BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 779
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|AUTHOR: |Hall |
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|VERSION: |April 20, 2015 |
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|HEARING DATE: |April 29, 2015 | | |
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|CONSULTANT: |Vince Marchand |
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SUBJECT : Skilled nursing facilities: certified nurse assistant
staffing
SUMMARY : Increases the minimum number of required nursing hours per
patient in a skilled nursing facility from 3.2 hours to 4.1
hours, requires the California Department of Public Health to
develop regulations that establish staff-to-patient ratios that
convert the 4.1 hours into minimum staff-to-patient ratios that
reflect 2.8 hours for certified nurse assistants (CNAs) and 1.3
hours for licensed nurses, and establishes specific
staff-to-patient ratios for CNAs.
Existing law:
1.Establishes the minimum number of actual nursing hours per
patient in a skilled nursing facility (SNF) to be 3.2 hours,
with a specified exception related to special mental disorder
treatment units.
2.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.
3.Requires the California Department of Public Health (CDPH) to
develop regulations that establish minimum staff-to-patient
ratios for 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.
4.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.
SB 779 (Hall) Page 2 of ?
5.Requires CDPH, 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.
6.Requires CDPH, 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.
7.Requires the Department of Health Care Services (DHCS) to
adopt regulations increasing the minimum number of equivalent
nursing hours per patient required in SNFs to 3.2.
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 CDPH, as part of the QASP, to assess an
administrative penalty if CDPH 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 five percent or more of the audited days up to 49 percent,
and $30,000 if the facility failed to meet the requirements
for more than 49 percent 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.
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 commencing July 1, 2016. Excludes
from this increase those SNFs that are licensed as a distinct
part of a licensed general acute care hospital, so this bill
would only apply to "freestanding" SNFs.
SB 779 (Hall) Page 3 of ?
2.Requires CDPH to develop regulations that become effective
July 1, 2016, that establish a minimum staff-to-patient ratio
for direct caregivers working in a SNF, and requires this
ratio to include as a part of the overall staff-to-patient
ratio, specific staff-to-patient ratios for licensed nurses
and CNAs.
3.Requires the CNA staff-to-patient ratios developed pursuant to
this bill to be no less than the following:
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; and,
c. During the night shift, a minimum of one CNA
for every 17 patients, or fraction thereof.
4.Defines the "day shift," "evening shift," and "night shift,"
as those 8-hour periods during which the facility's patients
require the greatest amount, a moderate amount, or the least
amount of care, respectively.
5.Requires CDPH, in developing the staff-to-patient ratios
required by this bill, to convert the 4.1 direct care service
hours per patient day required by this bill as of July 1,
2016, including a minimum staff-to-patient ratio for CNAs of
2.8 direct care service hours per patient day and a minimum
staff-to-patient ratio of licensed nurses of 1.3 direct care
service hours per patient day.
6.Revises the existing requirement that CDPH consult with
stakeholders to determine the sufficiency of the SNF staffing
standards by requiring this initial consultation no later than
January 1, 2018, while retaining the requirement that this
consultation take place every five years the initial
consultation.
7.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
SB 779 (Hall) Page 4 of ?
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.
8.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 a digital or other electronic medium,
including electronic mail.
9.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 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.
10.Adds compliance with the direct care service hour
requirements established by this bill to the quality and
accountability performance measures under which certain
supplemental Medi-Cal payments are paid to those SNFs meeting
certain benchmarks, pursuant to provisions of existing law
known as the Quality and Accountability Supplemental Payment
program. Specifies that this provision only becomes operative
if the sunset date on provisions of law establishing a quality
assurance fee on SNFs is extended and is operative on January
1, 2016.
11.Revises the definition of "direct caregiver," for purposes of
staff-to-patient ratios in SNFs, to include a certified nurse
assistant in an approved training program, and to include a
licensed nurse serving as a minimum data set coordinator, a
person serving as the director of nursing services in a
facility with 60 or more beds, or a person serving as the
director of staff development, when these persons are
providing nursing services in the hours beyond those required
to carry out the duties of these positions, and as long as
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these direct care service hours are separately documented.
FISCAL
EFFECT : This bill has not been analyzed by a fiscal committee.
COMMENTS :
1.Author's statement. According to the author, SNFs provide
skilled nursing and supportive care to over 340,000 seniors,
people with disabilities and people recovering from illness or
injury in California. CNAs are the primary care givers in
SNFs, providing twenty-four hour care to residents seven days
a week such as assistance with daily living, post-hospital and
post-surgical care, diabetic management and restorative
rehabilitation services. Current staff requirements, however,
do not meet the direct care needs of nursing home residents.
Operators of SNFs are considered to meet current requirements
even when including personnel, other than CNAs, in the
staffing ratio. The resultant under-staffing of CNAs in SNFs
creates potentially unsafe living conditions for residents.
Without enough CNAs, these individuals are placed at risk of
falls, illness or injury. Residents that receive sub-par care
are at a greater risk for hospitalization or being reinjured,
resulting in increased healthcare costs. Residents of SNFs
deserve a safe environment to help recover from surgery and
heal from trauma. SB 779 helps to ensure that CNAs are
available to meet the needs of seniors, people with
disabilities and people recovering from illness or injury, and
will help to create a safer living environment for these
resident patients.
2.Existing regulations. 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 CDPH to convert this 3.2 nursing hour
requirement into staff ratios by 2003. This deadline was not
met, but eventually, regulations were adopted by CDPH in
January of 2009 converting the 3.2 hour requirement into
ratios. Under these regulations, 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
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following ratios, with "direct caregiver" defined as a
licensed registered nurse, licensed vocational nurse,
psychiatric technician, a CNA, or a nursing assistant in an
approved training program:
a. On the day shift, at least one direct caregiver for
every 5 patients or fraction thereof;
b. On the evening shift, at least one direct caregiver
for every 8 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 a licensed
vocational nurse) 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, does
require the new regulations to delineate specific ratios for
both CNAs and licensed nurses, and includes specified minimum
ratios for CNAs within the proposed bill.
3.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 study 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
(licensed vocational nurses, 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
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staffing hour requirement to 4.1 across all staff levels, this
bill directs CDPH 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.
4.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 five times, and is currently scheduled
to sunset on July 31, 2015. 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, 2015.
DHCS has requested trailer bill language to extend the sunset
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date on the provisions of law established by both AB 1629 and
SB 853 to July 31, 2020.
5.Prior legislation. 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, and support
facility quality improvement efforts in, SNFs.
AB 1075 (Shelley, Chapter 684, Statutes of 2001), required
CDPH to develop regulations, to become effective August 1,
2003, that establish staff-to-patient ratios for direct
caregivers working in a skilled nursing facility. 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.Support. This bill is co-sponsored by the Service Employees
International Union-United Long Term Care Workers (SEIU ULTW)
and SEIU California, which state that it has been 15 years
since the current staffing ratios of 3.2 hours per patient day
were set in law. Since that time, research has shown that a
ratio of 4.1 is the desired level of care that provides SNF
residents the level of care that they need and deserve for
optimum health outcomes. According to SEIU California, the
industry is moving in that direction as the leading facilities
in California seek to achieve better care for their patients.
SEIU California notes that raising the staffing ratio is
expensive and would have been difficult to propose when
economic times were difficult and facility rates were static.
However, this year the Administration proposes to reauthorize
the QAF for five years and provide facilities with an annual
global rate increase of 3.62 percent for each of those years.
According to SEIU California, this increase provides a
rationale for making this the moment to improve the quality of
care that is provided to SNF residents. The California
Commission on Aging also supports this bill, stating that
residents of SNFs benefit from consistent and regular care,
and a lack of adequate care contributes to the residents'
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sense of isolation and depression, along with bed sores and
conditions resulting from other un-met needs. The American
Nurses Association\California states in support that with
California's changing demography and a large number of
Californians nearing an elderly age threshold, along with an
increasing acuity of patients residing in SNFs, appropriate
staffing ratios reflecting not only the number of patients but
also their acuity is required in order ensure safe and
appropriate care. The California Long-Term Care Ombudsman
Association supports this bill's requirement that every SNF
make direct caregiver staffing data available to the public at
a reasonable cost and within 15 days of receiving a request,
and states that they all to often hear concerns from local
Ombudsmen meeting with residents and their family members who
are concerned by the lack of trained staff available to care
for the residents.
7.Opposition. This bill is opposed by the California
Association of Health Facilities (CAHF), which states that its
first concern is the linkage of any new costs or requirements
to its reimbursement formula and provider tax, which are
designed to cover their existing costs. CAHFs second concern
pertains to the complexities associated with staff-to-patient
ratios for CNAs, which will in some cases require shift ratios
that do not align with patient needs at certain facilities.
According to CAHF, SNFs must meet daily minimum nursing hour
requirements at each facility today, but often exceed these
requirements when the patient composition necessitates
additional nursing staff, and CAHF believes this methodology
is preferable to shift ratios. CAHF argues that an improving
economy makes finding additional employees for its facilities
even more difficult, and that any requirement to impose
staff-to-patient shift ratios for CNAs must recognize this
challenge and identify new funds to cover the associated
costs. LeadingAge California also opposes this bill, stating
that while the vast majority of LeadingAge California members
staff well above the 3.2 nursing hours per day minimum, this
bill is unnecessary as existing law already directs that SNFs
must employ additional staff as necessary to meet the needs of
residents. Further, LeadingAge California is concerned that
the workforce availability of adequate numbers of direct care
staff will not be possible in many areas of the state. The
Association of California Healthcare Districts ACHD) states in
opposition that under current state law, any new mandate to
SNFs have to be paid for by Medi-Cal, and that while the
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Administration proposed budget provides a 3.62 percent
increase, this funding gets facilities back to 100 percent of
their costs as they exist today without the enhanced direct
care service hour requirement. ACHD states that new funds
would be required to pay for the enhanced staffing detailed in
this bill.
8.Technical drafting amendments. There are several minor
drafting errors and provisions needing to be clarified. For
example, this bill as currently drafted requires both CDPH and
DHCS to adopt regulations increasing the minimum number of
direct care service hours per patient day to 4.1. Only CDPH
needs to adopt regulations converting these hours into
staff-to-patient ratios; the provisions in the Welfare and
Institutions Code governed by DHCS can simply be changed to
reflect the new numbers. Additionally, the use of the term
"staff-to-patient ratios" is inaccurately conflated in one
provision of the bill with hours per patient day. Committee
staff recommends technical amendments to address these and
other drafting issues.
SUPPORT AND OPPOSITION :
Support: SEIU California (co-sponsor)
SEIU United Long Term Care Workers (co-sponsor)
California Chapter of the American Nurses Association
California Commission on Aging
California Long-Term Care Ombudsman Association
Five individuals
Oppose: Association of California Healthcare Districts
California Association of Health Facilities
LeadingAge California
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