A Trojan Horse for Nursing Home Residents:
The Insidiously False Promise of the New Minimum Staffing Requirements.
Last year, the legislature changed the daily minimum nursing hours that California nursing homes must provide to their residents. SB 97 was a budget bill developed behind closed doors with no consumer input. It was not subjected to traditional legislative deliberation, which often strengthens policy by inviting diverse perspectives, identifying flaws, and developing fixes. Legislation, like anything else, that is made in the dark, is typically riddled with holes. SB 97 was no exception.
SB 97 raises the minimum number of direct care nursing hours per resident per day (hrpd) in nursing homes from 3.2 to 3.5 starting July 1, 2018. More nursing staff generally leads to more care and better health outcomes for residents. This increase is a small but important step to better nursing home care.
The problem is the increase was loaded with waivers and caveats, severely limiting the likelihood that the purported staffing increase would actually improve resident care. One of the waivers is for "workforce shortages." SB 97 requires the Department of Public Health (DPH) to create the waiver which it issued on March 30. DPH ignored the urgent pleas from CANHR and a number of other resident advocacy organizations that the waiver is too broad and undermines resident safety. Among other problems, the announced waiver process:
- relies almost entirely on nursing homes' self-reported information to determine whether a waiver will be granted, making it easy for facilities to get a waiver;
- does not use input from residents about whether the facility has adequate staffing;
- includes no mandatory on-site visit from DPH to assess whether the facility has adequate staffing;
- does not disqualify most facilities with a history of serious neglect and abuse;
- lasts up to three years at a time;
Most notably, the waiver does not include a ban on admissions which would require an understaffed facility to freeze its admissions until it has sufficient staff. This simple method to ensure resident safety while a nursing home goes through a "workforce shortage" was totally dismissed by DPH despite pleas from resident advocates throughout the state.
Nursing homes create their own "workforce shortages" by either not paying enough to attract employees or by offering an unsatisfying labor environment. Rather than pushing facilities to hire sufficient staff, the workforce shortage waiver will permit facilities to evade staffing minimums for years at a time. In other words, the “staffing increase” in SB 97 is likely meaningless.
The end result of SB 97 may end up harming residents. It’s likely that hundreds of nursing homes reportedly below 3.5 hrpd will receive waivers. Meanwhile, SB 97’s requirement that at least 2.4 of the hours come from CNAs means that many facilities might actually cut their licensed nursing staff (LVNs and RNs). Additionally, nursing homes will be able to count CNA trainees as caregivers. These two feature mean SB 97 could very well lead to worse care and worse resident outcomes.
SB 97 and its staffing Trojan Horse is bad policy made even worse by a DPH that is clearly not motivated by resident safety. The whole package ensures better staffing in nursing homes, not for staff who take care of residents, but for those filling out waiver paperwork.