60 Seconds with... Eric Carlson, Attorney, National Senior Citizens Law Center

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Q: Why are you helping residents who have filed suit to stop the federal government's new class of feeding assistants?

A: The feeding assistant regulation cannot be reconciled with the federal nursing home reform law. The government required in 1987 that all work be done by at least nurse aides. You need to establish this floor of competence.

Q: But don't more hands help?

A: There's this false premise that if we can only eliminate these requirements, we can put enough people out on the floor. The pay is inadequate and the prospects for career advancement are so limited. Even after individuals are certified, they just drift out of the workforce.

Q: What's your second main argument?

A: The government's promulgation of the regulation was arbitrary and capricious. It's improper for the federal government, or anyone else, to justify this, after the fact.

Q: What do you mean?

A: What little information officials had was purely anecdotal for promulgating the rule. Upon being sued, the federal government turned over its correspondence. In the 1990s and early 2000s, it had consistently taken the point of view of the plaintiffs here. It stated that feeding assistants could not be allowed under federal law and these early operations in Wisconsin and North Dakota were illegal.

Q: What do you think the odds are of
overturning the rule?

A: I don't handicap these cases. From 1993 up until the feeding assistant regulation was proposed, the federal government took the same position as the plaintiffs here. I think that indicates the strength of the case.


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