NURSING HOME RESIDENTS CHALLENGE
"FEEDING ASSISTANT" REGULATIONS
THAT LOWER STANDARDS OF CARE


In a lawsuit filed in federal court in Seattle, Washington on July 30, 2004, four nursing home residents and two organizations representing residents and their families have challenged the federal government’s new "feeding assistant" regulations. The case, known as Resident Councils of Washington v. Thompson, requests the Court to declare the regulations invalid under federal law and to enjoin their continued use. The residents and organizations seek to represent a nationwide class of nursing home residents who may be harmed by the new regulations. An attorney in private practice and attorneys from the Center for Medicare Advocacy and the National Senior Citizens Law Center are handling the plaintiffs’ case.

Under the 1987 federal Nursing Home Reform Law, non-nurses are allowed to provide direct care to residents in Medicare or Medicaid certified facilities only if they have at least 75 hours of training, successful testing, and certification as a nurse aide. The federal government had consistently interpreted this law to require that feeding assistants meet these standards as well and had actually found one state in violation of the law for allowing its facilities to hire feeding assistants without the required 75 hours of training.

In 2002, however, the federal Department of Health and Human Services’ Centers for Medicare and Medicaid (CMS) suddenly reversed course and proposed regulations that would allow states to permit nursing homes to hire feeding assistants with only eight hours of training. CMS contended that this change in policy did not violate the Nursing Home Reform Law because it did "not consider the kinds of tasks facilities may ask feeding assistants to provide as either nursing or nursing related." The regulations took effect on October 27, 2003, and, since then, over 15 states have altered their policies to permit nursing homes to hire feeding assistants.

Residents, their families, and advocates are all worried about the implications of the new policy. First and foremost is that inadequately trained feeding assistants will put residents’ lives at risk because they will not be equipped to handle the problems that inevitably arise. Experts on nursing home care have determined that swallowing disorders are usually not identified and are concerned that feeding assistants will be unable to cope. Louise Clark, a plaintiff and the President of Resident Councils of Washington, made this point in a press release: "I’ve lived in a nursing home for almost 5 years. The training of direct-care staff is key. They work very hard. It is absolutely backwards to reduce training requirements for our staff. Taking care of elderly nursing home residents is complicated!"

Another concern is that nursing homes will seek to save money by hiring feeding assistants at lesser pay to replace certified nurse aides, with the result that care for all residents will suffer. Kary Hyre, head of the Washington State Long-Term Care Ombudsman Program, the other organizational plaintiff, described this effect as "penny-wise and pound-foolish. It’s turning our backs on nearly 20 years of progress. Yes, we have problems during mealtimes in nursing homes, but there are many creative alternatives. There is no need to lower our standards."

One of the ironies of CMS’ change in position is that, in proposing the regulations, it contended that the experiences of North Dakota and Wisconsin, which had been illegally allowing paid feeding assistants for years, demonstrated that the approach was safe and effective. But, when pressed in a lawsuit brought under the Freedom of Information Act, CMS could produce no studies and little empirical support for its position. The only evidence presented so far is anecdotal.

Further information on the case is available from plaintiffs’ attorneys Toby Edelman, in the Center for Medicare Advocacy’s Washington, DC office at (202) 293-5760 or tedelman @ medicareadvocacy.org, or Gill Deford, in the Connecticut office at (860) 456-7790 or gdeford @ medicareadvocacy.org.  Remove spaces in emails.  Updates to the case will also be available in the Litigation section of our News page.


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