stated that if you reassess waiver eligibility less than annually, facilities will face situations where they lose the waiver one month but need it the next month. There should be no limit on waiver renewals for facilities that are providing high quality of care and meeting the requirements.
  • CAHF expressed support for LeadingAge CA's comments. The waiver process does allow for review during licensing surveys and the Department could use that to determine compliance. CAHF disagreed with setting a limit on waiver renewals. The statute does not direct the Department to create a limit. The reason there are higher licensed staff in SNFs is because of the patient mix coming into facilities. There are high acuity needs and the patients need the higher-level staff.
    • CDPH asked that assuming the waiver process was an annual review, what criteria should the Department consider for waiver revocation if the facility was providing good quality of care?
  • CalCOA stated that the Department could begin by looking at readmission rates. Because the residents have high acuity, these assessments should happen frequently.
  • SEIU suggested that the Department consider criteria that would prohibit facilities from applying for a waiver that were grounds for revoking a waiver such as A or AA citations, staffing deficiencies, or similar criteria to the workforce shortage waiver.
  • CAHF stated that they do not know the exact criteria for revoking a waiver which is why the Department should reassess waiver eligibility annually. The A or AA citation could be an isolated incident that does not necessarily mean the facility is a bad facility. CAHF does not agree that the citations should be criteria for the revocation of the patient needs waiver.
    • CDPH stated that SEIU requested that SNFs submit a detailed resident plan for residents with higher acuity levels, anticipated date of recovery, discharge or date by which the SNF would be able to have that resident's condition improved in their comment letter and asked if SEIU could share what they expected to see given that criteria.
  • SEIU stated they wanted to provide detailed suggestions and thought that if facilities required a patient needs waiver, there should be some standards surrounding the facility's particular patient and staffing mix. The facility would have to demonstrate that their resident mix required more licensed staff.
  • CAHF addressed SEIU's written comment about requiring facilities to have a certain percentage of patients with higher acuity. CAHF believes that is troublesome and creates an arbitrary threshold that would be difficult to define. Every facility is different. CAHF acknowledged that a fair amount of SEIU's suggestions were workable within the program flex.

VIII. 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.

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

  • Sacramento Post-Acute stated that their facility currently has a 28-bed subacute unit and understood that a different department conducted annual reviews looking only at subacutes. Acuity is higher in the subacute unit and the nursing needs outweigh the need for CNAs; therefore, different rules should apply. Subacute units should receive the patient needs waiver. Why is the Department bringing up subacutes when the AFL did not mention subacutes?
    • CDPH responded that they are looking for clarity on the issue. After the AFLs went out, the Department received a lot of questions from different facilities regarding this different staffing level. The Department provided guidance based on current standards but are looking for information to provide clarity moving forward.
  • SEIU inquired about whether 3.8/2.0 requirements for subacutes were staying the same.
    • CDPH responded that was a DHCS question that they are unable to answer. The 3.5/2.4 are licensing requirements while the 3.8/2.0 are payment requirements.
    • SEIU responded that subacutes have their own staffing requirements. They would not be subject to the 3.5/2.4 requirements so why would they receive a patient needs waiver?
    • CAHF stated that the way the statute is written, subacutes are part of the facility. Subacutes have their own standard so they should not be subject to the 3.5/2.4 requirements. Even if it was a standalone subacute facility or a subacute unit, there is no legal grounds to carve out the subacutes from the rest of the facility.

IX. Final Adoption Timeline

  • The Department will accept written comments until the end of July.
  • The Department will incorporate suggestions, revise regulations, and submit for approvals.
  • After submitting the package to the Office of Administrative Law (OAL), the regulations will be available for comments in the fall. There will be a 45-day public comment period.
  • There is an opportunity for the public to request a hearing. The Department will likely schedule a hearing because there is a lot of interest in this topic.
  • If there are no changes, following the comment period the package will move into the final adoption phase and become operative January 1, 2019.
  • If there are changes following the comment period, there would be another comment period and the public would have another opportunity to submit written comments. This would require the Department to have a re-adoption of the emergency regulations and may push the operative date out to April 2019.

X. Comments on the Final Adoption Timeline

  • CalCOA: In the budget process, the Department requested additional staff to handle the workload. Is the Department on track in getting the necessary staff?
    • CDPH responded that they have begun the recruitment process and already have part of the team in place.
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