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.







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          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.









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          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  








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            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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