C. Healthcare Emergency/Influenza Season 1. 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.

				A. Enforcement of the Ratios 1. 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 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.

				D. “At All Times” Requirement 1. 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: 4 • 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.

				A. Post Anesthesia Care Units 1. Q: For the PACU– A number of facilities have two levels of post anesthesia units. Level One – which is the traditional recovery unit with 1:2 Ratio. What is the staffing ratio for a Level Two Recovery unit? The level 2 cares for outpatients and post-procedural patients. A: All patients in a recovery room or Post Anesthesia Care Unit (PACU) are post-procedural. If the level 2 recovery room (PACU) cares for outpatients only, and the PACU is a part of outpatient services and is not part of an inpatient area, the regulations would not apply. These regulations do not address outpatient services provided by acute care hospitals. Regulations governing outpatient services have not changed. They can be found at 22 CCR 70527-70533. The specific requirements for outpatient service staff are at 22 CCR 70529 (c) and (d) that reads: “A registered nurse shall be responsible for the nursing service in the outpatient service. There shall be sufficient nursing and other personnel to provide the scope of services offered.” 2. Q: For the PACU--What is the CDHS position on staffing of a post anesthetic care unit at night and weekends to be in compliance with Title 22? Is it necessary to have two PACU nurses called in at night and on weekends to care for post-anesthetic patients? Is it sufficient to utilize the OR circulator as the second nurse? In the event the OR circulator is unavailable, is a CNA sufficient as the second person? A: 22 CCR 70217(a)(7) requires, “The licensed nurse-to-patient ratio in a Post Anesthesia Care Unit of the anesthesia service shall be 1:2 or fewer at all times, 13 regardless of the type of anesthesia the patient received.” If two nurses are required based on patient acuity as reflected in the PCS, or because there are more than two patients in the unit, two nurses would be required. If there is only one or two patients in the PACU and the PCS does not require additional staffing, only one nurse would be required. If the OR circulating nurse has demonstrated current competence for PACU nursing services to the hospital, and is not needed in the OR, that nurse may care for patients in the PACU. Any nurse with demonstrated current competence for the PACU may care for patients in the PACU. A CNA can never be used as a substitute for a licensed nurse. CNAs can work in an assistant capacity to the licensed nurses in the PACU, as directed by the PCS.

				www.calnurse.org March 25, 2009 Nursing Practice and Patient Advocacy Alert COMPETENCY VALIDATION What is Competency Validation? Competency validation is a requirement under Title 22. One of the functions of the California Code of Regulations, Title 22 is to set minimum requirements for how acute care hospitals are administered, staffed and equipped. Section 70214 of Title 22 defines competency validation, for registered nurses, as a determination based on the satisfactory performance of the following: (1) The statutorily recognized duties and responsibilities of the Registered Nurse, as is set forth in Title 22 Section 70215, the Nursing Practice Act and the Standards of Competent Performance; AND (2) Standards specific to each patient care unit (required by law in AB 394, Title 22, Section 70217 and 70213(c)). Why is it important to every RN? NO more “a nurse is a nurse is a nurse.” Unit Specific Standards Title 22, Section 70213 requires that hospitals develop written policies and procedures which include competency standards for each nursing unit. These unit specific standards must include elements of competency validation for Registered Nurses and all other patient care personnel. This regulation also requires annual written performance evaluations which measure individual performance against the unit’s competency standards. Current competency is demonstrated by the direct observation of the Registered Nurse by another Registered Nurse with current, demonstrated, validated competency in the relevant patient population and unit. Rapid Deployment Plan This means there has to be a plan to obtain additional staff to assist in a crisis. The hospital is required to develop and implement mechanisms for “rapid deployment” of nursing personnel when any “labor intensive” event occurs which prevents nursing staff from providing attention to all assigned patients. Labor intensive events include multiple admissions or discharges or an emergency health crisis, such as a patient whose condition unexpectedly deteriorates. www.calnurse.org March 25, 2009 AB 394 Legal Requirements: No registered nurse shall be assigned to a nursing unit or clinical area unless that nurse has first received orientation in that clinical area sufficient to provide competent care to patients in that area, and has demonstrated current competence in providing care in that area. Patient Assignments and Competency Validation If you are a staff nurse who is FLOATED, these regulations mean that your orientation and evaluation are to be compared to criteria specific to a particular nursing unit. When you are given a patient care assignment, or if you are FLOATED, Title 22 regulations say you cannot be given full responsibility for a patient assignment unless you have demonstrated competency in the patient care standards specific to the particular unit on which you are given the assignment. This means, for example that you may not accept an assignment which requires skills for which your competency has not been validated. If you have never been oriented and demonstrated the ability to perform a particular procedure, for example, management of an intra-aortic balloon pump, you may not be assigned responsibility for the care of such a patient. When floated, it means that, for example, that a med/surg nurse is not a perinatal nurse and a perinatal nurse is not an oncology nurse. However, you may properly be given an assignment, with a resource RN competent on that specific unit, to perform those functions for which your competency has been validated. Until competencies specific to a given unit are demonstrated, you may not be made responsible for complete patient assessment, planning and evaluation of care, or patient education. You may not be included in the count for the purpose of complying with the minimum nurse to patient ratio for that unit; however you may be added as determined by the patient classification (acuity) system. A nurse is a nurse is a nurse is not a valid approach to staffing. If you are responsible for making patient care assignments, these regulations mean that you cannot assign full responsibility for a patient care assignment to any patient care personnel, RN, LVN or unlicensed personnel, float, per diem or registry, who has not completed an orientation and been determined to be competent in the standards specific to your unit. Such personnel may be given assignments for which competencies have been validated, but must also be assigned a resource nurse. Resource nurses are RN’s who have completed orientation and competency validation for the particular unit. www.calnurse.org March 25, 2009 WHAT IF MY FACILITY IS NOT FOLLOWING THE REGULATIONS? Title 22 regulations addressing competency validation became effective in late 1996. If you believe your facility is not complying with the regulations compliance, fill out ADO forms whenever the opportunity presents itself. Inform your CNA labor representative or CNA Nursing Practice. Failure to comply with these regulations is a violation of Title 22. CNA Fresno (559) 437-9996 CNA Headquarters/Oakland (510) 273-2200 CNA Sacramento (916) 446-5021 CNA San Jose (408) 920-0290 CNA San Diego (619) 516-4917 CNA Glendale (818) 240-1900

				The ratios represent the maximum number of patients assigned to any  one nurse at any one time. It is CDHS’ intent not to permit averaging the numbers of patients and nurses during a single shift, nor averaging over time. This prohibition of averaging is consistent with the way existing ICU and NICU nurse-to-patient ratios have been interpreted and enforced since they were put in place over 26 years ago. The 1:2 ratio in those units has historically been interpreted to mean that an individual nurse in an ICU may not have a patient assignment that exceeds two patients at any time. To deviate from that interpretation of the ratios in the new regulations would cause enormous confusion for both providers and working nurses. Additionally, if CDHS were to permit averaging (as an alternative approach), there would effectively be no limit on the number of patients who could be assigned to one nurse at any given time. For example, a medical/surgical unit with four bedside nurses and 24 patients would be in compliance with an average ratio of 1:6 during that shift. However, if acuity dictated that three of those patients receive 1:1 care, then one nurse could theoretically become responsible for the care of the remaining twenty-one patients. As an example of averaging over time, the same 24 bed unit could be staffed with 6 nurses on day shift, 4 nurses on evening shift, and 2 nurses on the night shift. In that scenario, the unit would be in compliance with an average ratio of 1:6 over the 24 hour period. The actual care provided, however, would be 1:4 on day shift, 1:6 on evening shift, and 1:12 on night shift. While facilities always have the option of increasing staffing above the minimum required levels as in the day shift example above (and indeed the obligation to increase staffing in response to patient acuity according to the PCS) the regulations are written to prevent, at any time, the assignment of fewer nurses to care for patients than the minimum level specified in these regulations.