The Center for Medicare Advocacy is concerned that the Centers for Medicare & Medicaid Services (CMS) is undermining one of the key innovations of the 1987 Nursing Home Reform Law – the requirement that all nurse aides, who provide most of the direct hands-on care for residents, be trained and competent before they are allowed to provide care.[1] While not reinstating blanket waivers to all nursing facilities for nurse aide training requirements, as the American Health Care Association (AHCA – the national nursing home trade association) requested earlier this month,[2] CMS is now authorizing individual nursing facilities and states to request waivers as long as the public health emergency remains in effect.[3] Facilities and states, on behalf of the entire state or counties, must submit documentation to CMS about barriers to meeting either nurse aide training or testing requirements, or both.
The Nursing Home Reform Law prohibits facilities from using individuals as aides for more than four months unless they take the state-required training, a minimum of 75 hours, and pass the state’s competency evaluation test.[4] At the beginning of the COVID-19 pandemic, CMS gave blanket waivers of nurse aide training (but not competency evaluation) requirements, meaning that all facilities throughout the country were automatically excused from meeting the federal law’s training requirements.[5] The Center was concerned that waivers would mean that untrained aides would provide care to residents, endangering and harming residents and themselves. The concern increased as AHCA immediately created an on-line training program of eight hours for a category of worker that it called “temporary nurse aides” (TNAs) and many states accepted AHCA’s limited training as sufficient during the public health emergency.[6]
In April 2021, CMS advised that when it lifted the blanket waiver of nurse aide training requirements, aides would have four months to complete their state’s required training. CMS “strongly encourage[d] states and nurse aides to explore ways to complete all the training and certification requirements as soon as possible.”[7] However, CMS simultaneously suggested that “states evaluate their NATCEP [nurse aide training and competency evaluation program] and consider allowing some of the time worked during the PHE to count toward the 75-hour training requirement.”[8] The Center opposed this gratuitous suggestion to states that they could count time worked as a TNA as if it were time spent in state-mandated training.[9] The Center was concerned that essentially untrained workers would become permanent aides without being trained in any meaningful way.
CMS finally lifted the nurse aide training waiver on April 7, 2022,[10] requiring aides hired after that date to complete training and testing by October 6, 2022. In lifting the waiver, CMS recognized that blanket waivers “removed the minimum standards for quality that help ensure residents’ health and safety are protected.”[11] It expressed concern that waiver of nurse aide training rules, in particular, contributed to “significant concerns with resident care that are unrelated to infection control (e.g., abuse, weight-loss, depression, pressure ulcers, etc.).”[12] These care concerns were identified in on-site surveys.
However, the new guidance, issued August 29, allows waivers of aide training requirements on a facility, state, or county basis. CMS’s new waivers contain few actual requirements. They do not limit nurse aide training waivers to testing (not training), although apparently the major backlog is in states’ testing capacities; they do not identify criteria for granting or rejecting waivers; and they do not make waiver requests (and decisions about waivers) public.
What’s most troubling is that, according to AHCA, more than 300,000 TNAs, who received eight hours of on-line training, now work in nursing homes and most are seeking full certification as nurse aides.[13] Although ill-prepared for the difficult and critically important job of certified nurse aide, TNAs could become part of the permanent nursing home workforce for the foreseeable future.
September 1, 2022 – T. Edelman
[1] 42 U.S.C. §§1395i-3(b)(5), 1396r(b)(5), Medicare and Medicaid, respectively; 42 C.F.R. §483.35(d)
[2] August 9, 2022 letter to HHS Secretary Xavier Becerra from AHCA CEO and President Mark Parkinson, https://www.ahcancal.org/News-and-Communications/Fact-Sheets/Letters/AHCA-NCAL-Letter-HHS-Aug2022.pdf; see “Nursing Home Trade Group Asks for New Waiver of Nurse Aide Training Requirements” (CMA Alert, Aug. 18, 2022), https://medicareadvocacy.org/nursing-home-trade-group-asks-for-new-waiver-of-nurse-aide-training-requirements/
[3] CMS, “Update to COVID-19 Emergency Declaration Blanket Waivers for Specific Providers,” QSO-22-15-NH & NLTC & LSC (Apr. 7, 2022, revised 8/29/2022), https://www.cms.gov/files/document/qso-22-15-nh-nltc-lsc-revised.pdf
[4] 42 U.S.C. §§1395i-3(b)(5), 1396r(b)(5), Medicare and Medicaid, respectively; 42 C.F.R. §483.35(d)
[5] CMS, “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” (updated Aug. 18, 2022), https://www.cms.gov/files/document/covid-19-emergency-declaration-waivers.pdf (nursing home waivers at pages 16-22)
[6] “Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic” (CMA Report, Jul. 23, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf
[7] CMS, “Updates to Long-Term Care (LTC) Emergency Regulatory Waivers issued in response to COVID-19,” QSO-21-17-NH (Apr. 8, 2021), https://www.cms.gov/files/document/qso-21-17-nh.pdf
[9] “Who Provides Care for Nursing Home Residents? An Update on Temporary Nurse Aides” (CMA Alert, Sep. 15, 2021), https://medicareadvocacy.org/special-report-update-on-tnas/, and (CMA Report, Sep. 15, 2021), https://medicareadvocacy.org/wp-content/uploads/2021/09/SNF-TNA-Report-09-2021.pdf
[10] CMS, “Update to COVID-19 Emergency Declaration Blanket Waivers for Specific Providers,” QSO-22-15-NH & NLTC & LSC (Apr. 7, 2022), https://www.cms.gov/files/document/qso-22-15-nh-nltc-lsc.pdf
[11] Id.
[12] Id.
[13] Tony Pugh, “Nursing Homes Win Fresh Reprieve From Training Requirement,” Bloomberg Law (Aug. 30, 2022), https://news.bloomberglaw.com/pharma-and-life-sciences/nursing-homes-win-fresh-reprieve-from-training-requirement