Given this apparent confusion, we are providing you our analysis of both federal and state requirements.

Transcription

1 303 Cleveland Avenue SE, Suite 206 Tumwater, Washington Telephone Toll-free Fax Via and USPS Carl I. Walters II, Director Residential Care Services Aging and Long Term Support Administration Department of Social and Health Services PO Box Olympia, WA Re: Dear Nursing Home Administrator Letter Dear Director Walters: We write to express our concerns regarding your recent Dear Administrator letter ( ) dated December 11, It is our opinion that the letter is unnecessarily confusing with respect to the duties that can be carried out by nursing assistants (NARs). In addition, the letter appears to blur the long-established federal requirements applicable to NARs who have worked in a nursing home for more than four months and those who have worked in a nursing home for less than four months. Given this apparent confusion, we are providing you our analysis of both federal and state requirements. Federal Requirements The applicable federal requirements clearly delineate distinctly different requirements applicable to NAR employees who have worked in a nursing home for more than four months and those who have worked less than four months. Under 42 C.F.R (e)(2), a facility must not use any individual working in a facility as a nursing aide for more than four months, on a full time basis, unless: (i) that individual is competent to provide nursing and nursing related services; and (ii) that individual has completed a training and competency evaluation program. In contrast, 42 C.F.R (e)(4) clearly states that a facility must not use any individual who has worked less than four months as a nurse aide in that facility unless the individual: (i) is a fulltime employee in a state-approved training and competency evaluation program; (ii) has demonstrated competence through satisfactory participation in a state-approved nurse aide training and competency evaluation program or competency evaluation program; or (iii) has been deemed or determined competent as provided in 42 C.F.R. 150(a) and (b).

2 Page 2 In contrasting the two regulations outlined above, it is important to note that (e)(2) speaks to completion of the training program. In contrast, (e)(4) speaks to participation in the program. Obviously, this distinction makes sense. After four months, completion of the program is required. However, during the initial four months, satisfactory participation is required. This interpretation is supported by F-495 at Appendix PP of the State Operations Manual (SOM) which states: Facilities may use, as nurse aides, any individuals who have successfully completed either a nurse aide training and competency evaluation program or a competency evaluation program. However, if an individual has not completed a program at the time of employment, a facility may only use that individual as a nurse aide if the individual is in a nurse aide training and competency evaluation program (not a competency evaluation program alone) and that individual is a permanent employee in his or her first four months of employment in the facility. Therefore, the distinction between requiring a nurse aide completing a program and participating in a program is dependent upon whether the individual is a permanent employee of the facility for four months, or less. This interpretation is further borne out by additional reference to the comments contained at F-495. In one of the probes suggested to surveyors to be performed during an extended or partial extended survey, surveyors are asked to consider the following: Have all nurse aides completed a nurse aide training and competency evaluation program or a competency evaluation program? If not, are these aides permanent employees enrolled in a training and competency evaluation program who have worked in the facility for 4 months or less? Again, whether or not a nurse aide is required to have completed the program is contingent upon whether the aide has worked in the facility for 4 months. Significantly, the guidance at F-495 regarding procedures to be followed by surveyors in determining nurse aide qualifications states: If you identify deficient care practices by nurse aides who do not have evidence of having successfully completed a competency evaluation program, determine: If the aide is currently receiving training in a State approved Nurse Aide Training Program; If the aide is under the supervision of a licensed nurse; and If the aide has been trained and determined to be proficient for the tasks to which he or she is assigned. See for specific training that the aide is to receive. This training includes:

3 Page 3 At least 16 hours of training in the following subjects before any direct contact with the resident: o Communication and interpersonal skills; o Infection control; o Safety and emergency procedures, including the Heimlich Maneuver; o Promoting resident s independence; and o Respecting resident s rights. Basic nursing skills; Personal care skills; Mental health and social services of residents; Care of cognitively impaired residents; Basic restorative services; and Resident s rights. Accordingly, the SOM s directions to state surveyors is clear. Individual nurse aides enrolled in an approved training program may perform distinct tasks, for which they have been trained, under the supervision of a licensed nurse. Notably, the SOM s guidance is not specific as to the level of supervision. Indeed, until the issuance of your December 11, 2014, Dear Administrator letter, the practice in Washington State has been to allow NARs enrolled in a state-approved training program, who have completed the requisite training outlined in F-495, to provide care to nursing home residents with appropriate oversight. There has never been a direct supervision requirement. State Requirements Your letter of December 11, 2014, states that an unsupervised NAR cannot provide direct patient care during the four month period, dating from the date of hire unless he or she has completed and passed their training program and passed both the written and skills competency exam while waiting to be added to the OBRA Registry. Based upon prior state practice and applicable federal and state regulations, we contend that this statement is incorrect. Unfortunately, to the best of our knowledge, with respect to NAR duties, there is no definition for the term unsupervised in state or federal regulation. If you are aware of such a definition, please let us know at your earliest convenience. However, we are aware of the Department s meaning of the term direct supervision in the context of assisted living facilities and adult family homes.

4 Page 4 Under WAC A-2020: Direct supervision means oversight by a person on behalf of the assisted living facility who has met training requirements, demonstrate competency in core areas, or has been fully exempted from the training requirements, is on the premises, and is quickly and easily available to the caregiver. Similarly, under WAC : Direct supervision means oversight by a person who has demonstrated competency in the basic training and specialty training if required, or who has been exempted from the basic training requirements and is (1) On the premises; and (2) Quickly and easily available to the caregiver. Accordingly, under both the assisted living and adult family home regulations, direct supervision does not require one-on-one oversight. Rather, provided that appropriate oversight is at hand, an adequately trained individual can provide certain cares. In the nursing home context, it has long been Department practice to allow individuals enrolled in a state-approved training program to provide certain tasks under the supervision of a licensed nurse. Your letter of December 12, 2014, calls that long-standing practice into question. Indeed, the Department s own regulations support the long-standing practice that is called into question by your December 11, 2014, letter. WAC (2) and (3) provide that: (2) The nursing home must ensure that any employee giving direct resident care, excluding professionally licensed nursing staff: (a) Has successfully completed or is a student in a DSHS-approved nursing assistant program, and, (b) Meets other requirements applicable to individuals performing nursing related duties in a nursing home, including those which apply to minors. (3) The nursing home must ensure: (a) Students in a DSHS-approved nursing assistant training program: (i) Complete training and competency evaluation within four months of beginning work as a nursing assistant; (ii) Complete at least sixteen hours of training in communications and interpersonal skills, infection control, safety/emergency procedures including the Heimlich maneuver, promoting resident independence, and respecting resident rights before any direct contact with a resident, and (iii) Wear name tags Thus, the Department s own regulations do not prohibit individuals enrolled in DSHS-approved training programs from providing some level of resident care. We have been unable to locate any

5 Page 5 applicable statute or regulation prohibiting what has been the practice in this state for decades. If you are aware of such statute or regulation, please let us know. Significantly, in attempting to determine the appropriate level of care and supervision applicable to NARs, we also consulted chapter WAC. These Department of Health regulations govern Nursing Assistants in Nursing Homes and the Nursing Assistants Training Program. Again, we were unable to find a requirement of one-to-one supervision for tasks for which the individual participating in the state-approved training has exhibited competency. Conclusion In our opinion, your December 11, 2014, Dear Administrator letter is at best misleading, and at worst incorrect, when it states that an unsupervised NAR cannot do direct patient care during the 120 days from the date of hire, unless he or she has completed and passed their training program and passed both the written and skills competency exam while awaiting to be added to the OBRA Registry. Such an interpretation would render mute the numerous distinctions between individuals in training employed less than four months and individuals working in a facility more than four months. More importantly, such an interpretation would require a level of one-on-one nursing assistant oversight hereto unknown in Washington State. Such an interpretation would result in a nursing home s inability to properly train NARs due to the staffing needs engendered by the oneto-one requirement. We hope that you reconsider the position taken in the December 11, 2014, Dear Administrator letter. If we have in anyway misinterpreted your letter, we would suggest that the letter be rewritten and reissued, due to the fact that in its current format, it is extremely confusing to providers. Thank you for your attention to the matter. If you would care to discuss the same, I am available at your earliest convenience. Sincerely, WASHINGTON HEALTH CARE ASSOCIATION Robin Dale, CEO cc Donna Cobb, Assistant Attorney General