Frequently Asked Questions and Responses From the California State Agency that Regulates Hospital Licensing Requirements

California’s Nurse-to-Patient Staffing Ratios for General Acute Care Hospitals: Frequently Asked Questions and Responses From the California State Agency that Regulates Hospital Licensing Requirements

Below are excerpts of a public notice from the California Department of Health Services, Licensing and Certification Division ( CDHS) – the State Agency that will be responsible for enforcing the new staffing regulations in California. To review the complete update go to : FAQ.pdf

Enforcement of the Ratios

Q: How will CDHS approach enforcement of the ratios?

A. CDHS will enforce the provisions of these regulations in the same general manner as we have enforced the ratios that have existed for 28 years for Intensive Care and Critical Care Units. There are two ways in which the department will verify compliance with the regulations.

Compliance with the regulations may be verified during a periodic survey. Although CDHS does not automatically verify compliance with the ratio requirements during a survey, observation or interview may lead to concerns about staffing and cause CDHS to verify compliance with the ratios and other staffing-related requirements.

Compliance with the regulations may also be verified by investigating a complaint that is specific to staffing or staffing ratios. Although there is no statutory timeframe within which CDHS must initiate an on-site investigation to respond to a complaint against a General Acute Care Hospital, by existing policy CDHS will initiate an investigation within 48 hours if a credible allegation of serious and immediate jeopardy to patients is received. If the allegation does not constitute serious and immediate jeopardy, the complaint will be investigated during the next periodic survey or along with the next “serious” complaint.

Should a violation of the ratio requirements occur, CDHS will issue a deficiency to the hospital and require an acceptable plan of correction. CDHS may verify that the plan of correction has been implemented and the deficiency corrected during any subsequent complaint investigation or periodic survey.

There is no penalty or monetary fine for a violation of the ratio regulations. However, should the CDHS conclude that the violation of the ratios is so severe that it poses an immediate and substantial hazard to the health or safety of patients, CDHS may order the hospital to reduce the number of patients or close a unit until additional staffing is obtained.

Program Flexibility

Q: Please explain program flexibility. When does it apply, and who is eligible?

A: Program flexibility is defined for basic services in 22 CCR 70129 and for supplemental services at 22 CCR 70307. It exists because CDHS does not want its requirements to “prohibit the use of alternate concepts, methods, procedures, techniques, equipment, personnel qualifications, or the conducting of pilot projects provided such exceptions are carried out with the provisions for safe and adequate care and with the prior written approval of the Department.” Program flexibility, then, recognizes that regulations cannot keep pace with advances in health care, and often new alternatives, approaches, and techniques which meet the intent of the regulation are as appropriate, or even preferable, to strict compliance.

CDHS welcomes the opportunity to work with providers as they seek to continuously improve the care they offer by exploring innovative ways to deliver safe and adequate care. Although the nurse staffing ratios would be a difficult requirement to “flex”, we encourage hospitals to work with their local Licensing and Certification district office on program flexibility requests.

Q: What is the process and timeframe for CDHS to consider program flex requests for these nurse staffing ratio regulations?

A: L&C has established an internal process to expedite program flexibility requests related to these regulations and to provide for consistent application of standards for program flexibility throughout the state. The total timeframe for review and rendering a written decision on program flexibility will not exceed 15 working days. In addition, review of program flexes will be coordinated between the district office and a central office subject matter expert to promote consistent interpretation and application of the regulations.

Healthcare Emergency/Influenza Season

Q: What happens if there is a flu epidemic and the hospital must admit large numbers of flu patients? What does the hospital do about meeting the nurse staffing ratios?

A: Title 22 CCR 70217(q) requires hospitals to plan for routine fluctuations in patient census. A flu epidemic might qualify as a healthcare emergency, which is defined in the regulation as, “an unpredictable or unavoidable occurrence at unscheduled or unpredictable intervals relating to healthcare delivery requiring immediate medical interventions and care.” A healthcare emergency may be reportable to the department if it meets the definition of a “Disruption of Service” (22 CCR 70746) or is a “Reportable Event or Unusual Occurrence” (22 CCR 70747.) If the hospital can demonstrate that it made prompt efforts to try to maintain required staffing levels, then CDHS will not consider the hospital to have violated the regulations during the period of the health care emergency. However, the influenza season cannot be used as an excuse for a failure to plan or to otherwise fail to meet the requirements.

Q: What concerns are you hearing about patients being held in the ED awaiting a medical!surgical bed and the back up of the entire county emergency medical system when this happens county wide. At what point can facilities have program flexibility to admit those patients knowing they will be out of compliance?

A: We added Title 22 CCR 70217(q) to the regulations to address the need for flexibility during a healthcare emergency. Please see the definition of healthcare emergency” discussed in C1 above. It is likely that a problem that caused the entire county emergency medical system to back up would meet the criteria of a “healthcare emergency”.

“At all Times” Requirement

Q: Is the Department aware of any ways that facilities might be able to comply with the “at all times” requirement?

A: There are several techniques that a hospital can use to ensure compliance with this requirement. Hospitals do not need to seek our approval for any of the following options:

* The regulations specifically permit a Charge nurse, or nurse manager to fill in for a licensed nurse during breaks or lunches.

* In a Post Anesthesia Recovery Unit (PACU) an OR nurse can cover if there are no surgeries as long as the nurse has current competence in the PACU.

* Any nurse in the hospital can “float” between units to cover as long as that nurse is competent to perform tasks required in that unit.

* Nurses from a “higher acuity” unit can always cover for a nurse in a unit with lower acuity patients.

* If a patient is being taken for tests and can be accompanied by a technician, that may reduce a nurse’s assignment on a temporary basis, so they could assist another nurse.

* A hospital can delay new admissions or cancel elective surgeries that would result in new admissions. Hospitals have done this when they didn’t have sufficient numbers of critical care nurses.

* Hospitals could contact physicians to see if any patients could be safely discharged sooner than scheduled. Often hospitals discharge patients at certain times of the day, even though the patient could go home or to another level of care sooner.

* Except for patients who might be admitted through the ER, hospitals know the number of new admits or possible discharges at any given time. Each charge nurse plans for staffing the next shift prior to the end of the current shift. This is a normal and continuous process that can be adjusted to accommodate available staff.

Q: Meal breaks continue to pose concerns for a number of facilities. Will DHS entertain program flexibility for ratio mandates during meal breaks?

A: Program flexibility can be requested for any alternative method of meeting the intent of the regulation, and there may be special circumstances for which program flex may be appropriate. While this requirement would be a difficult requirement to flex, we encourage hospitals to work with their local Licensing and Certification district office on program flexibility requests. There may be other options or ideas that you might work through with the district office.

Patient Classification Systems (PCS)

Q: The proposed ratios represent a minimum staffing level and patients with higher acuity, such as an agitated brain injury patient or an impulsive CVA patient is assessed at a higher acuity and therefore requires more nursing hours or a lower ratio than 1:6, possibly 1:4 or 1:3.

A: That is correct. Current regulations include PCS, mandated at 22 CCR 70053.2 and 70217(b) to (q). These regulations require that hospitals have a system to determine nursing care needs based on individual patient care requirements. The PCS will co-exist with the mandated minimum ratios to increase staffing as patient acuity increases.

Q: The acuity of a unit’s patient population varies and depends upon the random mix of patients admitted during a specific period of time. Thus, how will DHS decide which is a specialty unit and which is not?

A: Please refer to the definition of specialty care units and medical/surgical units included in the regulations at 70217(a)(ll) and (12). A medical/surgical unit is defined as ” …a unit…in which patients, who require less care than that which is available in intensive care units, step-down units, or specialty care units receive 24 hour inpatient general medical services, post-surgical services, or both general medical and post-surgical services. These units may include mixed patient populations of diverse diagnoses and diverse age groups who require care appropriate to a medical/surgical unit.” all units contain patients whose acuity varies, and that does not change the essential character of the unit. all patients must receive care based on an assessment of their need for care. If a patient is on a medical/surgical unit and his/her acuity increases, the PCS must increase staffing, to the specialty care unit level and beyond if necessary, to meet the patient’s needs. CDHS is more concerned that hospitals meet the needs of the patients than about the name that the hospital gives to a unit.

Q: As patients progress through their rehabilitation program, ideally becoming more independent and self-sufficient, their acuity and corresponding nursing hours required to care for them usually decrease. Therefore a newly admitted patient may require a lower nurse-to-patient ratio than a patient near discharge. How will this essential element of rehabilitation be addressed?

A: This progress of patients toward increasing independence and decreasing acuity as discharge approaches is the ideal for all patients, not just rehabilitation patients. The Patient Classification System (PCS), already required in regulation, will remain in place to augment licensed staff and to dictate the skill mix required to meet each patient’s individual needs. The staffing for each unit will be dictated by the PCS with the minimum licensed nurse-to-patient ratios providing the baseline staffing for each unit, below which staffing shall not fall. Because these ratios are mandated to be the minimum level to protect health and safety, they should be thought of as the ratios that would be in place on the slowest shift when the patients are least acute.

Q: Patient acuity is assessed each shift by a professional nurse and may change from shift to shift. How will the proposed regulations address this issue?

A: Patient’s acuity varies on all units. That does not change the essential character of the unit. all patients must feceive the amount of nurse staffing their acuity demands regardless of their placement on a specific unit, as determined by the PCS. The hospitals must have a system for determining the nursing staff needs of the patients.

Emergency Departments

Q. Several hospitals express concern over EMTALA violations – given the rural facilities need to transfer patients to larger Medical Centers for care but if the Medical Center is closed because of lack of staffing what is the Rural site to do?

A: The rural hospitals must have a policy and procedure already in place for how they handle situations when they cannot transfer. These regulations will not change those policies.

Neonatal Intensive Care Units/Nurseries

Q. The regulations clearly define staffing in the NICU but other nurseries (sic). What staffing ratios apply to these areas?

A: Current regulation [Title 22 CCR 70549(e)(2)] requires that a ratio of one licensed nurse to eight or fewer infants shall be maintained for normal infants.

SNFs and HBPDs

Q: When can we anticipate see (sic) the proposed ratios for SNFs and HBDPs?

A: The regulations that will set minimum levels of licensed nurses in skilled nursing facilities and hospital-based distinct part units are currently under development at CDHS. When they will be ready for public comment is yet to be determined. Those regulations are not a part of this rulemaking package.

Nurse Availability

Q: I am all for safer ratios, but our problem is not enough nurses for our units. Maybe DHS can check out hospitals that cannot attract nurses due to lack of funds, etc., and have to rely on travel nurses to fill the demand, and figure out ways to hire and retain our staff?

A: For all of the reasons outlined in the Final Statement of Reasons, CDHS believes that the ratio regulations as adopted for each unit are the minimum numbers of licensed nurses necessary to protect the health and safety of patients in California’s acute care hospitals. It would be inappropriate for CDHS to comment on the strategies used by individual providers to comply with these regulations. The methods used to comply with regulations, whether they include the use of registry nurses, traveling nurses, increased recruitment, or other methods, are the purview of the individual hospital’s governing body. It is also possible that improving staffing in hospitals may create a work environment that enhances nurses’ job satisfaction and facilitates recruitment and retention efforts. Addressing this issue, however, is outside the scope of these regulations.

Rural Hospitals

Q: Did the Legislature make special provisions for rural general acute care hospitals to meet the nurse-to-patient staffing ratios?

A: Health and Safety Code section 1276.4(g) allows CDHS to grant waivers from the staffing ratio requirements to rural hospitals, as defined in Title 22, section 70059.1, on two conditions. Requests must include adequate documentation that explains how the hospital will provide the appropriate care for the acuity level of the patients in the affected units. Requests may be granted by CDHS so long as the “health, safety and well-being of patients affected” by the waiver are “not jeopardized” and the waiver is “needed for increased operational efficiency.” Similar to program flexibility requests, waiver requests should be submitted to the local CDHS district office. Within 7 days of receipt of a’ waiver request, the district office will contact the hospital to obtain any additional information from the hospital needed to fully consider the request. Final decisions on granting waiver requests will be provided by the district office in writing to the hospital after review by a subject matter specialist.

Q: The regulations allow Nurse Administrators, Charge Nurses and Supervising Nurses to be counted in the ratio only when providing nursing services, such as when covering for other licensed nurses at break and meal times, but do these same limitations apply to rural hospitals who already have difficulty retaining qualified nurses?

* A: section 70217(1) of the regulations allows rural hospitals, as defined in Health and Safety Code section 1250(a), to request program flexibility for allowing nurse administrators to meet the ratios, even if not providing direct patient care, so that supervision of nursing care is provided on a 24-hour basis.

Q: What flexibility do the regulations allow for staffing units with mixed patient populations, which are likely to be found in rural hospitals?

A: Units that may include mixed patient populations of diverse diagnoses and diverse age groups who require care appropriate to a medical/surgical unit are addressed at section 70217(a)(ll). The acuity of patients in mixed units of acute care hospitals warrants a minimum nurse-to-patient ratio of one nurse to six patients, which is the ratio for medical/surgical units. The Patient Classification System will continue to coexist with the minimum ratios to require an increase in nurse staffing in response to increased patient acuity and/or the needs of the specific patient population, e.g., pediatric patients.

Copyright Nevada Nurses Association Feb 2004

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