On March 20, 2020, at the beginning of the coronavirus pandemic and as part of a long list of blanket waivers and flexibilities granted to nursing facilities, the Centers for Medicare & Medicaid Services (CMS) waived the requirement that facilities not use individuals as nurse aides for more than four months unless they were trained in a state-approved nurse aide training program of at least 75 hours. CMS did not waive the requirement for competency testing. As the Center for Medicare Advocacy (Center) reported in July 2020, the American Health Care Association (AHCA), a major nursing home trade association, immediately announced its development of a free eight-hour on-line training course for a “temporary position intended to address the current state of emergency” and many states explicitly adopted AHCA’s training program or other lesser training requirements.
In a Report released today, the Center finds that many states, following CMS’s April 2021 guidance discussed below, are moving, in a variety of ways, to convert these temporary workers into permanent aides, without the training that they would ordinarily have required before the pandemic. States are most commonly counting time worked as temporary nurse aides (TNAs) as if it were actual training and many are requiring few, if any, hours of additional training beyond the eight hours received on-line. In essence, many temporary aides are currently being grandfathered into permanent status as certified nurse aides. The Center considers CMS’s guidance, and states’ actions, both illegal and poor public policy. Without public debate, the permanent downgrading of the nursing home workforce is underway.
CMS Guidance on April 8, 2021
On April 8, 2021, CMS updated its guidance on several blanket waivers issued in 2020. CMS did not end the waiver of nurse aide training requirements and stated that “the four-month regulatory timeframe will be reinstated when the blanket waiver ends.” Despite its recognition that lifting of the waiver would restore existing 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 invitation to create new options for TNAs to become fully certified nurse aides (CNAs), without satisfying the states’ normal training requirements.
In the Center’s view, through this suggestion, which allows states to treat time worked as if it were time in training, CMS signaled that states are free to undermine longstanding nurse aide training requirements now, in anticipation of the end of the public health emergency. As described in the Center’s Report, CMS’s guidance has in fact encouraged states to allow workers to continue providing care to residents now and after the pandemic, even when they have less training than the state required of all aides before the pandemic and less training than the 75 hours that the federal government has required for decades as the minimum.
CMS’s gratuitous offer to states and the nursing home industry is especially troubling when CMS does not know how many people are working as TNAs and what proportion of the aide workforce they actually represent, what kind of training and how much training they received, who provided the training, where they work, which specific tasks they perform, and how well (or inadequately) they perform aide assignments. CMS has no plans to find out any of this information.
How many temporary nurse aides are there? The American Health Care Association’s Provider Magazine reported in February 2021 that 182,890 people had registered for the program and “more than 136,300 have completed and passed these courses since their launch in April, numbers that continue to rise every day.”  An article in the trade press Skilled Nursing News in April 2021 reported that Genesis had hired more than 600 TNAs and still employed 319 of them. Estimates of TNAs working in Pennsylvania facilities range from 1,000 TNAs to 4,000. Iowa nursing facilities have employed 2,100 TNAs. Michigan has more than 2,000 TNAs. There could literally be tens of thousands of individuals with limited training providing care to residents as TNAs, now and into the indefinite future.
The Center believes that CMS’s April 2021 guidance violates federal law and is poor public policy.
Violation of Federal Law
Once the waiver of training requirements is lifted, the prior rules go into effect, in their entirety. Without engaging in formal notice and comment rulemaking, CMS does not have authority to rewrite the regulations. Federal law is specific and detailed about federal requirements for state approval of nurse aide training programs and about which facilities are ineligible to conduct nurse aide training. Federal law also confirms that states’ review and approval of nurse aide training and competency evaluation programs (NATCEPs) must comply with the federal standards.
Poor Public Policy
Working as an aide in a nursing home is dangerous. Analyzing data from the federal Bureau of Labor Statistics, PHI reports that “nursing assistants are injured more than three times more frequently than the typical American worker.” Untrained or minimally trained workers are more likely to be injured than workers who have been more comprehensively trained.
How States are Treating “Temporary Nurse Aides”
The nine-page Report describes state policies that allow TNAs to take their state’s examination without any additional training or with abbreviated training as well as states’ explicitly authorizing the grandfathering in of TNAs with no additional training or testing.
September 15, 2021 – T. Edelman, M. Edelman
 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. The waivers for skilled nursing and nursing facilities are currently on pages 16-21.
 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),
 42 C.F.R. §483.35(c), Proficiency of nurse aides, was not waived. That section states, in full, “The facility must ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.”
 AHCA, Temporary Nurse Aide Training & Competency Checklist, https://educate.ahcancal.org/products/temporary-nurse-aide
 “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
 The full report is available at https://medicareadvocacy.org/wp-content/uploads/2021/09/SNF-TNA-Report-09-2021.pdf
 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
 Danielle Levitan, “Temporary Nurse Aide Training a Huge Boon During Pandemic,” Provider (Feb. 10, 2021), https://www.providermagazine.com/Topics/Guest-Columns/Pages/2021/Temporary-Nurse-Aide-Training-a-Huge-Boon-During-Pandemic.aspx
 Maggie Flynn, “Lawmakers, Providers Call for Temporary Nurse Aide Extension – as ProMedica Tries to Fill 1,500 Jobs in One State Alone,” Skilled Nursing News (Apr. 15, 2021), https://skillednursingnews.com/2021/04/lawmakers-providers-call-for-temporary-nurse-aide-extension-as-promedica-tries-to-fill-1500-jobs-in-one-state-alone/
 Kimberly Marselas, “Even with PHE extension, providers worry about early demise of nurse aide waiver,” McKnight’s Long-Term Care News (Jul. 21, 2021), https://www.mcknights.com/news/even-with-phe-extension-providers-worry-about-early-demise-of-nurse-aide-waiver/
 Kimberly Bonvissuto, “Law creates permanent pathway to employment for temporary nurse aides,” McKnight’s Senior Living (Dec. 1, 2020), https://www.mcknightsseniorliving.com/home/news/law-creates-permanent-pathway-to-employment-for-temporary-nurse-aides/ (describing TNAs in nursing homes and assisted living facilities)
 Clark Kauffman, “State waives training requirements for nursing home staff,” Iowa Capital Dispatch (Sep. 1, 2021), https://iowacapitaldispatch.com/2021/09/01/state-waives-training-requirements-for-nursing-home-staff/
 “Rep. Bollin spearheads plan to help frontline workers advance their careers” (News Release, Jun. 24, 2021), https://gophouse.org/posts/rep-bollin-spearheads-plan-to-help-frontline-workers-advance-their-careers
 42 U.S.C. §§1395i-3(f)(2)(A)(i)-(iv), 1396r(f)(2)(A)(i)-(iv), Medicare and Medicaid, respectively. These detailed requirements address the number of training hours, qualifications of instructors, and subject areas for training. The federal regulations prohibit an aide from having any contact with a resident until the aide has completed at least 16 hours of training in five specified areas: “communication and interpersonal skills; infection control; safety/emergency procedures, including the Heimlich maneuver; promoting residents’ independence; and respecting residents’ rights.”
 42 U.S.C. §§1395i-3(f)(2)(B)(iii)(I)(a)-(c), 1396r(f)(2)(B)(iii)(I)(a)-(c)
 42 U.S.C. §§1395i-3€(a), 1396r(e)(1), Medicare and Medicaid, respectively
 AnnMarie Lee Walton and Bonnie Rogers, “Workplace Hazards Faced by Nursing Assistants in the United States: A Focused Literature Review,” Int J Environ Res Public Health. 2017 May; 14(5): 544, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5451994/; Stephen Campbell, “Workplace Injuries and the Direct Care Workforce” (PHI Issue Brief, Apr. 2018), http://phinational.org/wp-content/uploads/2018/04/Workplace-Injuries-and-DCW-PHI-2018.pdf
 Id., citing U.S. Bureau of Labor Statistics (BLS), Injuries, Illnesses, and Fatalities. 2018. Occupational Injuries and Illnesses and Fatal Injuries Profiles, https://www. bls.gov/iif/; analysis by PHI (Jul. 23, 2019)
 Galinka Khatutsky, Joshua M. Wiener, Wayne L. Anderson, and Frank W. Porell, “Work-Related Injuries Among Certified Nursing Assistants Working in US Nursing Homes,” RTI Press, p. 4 (Apr. 2012), https://www.rti.org/rti-press-publication/work-related-injuries-CNAs/fulltext.pdf