Nursing Home Advocates and Members of Congress Call for Reinstatement of Nurse Aide Training Rules

In a February 25, 2021 letter to the Centers for Medicare & Medicaid Services (CMS), advocates for residents ask for prompt reinstatement of longstanding rules requiring that nurse aides be trained and competent before providing care to residents. Advocates also call for individuals with less training than required by their state, who have been working during the pandemic as temporary nurse aides, be required to complete their state’s training and competency evaluation program. Members of Congress, including Congressman Neal (D-NJ) and Lloyd Doggett (D-TX) similarly urge CMS to reinstate nurse aide training rules.

One of the major reforms of the 1987 Nursing Home Reform Law was the requirement that nurse aides be trained and competent before providing care to residents.[1] Federal regulations, first promulgated in 1991, require a minimum of 75 hours of training,[2] although many states require more hours. California, for example, requires 160 hours of training.[3]

On March 20, 2020, at the beginning of the coronavirus pandemic, CMS waived many federal regulations governing nursing homes, including the requirement that individuals not work in nursing facilities for more than four months unless they successfully complete their state’s nurse aide training and competency evaluation program.[4] The American Health Care Association (AHCA), the trade association of for-profit facilities, announced that it had created a free eight-hour on-line training and competency program for a new category of worker not named in federal law – temporary nurse aide (TNA). Many states explicitly accepted AHCA’s training module and other states authorized workers with less than 75 hours of training to be employed as aides.[5]

In June 2020, when CMS reinstated the requirement that facilities report staffing data to CMS, using the Payroll-Based Journal (PBJ) system, effective for the second calendar quarter (April-June 2020),[6] CMS did not adjust the PBJ computer program to account for TNAs. Instead, CMS allowed (and continues to allow) nursing facilities to report TNAs as if they are fully trained certified nurse assistants (CNAs). CMS publicly reports TNAs as if they were CNAs on its public website, CareCompare (formerly Nursing Home Compare).[7]

It is unknown how many TNAs are working in nursing homes, how much training they have received and from whom, or which CNA tasks they are performing and how well. Nevertheless, the nursing home industry is encouraging CMS and states to “grandfather” TNAs as CNAs. 

Concerned that grandfathering TNAs is both illegal under the regulations and bad public policy, residents’ advocates and others jointly wrote CMS on February 25, 2021, asking that CNA training requirements be reinstated promptly, but no later than March 31.[8] Advocates point out that once aide training rules are reinstated, CMS lacks authority to alter regulatory standards without formally amending the regulations through notice and comment rulemaking. In other words, once the waiver of aide training requirements is lifted, all individuals must complete their state’s nurse aide training and competency evaluation program; grandfathering is not permissible.

Members of Congress similarly expressed concern about TNAs and urged CMS to reinstate aide training rules. Congressman Lloyd Doggett (D-TX) and colleagues wrote to CMS on February 25,[9] repeating Congressman Doggett’s recommendations to CMS in October 2020.[10]  Congressman Doggett and his colleagues also ask that CMS require facilities to “report how many currently employed workers have not met the 75-hour training requirement” and that CMS make that information public on CareCompare.  Congressman Richard E. Neal (D-NJ) and colleagues also wrote CMS on February 24, asking for reinstatement of nurse aide training rules, among other matters (see below).[11]

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[1] 42 U.S.C. §§1395i-3(b)(5)(A)(i)(I), 1396r(b)(5)(A)(i)(1), Medicare and Medicaid, respectively; 42 C.F.R. §§483.35(d)(1)(ii)(A), 483.152(a).
[2] 42 C.F.R. §483.152(a)(1).
[3] Ca. Health & Safety Code §1337.1(b).
[4] CMS, “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” (Feb. 19, 2021 update), https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf.
[5] 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.
[6] 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.
[7] Center for Medicare Advocacy, “CMS Will Not Track Minimally Trained Aides at Nursing Facilities” (CMA Alert, Aug. 6, 2020), https://medicareadvocacy.org/cms-will-not-track-minimally-trained-aides-at-nursing-facilities/.
[8] The February 25, 2021 letter to Lee Fleisher, Chief Medical Officer, CMS, and Evan Shulman, Director, Division of Nursing Homes, Quality, Safety & Oversight Group, CMS, signed by Altarum, California Advocates for Nursing Home Reform, Center for Medicare Advocacy, Justice in Aging, Long Term Care Community Coalition, Michigan Elder Justice Initiative, National Association of Health Care Assistants, and National Consumer Voice for Quality Long-Term Care, is available at https://medicareadvocacy.org/wp-content/uploads/2021/03/Letter-to-CMS-resumption-of-CNA-standards-2-25-21.pdf.
[9] The letter is also signed by Richard E. Neal (D-NJ), Bill Pascrell, Jr. (D-NJ), Brian Higgins (D-NY), Judy Chu (D-CA), Linda T. Sanchez (D-CA), Suzan DelBene (D-WA), and Brendan F. Boyle (D-PA ).
[10]  Center for Medicare Advocacy, “Members of Congress Write CMS Urging Restoration of  Nurse Aide Training Requirements for Nursing Facilities” (CMA Alert, Nov. 5, 2020), https://medicareadvocacy.org/members-of-congress-write-cms-urging-restoration-of-nurse-aide-training-requirements-for-nursing-facilities/.
[11] The letter is available at https://waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/02%2025%2021%20-%20SNF%20Admin%20Changes_Letter%20to%20CMS_final_signed_0.pdf.