BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 2079
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|AUTHOR: |Calderon |
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|VERSION: |June 13, 2016 |
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|HEARING DATE: |June 22, 2016 | | |
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|CONSULTANT: |Vince Marchand |
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SUBJECT : Skilled nursing facilities: staffing
SUMMARY : Increases the minimum number of required nursing hours per
patient in a skilled nursing facility (SNF) from 3.2 hours to
4.1 hours incrementally beginning on January 1, 2018, with full
implementation on January 1, 2020, and specifies that within the
required minimum of 4.1 nursing hours when fully implemented,
SNFs are required to have a minimum of 2.8 hours per patient day
for certified nursing assistants, and 1.3 hours per patient day
for licensed nurses.
Existing law:
1)Establishes Department of Public Health (DPH), which licenses
SNFs, and which certifies and regulates Certified Nursing
Assistants (CNAs). Establishes a scope of practice for CNAs as
performing basic patient care services directed at the safety,
comfort, personal hygiene, and protections of patients, and
prohibits CNAs from performing any services which can only be
performed by a licensed person, and requires all services to
be performed under the supervision of a licensed registered
nurse or a licensed vocational nurse.
2)Establishes the minimum number of actual nursing hours per
patient in a SNF to be 3.2 hours, with a specified exception
related to special mental disorder treatment units.
3)Defines "nursing hours," for purposes of the above requirement
for minimum nursing hours in a SNF, to be the number of hours
of work performed per patient day by aides, nursing
assistants, registered nurses and licensed vocational nurses.
4)Requires the Department of Public Health DPH to develop
regulations that establish minimum staff-to-patient ratios for
AB 2079 (Calderon) Page 2 of ?
direct caregivers working in a SNF, and require these ratios
to include separate licensed nurse staff-to-patient ratios in
addition to the ratios established for other direct
caregivers.
5)Defines "direct caregiver," for purposes of the
staff-to-patient ratios in a SNF, as a registered nurse,
licensed vocational nurse, psychiatric technician, and a CNA.
6)Requires DPH, in developing minimum staff-to-patient ratios
for direct caregivers and licensed nurses, to convert the
requirement for 3.2 nursing hours per patient day, to ensure
that no less care is given, and to develop a waiver procedure
that addresses individual patient needs except that in no
instance shall the minimum staff-to-patient ratios be less
than the 3.2 nursing hours per patient day.
7)Requires DPH, every five years beginning in 2006, to consult
with consumers, consumer advocates, recognized collective
bargaining agents, and providers to determine the sufficiency
of the staffing standards and to adopt regulations to increase
the minimum staffing ratios to adequate levels.
8)Establishes within DHCS the SNF Quality and Accountability
Supplemental Payment System (QASP), to be utilized to provide
supplemental payments to SNFs that improve the quality and
accountability of care rendered to residents in SNFs and to
penalize those facilities that do not meet measurable
standards.
9)Requires DPH, as part of the QASP, to assess an administrative
penalty if DPH determines that the SNF failed to meet the
nursing hours per patient day requirements, as follows:
$15,000 if the SNF failed to meet the requirements for 5% or
more of the audited days up to 49%, and $30,000 if the
facility failed to meet the requirements for more than 49% of
the audited days. Requires compliance with nursing hours per
patient per day requirements to be included in the criteria
upon which supplemental payments are made to SNFs.
10)Permits a SNF to be approved by DPH to have a subacute care
unit, and specifies that the SNF can only accept and retain
those subacute patients for whom it can provide adequate care.
Under existing regulations, subacute care units for
freestanding SNFs are required to provide a minimum daily
AB 2079 (Calderon) Page 3 of ?
average of 3.8 licensed nursing hours per patient day, and 2.0
CNA hours per patient day, including a minimum of one
registered nurse per shift.
This bill:
1)Increases the minimum number of required nursing hours, which
it renames "direct care service hours," per patient in a SNF
from 3.2 hours to 4.1 hours over three years commencing
January 1, 2018, including specifying which proportion of
those nursing hours are for certified nursing assistants CNAs
and which are for licensed nurses, as follows:
a) Commencing January 1, 2018, requires SNFs to
have a minimum number of 3.5 direct care service hours
per patient day (PPD), with 2.4 hours PPD for CNAs and
1.1 hours PPD for licensed nurses;
b) Commencing January 1, 2019, requires SNFs to
have a minimum of 3.8 direct care service hours PPD,
with 2.6 hours PPD for CNAs and 1.2 hours PPD for
licensed nurses; and,
c) Commencing January 1, 2020, requires SNFs to
have a minimum of 4.1 direct care service hours PPD,
with 2.8 hours PPD for CNAs and 1.3 hours PPD for
licensed nurses.
2)Excludes from this increase those SNFs that are licensed as a
distinct part of a licensed general acute care hospital or
those operated by the Department of State Hospitals, so this
bill would only apply to "freestanding" SNFs.
3)Defines "licensed nurse" as a registered nurse, a licensed
vocational nurse, and a psychiatric technician, and revises
the definition of "direct caregiver," for purposes of minimum
direct care nursing hours in SNFs, to include a certified
nurse assistant in an approved training program.
4)Repeals existing law that required DPH to establish
staff-to-patient ratios for direct caregivers, including
separate ratios for licensed nurses, and instead requires DPH
to develop regulations that become effective January 1, 2018,
that establish a minimum number of direct care service hours
PPD for direct caregivers working in a SNF, and that these
minimum hours are no less than those required in paragraph 1)
above.
AB 2079 (Calderon) Page 4 of ?
5)Revises the existing requirement that DPH consult with
stakeholders to determine the sufficiency of the SNF staffing
standards by requiring this initial consultation no later than
January 1, 2019, while retaining the requirement that this
consultation take place every five years the initial
consultation.
6)Revises provisions of law requiring SNFs to post certain
staffing information by requiring the posting to include an
accurate report of the number of direct care staff working
during the current shift, including a report of the number of
registered nurses, licensed vocational nurses, psychiatric
technicians, and CNAs. Requires the posting to be on paper
that is at least 8.5 inches by 14 inches, in 16 point font,
and to be posted daily in the following three locations: an
area readily accessible to members of the public, an area used
for employee breaks, and an area used by residents for
communal functions, including, but not limited to, dining,
resident council meetings, or activities.
7)Requires every SNF, upon oral or written request, to make
direct caregiver staffing data available to the public for
review at reasonable cost, and to provide the data to the
requestor within 15 days. Specifies that "reasonable cost"
includes, but is not limited to, a $0.10 per page fee for
copying standard documents, 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 an electronic medium, including
electronic mail.
8)Recasts provisions of law pertaining to the Medi-Cal program
which require DHCS to adopt regulations establishing minimum
number of nursing hours per patient in SNFs and intermediate
care facilities, which are similar to the provisions of the
Health and Safety Code that the rest of this bill is amending,
by repealing outdated provisions, and requiring DHCS to adopt
regulations increasing the minimum number of direct care hours
per patient day in SNFs from 3.2 to 4.1 in the same manner as
in 1) above.
FISCAL
EFFECT : According to the Assembly Appropriations Committee:
1)Significant costs for additional Medi-Cal payments to SNFs
AB 2079 (Calderon) Page 5 of ?
(General Fund (GF) and federal funds). Under current law, the
Department of Health Care Services (DHCS) pays SNFs that care
for Medi-Cal beneficiaries on a cost-based system. Under
current law, DHCS is required to increase reimbursement rates
to skilled nursing facilities to offset any additional costs
mandated by the state or federal government. Currently, the
average nursing hours is about 3.8 per patient day, comprised
of 0.42 RN, 0.78 licensed vocational nurse (LVN), and 2.45 CNA
hours per day. It is not clear whether current law will
require DHCS to offset the increased cost to go from 3.8 to
4.1 hours, or whether DHCS will be required to pay for the
costs to go from the currently required 3.2 hours to 4.1
hours.
Assuming DHCS will increase payments to a SNF based on the
cost to increase staffing levels from current practice to the
newly mandated hours requirement, DHCS estimates costs of $140
million ($70 million GF) for full implementation of the 4.1
hours ratio. It is unclear whether this estimate accounts for
planned increases in the minimum wage. This estimate is based
on a 14.2% increase in CNA hours, from 2.45 to 2.8.
Assuming current law requires DHCS to increase payments to
facilities to pay the full costs of increasing staffing levels
from the currently mandated level to the level mandated in
this bill, the California Association of Health Facilities,
based on their facility-specific model which accounts for
planned minimum wage increases, projects annual Medi-Cal costs
for increased reimbursement to SNFs of $126 million in 2018
($63 million GF), $266 million ($133 million GF) in 2019, and
increasing annually until 2022 and thereafter when costs are
projected at $462 million annually ($231 million GF).
2)One-time costs in the range of $100,000 to adopt regulations
and modify internal tracking systems by DPH (Licensing and
Certification Fund).
3)Minor additional ongoing enforcement costs to DPH (Licensing
and Certification Fund). DPH already licenses SNFs, including
compliance with existing nursing hours requirements, and the
increased workload is not expected to be significant.
AB 2079 (Calderon) Page 6 of ?
PRIOR
VOTES :
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|Assembly Floor: |43 - 25 |
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|Assembly Appropriations Committee: |12 - 7 |
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|Assembly Health Committee: |12 - 6 |
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COMMENTS :
1)Author's statement. According to the author, this bill
requires SNFs to publicly post, at all times, the number of
direct caregivers on duty. This bill would raise the minimum
number of direct care service hours, transforming the care and
environment in nursing homes to provide a more patient
centered level of care. Currently, SNFs are required to
provide a minimum of 3.2 nursing hours per patient day - which
includes certified nursing assistants, licensed vocational
nurses, and registered nurses. However, this standard has not
been evaluated in over a decade. Providing person-centered
care in SNFs requires time, and when rushed, a resident's
quality of life and health suffer. Most importantly, this
bill would establish a minimum number of hours of care
provided by CNAs. CNAs are the primary providers serving the
needs of seniors and people with disabilities in SNFs.
Residents of SNFs and their families deserve a safe living
environment to help patients recover from surgery and heal
from trauma. This bill helps to ensure that CNAs, the primary
direct care staff, are available to meet the needs of seniors,
persons with disabilities, and people recovering from illness
and injury.
2)CNAs. There are an estimated 160,000 CNAs working in
California. An applicant for certification as a CNA is
required to be at least 16 years of age, have successfully
completed a DPH-approved training program that includes at
least 60 classroom hours and 100 hours of supervised
on-the-job training, and have obtained a criminal record
clearance.
A person may only use the title, and hold themselves out as a
CNA if they are working in a health facility licensed by DPH.
AB 2079 (Calderon) Page 7 of ?
The majority of CNAs work in SNFs. CNAs perform a variety of
basic duties for the patient's comfort and recovery. These
tasks vary depending on the employment setting but typically
include: taking temperatures; pulse; respiration; blood
pressure; helping patients with range-of-motion exercises;
assisting patients with their daily living needs; serving
meals; making beds; and, helping patients eat, dress, and
bathe. CNAs are paid, on average, approximately $14 dollars
per hour. 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)Regulations establishing staffing ratios adopted, but not in
effect. The current requirement for 3.2 nursing hours per
patient day was enacted through the health budget trailer bill
in 1999. Prior to the increase, the requirement was for 2.9
hours per patient day. In 2001, legislation was passed
requiring DPH to convert this 3.2 nursing hour requirement
into staff ratios by 2003. This deadline was not met, but
eventually, regulations were adopted by DPH in January of 2009
converting the 3.2 hour requirement into ratios. However,
under the law that required the adoption of these regulations,
it was specified that initial implementation of the staffing
ratios would be contingent on a budget appropriation, which
has not yet occurred, and so these regulations have still not
been implemented. Under these regulations, should they take
effect upon a budget appropriation for this purpose, the
ratios are required to 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 patient 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 a licensed registered nurse,
licensed vocational nurse, psychiatric technician, a CNA, or a
AB 2079 (Calderon) Page 8 of ?
nursing assistant in an approved training program: a) on the
day shift, at least one direct caregiver for every five
patients or fraction thereof; b) on the evening shift, at
least one direct caregiver for every eight patients or
fraction thereof; and, c) 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 a registered nurse, or an LVN) for
every eight or fewer patients, which can be counted toward the
above shift ratios. Beyond this requirement, the ratios do not
differentiate between types of direct caregivers. This bill,
however, does differentiate which portion of the minimum
number of direct care service hours are to be apportioned to
CNAs and licensed nurses. Specifically, when this bill is
fully implemented in 2020, the 4.1 minimum direct care service
hours are required to include 2.8 hours PPD for CNAs and 1.3
hours PPD for licensed nurses.
4)Federal CMS report. In December 2001, CMS released a
congressionally-mandated report entitled, "Appropriateness of
Minimum Nurse Staffing Ratios in Nursing Homes" (report). The
author and sponsor point to this report to support the
increase staffing requirements proposed by this bill. 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 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,
registered nurses, 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 adopt
regulations establishing 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
AB 2079 (Calderon) Page 9 of ?
of the CMS staffing report for long-stay quality measures.
5)Background on SNF funding. AB 1629 (Frommer, Chapter 875,
Statutes of 2004), enacted the Medi-Cal Long Term Care
Reimbursement Act of 2004, which established a reimbursement
system that bases Medi-Cal reimbursements to SNFs on the
actual cost of care. According to the Senate Budget Committee,
prior to AB 1629, SNFs were paid a flat rate per Medi-Cal
resident. This flat rate system provided no incentive for
quality care and reimbursed SNFs for less than it cost to care
for their residents. AB 1629 also allowed the state to
leverage new federal Medicaid dollars by imposing a quality
assurance fee (QAF) on SNFs. This new federal funding is used
to increase nursing-home reimbursement rates. (Federal
Medicaid law allows states to impose such fees on certain
health-care service providers and in turn repay the providers
through increased reimbursements.) Because the costs of
Medicaid reimbursements to health care providers are split
between states and the federal government, this arrangement
provides a method by which states can leverage additional
federal funds for the support of their Medicaid programs and
offset state costs. In 2015-16, it is projected that the SNF
QAF will offset over $500 million in General Fund
expenditures. AB 1629 contained a sunset date of July 1, 2008
and has been extended six times, and is currently scheduled to
sunset on July 31, 2020. SB 853 (Committee on Budget and
Fiscal Review), Chapter 717, Statutes of 2010, established the
Quality and Accountability Supplemental Payment (QASP)
program. Under the QASP program, SNFs that meet minimum
staffing standards can earn incentive payouts from a pool of
supplemental funds. The payouts are awarded based on SNFs'
performance on certain quality measures (including clinical
indicators), as well as SNFs' improvement on these measures
relative to the previous year. Under SB 853, a portion of each
year's weighted average rate increase is to be set aside to
fund the QASP payment pool. The set-aside amount was $43
million in 2013-14, and $90 million in the 2014-15 rate year.
In 2013-14, about 477 out of 1,000 SNFs earned the QASP
payouts. SB 853 is also scheduled to sunset on July 31, 2020.
6)Prior legislation. SB 779 (Hall of 2015), was very similar to
this bill, and also increased the minimum hours PPD in SNFs
from 3.2 to 4.1. However, SB 779 also required DPH to adopt
regulations specifying staffing ratios by shift. AB 779 was
held on the Senate Appropriations suspense file.
AB 2079 (Calderon) Page 10 of ?
AB 119 (Committee on Budget, Chapter 17, Statutes of 2015),
among other provisions, extended the sunset dates for the SNF
rate-setting methodology established in 2004, as well as the
QAF and Quality/Accountability Supplemental Payment programs
(QASP), from July 31, 2015, to July 31, 2020. Also,
incorporated direct care staff retention as a performance
measure for QASP to be developed in consultation with
representatives from the long-term care industry, organized
labor, and consumers.
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.
AB 1629 (Frommer, Chapter 875, Statutes of 2004), provided 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 support
facility quality improvement efforts in SNFs.
AB 1075 (Shelley, Chapter 684, Statutes of 2001), required DPH
to develop regulations, to become effective August 1, 2003,
that establish staff-to-patient ratios for direct caregivers
working in a skilled nursing facility.
7)Support. This bill is sponsored by SEIU California, which
states that in 2004, it worked in a coalition to transform the
reimbursement methodology for freestanding SNFs through AB
1629 (Frommer), due to the belief that a change in
reimbursement rates as well as instituting a minimum staffing
standard in SNFs would result in improving the quality of care
in nursing homes. More than a decade later, SEIU California
states that reimbursement rates of SNFs have increased, and AB
1629 has been reauthorized several times, but the quality of
care for residents has not increased to the level intended by
the Legislature. According to SEIU California, on average,
California's SNFs provide 3.7 nursing hours PPD, slightly
above the 3.2 hour minimum, but this average is short of the
federal recommended 4.1 hour minimum. SEIU states this bill
raises the quality of care standards in SNFs to the federal
recommended minimum of 4.1 nursing hours PPD by January 1,
2020 to benefit society's most vulnerable residents. The
AB 2079 (Calderon) Page 11 of ?
California Department of Justice (DOJ) states that the DOJ's
Bureau of Medi-Cal Fraud and Elder Abuse works aggressively to
protect patients in nursing homes and other long-term care
facilities from abuse or neglect, and that this bill would
have a dramatically positive impact on this work. DOJ states
that a significant portion of the Bureau's caseload is
consumed by investigating and prosecuting nursing facilities
and their staff who have failed to provide adequate care of
patients. DOJ states that increasing the number of direct care
service hours will allow each patient to have more
professional care and more attention, reducing neglect and
allowing facility staff to provide the standard of service
they surely wish to provide their patients. The California
Labor Federation states in support that this bill will bring
California nursing homes up to national staffing standards
while improving oversight for the billions of public dollars
spent over the last decade to improve conditions in California
nursing homes. The Clergy and Laity United for Economic
Justice states in support that not only are nursing homes
filled with widows and orphans, they are also places where
people need extra attention because they face the hardest
reality that their bodies are giving way, and they depend on
people like never before. Providing person-center care in SNFs
requires time and sufficient staff, and that short staffing
places residents at risk. The California Commission on Aging
states in supporting that by increasing direct care hours,
this bill will improve both the care provided and the quality
of life of SNF residents.
8)Letter of support in concept. California Advocates for Nursing
Home Reform (CANHR) has submitted a letter in which it states
it strongly supports this bill's primary requirement to
increase the minimum staffing standard to 4.1 nursing hours
per resident day, because today's staffing standard is
dangerously deficient. However, CANHR states that it also has
recommendations to strengthen the bill. Specifically, CANHR
makes the following recommendations:
a) Remove the requirement that DPH adopt regulations
setting forth the minimum number of direct care service
hours required in SNFs. CANHR states there is no need for
this requirement because this bill already sets the
minimum requirements, and there is no reason to expect
that DPH would enhance them in any way. Removing this
requirement would help ensure that this bill's standards
AB 2079 (Calderon) Page 12 of ?
are not misperceived as being contingent on the
promulgation of regulations;
b) Remove the exemption for distinct part SNFs operated
by hospitals. CANHR notes that hospital-based SNFs that
serve the sickest residents should not be governed by the
extraordinarily inadequate existing standard;
c) Prohibit SNFs from counting nursing staff members
working in subacute care units that are subject to
separate, higher staffing levels established in
regulation;
d) Require, rather than permit, DPH to issue a citation
for violations of the staffing requirements;
e) Amend back in the requirement to establish specific
shift ratios, which were deleted in prior amendments;
and,
f) Revise the provision of law requiring 1.3 hours of
direct care by licensed nurses to specify that this must
include at least 0.75 hours of care of registered nurses.
9)Opposition. The California Association of Health Facilities
(CAHF) states in opposition that this bill would create
artificial staffing patterns that do not necessarily lead to
higher quality patient care, while imposing significant costs
on the state and on their facilities. According to CAHF, SNFs
must meet daily minimum nursing hour requirements at each
facility of 3.2 hours per patient day, but that facilities
often exceed these requirements when patient composition
necessitates additional nursing staff. CAHF states that this
methodology - staffing based on individual patient need - is
far preferable to mandated minimum staffing, and it is far
more reasonable from an expense perspective. CAHF states that
this bill does not take into account the very challenging task
of finding such a large number of trained personnel to meet
the new staffing provisions, stating that it would require
SNFs to employ an estimated additional 10,300 CNAs, which do
not exist in the workforce on such a large scale. CAHF states
that its estimate of the cost of this bill when fully
implemented is nearly $700 million, with $460 million in
Medi-Cal costs, and more than $200 million which would fall on
their facilities, unreimbursed. CAHF argues that if California
is inclined to invest hundreds of millions of dollars into the
nursing home workforce, the money should instead be invested
in developing the current workforce by increasing training
levels and reducing turnover, while simultaneously making sure
new staffing requirements are based on specific patient needs.
AB 2079 (Calderon) Page 13 of ?
This bill is also opposed by the Association of California
Healthcare Districts, which states that the three healthcare
districts operating SNFs are in designated medically
underserved areas, and that it will be very challenging for
facilities operating in these areas with existing workforce
shortages to comply with this mandate. LeadingAge California
states in opposition that patient care staffing is based on a
complex set of variables driven by patient care needs, and
that while the vast majority of its members staff well above
the current 3.2 hour minimum, it believes this bill is
unnecessary as existing law already directs that SNFs must
employ additional staff as necessary to meet the needs of
residents. LeadingAge California also states that staff
retention is also a cause for concern, as SNFs are constantly
competing with hospitals and health systems and other entities
for nursing talent.
SUPPORT AND OPPOSITION :
Support: SEIU California (sponsor)
California Commission on Aging
California Labor Federation
Clergy and Laity United for Economic Justice
California Department of Justice
Oppose: Association of California Healthcare Districts
California Association of Health Facilities
LeadingAge California
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