I. Overview

Effective July 1, 2018, all freestanding SNFs, excluding distinct parts of general acute care hospitals (GACHs), state-owned hospitals, or developmental centers, are required to increase staffing from the current 3.2 nursing hours per patient day requirement to 3.5 direct care service hours per patient day, with CNAs performing a minimum of 2.4 hours per patient day.

Health and Safety Code section 1276.65(l) requires the California Department of Public Health (Department) to develop a waiver process for SNFs seeking a waiver of the 3.5 direct care service hours requirement and/or the 2.4 CNA hours requirement due to a workforce shortage. Even with an approved waiver, a facility may not staff below 3.2 direct care hours. A SNF seeking a workforce shortage waiver must submit a waiver application to the Department pursuant to the requirements in this AFL.

II. Requirements for Waiver Application 

As part of an application for a waiver based on a workforce shortage:

(a) A SNF must submit evidence of efforts to address the workforce shortage, which shall include, but is not limited to:
(1) A detailed description of the facility’s recruitment plan to address the shortage, including any recruitment and retention activities, how the facility has implemented the recruitment plan, and for how long. The plan must include specific actions the facility will take to resolve its workforce shortage, how the facility will implement those actions, and time frames and deadlines for completing each action;
(2) Documentation of the facility’s recruitment efforts indicating when, where, and how long the facility advertised each vacancy, including providing a copy of all advertisements;
(3) The number of staff currently employed at the facility and the number of staff and job classification of the staff needed to comply with the 3.5 and 2.4 staffing standard;
(4) The number of applicants who applied to each position;
(5) The number of applicants the facility interviewed and hired;
(6) The salary offered for the position; and,
(7) Detail the use of registry services, if available, to fill vacant positions.

(b) A SNF must provide a detailed plan for resident care that specifies how the facility will continue to meet residents’ needs and ensure quality care despite the workforce shortage. The plan for resident care shall include, but is not limited to:

(1) Information on the direct care service hours the facility is currently providing;
(2) The staffing needed to meet residents’ care needs; and,
(3) The method the facility uses to assess residents’ needs and determine adequate staffing to meet those needs.

(c) Facilities shall post a notice of a pending waiver application in a public location within the facility and shall notify potential residents of a pending waiver application prior to admission.

III. Evaluation of Waiver Applications

(a) A facility that has been subject to any of the following actions by the Department in the preceding three years shall not be eligible for a workforce shortage waiver:

(1) Issuance of two or more A citations if operated by the same owner at the time of waiver application; or
(2) Issuance of one or more AA citations if operated by the same owner at the time of waiver application; or
(3) License suspended or revoked if operated by the same owner at the time of waiver application.

(b) In evaluating a workforce shortage waiver application, the Department will consider whether the facility:

(1) Has complied with state and federal regulations in the preceding three years. Depending on the facility’s compliance history, the Department may conduct an onsite visit to investigate quality of care concerns.
(2) Provided complete and accurate documentation demonstrating a workforce shortage.
(3) Demonstrated recruitment and retention efforts to address the workforce shortage.
(4) Is located in a shortage area, as determined by the Department.
(5) Is located in a rural or underserved area.
(6) Provided an acceptable recruitment plan to achieve compliance with the 3.5 and/or 2.4 staffing standard based on the particular situation of the facility.
(7) Is offering competitive salaries for vacant positions.
(8) Demonstrated the ability to meet the needs of residents despite the workforce shortage.

(c) In evaluating a workforce shortage waiver application, the Department will consider the facility’s history of compliance with staffing requirements for the prior three years.

IV. Waiver Renewals

To renew a workforce shortage waiver a facility must reapply annually and shall submit an application with all of the information required by section II above. In addition to the factors listed in section III above, in evaluating a workforce shortage waiver renewal application, the Department will consider whether the facility effectively implemented the recruitment plan and met the completion dates to comply with the 3.5 and/or 2.4 staffing standards that the facility submitted with its initial waiver request. The Department will also consider whether the facility had any substantiated violations, including staffing violations, A or AA citations, or quality of care violations, while the waiver was in effect.

V. Processing Waiver Applications

(a) When the Department receives a workforce shortage waiver application, the Department will send the facility an acknowledgement letter.

(b) The Department may request additional information from the facility to assist in evaluating the waiver request.

(c) The Department will also send written or electronic notice of any waiver applications to the state and local ombudsman offices and request information about any resident care complaints or concerns at the facility.

(d) The Department will post a list of facilities that have applied for a waiver on the Department’s website as specified:

(1) For 2018-19 no later than September 30, 2018.
(2) For fiscal year 2019-20 and beyond no later than April 30 each year.

(e) When the Department has completed its review of a waiver application, the Department will inform the facility in writing whether the Department has approved or denied the waiver application and of any conditions or limitations pertaining to the Department’s decision.

(1) The Department will approve or deny waiver applications on a case-by-case basis.
(2) The Department will review whether the facility met its targets for resolving its workforce shortage at waiver renewal.
(3) A facility seeking a waiver in fiscal year 2018-19 must submit a complete waiver application, as determined by the Department, no later than September 1, 2018. A complete application includes all documentation required by section II above.
(4) A facility applying for a waiver in fiscal year 2019-20 and beyond must submit a complete waiver application, as determined by the Department, no later than April 1 of the preceding fiscal year. A complete application includes all documentation required by section II above.
(5) The Department will not grant more than two consecutive waiver renewals.
(6) If the Department denies a waiver application, the facility cannot appeal the decision and must wait until the subsequent fiscal year to reapply.

VI. Waiver Approvals

(a) If the Department approves a waiver application, the effective date of the waiver is July 1st.

(b) If the Department approves the facility’s waiver application, the facility shall not staff below 3.2 direct care service hours for the duration of the waiver.

(c) A facility with an approved waiver must post the waiver in a public location within the facility. The Department will enter the facility’s waiver status in the Electronic Licensing Management System (ELMS) and post the waiver status on the Department’s website with other facility-specific consumer information. The Department will also share approved waivers with the State Long-Term Care Ombudsman. The Department will post a list of facilities that have an approved waiver on the Department’s website as specified:

(1) For fiscal year 2018-19 no later than January 30, 2019.
(2) For fiscal year 2019-20 and beyond no later than July 30 each year.

(d) Facilities shall provide written notice of an approved waiver to potential residents prior to admission.

VII. Waiver Revocations

(a) The Department may terminate the waiver if it determines the facility does not meet the terms of the waiver.

(b) The Department shall terminate the waiver if the facility receives one of the following:

(1) Substantiated findings of substandard quality of care related to insufficient staffing;
(2) Issuance of an A or AA citation; or
(3) Quality of care violations with a scope and severity of G or higher.

If you have questions regarding this AFL, please contact the RN Unit at RNUnit@cdph.ca.gov.

You may submit waiver applications via email or by mail to:

California Department of Public Health
Center for Health Care Quality
Attn: RN Unit
P.O. Box 997377  MS 3201
Sacramento, CA 95899-7377

Sincerely,

Original signed by Jean Iacino

Jean Iacino
Deputy Director