Since March 20, 2020, the Centers for Medicare & Medicaid Services (CMS) has waived the requirement, set out in the Medicare and Medicaid statutes and regulations, that restrict nursing facilities from using nurse aides for more than four months unless they have completed a training program of at least 75 hours. As reported in last week’s CMA Alert, a number of states have expressly authorized use of the American Health Care Association’s eight-hour on-line training program for temporary nurse aides who provide direct care to residents.
CMS has reinstated the requirement for nursing facilities to report staffing levels, using the Payroll-Based Journal (PBJ) system, effective for the second calendar quarter (April-June 2020).
However, CMS has told the Center for Medicare Advocacy and other residents’ advocates that the PBJ system does not have the capacity to separately identify aides with less than 75 hours of training. Consequently, staff hired under the waiver with less than 75 hours of training will be reported as if they were aides in training. Moreover, CMS has not created any new system to track who the minimally trained workers are, how many there are, which facilities they work in, and what tasks they are performing and how well.
The Center for Medicare Advocacy believes that accurate information about workers in nursing homes is essential to understanding who is providing care to residents in facilities during the pandemic. In addition, the Center is concerned about what will happen to these workers when the public health emergency ends. Will they be fired, grandfathered in, or required to complete their states’ aide training and competency evaluation programs?
August 6, 2020 – T. Edelman
 42 U.S.C. §§1395i -3(b)(5), 1396r(b)(5), Medicare and Medicaid, respectively; 42 C.F.R. §§483.35(d)(1)(i), (ii), 483.35(c).
 Center for Medicare Advocacy, “Who’s Providing Care to Nursing Home Residents?” (CMA Alert, Jul. 29, 2020), https://medicareadvocacy.org/whos-providing-care-to-nursing-home-residents/. Full Report, Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic available at https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf.
 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.