Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

Aides’ Training Waiver Must End for Nursing Home Safety, CMS Told

Dec. 10, 2021, 10:35 AM

Advocates for nursing home residents say it’s past time for the Biden administration to reinstate mandatory federal training requirements for nursing aides who handle the bulk of direct patient care at the facilities.

To ensure sufficient staffing levels at the onset of the Covid-19 pandemic, the Trump administration waived a rule that limited employment for temporary nursing aides to four months at Medicare- and Medicaid-certified facilities unless they completed state-approved training of at least 75 hours.

In April 2021, the Centers for Medicare & Medicaid Services updated the guidance, to say “that states evaluate their NATCEP [Nurse Aide Training and Competency Evaluation Program] and consider allowing some of the time worked by the nurse aides during the public health emergency to count toward the 75-hour training requirement.”

Since then, many states have done so—with some requiring little additional training beyond an eight-hour online training course, according to recent report by the Center for Medicare Advocacy.

While a CMS alert in November told state inspectors to watch for nurses and nursing aides who lack “appropriate competencies,” including “the ability to identify and address a resident’s change in condition,” the agency did not lift its waiver of the four-month employment limit.

The CMA and other advocacy groups fear that unless the CMS restores the pre-pandemic training requirements, care of vulnerable residents, as well as the safety of nursing assistants who already endure high on-the-job injury rates, could be at risk. They’ve been asking CMS for action since February.

“We want CMS to rescind the waiver and require that nurse aides working in the facilities be fully trained and certified,” said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care.

The CMS should also “be giving facilities notice that, ‘Hey, at some point this waiver’s going to be lifted and you need to ensure that your staff are fully trained and certified, so that you’re not scrambling at the very end to figure out how to get all these people into compliance,’” she said.

The CMS, in a statement, said it shares the concerns of the advocates and would “end waivers as soon as possible, when they are no longer necessary to ensure that sufficient health care items and services are available to meet the needs” of federal health program beneficiaries.

The agency said it would continue monitoring the need for all regulatory waivers during the pandemic by “assessing the status of COVID-19 infections, vaccination rates, and resident outcomes in non-COVID-related areas,” the statement said.

Pandemic Strain

Nearly 187,000 residents had died from Covid-19 at nursing homes and other long-term care facilities, as of Nov. 16, according to the Kaiser Family Foundation. The carnage, along with the industry’s history of low pay, poor benefits, and difficult working conditions, has led 221,000 nursing home workers to leave their jobs since the pandemic began.

That industry labor shortage, which preceded the pandemic, was a key factor in issuing the training waiver in March 2020.

Nursing aide training encompasses numerous areas, including: medication side effects, skin integrity, dementia care, how to respond to emergencies, infection control, basic nursing and personal care skills, and residents’ rights.

“You’re not just talking about helping people get in a wheelchair and putting a plate in front of them,” said Eric Carlson, directing attorney at Justice in Aging. “It’s significantly more complicated than that and the training requirements reflect the difficulty of the job.”

In a statement, a CMS spokesperson said it issued the November alert to state inspectors out of concern for residents’ care.

State Inspections

Federal regulations require nurse aide training and competency evaluation programs to be approved by the states.

While the waiver is in effect, the CMS wants state inspectors to pay more attention to federal requirements that facilities have “sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident,” it said in the statement.

That would be determined by resident assessments and individual plans of care and take into account the number, acuity, and diagnoses of a facility’s residents, according to the statement.

But because nursing home inspectors don’t test staff for competency, they would only be able to issue a citation for inadequate training if a violation had already been reported or if an injury to a resident had already occurred, Carlson said.

“It seems a bit backwards and insulting” for the CMS to “continue the waiver of the training standards and then purportedly emphasize nurse aide competency” during facility inspections, he said.

“It’s going to be assessed after the inadequately trained staff fails in some way and a resident is harmed because of that,” Carlson said. This approach is “a much less effective way to ensure competency” and “can’t come close to the efficacy of reinstating existing training standards.”

The nursing home industry’s largest trade group, the American Health Care Association and the National Center for Assisted Living, supports the CMS position and said in a statement that the waiver “should remain intact at least through the duration of the Public Health Emergency.”

The organization, which developed the eight-hour online training course, added that “temporary training courses during a global pandemic help the profession tremendously with the already exacerbated workforce shortage, and temporarily suspending occupational licensing laws and related requirements in emergency situations, such as a global pandemic, is a common approach states take to help manage crises.”

The group also supports the CMS allowing states to count work experience toward the 75-hour training requirement for nursing aides.

“On-the-job training with proper supervision is valuable experience that should count towards the requirement. There’s no better way to learn than hands-on experience,” the AHCA/NCAL statement added.

Worker Safety

There is concern, too, that the suspended federal training requirements could put nursing assistants at risk.

Already, they are three times more likely than typical U.S. workers to get injured on the job, according to the Paraprofessional Healthcare Institute, a New York-based nonprofit that advocates for caregivers.

And CMA said “minimally trained workers are more likely to be injured than workers who have been more comprehensively trained,” in a recent special report. “It appears inevitable that minimally trained temporary nursing aides will be injured.”

The PHI supports lifting the waiver and then restarting the four-month training limit so all temporary nursing assistants who’ve been on the job during the pandemic “can transition can into permanency, provided they pass the exam and pass any other requirements,” said Robert Espinoza, the group’s vice president of policy.

“But we do not believe that these temporary nursing assistants should be able to work indefinitely,” he said.

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com