BILL ANALYSIS Ó
AB 2079
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON HEALTH
Jim Wood, Chair
AB 2079
(Calderon) - As Introduced February 17, 2016
SUBJECT: Skilled nursing facilities: staffing.
SUMMARY: Increases the minimum staff-to-patient hours and ratio
in freestanding skilled nursing facilities (SNFs) from 3.2 hours
to 4.1 hours, to be satisfied daily, commencing July 1, 2017.
Specifically, this bill:
1)Requires the Department of Public Health (DPH) to adopt
regulations effective July 1, 2017, setting forth 4.1 direct
care service hours as the minimum required ratio for patients
in SNFs.
2)Requires DPH in developing an overall staff-to patient ratio
and specific certified nurse assistants (CNA) staff-to-patient
ratio to require a minimum of 2.8 direct care service hours
per patient per day for CNAs, and a minimum of 1.3 hours for
SNFs (RNs).
3)Requires the CNA staff-to-patient ratio to be no less than the
following:
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a) During the day shift, a minimum of one CNA for every six
patients, or fraction thereof;
b) During the evening shift, a minimum of one CNA for every
eight patients or fraction thereof;
c) During the night shift, a minimum of one CNA for every
17 patients, or fraction thereof.
4)Defines day, evening and night shifts as the 8-hour period
where the patients require the greatest, moderate, and least
amount of care respectively.
5)Defines direct care service hours as the number of hours of
work performed per patient per day by a direct caregiver, as
defined.
6)Includes in the existing definition of direct caregiver all of
the following:
a) A nurse assistant in an approved training program, as
specified;
b) A licensed nurse serving as a minimum data set
coordinator; and,
c) A person serving as the director of nursing services in
a facility with 60 or more licensed beds and a person
serving as the director of staff development, as specified.
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7)Revises the existing requirement for DPH to consult with
consumers and other stakeholders every five years to determine
the sufficiency of the SNF staffing standards no later than
January 1, 2019.
8)Requires SNFs to post information about resident census, which
includes an accurate report of the number of direct care staff
working during the current shift, including a report of the
number of RNs, licensed vocational nurses (LVNs), psychiatric
technicians, and CNAs. Requires information on the posting to
be on paper that is at least 8.5 inches by 14 inches and
printed in at least 16 point font. Requires this information
to be posted daily, at a minimum in the following locations:
a) An area readily accessible to members of the public;
b) An area used for employee breaks; and,
c) An area used by residents for communal functions,
including dining, resident council meetings, or activities.
9)Requires each SNF, upon oral or written request, to make
direct caregiver staffing data available to the public for
review at a reasonable cost within 15 days after receiving a
request. Defines "reasonable cost" to include a $.10 per page
fee for standard reproduction of documents that are 8.5 inches
by 14 inches or smaller or a retrieval or processing fee not
exceeding $60 if the requested data is provided on a digital
or other electronic medium and the requestor requests delivery
of the data in a digital or other electronic medium, including
electronic mail.
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10)Requires that the methodology for existing performance
measures to include, beginning in fiscal year 2017-18,
compliance with the direct care service hour's requirements
for SNFs.
11)Excludes from the above requirement SNFs that are a distinct
part of general acute care hospitals.
12)Makes other, technical and conforming changes.
EXISTING LAW:
1)Establishes the minimum number of actual nursing hours per
patient in a SNF to be 3.2 hours. Defines nursing hours as
the number of hours of work performed per patient per day by
aides or nursing assistants plus two times the number of hours
worked per patient per day by RNs and LVNs, as specified.
2)Requires DPH to adopt regulations that establish the minimum
number of equivalent hours per patient in SNFs. Requires DPH
to develop a procedure for facilities to apply for a waiver
that addresses individual patient needs, as specified.
3)Require SNFs to employ and schedule additional staff as needed
to ensure quality resident care based on the needs of
individual residents.
4)Requires, no later than January 1, 2006, DPH to consult with
consumers and other stakeholders to determine the sufficiency
of the staffing standards, as specified.
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5)Requires every SNF to post information about staffing levels
that includes the current number of licensed and unlicensed
nursing staff directly responsible for resident care in the
facility and the current staffing requirements.
6)Establishes the Skilled Nursing Facility Quality and
Accountability Supplemental Payment System (QASP), which
provides supplemental payments to SNFs that improve the
quality and accountability of care rendered to residents, and
penalizes facilities that do not meet measurable standards.
7)Establishes the penalty for failure to comply with nursing
hours per patient per day requirements, including a $15,000
penalty if the facility fails to meet the requirements for 5%
or more of the audited days, up to 49% or $30,000 if the
facilities fail to meet the requirements for over 49% or more
of the audited days.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
1)PURPOSE OF THIS BILL. According to the author, the current
minimum of 3.2 hours per patient per day staffing requirements
for SNFs does not meet the direct care needs of nursing home
residents. This chronic understaffing of CNAs in SNFs creates
unsafe living conditions for the residents. Nursing home
residents are among the most vulnerable populations that
include individuals who have limited ability to care for
themselves due to physical, cognitive, or chronic health
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conditions. Additionally, although SNFs are required to
report their compliance with the 3.2 hours staffing
requirement, facility workers continue to report chronic
understaffing of direct care providers, creating unsafe,
stressful, and at times unpleasant living conditions for
residents.
2)BACKGROUND.
a) SNFs. SNFs provide continuous skilled and supportive
care on an extended basis, which is 24-hour inpatient
treatment, including physician, skilled nursing, dietary
pharmaceutical and activity services. Most SNFs serve the
elderly but some provide services to younger individuals
with special needs, such as those with developmental or
mental disabilities and those requiring drug and alcohol
rehabilitation. Generally, nursing homes are stand-alone
(or freestanding) facilities, though some are operated
within a hospital (also referred to as distinct part SNFs)
or residential care facility.
b) Staffing Requirements. The current staffing requirement
of 3.2 nursing hours per resident per day was adopted in
2000. Prior to this date, the requirement was for 2.9
hours. In 2001, legislation was passed requiring DPH to
convert the 3.2 nursing hour requirement into staff ratios
by 2003. However, DPH did not meet this deadline and
subsequent litigation required DPH to complete the
regulations. Under these regulations, the ratios must be
based on the anticipated individual patient needs for the
activities of each shift and are required to be distributed
throughout the day to achieve a minimum of 3.2 nursing
hours per resident per day. SNFs are required to employ
and schedule additional staff to ensure patients receive
nursing care based on their needs. These regulations
require SNFs to use the following ratios, with "direct
caregiver" defined as RNs, LVNs, psychiatric technicians,
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CNAs, or nursing assistants in an approved training
program:
i) On the day shift, at least one direct caregiver for
every 5 patients or fraction thereof;
ii) On the evening shift, at least one direct caregiver
for every 8 patients or fraction thereof; and,
iii) On the night shift, at least one direct caregiver
for every 13 patients or fraction thereof.
As part of these ratios, there is a requirement that there
be one licensed nurse (either an RN or a LVN) for every
eight or fewer patients, which can be counted toward the
above shift ratios. Beyond this requirement, these
existing ratios do not differentiate between types of
direct caregivers. This bill, however, requires specific
ratios for both CNAs and licensed nurses, and includes
specified minimum ratios for CNAs.
c) Audit. On October 2014, the Bureau of State Audit (BSA)
published a report on DPH's oversight of long-term health
care facilities and management of nursing home complaint
investigations. Among other findings, the BSA audit cited
DPH for backlogs in processing immediate jeopardy and or
high-non immediate jeopardy complaints and entity-reported
incidents; inadequate oversight of complaint processing;
inadequate staffing; and, failure to comply with statutory
requirements for appeals and other processes.
d) Oversight Hearing. In March 24, 2015, this Committee
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and the Assembly Committee on Aging and Long-Term Care
conducted a joint oversight hearing on DPH's oversight of
nursing homes. The purpose of this hearing was to
determine if DPH has made progress in improving nursing
home oversight, and to ensure that the department adheres
to an appropriate plan and timeline for reforming and
improving its oversight program while addressing the
immediate needs of nursing home residents.
e) Reimbursement System. AB 1629 (Frommer), Chapter 875,
Statutes of 2004, enacted the Medi-Cal Long Term are
Reimbursement Act of 2004, which established a
reimbursement system that bases Medi-Cal reimbursements to
SNFs on the actual cost of care. Prior to AB 1629, SNFs
were paid a flat rate per Medi-Cal resident. This flat
rate system provided no incentive for quality of care and
reimbursed SNFs for less than it costs to care for their
residents. Under AB 1629, the reimbursement focused on
specific cost categories, including but not limited to:
direct resident care, indirect care, nonlabor costs,
administrative costs, capital costs, and labor-driven
operating allocation. It should be noted that under AB
1629, SNFs were not required to meet quality standards or
make improvements in quality of care in exchange for
reimbursement eligibility.
f) Federal Centers for Medicare & Medicaid Services (CMS)
Report. In December 2001, CMS released a congressionally
mandated report entitled, "Appropriateness of Minimum Nurse
Staffing Ratios in Nursing Homes" (CMS report). The author
and sponsor point to this study to support the increased
staffing requirements proposed by this bill. The U.S.
Congress requested this report to determine if there was
some appropriate ratio of nursing staff to residents. The
report analyzed data from 10 states with more than 5,000
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facilities, and identified staffing thresholds that
maximize quality outcome. These thresholds vary by nursing
home category and whether the quality outcomes are related
to the short stay or long stay nursing home population.
The report stated that for each quality measure, there was
a pattern of incremental benefits of increased staffing
until a threshold was reached, at which point there were no
further significant benefits with respect to quality when
additional staff were utilized. These thresholds for CNAs
occurred at 2.4 hours per resident day for the short-stay
quality measure, and 2.8 hours per resident day for the
long-stay quality measures. For licensed staff (LVNs, RNs,
etc.), the thresholds were 1.15 hours per resident day for
short-stay measures, and 1.3 hours per resident day for the
long-stay quality measures. As part of increasing the
total direct care staffing hour requirement to 4.1 across
all staff levels, this bill directs DPH to convert these
hours into ratios, which include a minimum of 2.8 direct
care service hours per patient day for CNAs, and 1.3 hours
for licensed nurses. Therefore, this bill is consistent
with the findings of the CMS staffing report for long-stay
quality measures.
g) CNA Workforce. This bill establishes a specific ratio
for CNAs during specified shifts. Opponents claim that
there is insufficient workforce to comply with the
provisions of this bill. A 2014 report prepared by the
Center for Health Professions at the University of
California San Francisco entitled "Certified Nursing
Assistant Programs in California, A Survey of Community
Colleges" (UCSF report) provides a snapshot of the CNA
workforce issue. According to this report, community
colleges in California play an important role in providing
accessible degree and non-degree education and training
programs for a range of nursing and allied health
professions. CNA is one such non-degree program offered in
community colleges across the state. These programs
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contribute the addition of a significant number of CNAs to
the CNA workforce each year. There is concern among
community college leaders that CNA programs will face
growing difficulties recruiting an adequate number of CNA
program directors and instructors due to federal and state
qualifications for these roles. These qualifications
require program directors and instructors to have a certain
amount of direct care experience in long-term care
facilities, specifically SNFs, as licensed nurses. This
presents a potential problem if RNs rarely provide direct
patient care in these types of settings.
CNAs perform basic patient care services directed at the
safety, comfort, personal hygiene, and protection of
patients, primarily in long-term care facilities. In
California, over 50% of CNAs work in nursing care
facilities or community care facilities for the elderly.
CNAs play a critical role in these types of facilities,
often serving as the principal caregivers and having more
contact with residents than any other staff member.
According to data from DPH, and cited in the UCSF report, as
of October 1, 2014 there were 152,494 CNAs in California.
According to the Bureau of Labor Statistics, the workforce
categorized under "Nursing Assistants and Orderlies" is
expected to grow by 22.5% over the next several years,
faster than the average of all other occupations in the
U.S. This increase is due, in part, to the rapidly aging
Baby Boomer population and increasing prevalence of chronic
diseases, including dementia, all of which drive the need
for long-term care. The high rate of turnover among CNAs
also impacts demand. While the national trend of CNA
turnover in nursing facilities appears to be improving, in
2012 the turnover rate of CNAs in nursing facilities was
the highest among nursing staff at 42.6%.
3)SUPPORT. SEIU California, sponsor of this measure, states
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that providing person-centered care in SNFs requires time and
sufficient staff. Short staffing places resident's lives and
workers at risk. The Congress of California Seniors states
this bill strengthens the requirement that staffing levels be
posted and be made available to the public at a reasonable
cost. The California Labor Federation points out that this
bill brings California up to national staffing standards while
improving oversight for public dollars spent on nursing homes.
The California Long-Term Care Ombudsman Association writes in
support that the concerns of local Ombudsman representatives
meeting with residents and their family who are worried by the
lack of trained staff available to care for residents and
insufficiency of current CNA staffing requirements to meet the
resident's range of care needs.
4)OPPOSITION. The California Association of Health Facilities
(CAHF) states this measure would create artificial staffing
patterns that do not necessarily lead to higher quality
patient care. CAHF points out that the current minimum
nursing hours better aligns care to patients rather than the
shift ratios contained in the bill. Additionally, CAHF states
that this bill would be expensive to implement. A similar
bill heard last year contained estimated costs to the Medi-Cal
program of $100-$250 million from the General Fund. CAHF
believes it would be a huge challenge for SNFs to find the
necessary staff to comply with the staffing mandates of this
bill, especially in rural areas.
Leading Age points out that this bill employs a one-size-fit all
CNA staffing ratio for various shifts throughout a 24-hour day
that does not consider when higher or lower patient acuity
levels may dictate higher or lower staff to patient ratios.
The Association of California Healthcare Districts points out
that it represents three healthcare districts (Soledad,
Chowchilla, North Kern, and South Tulare) where it would be
very challenging to comply with this bill's mandate because
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there is already a pre-existing workforce shortage.
5)PREVIOUS LEGISLATION.
a) SB 779 (Hall) of 2015 is substantially similar to the
provisions of this bill that increase the direct care
service hours per patient to 4.1 hours. SB 779 died in the
Senate Appropriations Committee suspense file.
b) SB 853 (Committee on Budget and Fiscal Review), Chapter
717, Statutes of 2010, among other provisions, established
the QASP program, which set up a supplemental payment fund
to reward SNFs who performed well on certain quality
measures.
c) AB 1629 provides for the imposition of a quality
assurance fee on each SNF, to be administered by DHCS, and
provided that the funds assessed be made available to draw
down a federal match in the Medi-Cal program or to provide
additional reimbursement to, and support facility quality
improvement efforts in, SNFs.
d) AB 1075 (Shelley), Chapter 684, Statutes of 2001,
requires DPH to develop regulations, to become effective
August 1, 2003, that establish staff-to-patient ratios for
direct caregivers working in a SNF. Requires a status
report to the Legislature on the implementation of this
bill on April 1, 2002, April 1, 2003, and April 1, 2004.
6)POLICY COMMENTS.
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a) Advocate concerns. The California Advocates for Nursing
Home Reform has no official position but recommends
amendments to the bill. One amendment is to include at
least 0.75 hours of direct care by RNs of the daily minimum
1.3 hours of direct care by licensed nurses. Other
suggested amendments include deleting the exemption for
distinct part SNFs operated by hospitals; prohibiting SNFs
from counting nursing staff members working in subacute
care units that are subject to other requirements;
modifying the definition of direct caregiver; requiring DPH
to issue a citation; proposing different minimum shift
ratios; deleting the requirement that DPH establish staff
to patient ratios by regulation; and, revising staffing
standards for intermediate care facilities and special
treatment programs.
b) Time frame. This bill requires DPH to adopt regulations
to implement that revised 4.1 staffing requirements
effective July 1, 2017. This timeframe may be too short
given the various delays associated with this department in
adopting any regulatory change. To ensure timely
implementation, the Committee may wish to extend the
timeframe for DPH to adopt the regulations to 2018.
c) Exception for distinct part SNFs. As drafted, this
measure exempts SNFs within a hospital or distinct part
SNFs from the 4.1 staffing ratio. Distinct part SNFs,
compared to freestanding community-based SNFs, which this
bill applies to, cares for more medically complex patients,
and often are the only option for patients with complex
medical needs and behavioral challenges living in rural
areas. The Committee may wish to ask the author to explain
why distinct part SNFs are excluded from this bill.
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REGISTERED SUPPORT / OPPOSITION:
Support
SEIU California (cosponsor)
SEIU Local 2015 (cosponsor)
California Labor Federation
California Long-Term Care Association
Congress of California Seniors
Opposition
Association of California Healthcare Districts
California Association of Health Facilities
LeadingAge California
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Analysis Prepared by:Rosielyn Pulmano / HEALTH / (916) 319-2097