Feeding assistants hired despite legal challenge

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Skilled nursing providers continue to hire feeding assistants despite a pending investigation requested by two congressional leaders and a consumer advocacy group's legal challenge.

A rule issued by the Centers for Medicare & Medicaid Services last September permits long-term care facilities, for the first time, to hire workers specifically for the purpose of feeding residents. Because the function is a "single task," the feeding assistants only need eight hours of training instead of the 75 hours required for certified nurse aides.
The National Senior Citizens Law Center claims the new regulation violates the Nursing Home Reform Law, which requires all nursing home employees providing nursing-related services, such as feeding, to be either licensed healthcare professionals or CNAs. The NSCLC and Center for Medicare Advocacy recently filed suit in order to force the Department of Health and Human Services to divulge information about feeding assistant pilot programs in Wisconsin and North Dakota in 2003.
The feeding assistant rule is also due to be scrutinized by key lawmakers in the U.S. House and Senate. Rep. Henry Waxman (D-CA) and Sen. Charles Grassley (R-IA) have requested payroll and invoice data from HHS in order to examine staffing and work patterns and how the presence of feeding assistants affects care in other areas. At press time, aides from both legislative offices said they had not yet received the requested information.
In the meantime, providers in some states are forging ahead and using feeding assistants. Wisconsin, for instance, has adopted the program into its state code.
Under the state system, facilities must formally apply to the Department of Health and Family Services, even if they were participants in the pilot program. Besides offering eight hours of minimum training, facilities with dementia patients must provide extra training to feeding assistants.
Brian Purtell, director of legal services for the Wisconsin Health Care Association, said implementation is still in its early stages, but he expects that between one-third and one-half of the association's members will opt into the program. Based on feedback from facilities that participated in the test phase, Purtell said the feeding assistant program is "valuable"for  both residents and employees.
Likewise, North Dakota, the other pilot state, has implemented an official feeding assistant policy. Shelly Peterson, president of the North Dakota Long Term Care Association, said approximately 12 facilities were enrolled.
Neighboring South Dakota hasn't officially started a feeding assistant program yet, but the process is well underway, said Mark Deak, executive director of the South Dakota Health Care Association. Under the auspices of the South Dakota Department of Health, the proposed program would require 10 hours of training, including two hours of clinical practice, supervised by a practicing nurse; there will also be training with a registered dietitian and speech pathologist.
"We are proceeding very carefully – quality of care is our first priority," Deak said. "We're not aware of any negative issues with our program, but if there are any, we will look at them and act accordingly."
Several other states, including Arizona, Connecticut, Florida, Michigan and Ohio are reportedly progressing toward adopting policies as well.
Because of criticism from AARP and others, in Vermont, the state's Division of Licensing and Protection has put a moratorium on applications from facilities wanting to train feeding assistants. The division will instead monitor already approved programs to evaluate their effectiveness and impact over the next year.
Officials from the states that have enacted the feeding assistant programs say many of the workers are senior citizens and college students.
"It's a great marriage," Peterson said. "We are enhancing staffing, the dining experience and one-on-one time with residents.
'Troubling' precedent
The NSCLC suit is using the Freedom of Information Act to force HHS disclosure of the Wisconsin and North Dakota test project results. Attorney Eric Carlson says the department has released most documents, but that others have been withheld under an except