I

107TH CONGRESS

1ST SESSION H. R. 1510

To establish a demonstration project to waive certain nurse aide training

requirements for specially trained individuals who perform certain specific

tasks in nursing facilities participating in the medicare or medicaid

programs, and to conditionally authorize the use of resident assistants

in such nursing facilities.

IN THE HOUSE OF REPRESENTATIVES

APRIL 4, 2001

Mr. RYAN of Wisconsin (for himself and Mr. POMEROY) introduced the following bill; which was referred to the Committee on Ways and Means,

and in addition to the Committee on Energy and Commerce, for a period

to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee

concerned

A BILL

To establish a demonstration project to waive certain nurse

aide training requirements for specially trained individuals who perform certain specific tasks in nursing facilities participating in the medicare or medicaid programs,

and to conditionally authorize the use of resident assistants in such nursing facilities.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Medicare and Medicaid

3 Nursing Services Quality Improvement Act of 2001’’.

4 SEC. 2. DEMONSTRATION PROJECT TO WAIVE CERTAIN

5 NURSE AIDE TRAINING REQUIREMENTS FOR

6 SPECIALLY TRAINED INDIVIDUALS WHO PER7 FORM CERTAIN COVERED TASKS IN MEDI8 CARE AND MEDICAID NURSING FACILITIES.

9 (a) DEMONSTRATION PROJECT.—Not later than Oc10 tober 1, 2001, the Secretary shall conduct a demonstra11 tion project under which a resident assistant may perform

12 a covered task for a resident of a covered nursing facility

13 in a demonstration State.

14 (b) REQUIREMENTS.—

15 (1) MINIMUM STAFFING REQUIREMENTS NOT

16 AFFECTED.—A resident assistant performing a cov17 ered task under this section—

18 (A) may augment, but not replace, existing

19 staff of a covered nursing facility; and

20 (B) shall not be counted toward meeting or

21 complying with any requirements for nursing

22 care staff and functions of such a facility, in23 cluding any minimum nursing staffing require24 ment imposed under section 1819 or 1919 of

25 the Social Security Act (42 U.S.C. 1395i–3,

26 1396r).
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1 (2) EXCLUSION OF PARTICIPATION.—

2 (A) BASED ON REPLACEMENT OF CER3 TIFIED NURSING STAFF.—

4 (i) IN GENERAL.—Subject to clause

5 (ii), the Secretary may exclude from par6 ticipation in the demonstration project any

7 covered facility that the Secretary deter8 mines (on the basis of data submitted

9 under subsection (c) or otherwise) has re10 placed certified nurse assistants with resi11 dent assistants.

12 (ii) LIMITATION.—The Secretary may

13 not exclude a facility under clause (i) un14 less the Secretary has reviewed all perti15 nent data that may reflect on a reduction

16 of nursing staff in the facility, including

17 changes in resident population and case

18 mix.

19 (B) BASED ON POOR TREATMENT

20 RECORDS OR INSUFFICIENT LICENSED

21 STAFF.—The Secretary may exclude from par22 ticipation in the demonstration project any cov23 ered nursing facility that a State survey agency

24 recommends be excluded because of unsatisfac25 tory treatment records or insufficient licensed
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1 staff to provide supervision of resident assist2 ants.

3 (c) DATA COLLECTION.—

4 (1) DATA REGARDING INITIAL WORKFORCE.—

5 (A) IN GENERAL.—At the beginning of a

6 covered nursing facility’s participation in the

7 demonstration project, the facility shall submit

8 to the appropriate State agency of the dem9 onstration State independently verifiable data

10 regarding the composition of the facility’s work11 force at the time such participation commences.

12 (B) DATA REGARDING RESIDENT ASSIST13 ANTS.—Such data shall include—

14 (i) the number of resident assistants

15 in the facility hired solely to perform cov16 ered tasks and the number of such assist17 ants performing additional tasks; and

18 (ii) the number of residents of the fa19 cility who are served by such resident as20 sistants.

21 (C) TRANSMITTAL OF DATA TO SEC22 RETARY.—The State agency shall forward such

23 data to the Secretary.

24 (2) DATA REGARDING PERFORMANCE OF RESI25 DENT ASSISTANTS.—Each such facility shall submit
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1 to such State agency data, at such times and in such

2 manner as the Secretary may require, regarding the

3 performance of covered tasks by resident assistants

4 under the demonstration project.

5 (3) TRANSMISSION OF DATA TO THE SEC6 RETARY.—The State agency shall forward data col7 lected under this subsection to the Secretary. The

8 Secretary shall compile data collected under this sec9 tion with data collected pursuant to sections 1819

10 and 1919 of the Social Security Act (42 U.S.C.

11 1395i–3, 1396r) for purposes of excluding a facility

12 from participation in the project under subsection

13 (b)(2) and performing the analysis under subsection

14 (d)(2).

15 (d) REPORTS TO CONGRESS.—

16 (1) ANNUAL REPORTS.—Not later than Decem17 ber 1 of each of 2002 and 2003, the Secretary shall

18 submit to Congress a report on the project, and in19 clude an analysis that meets the requirements of

20 paragraph (3).

21 (2) FINAL REPORT.—Not later than December

22 1, 2004, the Secretary shall submit a report to Con23 gress required under section 3(c)(2)(B) that includes

24 the recommendations of the advisory panel convened

25 under paragraph (4).
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1 (3) ANALYSIS REQUIREMENTS.—The analysis

2 required under paragraph (1) shall—

3 (A)(i) examine the effect of resident assist4 ants on the quality of resident care in facilities

5 in demonstration States, and

6 (ii) compare such quality of resident care

7 with the quality of resident care in facilities in

8 other States,

9 by employing quality indicators determined by

10 the Secretary, including with regard to nutri11 tion and hydration, nutrition and hydration lev12 els, unplanned weight loss or gain, and the

13 number of citations for nutrition-related viola14 tions relating to such residents;

15 (B) examine the effect of resident assist16 ants on staffing levels and ratios in covered

17 nursing facilities, including staffing levels for

18 duties performed by resident assistants in other

19 capacities in the facility (such as housekeeping

20 or claims processing);

21 (C) measure the effect that the presence of

22 such resident assistants has on certified nurse

23 assistants, including—

24 (i) recruitment and retention within

25 the certified nurse assistant profession;
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1 (ii) wage structures in effect for such

2 certified nursing assistants during the

3 demonstration project and, in particular,

4 whether payment under such structures

5 decreased as a result of the use of resident

6 assistants; and

7 (iii) instances of resident assistants

8 being promoted to certified nurse assistant

9 positions; and

10 (D) examine resident satisfaction with re11 spect to nutrition and hydration services pro12 vided by resident assistants.

13 (4) ADVISORY PANEL.—

14 (A) DUTIES.—Not later than November 1,

15 2003, the Secretary shall convene an advisory

16 panel that shall—

17 (i) review and evaluate the data col18 lected in accordance with subsection (c);

19 and

20 (ii) submit recommendations on the

21 use or improvement of resident assistants

22 in covered nursing facilities.

23 (B) MEMBERSHIP.—The advisory panel

24 convened under subparagraph (A) shall consist

25 of representatives of the following:
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1 (i) The Health Care Financing Ad2 ministration of the Department of Health

3 and Human Services.

4 (ii) National and local organizations

5 representing for-profit and nonprofit cov6 ered nursing facilities.

7 (iii) Consumer groups.

8 (iv) State long-term care ombudsmen

9 or other nursing facility resident advocates

10 of the State.

11 (v) Labor organizations.

12 (vi) State survey and licensure agen13 cies.

14 (vii) Licensed health care providers.

15 (viii) Dietitians.

16 (ix) Speech therapists.

17 (x) Any other entities or individuals

18 that the Secretary deems appropriate.

19 (e) AUTHORIZATION OF APPROPRIATIONS.—There is

20 authorized to be appropriated such sums as may be nec21 essary to carry out this section.

22 (f) DEFINITIONS.—In this section:

23 (1) DEMONSTRATION STATE.—The term ‘‘dem24 onstration State’’ means—

25 (A) Wisconsin,
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1 (B) North Dakota, and

2 (C) not more than 6 States (other than

3 Wisconsin and North Dakota) as selected by

4 the Secretary which, as of the date of enact5 ment of this Act, have established or proposed

6 a project, program, or policy to permit individ7 uals who do not meet nurse aide training re8 quirements to perform a covered task.

9 (2) COVERED NURSING FACILITY.—The term

10 ‘‘covered nursing facility’’ means—

11 (A) a skilled nursing facility (as that term

12 is defined in section 1819(a) of the Social Secu13 rity Act (42 U.S.C. 1395i–3(a))), and

14 (B) a nursing facility (as that term is de15 fined in section 1919(a) of the Social Security

16 Act (42 U.S.C. 1396r(a))).

17 (3) RESIDENT ASSISTANT.—

18 (A) IN GENERAL.—The term ‘‘resident as19 sistant’’ means an individual who does not meet

20 nurse aide training requirements (as defined in

21 paragraph (5)) but who does meet the require22 ments specified in subparagraph (B).

23 (B) RESIDENT ASSISTANT REQUIRE24 MENTS.—For purposes of subparagraph (A),
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1 the requirements specified in this subparagraph

2 are the following:

3 (i) The individual has successfully

4 completed an initial training program ad5 ministered by the facility that meets the

6 requirements of subparagraph (C) and

7 subsequent competency evaluations, as re8 viewed and approved by the demonstration

9 State (which, with respect to the training

10 program, may be during the facility’s

11 standard survey).

12 (ii) The individual is performing a

13 covered task under the onsite supervision

14 (as defined in paragraph (6)) of a licensed

15 health professional (as defined in section

16 1819(b)(5)(G) of the Social Security Act

17 (42 U.S.C. 1395i–3(b)(5)(G))).

18 (iii) In the case of an individual per19 forming a feeding and hydration covered

20 task, the determination of the residents

21 who may receive such a task from a resi22 dent assistant shall be based on the needs

23 and potential risks to the resident, as ob24 served and documented in the resident’s

25 written plan of care and the comprehensive
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1 assessment of the resident’s functional ca2 pacity required under section 1818(b) or

3 1919(b) of the Social Security Act (42

4 U.S.C. 1395i–3(b), 1396r(b)).

5 (iv) The individual complies with any

6 other limitations on performance of duties

7 which may be established by the dem8 onstration State.

9 (C) TRAINING PROGRAM REQUIRE10 MENTS.—For purposes of subparagraph (B)(i),

11 a training program shall—

12 (i) relate to the performance of the

13 covered task to be performed by the indi14 vidual; and

15 (ii) include—

16 (I) feeding skills and assistance

17 with eating;

18 (II) the importance of good nu19 trition and hydration, including famil20 iarity with signs of malnutrition and

21 dehydration;

22 (III) an overview of the aging

23 and disease process, as it relates to

24 nutrition and hydration services;
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1 (IV) how to respond to a choking

2 emergency and alert licensed staff to

3 other health emergencies;

4 (V) universal precautions for the

5 prevention of the spread of commu6 nicable diseases; and

7 (VI) a statement of residents’

8 rights.

9 (4) COVERED TASK.—

10 (A) IN GENERAL.—The term ‘‘covered

11 task’’ means feeding and hydration.

12 (B) EXCLUSIONS.—Such term does not

13 include—

14 (i) administering medication,

15 (ii) providing direct medical care, in16 cluding taking vital signs, skin care, or

17 wound care, or

18 (iii) performing range of motion or

19 other therapeutic exercises with residents.

20 (5) NURSE AIDE TRAINING REQUIREMENTS.—

21 The term ‘‘nurse aide training requirements’’ means

22 the requirements of sections 1819(b)(5)(F) and

23 1919(b)(5)(F) of the Social Security Act (42 U.S.C.

24 1395i–3(b)(5)(F) and 1396r(b)(5)(F)) relating to

25 nurse aides.
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1 (6) ONSITE SUPERVISION.—The term ‘‘onsite

2 supervision’’ means that a licensed health profes3 sional referred to in paragraph (3)(B)(ii) is in the

4 unit or floor where services are being provided, and

5 is readily available to provide assistance if necessary.

6 (7) SECRETARY.—The term ‘‘Secretary’’ means

7 the Secretary of Health and Human Services.

8 (8) DEMONSTRATION PROJECT.—The term

9 ‘‘demonstration project’’ means the demonstration

10 project conducted under this section.

11 (9) STATE.—The term ‘‘State’’ has the mean12 ing given such term for purposes of titles XVIII and

13 XIX of the Social Security Act (42 U.S.C. 1395 et

14 seq., 1396 et seq.).

15 SEC. 3. AUTHORIZING THE USE OF RESIDENT ASSISTANTS

16 IN NURSING FACILITIES RECEIVING PAY17 MENTS UNDER THE MEDICARE OR MEDICAID

18 PROGRAM.

19 (a) IN GENERAL.—Subsection (b) of sections 1819

20 and 1919 (42 U.S.C. 1395i–3, 1396r) of the Social Secu21 rity Act, as amended by section 941 of the Medicare, Med22 icaid, and SCHIP Benefits Improvement and Protection

23 Act of 2000, as enacted into law by section 1(a)(6) of Pub24 lic Law 106–554, are each amended by adding at the end

25 the following new paragraph:
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1 ‘‘(9) USE OF RESIDENT ASSISTANTS.—

2 ‘‘(A) IN GENERAL.—Subject to the suc3 ceeding provisions of this paragraph, a skilled

4 nursing facility may use a resident assistant to

5 perform a covered task for a resident of the fa6 cility that would otherwise be performed by a

7 nurse aide.

8 ‘‘(B) DEFINITION.—The term ‘resident as9 sistant’ means an individual—

10 ‘‘(i) who has successfully completed

11 an initial training program and com12 petency evaluation, and subsequent com13 petency evaluations, approved by the State

14 under subsection (e)(6); and

15 ‘‘(ii) who is competent to perform a

16 covered task.

17 ‘‘(C) REQUIREMENT FOR ONSITE SUPER18 VISION.—A resident assistant may only perform

19 a covered task under the supervision of a li20 censed health professional (as defined in para21 graph (5)(G)) who is present in the unit or

22 floor where the covered task is performed and

23 who is readily available to provide assistance to

24 the resident assistant.
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1 ‘‘(D) REQUIREMENT FOR DETERMINATION

2 OF APPROPRIATE PATIENTS.—A resident assist3 ant may only perform a covered task for a resi4 dent who is approved for such purpose based on

5 the needs of, and potential risks to, the resi6 dent, as observed and documented in the resi7 dent’s written plan of care and the comprehen8 sive assessment of the resident’s functional ca9 pacity required under this subsection.

10 ‘‘(E) ADDITIONAL REQUIREMENTS.—The

11 individual complies with any other limitations

12 on performance of duties which may be estab13 lished by the State in which the covered task is

14 performed.

15 ‘‘(F) MINIMUM STAFFING REQUIREMENTS

16 NOT AFFECTED.—A resident assistant shall not

17 be counted toward meeting or complying with

18 any requirement for nursing care staff and

19 functions of such facilities under this section,

20 including any minimum nursing staffing re21 quirement.

22 ‘‘(G) COVERED TASK DEFINED.—For pur23 poses of this section, the term ‘covered task’

24 means feeding and hydration.’’.
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1 (b) SPECIFICATION OF TRAINING PROGRAM AND

2 COMPETENCY EVALUATION STANDARDS.—

3 (1) REQUIREMENT FOR STANDARDS.—Sub4 section (e) of such sections are each amended by

5 adding at the end the following new paragraph:

6 ‘‘(6) SPECIFICATION AND REVIEW OF RESIDENT

7 ASSISTANT TRAINING PROGRAMS AND COMPETENCY

8 EVALUATION AND OF RESIDENT ASSISTANT COM9 PETENCY EVALUATIONS.—The State must—

10 ‘‘(A) specify those initial training programs

11 and competency evaluations, and those subse12 quent competency evaluations, that the State

13 approves for purposes of subsection (b)(9) and

14 that meet the requirements established under

15 subsection (f)(8), and

16 ‘‘(B) provide for the review and reapproval

17 of such evaluations, at a frequency and using a

18 methodology consistent with the requirements

19 established under subsection (f)(8).’’.

20 (2) SPECIFICATION OF STANDARDS.—Sub21 section (f) of such sections are each amended by

22 adding at the end the following new paragraph:

23 ‘‘(8) REQUIREMENTS FOR RESIDENT ASSISTANT

24 TRAINING PROGRAMS AND COMPETENCY EVALUA-
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1 TIONS AND FOR RESIDENT ASSISTANT COMPETENCY

2 EVALUATIONS.—

3 ‘‘(A) IN GENERAL.—For purposes of sub4 sections (b)(9) and (e)(6), the Secretary shall

5 establish requirements for the approval of resi6 dent assistant training programs and com7 petency evaluations administered by the facility,

8 including—

9 ‘‘(i) requirements described in sub10 paragraph (B),

11 ‘‘(ii) minimum hours of initial and on12 going training and retraining,

13 ‘‘(iii) qualifications of instructors,

14 ‘‘(iv) procedures for determination of

15 competency, and

16 ‘‘(v) the minimum frequency and

17 methodology to be used by a State in re18 viewing compliance with the requirements

19 for such evaluations.

20 ‘‘(B) REQUIREMENTS DESCRIBED.—For

21 purposes of subparagraph (A), the requirements

22 described in this subparagraph are the fol23 lowing:

24 ‘‘(i) Feeding skills and assistance with

25 eating.
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1 ‘‘(ii) The importance of good nutrition

2 and hydration, including familiarity with

3 signs of malnutrition and dehydration.

4 ‘‘(iii) An overview of the aging and

5 disease process, as it relates to nutrition

6 and hydration services.

7 ‘‘(iv) How to respond to a choking

8 emergency and alert licensed staff to other

9 health emergencies.

10 ‘‘(v) Universal precautions for the

11 prevention of the spread of communicable

12 diseases.

13 ‘‘(vi) Residents’ rights.

14 ‘‘(C) SPECIAL RULE FOR STATE DEM15 ONSTRATION PARTICIPANTS.—In the case of a

16 State that was a demonstration State (as that

17 term is defined in subsection (f)(1) of section 2

18 of the Medicare and Medicaid Nursing Services

19 Quality Improvement Act of 2001), to the ex20 tent that the demonstration State has in effect

21 any requirement for the approval of resident as22 sistant training programs and competency eval23 uations that meets or exceeds the same require24 ment that the Secretary establishes under this

25 paragraph, notwithstanding subsection
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1 (b)(9)(B)(i) resident assistants who performed

2 the covered task in facilities in that State under

3 that demonstration project—

4 ‘‘(i) do not have to complete the entire

5 initial training program and competency

6 evaluation required under that subsection;

7 and

8 ‘‘(ii) shall only be required to meet

9 those requirements for such approval that

10 the Secretary establishes under this para11 graph that the State does not have in ef12 fect.’’.

13 (c) CONTINGENT EFFECTIVE DATE.—(1) The

14 amendments made by this section shall become effective

15 (if at all) in accordance with paragraph (2).

16 (2)(A) Not later than December 1, 2004, the Sec17 retary of Health and Human Services (in this paragraph

18 referred to as the ‘‘Secretary’’) shall submit to Congress

19 a report on the results of the demonstration project estab20 lished under section 2 that analyzes the effect on resident

21 care in authorizing the use of resident assistants to fur22 nish feeding and hydration services to residents in skilled

23 nursing facilities under the medicare program and resi24 dents in nursing facilities under the medicaid program in

25 the demonstration States.
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1 (B) Such project shall be discontinued, and the

2 amendments made by this section shall become effective,

3 on January 1, 2005, unless the Secretary includes in that

4 report a finding, on the basis of data collected under sec5 tion 2(c) that—

6 (i) authorizing the use of such resident assist7 ants to furnish such services diminishes the quality

8 of feeding and hydration services furnished to resi9 dents of those facilities; or

10 (ii) any decreased recruitment and retention of

11 nursing staff of those facilities and reduced salaries

12 for such nursing staff is directly attributable to the

13 use of such resident assistants to furnish such serv14 ices.

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