Issue Paper

Proposals:

2001 Senate Bill 428, authored by State Senator Brian Burke (D-Milwaukee), and Assembly Bill 802, authored by State Representative Peggy Krusick (D-Milwaukee), at the request of Service Employees International Union - Wisconsin State Council, Coalition of Wisconsin Aging Groups, AARP, Board on Aging and Long-Term Care, AFSCME Council 11, Wisconsin State AFL-CIO, Wisconsin Federation of Nurses and Health Professionals, Wisconsin Citizen Action and Allied Council of Senior Citizens of Wisconsin.

Status:

SB 428 was introduced February 7, 2002 and was referred to the Senate Human Services and Aging Committee. AB 802 was introduced February 12, 2002 and referred to the Assembly Aging and Long-Term Care Committee. To date, neither bill has been scheduled for a public hearing.

Analysis:

Current law, under s.50.04(2)(d), Wis. Stats., establishes the following nursing home minimum nurse staffing requirements based on daily staffing levels: 1) For each resident in need of intensive skilled nursing care, 3.25 hours of nursing care per day, of which a minimum of .65 hour must be provided by a registered nurse (RN) or a licensed practical nurse (LPN); The remainder of nursing care may be provided by a certified nurse assistant (CNA); 2) For each resident in need of skilled nursing care, 2.5 hours per day, of which a minimum of .5 hour per day must be provided by a RN or LPN; and 3) For each resident in need of intermediate or limited nursing care, 2.0 hours per day, of which a minimum of .4 hour must be provided by a RN or LPN.

SB 428 and AB 802 are companion bills which would:

Repeal the current nursing home minimum nurse staffing requirements listed above, effective July 1, 2003.

Direct the Department of Health and Family Services (DHFS) to promulgate rules that specify “minimum staffing standards” that are based on ratios between the numbers of registered nurses, licensed practical nurses, and certified nurse assistants and the number of residents of the nursing home for each of the three shifts. This would differ from the current minimum nurse staffing requirements, which are based on a minimum number of hours of nursing care per resident per day. The DHFS must submit these proposed rules to the staff of the Legislative Council no later than the first day of the 13th month beginning after the effective date of this subsection (most likely, April 1, 2003). In addition, the DHFS shall report to the Legislature and the Governor on the status of the Department’s compliance with the requirement to convert the current law minimum nurse staffing requirements to the new minimum staffing standards by January 1, 2003.

By July 1, 2003, direct the DHFS to provide training to staff on enforcement of the new minimum staffing standards and assist nursing homes in implementing the standards.

By July 1, 2003, require nursing homes to have on duty the number of RNs, LPNs, and CNAs necessary to satisfy the new minimum staffing standards.

By July 1, 2004 and by July 1 every 48 months thereafter, require the Legislative Audit Bureau to perform a performance evaluation audit of the new minimum staffing requirements, investigate whether the staffing requirements should be based on a nursing resident’s acuity and file a report of the audit with the Governor and the Legislature.

By January 1, 2005, require the DHFS to submit a report to the Governor and the Legislature which would contain the following recommendations: 1) Proposed methods for nursing homes to more effectively recruit and retain caregivers; 2) Proposed revised minimum nursing home staffing ratios that minimize additional state costs, maximize access to care, facilitate care of the highest quality and take into account patient acuity levels; and 3) A proposed revised nursing home Medicaid reimbursement methodology that more effectively promotes resident care of high quality, advances wages and benefits for nursing home workers, supports nursing home provider compliance with state/federal statutes/rules/regulations and encourages administrative efficiency.

WAHSA Position:

WAHSA’s Board of Directors has yet to take a position on SB 428/AB 802.

However, Representative Krusick issued a January 16, 2001 press release indicating her intent to introduce a bill to establish the following minimum nurse staffing ratios:

Minimum ratio of RNs, LPNs or CNAs to nursing facility resident:

Day shift: 5 to 1

Afternoon shift: 10 to 1

Evening shift: 15 to 1

Minimum ratio of RNs or LPNs to resident:

Day shift: 15 to 1

Afternoon shift: 25 to 1

Evening shift: 35 to 1

At that time, the WAHSA Board of Directors reviewed the Krusick proposal and voted in support of its proposed minimum staffing ratios. However, in order for the proposal to have a positive impact, rather than merely be a piece of “feel good” legislation, that support came only if the following conditions were met:

1. The bill must ensure that current and future direct care costs are recognized immediately by the nursing home reimbursement formula;
   
   
2. The bill must contain an appropriation which will enable facilities that will have to hire additional staff to comply with the new staffing ratios to pay for that additional staff; and
   
   3)
3. The bill must contain a provision which exempts facilities from the mandated staffing ratios if the facilities show the needed additional staff was not available.
   
   

It is assumed that support for SB 428/AB 802 will be based on those same conditions being met, although the WAHSA Board has yet to reach that decision. However, there are several other questions and concerns with these bills that have been raised:

The DHFS Bureau of Quality Assurance (BQA), which monitors nursing home quality, has indicated it has no problem enforcing current minimum staffing level requirements. Of the 17 most serious enforcement citations (“immediate jeopardy”) the BQA issued last year, only one was for inadequate staffing levels.

There is no evidence that converting from an hours of nursing care per resident per day standard to a ratio of caregivers to residents per shift is more consumer friendly.

The staff-to-resident ratios per shift required under SB 428/AB 802 already are produced by the BQA in the “Consumer Information Report for Nursing Homes” mandated under s.50.095(3)(am), Wis. Stats and are available for the public review of all certified facilities on the DHFS web-site: http://www.dhfs.state.wi.us/bqaconsumer/NursingHomes/CIRindex.htm.

The argument that SB 428/AB 802 have no fiscal effect is technically correct but very misleading. There will be no fiscal effect in the 2001-03 biennium; however, the fiscal impact of these bills on July 1, 2003 could be dramatic. How dramatic depends on how the language of SB 428/AB 802 is interpreted.

S.50.04(2)(e)2 of both bills directs the DHFS to promulgate rules that specify “minimum staffing standards” that are based on caregiver staff-to-resident ratios per shift. Those “standards” will replace the current “minimum staffing requirements,” which are based on hours of nursing care per resident per day, on July 1, 2003. If the sole purpose of these rules under SB 428/AB 802 is merely to convert the current minimum staffing levels from hours of nursing care per resident per day to caregiver staff-to-resident ratios per shift, the cost implications of these bills might not be so dramatic, but there is no question there will be a fiscal impact.

The reason is current minimums are based on hours of nursing care per resident per day, rather than per shift. Additional staffing will be required because not all facilities meet the minimum staffing levels each shift, especially the night shift. And many argue that this provision of SB 428/AB 802 would force facilities to hire staff they don’t need.

Of even greater concern fiscally, at least, is s.50.04(2)(e)2 does not specify whether these new minimum staffing “standards” will mandate staffing levels that are significantly higher than current minimums. Take, for instance, the minimum staffing ratios outlined above that Representative Krusick offered in a press release over a year ago. If those ratios were adopted, facilities would be required to hire a significant number of new staff at a cost that indeed would be dramatic. How dramatic?: WAHSA estimates the cost to increase CNA staffing by one hour/day in each of the State’s 420 Medicaid-certified nursing facilities would be $150 million annually.

Regardless of the fiscal note to SB 428/AB 802, passage of this legislation will commit future Legislatures to Medicaid costs which could run in the hundreds of millions of dollars, depending on the “minimum staffing standards” that are promulgated.

The Wisconsin Association of Homes and Services for the Aging (WAHSA) is a statewide membership organization of not-for-profit corporations principally serving elderly and disabled persons. Membership is comprised of 197 religious, fraternal, private and governmental not-for-profit organizations which own, operate and/or sponsor 154 private and 47 county-operated nursing facilities, 65 community-based residential facilities, 32 residential care apartment complexes, 95 senior housing complexes, 26 facilities for the developmentally disabled, 10 licensed home health agencies, and over 300 community service agencies which offer programs ranging from Alzheimer’s support, child and adult day care, hospice and home care to Meals on Wheels. For more information, please contact the WAHSA staff at (608) 255-7060: John Sauer, Executive Director; Tom Ramsey, Director of Government Relations; or Brian Schoeneck, Financial Services Director.

February 27, 2002

WAHSA 204 South Hamilton Street Madison, WI 53703
Telephone: (608)255-7060 FAX:(608)255-7064