Elder
Law FAX -- September 19, 2005
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Education |
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Feeding Assistant Rule Upheld by Court
A federal court has upheld the use of trained feeding and hydration assistants
in nursing homes. The government had been defending the regulations for
more than a year against petitioners who filed a class action lawsuit
to invalidate the rule.
"Allowing trained feeding assistants will mean better care for residents, especially at meal times which can be the busiest times in nursing homes," then-HHS Secretary Tommy Thompson said in 2002 when the proposal was first announced. "Trained feeding assistants will free nurses and nurse aides to focus on residents' other health care needs. The result will be that residents will receive better nutrition and care."
Trained feeding assistants would help residents to eat and drink, especially at meal times. Currently, nursing homes rely primarily on certified nurse aides (CNAs) or other health care professionals to assist residents with eating and drinking. Volunteers and family members also may assist with these tasks.
Effective October 27, 2003, the U. S. Centers for Medicare & Medicaid Services (CMS) rule, which allows the use of paid feeding assistants in nursing homes, provides:
States approve training programs for paid feeding
assistants using federal requirements as minimum standards;
Paid feeding assistants successfully complete a state-approved training
program and work under the supervision of a registered nurse;
State's implementation is consistent with State requirements; and
Nursing homes use paid feeding assistants consistent with all other applicable
guidelines.
The rule would make it easier for nursing homes to recruit and hire enough CNAs and other appropriately trained workers to provide quality care in all areas of need, according to its proponents.
Critics of the feeding assistant rule have focused on two issues: staffing and safety. AARP and the Alzheimer's Association came out against the rule. Rep. Henry Waxman, D-Calif., and Sen. Chuck Grassley, R-Iowa, sent a letter to HHS Secretary Tommy Thompson expressing their opposition to the rule. "The feeding assistant regulation may actually worsen the staffing problem by encouraging nursing homes to hire low-wage feeding assistants, instead of certified nurse aides," Grassley and Waxman said in their letter to Thompson. The lawmaker's letter also criticized the eight-hour training requirement for the new feeding assistants.
Opponents of the rule fear that nursing homes will use feeding assistants as an excuse to hire more unskilled, less expensive labor. Sharon Wilder, North Carolina State Ombudsman, said that she was "concerned that [feeding assistants] would try to assist with transferring residents from bed to chair or to the bathroom as an example of going beyond what they were hired to do."
Donna R. Lenhoff, executive director of the National Citizens' Coalition for Nursing Home Reform, called the rules a "cynical attempt to avoid the nation's nursing home staffing crisis and related problems like resident malnutrition and dehydration.
"These regulations will allow workers who are virtually untrained to work virtually unsupervised with people who are frail, suffering from multiple medical conditions, and unable to feed themselves," Lenhoff said.
The ruling is a major victory for health care providers. Several large interest groups, including the American Health Care Association and the American Association of Homes and Services for the Aging, came out in support of the rule.
It is now up to states' health departments to decide if they want to allow assistants in facilities, according to the regulations.
Elder Law FAX is published weekly by Timothy L. Takacs, Attorney at Law. 201 Walton Ferry Road, Hendersonville, Tennessee 37077-0364. (615) 824-2571, (615) 824-8772FAX. Copyright 1995-2005 by Timothy L. Takacs. Would you like Elder Law FAX e-mailed to you free every week? To subscribe, please use the Elder Law FAX Subscription Form.