AFL 21-11 From the California Department of Public Health
March 17, 2021
TO: Skilled Nursing Facilities (SNFs)
SUBJECT: Guidelines for 3.5 Direct Care Service Hours Per Patient Day (DHPPD) Staffing Audits
(This AFL supersedes AFL 19-16)
AUTHORITY: Health and Safety Code (HSC) sections 1276.5 and 1276.65 and
Welfare and Institutions Code (W&I) section 14126.022
All Facilities Letter (AFL) Summary
- In accordance with HSC sections 1276.5 and 1276.65, and W&I section 14126.022, this notice provides updated guidelines for facility requirements during state audits for compliance with the 3.5 DHPPD staffing requirements, of which a minimum of 2.4 DHPPD shall be performed by certified nurse assistants (CNAs).
- The California Department of Public Health (CDPH) is replacing AFL 19-16 with AFL 21-11 to clarify the requirements and guidelines for the 3.5 and/or 2.4 (CNA) DHPPD staffing requirements in skilled nursing facilities (SNFs). The guidelines in this AFL are applicable to the audit period beginning July 1, 2020, and shall remain in effect until superseded.
- This AFL contains the following updates:
- Permits facilities to appeal a non-compliant audit finding not rising to the level of an administrative penalty.
- Increases administrative penalty amounts for non-compliance of the 3.5 and or 2.4 DHPPD staffing requirements to $25,000 and $50,000, respectively.
- Defines terms commonly used and referenced in the audit process (infection preventionist, etc.).
- Clarifies the use of form CDPH 530 (Nursing Staffing Assignment and Sign-In Sheet) (PDF)
- Clarifies the allowance of non-traditional healthcare workers and how they will be counted as part of the auditing process during the COVID-19 pandemic.
Pursuant to W&I section 14126.022, CDPH conducts unannounced audits of open, active, freestanding SNFs for compliance with the minimum staffing requirements established in HSC sections 1276.5 and 1276.65. Statute authorizes CDPH to implement W&I section 14126.022 through the issuance of AFLs. Pursuant to W&I section 14126.022, this AFL carries the full legal regulatory effect of formally promulgated regulations.
These guidelines are limited to the implementation of W&I section 14126.022 and the Skilled Nursing Facility Quality and Accountability Supplemental Payment (QASP) System set forth therein. These guidelines are in addition to any other statutes and regulations applicable to a SNF.
The 3.5 DHPPD staffing requirement, of which 2.4 hours per patient day must be performed by CNAs, is a minimum requirement for SNFs. SNFs shall employ and schedule additional staff and anticipate individual patient needs for the activities of each shift, to ensure patients receive nursing care based on their needs. The staffing requirement does not ensure that any given patient receives 3.5 or 2.4 DHPPD; it is the total number of actual direct care service hours performed by direct caregivers per patient day divided by the average patient census.
Only direct caregivers shall count toward the 3.5 and 2.4 DHPPD staffing standards. For purposes of determining compliance with the minimum 3.5 and/or 2.4 DHPPD requirements, CDPH shall not count direct care service hours provided in subacute care units approved by the Department of Health Care Services and subject to the staffing requirements set forth in Title 22 of the California Code of Regulations (CCR) section 51215.5.
Any facility that falls below either the 3.5 or 2.4 DHPPD staffing requirement for any audited day is out of compliance, unless CDPH has approved a staffing requirement waiver for the facility. CDPH will issue one deficiency for non-compliance with each of the applicable staffing standards (non-compliance with 3.5 DHPPD, 2.4 DHPPD, or 3.2 DHPPD), regardless of the number of non-compliant days.
CDPH communicates the results of all audits via a Statement of Deficiency. Non-compliant facilities are responsible for submitting an executed copy of their Plan of Correction (POC) to CDPH. Facilities can submit the POC to CDPH:
- via mail to the following address:
Staffing Audits Section
California Department of Public Health 1615 Capitol Avenue
P.O. Box 997377 MS Code 3203
Sacramento, CA 95899-7377
- via electronic transmission to: LNCStaffingAudits@cdph.ca.gov
The facility must maintain the original signed POC at the facility for a minimum of 3 years from the date of the violation.
CDPH will audit all SNFs subject to the 3.5 and 2.4 DHPPD requirements regardless of ownership status. The licensee of record at the time of audit is responsible for providing all documentation requested by the auditor, and for any administrative penalty that CDPH assesses as a result of a finding of non-compliance. Any action brought by CDPH against a SNF shall not abate by reason of a sale or other transfer of ownership of the SNF except with the express written consent of CDPH (HSC section 1292).
A. Regulatory Enforcement
W&I section 14126.022, as amended on June 29, 2020, requires CDPH to assess an administrative penalty against a SNF if CDPH determines that the facility fails to meet the applicable 3.5 or 2.4 DHPPD requirements set forth in HSC sections 1276.5 and 1276.65 and Title 22 CCR section 72329.2. CDPH will issue a single administrative penalty for staffing non-compliance, as follows:
- $25,000 if the facility fails to meet the requirements for 5 – 49 percent of the audited days
- $50,000 if the facility fails to meet the requirements for 50 percent or more of the audited days
If CDPH determines the SNF is non-compliant for less than five percent of the audited days, the SNF will not be issued an administrative penalty but may appeal the finding of non-compliance. AFL 11-20, or subsequent AFLs, address the appeal process.
B. The Audit Process
The Staffing Audits Section (SAS) Auditor (Auditor) will initiate an unannounced audit with the administrator or his/her designee.
The Auditor will conduct an entrance conference with the Administrator prior to collecting and reviewing documents for the audit. The purpose of the entrance conference is to explain the audit process and obtain facility-specific information for the audit calculations. During the entrance conference, the Auditor will provide a sign-in sheet for attendees to document their participation at the entrance conference.
Upon completion of the entrance conference, the Auditor will provide the facility with one sample day date from a list of dates selected from a 90-day period preceding the audit. The facility will have up to two hours to produce the required documents, for the sample day, as outlined in Section II A. If the documents are acceptable, the Auditor will provide the remaining audit dates. The facility shall produce the remaining documents for the selected audit dates within six hours of the Auditor’s request.
2. Final Opportunity to Provide Documentation
The Auditor shall notify the facility of the preliminary findings and provide the facility with a final opportunity to submit additional documentation prior to the exit conference.
3. Exit Conference and Conclusion of the Audit
The Auditor will conclude the audit by conducting an exit conference with the Administrator. The purpose of the exit conference is to provide the Administration with a summary of CDPH’s preliminary findings. The Auditor will explain the reason(s) that any audited days were determined to be non-compliant.
The exit conference officially concludes the audit, at which time the Auditor will not accept any further documentation for calculating the DHPPD for the audit dates. The auditor will then submit the audit file to the Quality Assurance Unit for review.
4. Quality Assurance and Management Review
CDPH will conduct a quality assurance and management review of the Auditor’s preliminary audit findings. CDPH will not consider documents that the facility has created or modified after the audit has commenced. The final audit findings may result in more or fewer days of compliance than the Auditor’s preliminary results. If the final audit findings indicate a change in status from compliant to non-compliant or in the penalty amount from the findings presented during the Exit Conference, the Facility shall be notified.
CDPH will issue a Statement of Deficiencies and Plan of Correction to all SNFs. For facilities determined to be non-compliant with the applicable DHPPD requirements for 5 percent or more of the days audited, CDPH will also issue a Notice of Intent to Issue an Administrative Penalty and Notice to Correct a Violation. A facility may request an appeal hearing pursuant to the requirements set forth in AFL 11-20 or subsequent AFLs, based upon any determination of non-compliance.
A. Required Documentation
The facility must provide all documents the auditor requests at the time of the audit. Facilities shall maintain current, complete, and accurate personnel and payroll records for all their employees, pursuant to Title 22 CCR section 72533. CDPH will ask facilities to provide the documentation listed below for each day audited. If the facility does not provide complete documentation for each day audited, the facility will receive a finding of noncompliance with the DHPPD requirements.
The facility shall have the documentation listed below, readily available:
- CDPH 612 (Census and DHPPD) (PDF);
- Facility Assignment Sheet;
- CDPH 530 (PDF);
- Timecards, payroll records and reports for the audited period;
- Direct caregiver payroll codes;
- Nursing registry invoices, including registry staff detail to support any direct caregiver hours provided by registry nurses, with an original verifying signature of the Administrator;
- Under no circumstances shall staff attest to the accuracy of their own hours;
- Patient census records, including patient admissions, discharges, deaths, transfers, bed holds, absent patients and patients in subacute, Special Treatment Programs (STPs), and intermediate care units;
- List of all direct caregivers who are not listed in the facility’s payroll reports or timecards;
- Staff Roster, including but not limited to:
- Employee ID number;
- Full employee name, including any nickname used in the payroll information submitted by the facility;
- Professional certification or license number and expiration date;
- Occupation and employment classification; and, if applicable:
- Date the employee changed classification or payroll code;
- Date employment began; and
- Date employment terminated.
- Other personnel records for all facility staff. Personnel records for purposes of staffing compliance shall include:
- Documentation of employee’s participation in the facility’s staff orientation
- Copies of the professional license or certificate, or the verification page from the agency portal documenting its approval;
- Duty statement or job description;
- Documentation of all hours and dates worked including actual shift start and end times, meal periods, split shift intervals and if applicable, total daily hours worked;
- For employees with both non-nursing and direct patient care responsibilities, documentation for each employee that delineates the actual direct caregiver time to be counted toward 3.5 and 2.4 DHPPD (CDPH 530 or delineated in payroll, i.e., payroll codes);
- For registry, temporary, or contract direct caregivers, the name and contact information for the health services personnel agency, and the contract for services;
- The following CDPH forms, including, but not limited to:
- CDPH 278C (Facility Declaration of Participation in Approved Training Programs) (PDF) to determine if a facility has an approved nurse assistant training program or a “Hire CNA Only” status;
- CDPH 276A (Nurse Assistant Training Program Skills Check List) (PDF) and CDPH 276C (Nurse Assistant Certification Training Program Individual Student Record) (PDF) to verify completion of theory and clinical competencies, respectively; and
- CDPH 283B (Certified Nurse Assistant (CNA) Initial Application) (PDF) to verify successful completion of a nurse assistant training program in California.
- The facility shall also provide documentation of any CDPH-approved 3.5 and/or 2.4 (CNA) DHPPD waiver pursuant to AFL 18-16, or Title 22 CCR section 72329.2. CDPH will not consider denied, expired, or revoked waivers.
- Any other documentation requested by the Auditor.
CDPH may request electronic payroll information and facilities may provide payroll information electronically. CDPH may also require facilities to provide the Auditor with a paper copy of the electronic data. Auditors may use any relevant facility documents or electronic data to verify the accuracy of the payroll records. Facilities may provide these additional documents to CDPH via electronic transmission during the time of the audit.
B. Mandated Use of CDPH 530 and CDPH 612
Facilities must use CDPH 612 (PDF) to record daily census.
Facilities are required to use the CDPH 530 (PDF) to record daily staffing assignments to document nursing hours worked by direct care givers not captured in payroll records; or direct caregivers primarily engaged in duties other than nursing services, including employees who perform nursing services beyond the hours required to carry out their job duties.
Failure to use these CDPH required forms will result in a finding of non-compliance for each audited day the forms are not available. The facility is responsible for ensuring all entries are accurate and legible.
C. Unacceptable Documentation
Unacceptable documentation includes, but is not limited to:
- Substantially similar or modified versions of CDPH 530 or CDPH 612.
- Documents or records that are incomplete, illegible, or inaccurate.
- Documents that the facility created or modified after the audit commenced.
- CDPH 530 forms that do not identify the specific bed or unit assignments, or actual time providing direct patient care by dual role staff (such as salaried or other employees).
- CDPH 530 forms, staffing assignments, without the original verifying signature of the Administrator, Director of Nursing (DON) or DON designee, or staffing assignments for which staff attested to the accuracy of their own hours.
- CDPH 612 forms, census forms, without the original verifying signature of the Administrator, DON or DON designee.
- Medical records, treatment records, Minimum Data Set (MDS) records, or any other documents containing Protected Health Information (PHI), or in any manner identifying residents or patients.
D. Excluded Hours
CDPH shall not count direct care service hours provided in a subacute care unit approved by the Department of Health Care Services and subject to the staffing requirements set forth in Title 22 CCR section 51215.5 for purposes of determining compliance with 3.5 and/or 2.4 DHPPD requirements.
CDPH will not count hours toward the 3.5 and/or 2.4 DHPPD calculation if the facility fails to provide acceptable documentation of direct caregiver hours or fails to provide separate documents for subacute, STPs, intermediate care, and non-subacute care units for each audited day.
E. DHPPD Calculation
CDPH shall calculate the 3.5 and 2.4 DHPPD based on a midnight start time.
- Patient Day: The 24-hour period used to determine compliance with HSC section 1276.65. The Patient Day is a prospective, 24-hour period starting at midnight (12:00 a.m.) on the designated audit date and ending 23 hours, 59 minutes and 59 seconds later.
- Average Daily Census: The total number of skilled nursing patients counted at the beginning of the 24-hour Patient Day (12:00 a.m.) and again both at 8 hours (8:00 a.m.) and 16 hours after the start of the 24-hour patient day (4:00 p.m.), and dividing the total by 3, for all days requested. CDPH shall calculate the Average Daily Census to two decimal places.
- The facility shall document the daily census using CDPH 612 (PDF).
- The census counts shall not include subacute, intermediate care, special treatment patients, or bed holds.
- The Administrator, DON, or designee must sign the census form verifying that the information is true and accurate. CDPH shall not consider a census form without this verification.
- The census form must be typed or printed legibly.
- The facility shall not include patient names or other identifying personal information on the census form.
- Failure to provide a complete, verified, and legible CDPH 612 (PDF)will result in a finding of non-compliance with the 3.5 and/or 2.4 DHPPD for that day.
- Number of Hours Worked by Direct Caregivers: CDPH will base the 3.5 and 2.4 DHPPD calculation upon the actual (not scheduled) time worked by direct caregivers while providing skilled nursing care to patients during one 24-hour Patient Day. CDPH shall only count the hours worked by licensed and certified direct caregivers in good standing with CDPH or their licensing boards, and nurse assistants participating in an approved training program.
- CDPH shall not count direct care service hours provided in a subacute care unit approved by the Department of Health Care Services and subject to the staffing requirements set forth in Title 22 CCR section 51215.5 for purposes of determining compliance with 3.5 and/or 2.4 DHPPD requirements.
- DHPPD Calculation: the number that results from dividing the actual Number of Hours Worked by Direct Caregivers per Patient Day by the Average Census, calculated out to the nearest hundredth of an hour.
Specifically, the formula for calculating the standard 3.5 DHPPD is as follows:
Total number of actual direct care service hours performed
by direct caregivers per patient day
÷ The average census during the patient day
The formula for calculating the standard 2.4 DHPPD for CNAs is as follows:
Total number of actual direct care service hours performed
by CNAs per patient day
÷ The average census during the patient day.
Only the direct care hours of valid CNAs with an effective date prior to any given audit date will be included in the calculation. Facilities are responsible for providing valid certification documentation.
F. Direct Caregiver Time
1. Direct Caregivers
Direct caregivers include employees for whom the facility provides documentation that the employee is a registered nurse as referred to in Section 2732 of the Business and Professions Code (BPC), a licensed vocational nurse, pursuant to BPC section 2864, a licensed psychiatric technician, pursuant to BPC section 4516, and a certified nurse assistant, or a nurse assistant participating in an approved training program, as defined in HSC section 1337, while performing nursing services as described in Title 22 CCR sections 72309, 72311, and 72315. A registered nurse (RN) or licensed vocational nurse (LVN) serving as an Infection Preventionist, as defined in HSC section 1255.9(a)(3) is not considered a direct caregiver.
2. Nurse Assistants
CDPH will count direct caregiver hours worked by nurse assistants toward the 3.5 DHPPD. For CDPH to credit nurse assistant direct caregiver hours, the nurse assistant must meet or satisfy the following:
- Be paid by the facility;
- Be participating in either:
- a CDPH-approved nurse assistant training program; or
- a nurse assistant training program provided by another facility, agency or public educational institution. (The facility must provide to the Auditor a copy of the signed and dated agreement between the facility and training provider.)
- Have successfully completed:
- 16 hours of facility orientation (Title 22 CCR section 71833(e));
- 16 hours of theory and clinical competency modules (Title 22 CCR section 71835(n)).
- Perform only those duties for which they have demonstrated theory and clinical competency or have successfully completed the Nurse Assistant training requirements as documented by an approved CDPH 283B (PDF).
A facility may hire nurse assistants only if it has a CDPH-approved in-house nurse assistant training program or a contract with another facility, agency, or public educational institution to provide the training. CDPH will only count the hours of nurse assistants participating in an approved training program. CDPH will not count nurse assistant hours towards the 3.5 DHPPD if the facility’s CDPH 280A/CDPH 278C (PDF) indicates “Hire CNA Only” status.
To receive credit towards the 3.5 DHPPD requirement, the facility must delineate the actual direct care hours provided by a nurse assistant in training on an assignment sheet and either in payroll or on the CDPH 530 (PDF).
3. Certified Nurse Assistants
CDPH will count direct caregiver hours worked by CNAs whose certifications are active and in good standing with CDPH toward the 2.4 DHPPD, when the facility provides acceptable documentation to the Auditor. CDPH will not count the time worked by a CNA during the audit period if the certification is expired, lapsed, suspended, or revoked. Any person not certified who represents himself or herself as a CNA is guilty of a misdemeanor. If convicted, he or she is subject to imprisonment in the county jail or a fine of up to $1,000, or both (HSC section 1337.2).
4. Minimum Data Set (MDS) Nurse
A licensed nurse assigned to assess a resident for purposes of completing the MDS is a direct caregiver. CDPH will include the MDS direct care service hours in the 3.5 DHPPD computation.
5. Director of Nursing (DON)
Pursuant to Title 22 CCR section 72327(a), the DON “shall be a registered nurse and shall be employed eight hours a day, on the day shift five days a week.”
In a SNF licensed for 59 beds or less, CDPH will credit up to 40 hours per week performed by a DON or DON-designee towards the 3.5 DHPPD. CDPH will credit additional hours toward the 3.5 DHPPD calculations only if the DON or DON-designee works beyond those hours required by Title 22 CCR section 72327(a) and the facility delineates on the CDPH 530 (PDF )the actual time performing nursing services.
In a SNF licensed for 60 beds or more, CDPH will credit the hours of a DON or DON-designee towards the 3.5 DHPPD calculations only if the DON or DON designee works beyond those hours required by Title 22 CCR section 72327(a) and the facility delineates on the CDPH 530 (PDF) the actual time performing nursing services.
6. Direct Care Service Hours Versus Non-Direct Care Service Hours
HSC section 1276.65 and Title 22 CCR sections 72309, 72311, 72315 and 72329 define nursing services. CDPH will only count direct care service hours when: (1) provided by licensed or certified direct caregivers or by nurse assistants participating in an approved training program; (2) facilities provide appropriate documentation; and (3) the hours are delineated as required.
CDPH will not count non-nursing activities toward either the 3.5 or 2.4 DHPPD, including, but not limited to, the following:
- Paid or unpaid meal periods;
- Services performed by Infection Control Preventionists per HSC section 1255.9(a)(3).
- Nursing services that are provided remotely (e.g., telework).
- Nursing services that are provided in the same shift as non-nursing services by dual role employees primarily engaged in non-nursing services, unless the facility provides acceptable documentation identifying the employees’ discipline, the specific unit(s) or bed assignment(s) and delineating the actual time spent providing direct patient care;
- Nurse assistants not currently participating in an approved training program.
- A person employed to provide services such as food preparation, housekeeping, laundry, valet, concierge, or maintenance services shall not provide nursing care to patients and shall not be counted in determining the 3.5 and/or 2.4 DHPPD staffing standards (HSC section 1276.65(b));
- Private duty nursing services performed by staff paid for or supplied by a patient, a patient’s family, guardian, conservator, or other representative; and
- Non-work time such as staff vacation, holiday and sick leave time.
Staff participating in training or in-service that occurs on-site (at the facility where the staff is employed), when payroll codes show them as providing direct patient care, shall receive up to two hours of credit per month towards the 3.5 and/or 2.4 DHPPD calculation.
G. Determining Time
1. Actual Time
CDPH shall base the 3.5 and 2.4 DHPPD calculation upon the actual (not scheduled) time worked by direct caregivers while providing skilled nursing care to patients during one 24-hour Patient Day.
2. Meal Periods
CDPH shall deduct meal periods from the direct care service hours counted toward the 3.5 and 2.4 DHPPD in accordance with Labor Code section 512, applicable regulations, and wage orders.
- Facilities shall identify meal periods not captured in timesheets or payroll records by clocking in and out on the CDPH 530 (PDF) assignment sheet.
- Pursuant to Labor Code section 512, an employer may not employ anyone for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes.
- A second meal period of not less than 30 minutes is required if an employee works more than 10 hours in one day.
- Health care employees who work over 8 hours may voluntarily waive one of two 30-minute meal periods.
- To be valid under the Labor Code, the meal period waiver must be:
- A separate written document for each employee;
- Voluntary on the part of the employee;
- Signed and dated by both the employer and employee; and
- Revocable by the employee at any time.
Meal periods not identified on the assignment sheet or not documented as clocked in and out in payroll records will be automatically deducted from the total direct care service hours at the rate of 30 minutes for the first six hours worked or one hour for every 10 hours worked. Unless the facility provides a valid meal waiver for the employee, the Auditor shall deduct meal periods required by law from the direct care service hours counted toward the 3.5 and 2.4 DHPPD, regardless of whether the employee took the full meal period. Written meal waivers for each individual employee must be in place at the facility and must comply with Labor Code requirements for the Auditor to accept as valid documentation for 3.5 and 2.4 DHPPD purposes.
1. Dual Role and Salaried Staff Direct Care Service Hours
CDPH defines dual role employees as nursing staff that perform administrative or other non-nursing duties, as well as provide direct patient care in the same shift.
To include the direct care service hours of dual role, salaried staff or other workers in the 3.5 or 2.4 DHPPD calculation, facilities must:
- document on the CDPH 530 (PDF) the actual hours dual role employees provide direct patient care. CDPH will only count direct care hours worked by direct caregivers towards the 3.5 and/or 2.4 DHPPD if properly documented.
- delineate on CDPH 530 (PDF) any direct patient care hours performed by salaried staff and other workers whose time is not included in payroll or is not delineated in payroll by payroll codes differentiating the type of work performed.
CDPH will not accept medical records, MDS records, treatment logs, or other documents containing PHI to delineate direct care service hours.
Documentation must include:
- The specific assignment by identifying each room or bed assigned to that staff member;
- The employee’s full name printed legibly;
- The employee’s nickname, if any;
- The employee’s discipline (RN, LVN, CNA, nurse assistant (NA));
- The actual start and end times of the employee’s regular shift and schedule;
- The actual start and end times of the employee’s meal periods;
- The employee’s original signature verifying that the information provided is true and accurate; and
- The caregiver’s employment status (i.e. registry, contract, corporate) on the assignment sheet, for all direct caregivers who are not employed by the facility.
Delineation is required for the following types of employees who are not primarily responsible for direct patient care, for CDPH to count their direct caregiver hours toward the 3.5 and 2.4 DHPPD:
- Director of Staff Development (DSD) must delineate time when providing nursing services beyond the hours required to carry out his/her orientation, training, certification and other non-direct patient care duties.
- Licensed or certified nurses, cross-trained or qualified to provide nursing services who have responsibilities in other departments such as medical records, concierge, valet, housekeeping, dietary, social services, activities director or coordinator, scheduler, ward clerk, unit secretary, or laundry, must delineate time providing direct patient care.
- To receive credit towards the 3.5 DHPPD requirement, the facility must delineate the actual direct care hours provided by a nurse assistant-in-training either:
- In payroll and on an assignment sheet providing the specific duties for which the NA has been deemed competent; or,
- On CDPH 530 (PDF) documenting the hours worked by nurse assistants participating in an approved training program and the specific duties for which the NA has been deemed competent.
2. Direct Care Service Hours for Patients Receiving Specialized Care
Facilities must delineate direct care service hours provided to patients who receive specialized care, such as subacute care, intermediate care, or to patients in STPs. CDPH will not count these hours towards the 3.5 and/or 2.4 DHPPD calculations.
Title 22 CCR, section 51215(h) specifically prohibits facilities from scheduling nurses to work in both subacute and non-subacute SNF units during the same shift. Facilities with both subacute and non-subacute SNF beds must delineate staff who work in the subacute unit.
A facility’s failure to provide sufficient documentation will result in the exclusion of all non-delineated or appropriately documented nursing hours from the 3.5 and/or 2.4 DHPPD calculation.
III. AUDIT CONSIDERATIONS DURING THE COVID-19 STATE OF EMERGENCY
In 2020, CDPH issued numerous waivers of state laws and regulations related to staffing, training, certification and the licensing of health care professionals. Additional Executive Orders suspended portions of the Business and Professional Code to allow non-traditional healthcare professionals to serve as RNs, LVNs and CNAs. These non-traditional health care workers include and are not limited to active and retired emergency medical technicians (EMTs), Paramedics, as well as State and Federal military healthcare workers.
These Executive Orders and emergency waivers significantly impact how SAS applies policies for including/excluding staff and staffing hours during the FY 2020-21 audit period.
Under the emergency Executive Orders, duly appointed state entities may waive professional licensing requirements to allow out-of-state health care workers to be employed in California.
The SAS validation process for CNA/RN/LVN/NA positions include the following steps:
- RN/LVN – Auditors review Board of Registered Nursing and Board of Licensed Vocational Nursing online license status.
- SAS may include in the DHPPD calculation the hours of personnel whose qualifications have been determined by any duly appointed local/state agency to satisfy the requirements of a CNA/NA/RN/LVN, as long as all documentation requirements are met. This includes consideration of any staff that are eligible to serve in their role based on waivers included in AFL-20-35.
Required documentation includes and is not limited to:
- Copy of Facility emergency staffing request
- Emergency Staffing Approval letter from authorized agency, to include the following:
- Emergency Employee name,
- Emergency Employee Start and stop dates;
- Actual hours of direct care service per employee;
- Employee number (if any), payroll codes, registry invoices, etc.,
Duly authorized agencies include and are not limited to: CDPH, Emergency Medical Services Authority (EMSA), DHCS, California Office of Emergency Services, local county public health departments, Medical Health Operational Area Coordinator, and Regional Disaster Medical Health Coordinator.
CDPH granted additional waivers to specified SNFs designated as “Hire Certified Nurse Assistants Only” (HRO) to hire nurse assistants throughout the duration of the COVID emergency with an approved CDPH 5000A waiver. Under this waiver approval, an NA who has not completed the training program shall only render services at the competency level confirmed by the training program and verified by the facility on the CDPH 276A Nurse Assistant Training Program Skills Check List. SNFs with this approved waiver will need to provide documentation to auditors to ensure the staff time is credited appropriately.
- Absent Patient: a resident who is not in the facility or receiving service during an audited Patient Day.
- Actual Time: the actual (not scheduled) time worked by direct caregivers while providing skilled nursing care to patients during one 24-hour Patient Day.
- Admission: when a SNF accepts a patient for care/service.
- Audit Period: the 90-day period designated by SAS, used to perform the 3.5 and/or 2.4 DHPPD audit.
- Average Daily Census: The total number of skilled nursing patients counted at the beginning of the 24-hour Patient Day (12:00 a.m.) and again both at 8 hours (8:00 a.m.) and 16 hours after the start of the 24-hour patient day (and 4:00 p.m.), and dividing the total by 3, for each day requested.
- Bed Hold: a reservation that allows a patient to stay in, or return to, the care facility (e.g., for a temporary transfer to a hospital, other health care provider, or a family visit).
- Census: the total number of skilled nursing patients residing at the facility over a given period of time.
- Concierge: a facility employee who is responsible for non-nursing duties including reception, preparing rooms for new residents, hosting visiting families, and customer relations/customer service.
- Delineation: documentation clearly showing or describing the provision of direct care service hours separate from non-direct care service provide by the same individual in the same shift. For example, reflecting direct care service hours in payroll records, on the CDPH 530.
- DHPPD: Direct Care Service Hours Per Patient Day. Refers to the actual hours of work performed per patient day by a direct caregiver.
- DHPPD Calculation: The total number of hours worked per patient day divided by the average daily census. CDPH will calculate the 3.5 and 2.4 DHPPD out to the nearest hundredth of an hour (i.e. two decimal places).
- DHPPD Staffing Requirement: 3.5 direct care service hours per patient day, of which a minimum of 2.4 direct care service hours per patient day is provided by CNAs. It is the minimum number of actual (not scheduled) direct care service hours performed by direct caregivers.
- Director of Nursing (DON): has the same meaning as in Title 22 CCR section 72327.
- Director of Staff Development (DSD): has the same meaning as in Title 22 CCR section 71829.
- Direct Caregiver: has the same meaning as in HSC section 1276.65(a)(2).
- Direct Care Service Hours: has the same meaning as in HSC section 1276.65(a)(1).
- Discharge: the act of releasing a patient from the facility or from further care in the facility.
- Documentation: information the facility uses to demonstrate to CDPH that the facility is complying with the 3.5 and/or 2.4 DHPPD staffing requirement, including a completed patient census form (CDPH 612), a completed nursing assignment and sign-in sheet (CDPH 530), verified by authorized personnel as described in this AFL.
- DON Designee: a facility licensed nurse appointed by the facility DON, Administrator, or Licensee, who will temporarily serve in the DON’s place, with the same responsibility and authority as the DON.
- Dual Role Employee: a facility employee who provides nursing services as well as non-nursing services. Facilities must delineate actual time spent by dual role employees providing nursing services from time spent providing non-nursing services in order for CDPH to count these hours toward the 3.5 and/or 2.4 DHPPD.
- Electronic Data or Information: information converted to a form usable in a computer system by computer programs, for example, Portable Document Format (PDF), Extensible Markup Language (.XML), Comma-separated values (.CSV), Microsoft Word, etc.
- Electronic Record: data or information stored on a computer, compact disc, USB thumb drive or other media device that can be retrieved or printed onto paper.
- Electronic (Data) Transmission: the process of sending documents or information over a communication medium to one or more computing, network, communication or electronic devices as designated or instructed by CDPH.
- Employee or Staff: current employees, temporary, contract, registry staff, terminated, or inactive employees.
- Good Standing: with regards to the licensing and certification of health professionals, that the holder of the license or certification holds a valid and active license or certificate, is not under investigation or suspension during the audit period.
- Infection Control Preventionist: the RN or LVN designated in a full time role to conduct surveillance, educate and perform adherence monitoring with the facility’s infection prevention program. The infection preventionist is not a direct caregiver, pursuant to HSC section 1255.9(a)(3).
- Intermediate Care: medical care provided to patients who have a need for skilled nursing supervision and require supportive care, but who do not require continuous skilled nursing care.
- Intermediate Care Patient: a resident receiving intermediate care while occupying a bed licensed exclusively for that level of care.
- Licensed Nurse: a registered nurse, as referred to in BPC section 2732, or a licensed vocational nurse, as referred to in BPC section 2864.
- Meal Period or Meal Break: a paid or unpaid period of time when the staff nurse is not required to work and is not providing direct patient care.
- Minimum Data Set (MDS) Nurse: a licensed nurse assigned to assess a resident for purposes of completing the Minimum Data Set is a direct caregiver and CDPH will include the nursing hours in the 3.5 DHPPD computation.
- Nurse Assistant: has the same meaning as in HSC section 1337(d)(1).
- Orientation: a time period wherein new staff is familiarized with the facility’s policies, procedures, staffing, organizational structure and patients. Orientation time is not counted toward the 3.5 and/or 2.4 DHPPD.
- Patient: has the same meaning as in Title 22 CCR section 72077.
- Patient Day: The 24-hour period used to determine compliance with HSC sections 1276.5 and 1276.65. It is the period from 12:00 a.m. (midnight) to 12:00 a.m. (midnight) the following day. The Patient Day is synonymous with “calendar day” as used by the Centers for Medicare and Medicaid Services (CMS) Payroll Based Journal manual.
- Patient Day Start Time: The 24-hour period of time, which begins at 12:00 a.m. (midnight) and ends 23 hours, 59 minutes and 59 seconds later.
- Patient Day Payroll Records: documentation listing all facility employees receiving wages and salaries that indicates the dates the employee worked, including the hours the employee reported to work (in and out times) and any meal breaks. The documentation should clearly identify the employee, indicate the employee’s discipline (e.g., RN, CNA, MDS, etc.), and include information regarding the initial hire and/or termination date of that employee.
- Protected Health Information (PHI): information that identifies or can be used to identify an individual and relates to the past, present, or future health condition of that individual, including health care provided to that individual and/or payment for that health care.
- Skilled Nursing Facility: has the same meaning as in HSC section 1250(c).
- Special Treatment Program: has the same meaning as HSC section 1276.9.
- Subacute or subacute care: has the same meaning as Title 22 CCR section 51124.5.
- Telework: the practice of allowing employees to perform work, during any part of regular, paid hours, at an approved alternative worksite (e.g., home, telework center).
- Training: educating staff through various methodologies including hands-on direct caregiving to individual patients. Includes orientation, on-site in-service, and classroom and off-site education/training programs.
- Transfer: when a patient is moved from one health unit to another (e.g., from skilled nursing to acute care or other facility).
If you have questions regarding this AFL, please email LNCStaffingAudit@cdph.ca.gov.
Original signed by Heidi W. Steinecker
Heidi W. Steinecker
- CDPH 530 with Instructions (PDF)
- CDPH 612 with Instructions (PDF)
- HSC sections 1276.5 and 1276.65
- W&I section 14126.022
 Hereinafter, any reference to the Administration, Facility Administrator, Administrator, Facility Manager or Manager, shall be interchangeable and shall include his or her designee, as appropriate.