BU 17 – Health Facilities Evaluator Nurses
Weekly Update: Monday, August 10, 2020
On August 4, 2020, our Union met with representatives from CDPH about outstanding notices. CDPH answered many of our outstanding questions and, based on our previous complaints, they provided us with a second revised duty statement. We are continuing the meet and confer process and scheduling another follow-up meeting. There are some outstanding questions that still need to be answered. Management indicated they would attempt to draft new language for the duty statement due to our concerns about the conflict of interest issues related to instruction and technical assistance.
Please continue to help us circulate and ask your coworkers to sign the online petition regarding the new duty statement. We already have over 100 signatures in just a few days!
At the table representing our Union was Felicia Barbato, Nicola Callahan, Andres Villatoro, Kimberly Cowart, and Mo Kashmiri. The management representatives were Christina Montserrat, Susan Espinoza, and Kristanna Rivera.
Management presented us a second revised duty statement. We appreciated the changes that were made, but also made it clear that the changes did not go far enough. We remain concerned about the conflict of interest in performing duties similar to that of a consultant, while also doing the enforcement role. We even referenced the story of a HFEN who is leaving the State to take another position because they feel so torn about the new changes. We stated that the lines need to be drawn more clearly to separate the two roles.
Our team vigorously argued that this change and new duty statement is a potential violation of the law, citing California Health & Safety Code 1417.3, the 1987 Nursing Home Reform Act (42 Section 1395i-3), and the Nurse Practice Act. Management argued that we were interpreting the law too broadly since they are not asking HFENs to be trainers, consultants, or contractors. They also stated that they are not asking staff to get a second job as a consultant, because the job of a HFEN is compliance. Kristanna also stated there was a Department of Consumer Affairs (DCA) ruling regarding the legal issues we raised. However, when pressed, they were not aware of the details. They said that they didn’t have an official response to the legal arguments at this time. Our Union will be submitting a follow-up memo regarding the legal issues and the outstanding questions that haven’t been answered yet.
In the second revised duty statement, the incumbent “Provides instruction, and technical assistance for facility leadership and their staff regarding state and federal regulations.” We asked management to define the terms “instruction” and “technical assistance” as used above and to clarify what they meant by that statement. They thought it was obvious and was already answered in the questions below.
We argued that the department wasn’t clear on the expectations, and that we have conflict of interest concerns that they are having us do duties that would normally be done by consultants at the same time we are doing enforcement activities.
We also asked them to remove the sentence stating that HFENs “conduct post-survey activities including reviewing health care facility plans of corrections.” We stated that reviewing health care facility plans is a duty usually performed by management. However, they argued that the language doesn’t say you are approving the health care facility plan, you are simply reviewing it.
Our team questioned the need to change the duty statement based on a temporary emergency, but their response was that this was what is needed right now. Management also stated that there is a duration to this duty statement (8-12 months), but this could change as the external COVID environment changes. For example, if a vaccine was approved, things could shift again.
Below are the answers to our outstanding questions from the last meeting.
Q1: The notice states, “HFENs will be responsible for providing technical assistance, education, and training on plans of correction and unresolved action items during daily onsite facility visits.” Can you please clarify?
CHCQ response: This quote comes from the notice to the Union and not the Duty Statement. We can remove the word “training” from the notice. HFENs will maintain their role as “regulatory experts” and should be able to provide technical assistance on the process, the regulations, and be able to articulate to the provider why the facility is not in compliance with state regulations.
Q2: Why did management add the word “environmental” to the third sentence under job summary, which starts with “Primary responsibility for uniform application and enforcement…?”
CHCQ response: “Environmental” was added to clarify that, in fact, part of the duties of the HFEN is to “inspect” the environment of the facility to see if it is in compliance with state and federal regulations. This is evident by the fact that HFENs initially conduct a walk-through of facilities and check for general cleanliness of the facility. Similarly, there are environmental checks of the kitchen area that are commonplace. Finally, during the current pandemic, HFENs must be mindful of the facility’s environment to ensure that there are safe areas designated for donning and doffing of contaminated PPE or other infection control (IC) practices.
Q3: How often will HFENs get the supplies of PPE? How does management intend to send out the appropriate PPE to the HFENs? Currently, the PPE is delivered to facilities and going to the office to replace a mask doesn’t sound very efficient.
CHCQ response: PPE is being delivered to the district offices through MHCC. It is not efficient to send to 500 different individual addresses. Staff can pick up multiple supplies at once. CHCQ is routinely surveying stockpiles of PPE in District Offices and will replenish as frequently as is needed.
Q4: For the travel, some HFENs use state cars. How are they sanitizing? Are there enough state vehicles for the travel they are currently doing? How does management ensure they are maintained?
CHCQ response: CHCQ has provided guidance on July 22, 2020, on how to sanitize state vehicles (see attached email). Yes, CHCQ has sufficient state vehicles for current travel conducted. There are currently 97 state vehicles in CHCQ.
Q5: Some HFENs have been told that if state vehicles are available, the HFENs are expected to take it or rent a car, and that the last resort is to use their own vehicle. Is that your understanding?
CHCQ response: Incorrect. This issue came up last year. Staff should use the course of action that costs the State and the HFEN the least amount of time and money. So, if the HFEN lives closer to the facility than the office, they should use their personal car. If the office is on the way to a facility, they should use the state car, and if the facility is a far distance, they can use a rental car.
Q6: We don’t fully understand the second paragraph of the proposed duty statement, under essential functions. It makes it sound like there would be more travel and more time in the facilities. We already enforce, investigate complaints, and we already get complaints about readmission to facilities with COVID. We need more explanation of what this means. Does this paragraph mean that HFENs need to be spending more time in the facilities?
CHCQ response: HFENs already spend about 50% of their time in facilities and 50% writing reports about their visits. As we reduce the time of writing reports by using technology and more efficient processes, yes, surveyors should be able to spend more time in facilities.
Q7: Can you clarify what “providing consistent feedback, instruction, and education” means? (Note: this phrase was changed in the second revised duty statement)
CHCQ response: In this context, the word “education” is meant to convey that HFENs are expected to be able to articulate to providers, primarily during exit conferences, why a violation is being cited. HFENs are the regulatory experts and are called upon to impart this knowledge clearly so that the provider can develop an appropriate plan of correction to address the violation.
Q8: The notice says that it is necessary to “expand the HFENs infection prevention responsibilities in the SNFs”. What does the department see as the expansion? Wouldn’t this create a conflict of interest since they are telling the facilities what to do?
CHCQ response: Due to the pandemic, it has become necessary to provide additional infection control knowledge to HFENs so that they can in turn, impart appropriate knowledge, through their surveillance of providers, to safeguard the lives of residents and patients. HFENs are not telling facilities what to do, but HFENs did need more training and education to adequately recognize IC issues and cite for them.
Q9: The notice states that CDPH had to “shift the primary focus of the HFEN work force to infection prevention education in SNFs and other facilities”. However, under the duty statement job summary, the primary responsibility is for “uniform application and enforcement”. Which one is it?
CHCQ response: Both. The HFEN responsibility will always be enforcement, and we needed more uniform application of all the duties they do. And yes, during COVID, we recognize that more focus needed to be on IC in SNFs.
Q10: There are concerns about increased education around infection control since that is not where their expectation and focus has been in the past. Will the department be providing additional training to HFENs regarding infection control? If the focus of the job is being modified to focus more on infection prevention education and control, how can HFENs be expected to do that if it wasn’t their focus in the academy and it wasn’t a large part of the job before?
A: On 6/23/2020, SEIU was provided the training curriculum for the HFENS, HAI COVID-19 Training. Needs to be reiterated.
Q11: What is the status of conversations with CalHR to implement potential incentives such as pay increases, etc.?
A: Kristanna Rivera is still working with CalHR.
DUTY STATEMENT – JOB SUMMARY
Q12: Why was the word “and agencies” added to the third line? What is this referring to if it’s distinct from health care facilities? (UNION NOTE: This was modified in the second revised duty statement.)
CHCQ response: The word “agencies” was added for clarity. Most of the regulated entities CHCQ oversees are referred to as “facilities,” but some entities such as home health agencies are referred to as “agencies.”
Q13: On the 4th line from the bottom – Does management plan on changing the wording that “incumbent must have a valid state driver’s license, good driver’s record, and is expected to drive the car safely”? In our discussion, it was stated that having a driver’s license is not a condition of employment and those that don’t have a license can have someone drop them off or use public transit.
CHCQ response: Edited duty statement to clarify requirements are related to when a HFEN is operating a vehicle for state business. A driver’s license is not a condition of employment.
Q14: Regarding the last sentence under job summary, you noted that this should have been worded differently to reflect that the appropriate PPE for the particular site will be required.
CHCQ response: Edited the duty statement to provide further information.
Q15: What is the update of the fit-testing contract?
CHCQ response: Contract has been executed and staff have begun fit testing.
DUTY STATEMENT – SPECIAL REQUIREMENTS
Q16: The conflict of interest (COI) box should have been checked. You indicated this was a mistake on your part.
HRD Response: Yes, the COI box should be checked and the change was made to the second revised duty statement.
UNION NOTE: During the meeting, management clarified that this conflict of interest refers to category 7, which covers investments and business positions in business entities, and all sources of income (including receipt of loans, gifts, and travel payments) – from sources that are regulated, subject to testing, certification, research, audit, investigation, or license, by the employee’s office/section; if there is no section, then the reporting scope is the employee’s branch, and if there is no branch, the reporting scope is the employee’s division.
DUTY STATEMENT – ESSENTIAL FUNCTIONS
Q17: 2nd paragraph – “Incumbent will not only address infection control but will also provide quality and safety oversight to SNFs and other health care facilities”. What does “quality and safety oversight” mean specifically?
CHCQ Response: Quality and safety oversight is what we do — we enforce and hold facilities accountable for high standards of quality and safety through surveying their regulatory compliance. Regulations for licensing and certification are to ensure that there is good quality and safety systems in place.
Q18: 2nd paragraph – Shouldn’t the final sentence be removed since it is a duplicate of the language under 5% on the next page?
HRD Response: Yes, this statement was duplicated and was removed.
We asked many times whether HFENs were expected to do a consultant role. HR clearly stated HFENs are not consultants, and their primary role is to enforce. Management asked us to provide examples of when HFENs have gone out on surveys and aren’t clear on the expectations. They also asked us to provide examples of when there have been conflicts of interest while out in the field.
UNION NOTE: Please provide us any specific examples of conflicts of interest while you are out in the field.
C-2020-290-CDPH (COVID Testing Out-of-Class at SNFs)
We also started discussing the notice regarding COVID Testing at SNFs as part of an out-of-class assignment. Below are the answers we were given to our questions. We still have a few questions that will need follow-up. We hope to finish addressing this notice at our next meeting, which has not been scheduled yet.
Q1: Is this a voluntary process?
Q2: How many HFENs do they need to volunteer?
A: A maximum of 20 HFENs across the state would be assisting. It is a select group of people since they don’t need that much assistance. I think they only need 1-2 in each of the regions.
Q3: How many have volunteered so far?
A: The Center did a call-out to see who was interested. I don’t have information on the number of people who volunteered or that list. We will have to get back to you on that.
Q4: What are the roles and responsibilities of the volunteers?
They will be working alongside the other staff doing the COVID testing. They will be performing the test and doing the case management of the COVID tests.
Q5: If they don’t get enough volunteers, will people be forced into this new program?
A: This is an opportunity to get out-of-class compensation. As such, we think they will have sufficient volunteers to perform the assistance needed.
Q6: The last paragraph of the notice says that HFENs selected for this program need to have a “medical clearance.” Why is that needed?
A: There is a medical questionnaire required by CalOSHA. Depending on the answers to the questionnaire, they could have a physical exam, but for most people they just need to complete the survey. It is NOT the pre-employment medical clearance that HFENs used to have to complete. It is not the State medical clearance; it is just a questionnaire.
Q7: If someone does not pass the HAI prevention competency, will they be able to retake it and how often?
A: It’s a self-study. They complete a section and then take a quiz. They can take the quiz as many times as they need to within the studied pieces that require a quiz. There’s not a lot of quizzes, just a few.
Q8: Notice said they would work out-of-class for the Public Health Notice II (PHN2) position. The pay ranges are different, and the salary ranges are different. Will the department be paying the difference between the salaries?
A: Yes. There is a pay difference. They will receive out-of-class pay based on the salary determination.
Q10: Will they be required to perform any other type of duties in the PHN2 classification? What duties (other than testing) will they be required to perform?
No. They won’t be required to do other PHN responsibilities. This is just related to the COVID testing.
Q11: To work as a PHN2 requires a certification. Do volunteers need to have that certification? Will the department be providing a way to become certified?
A: We are not requiring they get that certification or move through that process. It’s just a temporary assignment for this one purpose. PHN2 usually does require certification, but because this is an out-of-class assignment, so they don’t have to meet the minimum qualifications.
Q12: Has this notice already been implemented? If so, what date was that done?
A: Although the original notice said it might start on July 15th,
we don’t believe they have started this program yet. One of the
contingencies before moving forward is the fit-testing for the
N95s, and that contract was just executed on July 23rd. We are
getting that in place and getting everything set-up because a
part of fit-testing is the medical questionnaire that has to be
reviewed by a physician. We also have to do respiratory training
first and then do the actual fit-testing for the respirator.
On July 30th, the Union received a notice that CDPH is implementing a department-wide COVID testing policy. We are still determining a date to meet regarding this notice and compiling our list of concerns, issues, and questions. Please send us any input you would like to have considered.
As always, if you have concerns or questions, please reach out to us. via email firstname.lastname@example.org
If there is an immediate safety situation, please call the Member Resource Center (MRC) at 866.471.SEIU (7348). They are working remotely during the pandemic, but you can leave a voice mail and they will call you back.