​In accordance with Health and Safety Code (HSC) Section 1276.5 and Welfare and Institutions Code (W&I) Section 14126.022, this notice is to provide guidelines for facility requirements during state audits for compliance with the 3.2 nursing hour per patient day (NHPPD) staffing requirements. These guidelines are limited to the implementation of Welfare & Institutions Code Section 14126.022 and the Skilled Nursing Facility Quality and Accountability Supplemental Payment System set forth therein. These guidelines will be in addition to any other statutes and regulations applicable to a Skilled Nursing Facility (SNF).

I. OVERVIEW

For the past five years, the California Department of Public Health (CDPH) has conducted audits of random samples of open, active, freestanding skilled nursing facilities (SNFs) for compliance with the 3.2 NHPPD staffing requirement. Beginning 14 calendar days after the date of this letter, CDPH will conduct "unannounced" on-site staffing audits of all facilities to verify compliance with the staffing requirement.

The minimum 3.2 NHPPD does not assure that any given patient receives 3.2 hours of nursing care; it is the total number of nursing hours performed by direct caregivers per patient day divided by the average patient census.

W&I Section 14126.022 requires the Department to assess a SNF an administrative penalty if the Department determines that the SNF fails to meet the NHPPD requirements pursuant to HSC Section 1276.5 as follows:

• Fifteen thousand dollars ($15,000) if the facility fails to meet the requirements for five percent or more of the audited days up to 49 percent.
• Thirty thousand dollars ($30,000) if the facility fails to meet the requirements for more than 49 percent of the audited days.

Once an administrative penalty is issued, it may be appealed. The appeal process will be discussed in a future All Facilities Letter.

A. The Audit Process

Upon entrance, the facility shall provide the audit or survey team a lockable room, power supply, chair, and a table sufficient to hold a laptop computer and audit documents. This room must be sufficiently private to allow for review of confidential information. The CDPH auditor will then conduct an entrance conference with the facility’s administrator or designee.

The facility will be provided a list of selected dates taken from a 90-day period preceding the audit. The facility shall provide the auditor with requested documentation to determine compliance with staffing requirements for those specified days. The documentation requested will include payroll and personnel records, nursing payroll codes, assignment sheets, duty statements, job descriptions, registry invoices, and/or census and NHPPD forms.

Facilities that use electronic payroll systems must provide the auditor a paper copy of the payroll records. Auditors may use other documents, as stated in Section 6 (b) "Documentation," to verify the accuracy of the payroll records. These other documents that are relied upon may be provided to the auditor electronically.

Documents or records that are incomplete, illegible, or inaccurate shall not be accepted. Modifications made contemporaneously to the audit shall not be accepted. To consider employees not captured in payroll records and those who are hired to perform duties other than nursing services, documentation must delineate the time spent on nursing services. The facility shall either create an assignment sheet or use the attached "Nursing Staffing Assignment and Sign-In Sheet" (CDPH 530 and instructions) to record daily staffing assignments for these employees. For example, this may apply but not be limited to, the nursing hours provided by such employees as a Director of Nursing in a facility with 60 or more beds and a Director of Staff Development when providing nursing services beyond the hours required to carry out the duties of these positions, or to nursing hours provided by any cross-trained direct caregivers who are otherwise regularly assigned to departments such as medical records, housekeeping, dietary or laundry. Failure to provide this information will result in the exclusion of all service hours for such employees.

Only direct caregivers shall be counted toward NHPPD.

The facility shall provide the auditor with the patient census at either (a) the beginning of each shift if a facility has three (3) shifts within a 24-hour period or (b) the beginning of the 24-hour patient day and again both at 8 hours and 16 hours after the start of the 24-hour patient day, for all days requested. The facility shall provide the exact time it begins its patient day.

Auditors will be equipped with a laptop computer that includes the NHPPD database and a portable printer. Data collected from the documentation will be entered into the NHPPD database. The database will compute the daily NHPPD. Once all data is entered, a report will be generated.

The automated calculation of 3.2 NHPPD shall be based on:

1. Patient day – the 24-hour period of time used to determine HSC Section 1276.5 compliance;
2. Average Census;
3. Number of hours worked by direct caregivers.

Specifically, the standard of 3.2 NHPPD is calculated as follows:

Total number of actual nursing hours performed by direct caregivers per patient day
÷
The average census during the patient day

The auditor will conduct an exit conference with the facility administrator or designee to report the findings and conclude the audit process. This conference will be recorded.

B. Regulatory Enforcement

Upon a finding of non-compliance during an on-site audit, a Statement of Deficiency will be issued for non-compliant days reviewed. A single deficiency will be issued for staffing non-compliance regardless of the number of non-compliant days.

Facilities with non-compliant days will be responsible for submitting a Plan of Correction to the Research and Data Management Section at the following address:

Research and Data Management Section
California Department of Public Health
1615 Capitol Avenue
P.O. Box 997377, MS 3203
Sacramento, CA 95899-7377

For facilities wishing to electronically submit the Plan of Correction, please send a signed copy of the Plan of Correction in PDF format to the following CDPH L&C Staffing Audits email account: LNCStaffingAudits@cdph.ca.gov. The original signed Plan of Correction must be maintained at the facility for a minimum of 3 years.

The facility will receive a finding of non-compliance with the 3.2 NHPPD requirement for each day audited that documentation is not provided.

A notice of intent to issue an administrative penalty will be issued if the facility is in violation of HSC Section 1276.5. W&I Section 14126.022 require the Department to assess a SNF an administrative penalty if the Department determines that the SNF fails to meet the NHPPD requirements pursuant to HSC Section 1276.5 as follows:

• Fifteen thousand dollars ($15,000) if the facility fails to meet the requirements for five percent or more of the audited days up to 49 percent.
• Thirty thousand dollars ($30,000) if the facility fails to meet the requirements for more than 49 percent of the audited days.

Once an administrative penalty is issued, it may be appealed. The appeal process will be discussed in a future All Facilities Letter.

II. GUIDELINES

Section 1: Definitions

(a) Absent Patient means a patient that is not in the facility or receiving services from the facility.

(b) Average Census means the average of the census during a patient day. Average census is determined by adding the census for either (a) the beginning of each shift if a facility has 3 shifts within a 24-hour period or (b) the beginning of the 24-hour patient day and again both at 8 hours and 16 hours after the start of the 24-hour patient day, and dividing the total by 3. "Census period" means the period of time covered by the method chosen to figure the average census.

Method (a):

Method (b):

(c) Bed Hold means a bed that is held for a patient that has been transferred to a General Acute Care Hospital or Acute Psychiatric Hospital for purposes of hospitalization or therapeutic leave.

(d) Department means the California Department of Public Health (CDPH) or its designee.

(e) Direct Caregiver means a registered nurse, as referred to in Section 2732 of the Business and Professions Code; a licensed vocational nurse, as referred to in Section 2864 of the Business and Professions Code; a psychiatric technician, as referred to in Section 4516 of the Business and Professions Code; and a certified nurse assistant, or a nursing assistant participating in an approved training program, as defined in HSC Section 1337, while performing nursing services as described in CCR Title 22, Section 72309, Section 72311, and Section 72315. A licensed nurse serving as a Minimum Data Set Coordinator is a direct caregiver and the hours worked in producing resident assessments must be included in the nursing hours computation. A person serving as the director of nursing services in a facility with 60 or more licensed beds or a director of staff development can be a direct caregiver when providing nursing services beyond the hours required to carry out the duties of these positions, as long as these additional nursing hours are separately documented.

(f) Director of Nursing Services means the description provided in CCR Title 22, Section 72327.

(g) Documentation means a record, letter, or document that is accurate, legible, and complete. A confidential patient medical record is not considered "documentation" for the purposes of establishing nursing hours of a direct caregiver.

(h) Electronic Record means documentation in an electronic format.

(i) Employee or Staff means employee, registry staff as defined in CCR Title 22, Section 72309, temporary staff, contract employee, terminated or "inactive" employee, or any person meeting the definition of a direct caregiver.

(j) Intermediate Care means inpatient care given to patients who have need for skilled nursing supervision and need supportive care, but who do not require continuous skilled nursing care.

(k) Intermediate Care Facility (ICF) means a facility described in HSC Section 1250(d).

(l) Intermediate Care Patient means a patient receiving intermediate care and occupying a licensed intermediate care bed used exclusively for patients receiving intermediate care.

(m) Licensed Nurse means a registered nurse or a licensed vocational nurse.

(n) NHPPD means the actual nursing hours performed by direct caregivers per patient day.

(o) NHPPD Calculation is the calculation of the NHPPD by dividing the actual nursing hours performed by direct caregivers per patient day by the Average Census.

(p) 3.2 NHPPD Staffing Requirement means the minimum number of actual nursing hours performed by direct caregivers per patient day.

(q) Nursing Hours shall have the same meaning as in HSC Section 1276.5 (b)(1).

(r) Nursing Services means services defined in CCR Title 22, Section 72309, Section 72311 and Section 72315.

(s) Patient means the description provided in CCR Title 22, Section 72077.

(t) Patient Day means a 24-hour period which is used to determine compliance with HSC Section 1276.5. The patient day can be no less and no longer than a 24-hour period.

(u) Skilled Nursing Facility means the description provided in HSC 1250 (c).

Section 2: NHPPD Computation

(a) The NHPPD calculation shall be determined by dividing the total number of actual nursing hours performed by direct caregivers per patient day by the Average Census.

(b) Facilities shall anticipate individual patient needs for the activities of each shift and direct caregivers shall be staffed throughout the day to achieve a minimum of 3.2 NHPPD. Yet, skilled nursing facilities shall employ and schedule additional staff as needed to ensure patients receive nursing care based on their needs.

(c) Any NHPPD that falls below 3.2 is out of compliance with the minimum standard.

Section 3: Direct Caregiver

Direct caregivers are defined in Section 1(e) of these guidelines and not determined by a facility’s position title.

(a) Only nursing hours performed by direct caregivers shall be included in the NHPPD calculation.

(b) Employees are not direct caregivers if the facility fails to provide documentation that the employee is:

1. A licensed nurse, psychiatric technician, a certified nurse assistant, or a nursing assistant participating in an approved training program as defined in HSC Section 1337.
2. Performing nursing services.

(c) An employee is not acting as a direct caregiver if the employee is performing an activity referenced in Section 4 (c) of this AFL.

Section 4: Nursing Services

(a) Only services listed in CCR Title 22, Section 72309, Section 72311 and Section 72315 are nursing services.

(b) Other than time spent on normal rest periods, or in the in-service training at the facility required by CCR Title 22, Section 71847, only time spent providing nursing services shall be included in calculating the NHPPD.

(c) Activities that are not nursing services include:

1. Paid or unpaid time spent on meal periods, except that paid meal periods where the facility provides documentation that nursing services were continuously performed in lieu of a meal break shall be counted.
2. Nursing services provided by the same employee in the same shift to both skilled nursing patients and intermediate care patients, unless the facility provides documentation of the actual time spent performing nursing services to skilled nursing patients.
3. Staff time spent in non-nursing services functions such as restocking, scheduling, food preparation, housekeeping, laundry, maintenance, administrative and financial recordkeeping, and administrative maintenance of health records.
4. Nursing services that are provided in the same shift as non-nursing services by employees who are primarily engaged in non-nursing services unless the facility provides documentation of the actual time spent on nursing services.
5. Private duty nursing services performed by staff paid for or supplied by a patient, patient’s family, guardian, conservator or other representative.
6. Staff vacation, holiday or sick leave time.
7. Training, except for on-site in-service training. No more than two hours a month of in-service training offered at the facility where the staff are employed shall be counted.
8. Work performed by non-direct caregivers.

Section 5: Census

(a) The census does not include Intermediate Care Patients.

(b) The facility shall either create a census and NHPPD form or use the attached "Census and Nursing Hours per Patient Day" (CDPH 612 and instructions) to report daily NHPPD. This form must be signed by the Director of Nursing (or designee) verifying the information is true and accurate. The census and NHPPD form must be typed or printed legibly. Failure to provide a complete, signed and legible form will result in a finding of non-compliance with the 3.2 minimum NHPPD requirement for each day the form is not provided. Do not include patient names on the "Census and Nursing Hours per Patient Day" forms.

If the facility chooses to create a form, it must be substantially similar to the attached CDPH 612 and instructions. The form must include:

1. Facility name, address, and license number
2. Patient day date and the patient day start time
3. Total licensed SNF beds
4. Name of Administrator and the Director of Nursing or designee
5. Patient census at start of patient day
6. Scheduled nursing hours and the scheduled NHPPD
7. For the designated census periods:
   a. Beginning Census
   b. Admissions
   c. Transfers in
   d. Other intakes that occurred
   e. Discharges
   f. Transfers out
   g. Deaths, and
   h. Other decreases that occurred 
8. Total actual/final nursing hours at the end of each census period
9. Average census
10. The Actual/Final total nursing hours
11. Actual/Final NHPPD
12. An attestation statement signed by the Director of Nursing or designee verifying they have reviewed the patient census and nursing hours information and acknowledge the information is true and correct.

Section 6: Documentation

Facilities will be expected to meet the following documentation requirements no later than 14 days from the date of this All Facilities Letter.

(a) The facility shall either create an assignment sheet or use the attached "Nursing Staffing Assignment and Sign-In Sheet" (CDPH 530 and instructions) to record daily staffing assignments to document nursing hours worked by employees not captured in payroll records or employees who are primarily engaged in duties other than nursing services, including employees who perform nursing services beyond the hours required to carry out their job duties. The "assignment sheet" must be typed or printed legibly and be substantially similar to the attached CDPH 530 and instructions. The Director of Nursing (or designee) must sign the form verifying the information is complete, true, and accurate. Failure to provide a complete, signed and legible form will result in a finding of non-compliance with the 3.2 minimum NHPPD requirement for each day the form is not provided.

The "assignment sheet" must include the facility’s name and each of the following:

1. Patient day date
2. Location (such as wing, unit, etc.)
3. Director of Nursing or designee, shift, and shift start time
4. Nursing services assignment by specifying each room and each bed that the direct caregiver is assigned during nursing hours worked
5. Printed full employee name
6. Employee Discipline (such as CNA, RN, LVN, LPT), start and end time of the shift and start and end of the meal break
7. Employee’s original signature. Initials will not be accepted and the employee must sign for themselves. The employee’s signature verifies that the information provided on the form is true and accurate.

Do not include patient names on the "assignment sheet".

If a direct caregiver worked during the patient day but was not included on the facility’s payroll record or time card (such as salaried staff), the facility must document the salaried employee’s detail of items 4 through 7 above and the total hours worked. The times the direct caregiver began and ended the shift as well as began and ended his/her meal break must be documented. The facility shall document on the "assignment sheet," as indicated in guidelines 4 through 7 above, the registry, contract, or corporate staff who were direct caregivers.

(b) Each facility shall maintain current, complete, and accurate personnel and payroll records for all employees in accordance with Title 22, Section 72533. The facility shall provide the following documentation upon request:

1. Census and NHPPD (CDPH 612 or facility alternative form)
2. Nursing Staffing Assignment and Sign-In Sheet (CDPH 530 or facility alternative form)
3. Timecards
4. Payroll records and reports
5. Nursing payroll codes
6. Approved/signed registry invoices including registry staff detail
7. Patient census records (including the number of patient admissions, discharges, deaths, transfers, bedholds, and absent patients)
8. Staff Roster
9. A list of all direct caregivers who are not listed in the facility’s payroll reports or timecards
10. Health Facility License and all "Program Flex" or waiver documentation approving admissions beyond a facility’s licensed bed capacity
11. If applicable, records submitted to CMS, Medi-Cal, or insurance companies detailing the level of care provided to a resident for purposes of reimbursement
12. Personnel records for all facility staff. Personnel records for purposes of staffing compliance shall include:
    (A) Full name and home address
    (B) Professional license or registration number, if applicable, and the date of expiration
    (C) Occupation and Employment classification
    (D) Information as to past employment and qualifications
    (E) Date of beginning employment
    (F) Date of employment termination
    (G) Documented evidence of facility orientation
    (H) Job duty statement
    (I) Performance evaluations
    (J) Birth date, if under 18 years old, and designation as a minor
    (K) Records of hours and dates worked including when the employee or staff begins and ends each work period, meal periods, split shift intervals, and total daily hours worked
    (L) For nursing assistants, proof of enrollment in an approved certification training program and proof of a criminal background clearance
    (M) For registry, temporary, or contract employees, the name of the temporary health services personnel agency.

(c) Documentation listed in subsections (a) and (b) shall be retained for at least three years following employment termination. No less than 90 days of documentation shall be maintained and available at the facility for Department review. Upon request, the facility shall provide a copy of these records. Facilities that use electronic payroll systems must provide the auditor with the requested documentation either electronically from those systems or on paper. If the facility does not have the capability to produce electronic records, then paper documentation will be accepted.

(d) The facility will receive a finding of non-compliance with the 3.2 NHPPD requirement for each day audited that documentation is not provided.

(e) Meal periods will be deducted from the total nursing hours for the timeframes identified on the "assignment sheet". Meal periods not identified on the "assignment sheet" or not clocked in and out on the payroll records will automatically be deducted from the total nursing hours at the rate of 30 minutes for every 6 hours worked or 1 hour for every 10 hours worked. For 10 or more hours of continuous time worked, where only 30 minutes of meal time was taken and 30 minutes of meal time was paid, the facility must provide documentation the employee opted to be paid in lieu of the second 30 minute meal break.

(f) The requirements detailed in Sections 5 and 6 do not supersede federal regulations detailed in Title 42, Chapter 5, Part 483.30(e). Requirements in Sections 5 and 6 may be combined with the federal requirements as long as both requirements are met.

If you have questions regarding this AFL, please send an e-mail to: LNCStaffingAudit@cdph.ca.gov.

Sincerely,

Original Signed by Pamela Dickfoss

Pamela Dickfoss
Acting Deputy Director

Attachments:

Nursing Staffing Assignment and Sign-In Sheet (PENDING)

Census and Nursing Hours Per Patient Day (NHPPD) (PENDING)

Notice of Intent to Issue and Administrative Penalty and Notice to Correct a Violation (PENDING)