Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert | November 11, 2020

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  1. Five Days until the Affordable Care Act is in Front of the Supreme Court
  2. Members of Congress Write CMS Urging Restoration of Nurse Aide Training Requirements for Nursing Facilities
  3. Nursing Facilities and COVID: Staffing Matters
  4. Policy – Medicare’s Regulatory Response to the COVID-19 Crisis

Five Days until the Affordable Care Act is in Front of the Supreme Court

In five days, on November 10, the Supreme Court hears arguments about the constitutionality of the Affordable Care Act (ACA) in California v. Texas. This ongoing litigation challenges the ACA’s individual mandate, but raises questions about the entire law’s survival, and could result in dismantling the entire ACA.

While the ACA’s changes to the individual insurance market and its expansion of Medicaid have been the focus of much media coverage, the law has affected every part of the health care system, including Medicare. The ACA is woven into Medicare, with over 165 provisions affecting the program. Many of these provisions help beneficiaries and strengthen Medicare’s financial well-being. Striking down the ACA would have disastrous ramifications for Medicare beneficiaries and the U.S. health care system as a whole.

In a series of CMA Alerts leading up to the Supreme Court oral argument, the Center has been highlighting some of the harm that undoing the ACA would bring to Medicare and Medicare beneficiaries. If the Supreme Court strikes down the ACA, then important life-saving preventive services would no longer be available to Medicare beneficiaries for free. Undoing the ACA would also jeopardize the fiscal gains made to Medicare under the ACA, harming Medicare’s long term financial stability. Undoing the law also threatens prescription drug coverage for millions of Medicare beneficiaries. Section 1557 of ACA prohibits discrimination against individuals on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities; dismantling the ACA also puts those important protections at risk.

The Center for Medicare Advocacy strongly opposes dismantling the ACA and the lawsuit that seeks to do so on unmerited grounds. The Center joined AARP and Justice in Aging in submitting an amicus brief in support of California and the other states defending the ACA against the lawsuit now at the Supreme Court. The brief highlights the ACA’s key protections for older adults and the devastating consequences that would ensue if the law is nullified.

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Members of Congress Write CMS Urging Restoration of Nurse Aide Training Requirements for Nursing Facilities

In an October 30, 2020 letter, Congressman Lloyd Doggett (D, TX) and colleagues asked Seema Verma, Administrator of the Centers for Medicare & Medicaid Services (CMS), to promptly reinstate nurse aide training requirements that have been suspended since March 2020, to gather, and make publicly available, information about temporary nurse aides with minimal training who have been working in nursing facilities during the pandemic, and to ensure that temporary aides fully meet training requirements (i.e., prohibit “grandfathering” of temporary nurse aides).[1]  They also seek reinstatement of training requirements for paid feeding assistants. The letter underscores the critical importance of having trained and competent workers provide care to residents and the dangers – to residents and workers alike – of allowing minimally trained workers to be caregivers.

Nurse aides provide most of the direct care that nursing home residents receive. The requirements that facilities not use aides for more than four months unless they are trained and determined by the state to be competent[2] is one of the major accomplishments of the 1987 Nursing Home Reform Law.[3] Federal regulations set out a minimum of 75 hours of training,[4] although many states require more hours of training. 

In March 2020, in response to the public health emergency, CMS waived the aide training requirements, among other longstanding rules.[5] Immediately, the American Health Care Association (AHCA) announced that it had created a free on-line eight-hour training and competency evaluation program for temporary nurse aides.[6] Many states explicitly or implicitly gave approval to the eight-hour program, authorizing individuals who passed the eight-hour program to work as temporary aides in nursing facilities.[7]

In June, CMS reinstated the requirement, also waived in March, that nursing facilities report their staffing levels electronically to CMS, through the Payroll-Based Journal (PBJ) system, effective with the second quarter of 2020 (April-June 2020).[8] In a conversation with residents’ advocates, CMS confirmed that it could not revise the PBJ system to account for temporary aides with less than 75 hours of training and that facilities could report these temporary workers as if they were fully certified nurse aides (CNAs). CMS also confirmed that it had no plans to identify how many individuals with minimal training were providing quasi-aide care to residents or what types of care they were providing.[9]

Advocates’ concerns about minimally trained workers were intensified by a training program about staffing that CMS’s Quality Improvement Organizations conducted for nursing homes on October 20, 2020.[10]  One of the two nursing home representatives who spoke at the session described successfully employing workers with eight hours of training. He said the facility paid these workers less than certified nurse assistants, reported them to CMS as if they were fully trained CNAs, and expected them to be permanently grandfathered as aides, if legislation passed in the state. Aside from on-line training, he said the temporary nurse aides followed a CNA to learn how to do the job. In a separate communication, the Center for Medicare Advocacy (Center) also heard that 86,000 individuals had taken AHCA’s eight-hour training course.

The Center views the federal nurse aide training and competency evaluation requirements as among the most significant achievements of the 1987 Nursing Home Reform Law. Jeopardizing the requirement that nursing home staff know how to provide the care that residents need threatens the health and safety of residents and workers and undermines the integrity of the Reform Law. Congressman Doggett and his colleagues are correct to call on CMS to restore – and enforce – aide training requirements. The Center for Medicare Advocacy strongly supports the immediate reinstatement of aide training rules.

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[1] https://doggett.house.gov/sites/doggett.house.gov/files/CMS_Nurse%20
Aide%20Training%20Letter_10%2030%2020_Signed.pdf.
[2] 42 U.S.C. §§1395i-3(b)(5)(A)(i), 1396r(b)(5)(A)(i), Medicare and Medicaid, respectively.
[3] 42 U.S.C. §§1395i-3(a)-(h), 1396r(a)-(h).
[4] 42 C.F.R. §§483.35(d)(1)-(7).
[5] CMS, “Long Term Care Facilities (Skilled Nursing Facilities and/or Nursing Facilities): CMS Flexibilities to Fight COVID-19” (Mar. 28, 2020, most recent update, Jul. 9, 2020), https://www.cms.gov/files/document/covid-long-term-care-facilities.pdf.
[6] AHCA, “Temporary Nurse Aide,” https://educate.ahcancal.org/products/temporary-nurse-aide.
[7] “Who’s Providing Care to Nursing Home Residents?” (CMA Alert, Jul. 29, 2020), https://medicareadvocacy.org/whos-providing-care-to-nursing-home-residents/.  The full report, Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic, is available at to: https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf.
[8] CMS, “Changes to Staffing Information and Quality Measures Posted on the Nursing Home Compare Website and Five Star Quality Rating System due to the COVID-19 Public Health Emergency,” QSO-20-34-NH (June 25, 2020), https://www.cms.gov/files/document/qso-20-34-nh.pdf.
[9] “CMS Will Not Track Minimally Trained Aides at Nursing Facilities” (CMA Alert, Aug. 6, 2020), https://medicareadvocacy.org/cms-will-not-track-minimally-trained-aides-at-nursing-facilities/.
[10] CMS, “National LAN Event: Staffing Challenges & Solutions: Insights from the Frontline” (Oct. 20, 2020), https://qioprogram.org/sites/default/files/National%20LAN%20Presentation_10-20-2020%20v3_FNL_508_1.pdf.

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Nursing Facilities and COVID: Staffing Matters

Countering industry claims that COVID infection rates in nursing facilities are largely a matter of geography, Bloomberg Law reports that five nursing facilities within 25 miles of the Nashville city center, operated by the New Jersey-based CareRite Centers, “suffered an infection rate more than three times that of the metro area’s 26 other homes.”[1] Two of the state’s three largest COVID-19 outbreaks are in CareRite facilities. CareRite’s nine Tennessee nursing facilities have 4% of Tennessee’s nursing home beds, but 10% of the state’s COVID cases and 11% of the state’s nursing home deaths. 

Poor staffing levels appear key to the chain’s high infection and death rates during the pandemic.  The four CareRite facilities in Tennessee that each have more than 100 infections “averaged only 22 minutes of RN time per resident each day, about half the national average of 41 minutes” (as of the fourth quarter of 2019). The company’s five other Tennessee nursing facilities, with 25 to 61 infections each, average 38 minutes of RN time per resident per day. CareRite staff also report that the company reduced supplies, such as linens, towels, blankets, gloves, and gowns, and reduced housekeeping staff after they acquired the Tennessee facilities four years ago.

Bloomberg Law reports that at least 499 resident and staff members have died from COVID in CareRite’s 29 facilities in four states. CareRite’s 15 facilities in New York, with 3000 beds, have had 336 COVID-related deaths, representing “a fatality rate that’s 75% higher than the average for nursing homes in the state.” CareRite’s four Florida facilities have seen 73 fatalities, “also above the average.”

While the geographic location of a nursing facility has relevance to COVID-19, factors within the control of the nursing facility matter.

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[1] Ben Elgin, “Cost-Cutting at America’s Nursing Homes Made Covid-19 Even Worse,” Bloomberg Law (Oct. 31, 2020), https://news.bloomberglaw.com/health-regulation-and-compliance/cost-cutting-at-americas-nursing-homes-made-covid-19-even-worse

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Policy – Medicare’s Regulatory Response to the COVID-19 Crisis

Center for Medicare Advocacy Policy Attorney Kata Kertesz published an article “Policy – Medicare’s Regulatory Response to the COVID-19 Crisis” in the Fall 2020 issue of Health Progress, the Journal of the Catholic Health Association of the United States.

The article is available at: https://medicareadvocacy.org/wp-content/uploads/2020/11/Medicares-regulatory-response-to-the-covid-19-crisis.pdf (Article Copyright © 2020 The Catholic Health Association of the United States, Reprinted by permission of Health Progress, Fall 2020)

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