BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: SB 779 --------------------------------------------------------------- |AUTHOR: |Hall | |---------------+-----------------------------------------------| |VERSION: |April 20, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |April 29, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Vince Marchand | --------------------------------------------------------------- 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 SB 779 (Hall) Page 5 of ? 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 SB 779 (Hall) Page 6 of ? 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 SB 779 (Hall) Page 7 of ? 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 SB 779 (Hall) Page 8 of ? 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' SB 779 (Hall) Page 9 of ? 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 SB 779 (Hall) Page 10 of ? 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 -- END --