When the Nursing Home Reform Law was enacted in 1987, half of the states did not require that nurse aides receive any training in how to do their jobs. One of the major changes mandated by the Reform Law was the requirement that every nurse aide be trained, with a minimum of 75 hours of training, and pass a state competency test before providing care to residents.[1] The change was important and comprehensive. A final rule, separate from the standards of care for nursing facilities, addressed state and federal requirements for nurse aide training programs.[2] The Law allows a nursing facility to train its own aides, if approved by its state’s nurse aide training and competency evaluation program. However, under certain (dramatically changing) circumstances, the federal law prohibits a state from approving a facility-based training for two years. Since the Reform Law was enacted 35 years ago, the nursing home trade associations have been relentless in their efforts to weaken the law so that facilities could train their aides with few, if any, limitations. Multiple efforts to undermine aide training requirements are now underway.
Temporary nurse aides
Most public is the ongoing industry effort to make the temporary nurse aide (TNA) program continue as long as possible, if not indefinitely. The TNA program began in March 2020, when the public health emergency was first declared and the Centers for Medicare & Medicaid Services (CMS) issued blanket waivers of (among many other statutory and regulatory requirements for nursing homes) the federal nurse aide training requirement. CMS did not waive the competency requirement.[3] The American Health Care Association (AHCA) immediately created a free eight-hour on-line training program for a “temporary position intended to address the current state of emergency.”[4] It called the new position temporary nurse aide. Many states allowed aides that met AHCA’s on-line training and testing program to work in facilities as aides.[5]
On April 8, 2021, CMS updated its guidance on several blanket waivers issued in 2020.[6] Although CMS did not end the waiver of nurse aide training requirements, it stated, “the four-month regulatory timeframe will be reinstated when the blanket waiver ends.” Despite its recognition that lifting the waiver would restore longstanding nurse aide training regulations, CMS suggested “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 PHE [public health emergency] to count toward the 75-hour training requirement.” Many states accepted CMS’s explicit, albeit gratuitous, invitation to create new options for TNAs to become fully certified nurse aides (CNAs), without satisfying the states’ normal training requirements.[7]
On April 7, 2022, CMS lifted the waiver on nurse aide training,[8] 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.”[9] It expressed concern, identified during on-site surveys, that waiver of nurse aide training rules, in particular, had contributed to “significant concerns with resident care that are unrelated to infection control (e.g., abuse, weight-loss, depression, pressure ulcers, etc.).”[10]
New guidance issued August 29, 2022, however, created a new waiver opportunity, authorizing waivers of aide training requirements on a facility, state, or county basis.[11] CMS granted statewide waivers to 15 states.[12] AHCA reports that CMS granted “virtually every statewide waiver request” that it received.[13]
Nevertheless, in early October 2022, AHCA asked for reinstatement of the blanket waivers,[14] presenting a rosy and totally unrealistic view of what TNAs do. AHCA wrote, “Temporary nurse aides (TNAs) provide companionship and assistance to residents for non-clinical, everyday tasks.” There is, of course, no evidence that TNAs do such limited work, and in light of AHCA’s claim to have lost 220,00 caregivers during the pandemic, it is far more likely that the 300,000 TNAs (AHCA’s number) are in fact performing duties of certified nurse assistants, but without their knowledge and training.
Legislation pending in Congress, Building America’s Health Care Workforce Act, H.R. 7744, extends the waiver of nurse aide training requirements for “not less than 24 months” after enactment. The bill also “allow[s] for time worked by a nurse aide during the emergency period . . . to count toward the 75 hours minimum training,” and permits competency evaluation to be conducted at a nursing facility if the state “does not offer such an evaluation (in person or online) at least once a week.”[15] AHCA supports the legislation.[16]
Iowa has now cited a nursing facility for allowing untrained aides to provide care to residents.[17]
Two-year ban on facilities’ conducting a nurse aide training program
The Nursing Home Reform Law prohibits states from approving a nursing facility’s nurse aide training programs if the facility, within the previous two years, was out of compliance with the requirements of subsections (b), (c), or (d) (provision of services, residents’ rights, administration, respectively).[18]
That broad prohibition was dramatically watered down, even before it went into effect, and has continued to be amended over time.
Proposed rules issues March 23, 1990 implemented the Reform Law’s original statutory language:
(2) The State may not approve a nurse aide training and competency evaluation program or competency evaluation program conducted by a skilled nursing facility or a nursing facility that has been found out of compliance with any of the requirements for participation in part 483 subpart B within any of the 24 consecutive months prior to the State’s review of the facility based program.[19]
Before final rules were published, however, the Omnibus Budget Reconciliation Act of 1990 amended the statutory authority for disapproving state approval of facility training programs.[20] Section 4008(h)(1)(F)(i) substituted new language for Medicare, as a Miscellaneous and Technical Provision, with dramatically different federal criteria for prohibiting approval of a facility’s nurse aide training program. The new criteria prohibit approval of a program that is:
“(I) offered by or in a skilled nursing facility which, within the previous 2 years— “(a) has operated under a waiver under subsection (b)(4)(C)(ii)(II); “(b) has been subject to an extended (or partial extended) survey under subsection (g)(2)(B)(i) or section 1919(g)(2)(B)(i); or “(c) has been assessed a civil money penalty described in subsection (h)(2)(B)(ii) or section 1919(h)(2)(A)(ii) of not less than $5,000, or has been subject to a remedy described in clauses (i) or (iii) of subsection (h)(2)(B), subsection (h)(4), section 1919(h)(l)(B)(i), or in clauses (i), (iii), or (iv) of section 1919(h)(2)(A),[21]
Section 4801(a)(), described as Technical Corrections Relating to Nursing Home Reform in the Medicaid program, substituted the identical language about aide training in the Medicaid program.
In short, the law prohibited a facility from conducting a nurse aide training program if it operated under a nurse staffing waiver, had an extended or partial extended survey, or had been assessed a civil money penalty of $5000 or more (since increased annually for inflation). Accordingly, the final nurse aide training regulations published in September 1991, used the new statutory language and stated:
(2) The State may not approve a nurse aide training and competency evaluation program or competency evaluation program offered by or in a facility which, in the previous two years—
(i) In the case of a skilled nursing facility, has operated under a waiver under section 1819(b)(4)(C)(ii)(II) of the under section 1819(b)(4)(C)(ii)(II) of the Act;
(ii) In the case of a nursing facility, has operated under a waiver under section 1919(b) (4)(C) (ii) of the Act that was granted on the basis of a demonstration that the facility is unable to provide nursing care required under section 1919(b)(4)(C)(i) of the Act for a period in excess of 48 hours per week;
(iii) Has been subject to an extended (or partial extended) survey under sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) of the Act;
(iv) Has been assessed a civil money penalty described in section 1819(h)(2) (B)(ii) of 1919(h)(2) (A)(ii) of the Act of not less than $5,000; or
(v) Has been subject to a remedy described in sections 1819(h)(2)(B) (i) or (iii), 1819(h)(4), 1919(h)(l)(B)(i), or 1919(h)(2)(A) (i), (iii) or (iv) of the Act.[22]
The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), enacted December 8, 2003, amended nurse aide training rules again. It allowed the Secretary to waive disapproval of a facility’s authority to conduct a nurse aide training program, under both Medicare and Medicaid, if the disapproval was the result of a civil money penalty of $5000 or more that “was not related to quality of care for residents.”[23] Proposed regulations were issued in 2007[24] and final regulations published in 2010[25] implemented the change.
Finally, a State may waive disapproval of a facility’s nurse aide training program that is offered in (but not by) the facility if the State
- determines that there is no other such program offered within a reasonable distance of the facility
- assures that an adequate environment exists for operating the program in the facility; and
- notifies the State Long Term Care Ombudsman of this determination and these assurances.[26]
These multiple amendments to nurse aide training requirements significantly weakened the federal criteria for denying a nursing facility the authority to conduct its own nurse aide training program.
A second challenge to nurse aide training requirements is pending legislation that, for both the Medicare and Medicaid programs, would revise the criteria for disapproving a facility-based aide training program and, under most circumstances, eliminate the automatic two-year ban on facilities’ authority to train their aides.[27] The bill also loosens criteria for rescission of disapproval of facility-based training programs. AHCA supports the bill.[28]
Conclusion
One of the major improvements made by the 1987 Nursing Home Reform Law was the requirement that aides be trained and competent before providing care to residents. Going backwards is not an option. Industry-supported efforts to allow nursing facilities to hire and train their own aides must be rejected.
November 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] 56 Fed. Reg. 48880 (Sep. 26, 1991), https://archives.federalregister.gov/issue_slice/1991/9/26/48822-48922.pdf#page=98
[3] CMS, COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers (Mar. 28, 2020, most recent update, May 24, 2021), https://www.cms.gov/files/document/covid-19-emergency-declaration-waivers.pdf
[4] AHCA, Temporary Nurse Aide Training & Competency Checklist, https://educate.ahcancal.org/products/temporary-nurse-aide (public access to the website no longer permitted)
[5] “Who’s Providing Care for Nursing Home Residents? Nurse Aide Training Requirements during the Coronavirus Pandemic” (CMA Alert, Jul. 23, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/07/Report-Nurse-Aide-Training.pdf
[6] 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
[7] CMA, “Who Provides Care for Nursing Home Residents? An Update on Temporary Nurse Aides” (Special Report, Sep. 15, 2021), https://medicareadvocacy.org/special-report-update-on-tnas/
[8] 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
[9] Id.
[10] Id.
[11] 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
[12] Kimberly Marselas, “States get needed nurse aide waiver relief but workers’ fates uncertain,” McKnight’s Long-Term Care News (Oct.7, 2022), https://www.mcknights.com/news/states-get-needed-nurse-aide-waiver-relief-but-workers-fates-uncertain/?utm_source=newsletter&utm_medium=email&utm_campaign=NWLTR_MLT_DailyUpdate_100722&elqTrackId=9414aaa525534bcb880334d9982db280&elq=a6a3778fe126479fb5570fe2c134bdfe&elqaid=1256&elqat=1&elqCampaignId=899
[13] AHCA, “AHCA/NCAL Urges CMS to Reissue Blanket Waiver to Help Temporary Nurse Aides” (Press Release, Oct. 3, 2022), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Urges-CMS-to-Reissue-Blanket-Waiver-to-Help-Temporary-Nurse-Aides.aspx
[14] AHCA, “AHCA/NCAL Urges CMS to Reissue Blanket Waiver to Help Temporary Nurse Aides” (Press Release, Oct. 3, 2022), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Urges-CMS-to-Reissue-Blanket-Waiver-to-Help-Temporary-Nurse-Aides.aspx
[15] H.R.7744, https://www.congress.gov/bill/117th-congress/house-bill/7744/text?r=40&s=1
[16] AHCA, “AHCA/NCAL Issues Statement in Support of Building America’s Health Care Workforce Act” (Press Release, May 13, 2022), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Issues-Statement-in-Support-of-Building-America%E2%80%99s-Health-Care-Workforce-Act.aspx
[17] Clark Kauffman, “Cedar Rapids care facility cited for untrained workers, resident abuse,” Iowa Capital Dispatch (Nov. 11, 2022), https://iowacapitaldispatch.com/2022/11/11/cedar-rapids-care-facility-cited-for-untrained-workers-resident-abuse/
[18] Pub. Law 100-203, §§4201, 4211, Medicare and Medicaid, respectively.
42 U.S.C. §§1395i-3(f)(2)(B)(iii)(I)(a)-(c), 1396r(f)(2)(B)(iii)(I)(a)-(c), Medicare and Medicaid, respectively, https://www.congress.gov/100/statute/STATUTE-101/STATUTE-101-Pg1330.pdf .
[19] 42 C.F.R. §483.150(b)(2), as reported in 55 Fed. Reg. 10938, 10949 (Mar. 23, 1990), https://www.govinfo.gov/content/pkg/FR-1990-03-23/pdf/FR-1990-03-23.pdf
[20] Omnibus Budget Reconciliation Act of 1990, §§4008(h)(1)(F)(i) and 4801(a)(6)(A). See discussion at 56 Fed. Reg. 48880, 48893 (Sep. 26, 1991), https://archives.federalregister.gov/issue_slice/1991/9/26/48822-48922.pdf#page=98
[21] See Pub.L. 101-508, 104 Stat. 1388-47, section 4008(h)(1)(F)(i), https://www.congress.gov/101/statute/STATUTE-104/STATUTE-104-Pg1388.pdf
[22] 42 C.F.R. §483.151(b)(2), as reported at 56 Fed. Reg. 48880, 48919 (Sep. 26, 1991), https://archives.federalregister.gov/issue_slice/1991/9/26/48822-48922.pdf#page=98
[23] Pub. L. 108-173, §932(c)(2)(B), https://www.govinfo.gov/content/pkg/PLAW-108publ173/pdf/PLAW-108publ173.pdf
[24] 72 Fed. Reg. 65692 (Nov. 23, 2007), https://www.govinfo.gov/content/pkg/FR-2007-11-23/pdf/FR-2007-11-23.pdf
[25] 75 Fed. Reg. 21175 (Apr. 23, 2010), https://www.govinfo.gov/content/pkg/FR-2010-04-23/pdf/2010-8902.pdf
[26] 42 U.S.C. §§1395i-3(f)(2)(C), 1396r(f)(2)(C)
[27] The Ensuring Seniors’ Access to Quality Care Act, S.4381/H.R.8805, https://www.scott.senate.gov/imo/media/doc/F0190B9FB6D2A9146D3F28282681C893.ensuring-seniros-access-to-quality-care-act.pdf
[28] AHCA, “AHCA/NCAL Issues Statement Following Senate Health, Education, Labor & Pension Committee Hearing On Workforce Shortages in Health Care” (Press Release, May 20, 2021), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCANCAL-Issues-Statement-Following-Senate-Health,-Education,-Labor-&-Pension-Committee-Hearing-On-Workforce-Shortages-in-H.aspx