HLT-30-07-00002-P Feeding Assistants in Nursing Homes

7/25/07 N.Y. St. Reg. HLT-30-07-00002-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 30

July 25, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-30-07-00002-P

Feeding Assistants in Nursing Homes

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

Amendment of section 415.13 and addition of sections 415.2(u) and 415.26(k) to Title 10 NYCRR.

Statutory authority:

Public Health Law, sections 2800 and 2803

Subject:

Feeding assistants in nursing homes.

Purpose:

To permit the use of paid feeding assistants in nursing facilities.

Text of proposed rule:

A new subdivision (u) is added to Section 415.2 to read as follows:

(u) Feeding assistant (see section 415.13(d)(1) of this Part).

Paragraph (1) of subdivision (c) of Section 415.13 is amended to read as follows:

(1) For the purpose of this section and section 415.26(d) of this Part, nurse aide shall mean any person who provides direct personal resident care and services including, but not limited to, safety, comfort, personal hygiene or resident protection services, for compensation, under the supervision of a registered professional nurse or licensed practical nurse in the facility[.], except for those individuals who furnish services to residents only as feeding assistants as defined in Section 415.13(d) of this Part. Certification of such nurse aide shall be in accordance with the provisions of section 415.26(d) of this Part.

A new subdivision (d) is added to Section 415.13 to read as follows:

(d) Feeding Assistant. (1) Feeding assistant shall mean an individual who meets the requirements of this section and who is paid by the facility or provided to the facility under contract with another entity to feed residents or assist residents with eating or hydration.

(2) The feeding assistant shall:

(i) be under the supervision of a nurse;

(ii) only feed or assist with feeding only those residents who do not have complicated feeding problems. Complicated feeding problems include, but are not limited to, difficulty swallowing, recurrent lung aspirations, and tube or parenteral/IV feedings.

(iii) have successfully completed a state-approved feeding assistant training program, such program shall meet the requirements as described in subdivision (k) of section 415.26 of this Part.

(3) The charge nurse's selection of residents who can safely be fed or assisted by a feeding assistant shall be based upon a registered professional nurse's assessment and the resident's latest assessment and plan of care.

(4) The feeding assistant may only provide eating and hydration assistance to residents in congregated dining rooms, not in a resident's room.

(5) In an emergency, the feeding assistant must call a supervisory nurse for help on the resident call system, when the supervisory nurse is not on the scene.

(6) The facility must maintain records of all individuals used by the facility as feeding assistants. For each individual, such records shall include, but not be limited to:

(i) a copy of the feeding assistant training program certificate of completion,

(ii) the dates and results of evaluations of the feeding assistant, and

(iii) the dates and subject topics of any additional training related to the individual's role as a feeding assistant, and a record of the individual's demonstrated competency in the activities and/or skills toward which the training was focused.

A new subdivision (k) is added to Section 415.26 to read as follows:

(k) Feeding Assistant Training Course.

(1) The feeding assistant training program shall consist of a minimum of 15 hours of education and training and must include all of the topics and lessons specified in the state-approved feeding assistant training program curriculum.

(2) The state-approved feeding assistant training program shall include, but not be limited to, training in the following content areas:

(i) Resident rights;

(ii) Infection control;

(iii) Safety and emergency procedures, including Heimlich Maneuver;

(iv) Communications and interpersonal skills;

(v) Changes in resident's condition;

(vi) Appropriate response to resident behavior;

(vii) Assistance with eating and hydration; and

(viii) Feeding techniques.

(3) The facility shall issue a certificate of completion to each individual who successfully completes the state-approved feeding assistant training program. The certificate shall include the full name of the feeding assistant and the facility-issued trainee or employee ID number, signature of feeding assistant, name and address of the facility, date the individual successfully completed the feeding assistant training program, name, title and signature of the training program instructor, and name and signature of the nursing home administrator.

(4) The facility shall retain records of each individual who completes their state-approved feeding assistant program. Such records shall include, but not be limited to:

(i) the full name of the feeding assistant, facility-issued trainee or employee ID number, name and address of the facility, dates on which each content area of the feeding assistant training program was delivered and successfully completed, the date on which the individual successfully completed the feeding assistant training program, and the name, title and signature of the training program instructor.

Text of proposed rule and any required statements and analyses may be obtained from:

William Johnson, Department of Health, Office of Regulatory Affairs, Corning Tower, Rm. 2438, Empire State Plaza, Albany, NY 12237-0097, [phone], fax: [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

Statutory Authority:

The proposed regulations are promulgated under the authority of Section 2803(2) of the Public Health Law (PHL) which authorizes the State Hospital Review and Planning Council (SHRPC) to adopt and amend rules and regulations, subject to the approval of the Commissioner, to implement the purposes and provisions of Article 28 of the Public Health Law, and to establish minimum standards equal to the standards and procedures which federal law and regulation require for health care facilities pursuant to Title XVIII and XIX of the Federal Social Security Act.

The Federal statutory authority is embedded in Sections 1819(a) through (e) and 1919(a) through (e) of the Social Security Act, which set forth requirements for facilities participating in Medicare and Medicaid. Sections 1819(b)(5)(F) and 1919(b)(5)(F) provide the definition of a nurse aide. Sections 1819(g) and 1919(g) set forth the criteria for nurse aide training and competency evaluation programs. Single task workers performing a function traditionally performed by a nurse aide, such as a feeding assistant, are subject to relevant training and competency evaluation programs as well. Sections 1819(f) and 1919(f) contain assessment criteria to be used in determining a facility's compliance, as mandated by the Omnibus Budget Reconciliation Act of 1987.

Legislative Objectives:

In enacting Public Health Law Article 28, the Legislature sought to assure the provision of health related service of the highest quality, efficiently provided and properly utilized at a reasonable cost and to establish standards and procedures necessary to implement the provisions of the Medicare and Medicaid program of the Social Security Act.

Needs and Benefits:

Nursing homes have experienced an increase in the acuity of the clinical conditions present in the residents under their care. A greater percentage of their resident population exhibits higher levels of care requiring greater staff time, with nursing staff having less time to devote to routine tasks, such as monitoring their residents to ensure adequate nutrition, and maintaining adequate fluid levels. Certified nurse aides are available to perform many of these tasks, but certified nurse aides require a minimum of 100 hours of training in eight units to achieve certification, and are extensively used by nursing facilities for other functions.

The proposed regulations provide an opportunity for nursing homes to enrich their staffing by employing single task feeding assistants to supplement existing nursing personnel. The employment of feeding assistants would allow nursing facilities to utilize additional staff to assume the task of feeding those residents who only require encouragement or minimal assistance, thereby allowing certified nurse aides to devote their attention to residents with more complicated feeding problems, along with their other direct resident care tasks and duties. Feeding assistants working in New York State nursing homes will be required to successfully complete the New York State-approved 15-hour Feeding Assistant Training Program prior to actually feeding any resident. Feeding assistants will be limited by regulation to feeding only those residents without complicated issues based on the charge nurse's assessment and the resident's latest plan of care. Feeding assistants, who will be under the supervision of a nurse, are further restricted to feeding residents only in congregate dining rooms, not in a resident's room. It is therefore expected that residents would not experience any harm, or diminution in their care. The introduction of feeding assistants may in fact have the opposite effect, resulting in a higher level of care as residents receive more attention and continuity in their care. The additional assistance rendered by feeding assistants with feeding and hydration may help to deter unplanned weight loss and dehydration in nursing home residents.

The employment of feeding assistants would allow nursing homes to attract workers who may be available only one or two hours a day, including homemakers, students and retirees. The use of feeding assistants would also permit nursing homes to cross-utilize existing non-nursing staff to feed residents, including administrators and service personnel. In addition, to being required to successfully complete the state-approved Feeding Assistant Training Program, all individuals feeding residents and would be subject to required Criminal History Background Checks. The employment of feeding assistants would permit the more efficient use of existing nursing personnel, while enhancing the overall staffing of nursing homes.

Costs:

Costs to Regulated Parties:

It is anticipated that additional costs to nursing homes would be minimal, with feeding assistants paid near minimum wage, and less than certified nurse aides. Feeding assistants would be employed for only a few hours each day. Nursing homes would also gain that ability to more efficiently utilize existing staff, including administrative personnel, to meet the feeding needs of residents. Any existing staff person who has completed the Feeding Assistant Training Program would become eligible to feed residents. Facilities have experienced a general increase in the amount of time it takes to adequately maintain the nutrition and hydration needs of residents. The use of feeding assistants would provide nursing homes with additional staff to provide more care in the feeding of those residents.

Costs to State and Local Government:

There will be no additional costs to State or local governments.

Costs to the Department of Health:

The Department will not incur any additional costs from the regulatory revisions. The validation of the nursing home's compliance with the Federal and State regulations will be conducted by existing regional office staff through annual and complaint investigations.

Local Government Mandates:

The regulatory amendments will not impose any new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

Paperwork:

The revisions to the regulations would impose minimal additional paperwork requirements on nursing homes. The regulations require that nursing homes maintain records regarding the training provided to feeding assistants, and revise their existing policies and procedures regarding the use of feeding assistants. These requirements are fully consistent with Federal requirements.

Duplication:

There is no duplication of Federal or State requirements. The State regulations are needed to implement the recently adopted Federal regulations.

Alternative Approaches:

No significant alternatives were considered. The Federal regulations allow the use of paid feeding assistants only if consistent with State law. Nursing homes in New York State would be unable to utilize feeding assistants without regulatory amendments meeting minimum federal standards.

Federal Standards:

The proposed regulations comply with Federal standards. The Federal regulation requires a minimum of 8 hours of training for feeding assistants. The State-Approved Feeding Assistant Training Program requires a minimum of 15 hours of training for paid feeding assistants includes all federally-required topics. The Centers for Medicare and Medicaid Services, however, has indicated it supports states requiring additional training time.

The proposed regulations are authorized under the 2003 revisions to Federal Medicare and Medicaid regulations permitting the use of paid feeding assistants in nursing homes. The federal regulations allow nursing homes to utilize paid feeding assistants only if doing so is consistent with State law. The State Public Health Law would not exclude the use of feeding assistants. The federal regulations require that State programs meet minimum federal standards. These include requirements that feeding assistants complete a State-approved training program and work under the supervision of a registered nurse or a licensed practical nurse.

42 CFR Section 483.35 Dietary Services includes a new paragraph (h) which outlines the rules for utilizing paid feeding assistants: (h)(1)(i) requires paid feeding assistants to complete a State-approved training course meeting the requirements of Section 483.160 before feeding residents and (h)(1)(ii) mandates the use of paid feeding assistants to be consistent with State law; (h)(2)(i) requires that paid feeding assistants work under the supervision of a registered nurse or licensed practical nurse; (h)(2)(ii) requires that they call a supervisory nurse for assistance during an emergency; (h)(3)(i) limits the use of paid feeding assistants only to those nursing home residents who have no complicated feeding problems, (h)(3)(ii) defines complicated feeding problems and (h)(3)(iii) sets forth that resident selection must be based on the charge nurse's assessment and resident's plan of care.

42 CFR Section 483.75(e)(1) Administration amends the definition of nurse aide to exclude those individuals who furnish services to residents only as paid feeding assistants. New paragraph 483.75(q) requires any individual working at a facility as a paid feeding assistant successfully complete a State-approved training program.

42 CFR Section 483.160 establishes minimum course criteria and training times for paid feeding assistants. Paragraph (b) requires facilities to maintain records documenting the training of paid feeding assistants.

42 CFR Section 488.301 Survey and Certification of Long Term Care Facilities contains the definition of a paid feeding assistant, defined as an individual who meets the requirements of Section 483.35(h)(2), and who is paid to feed residents by a facility.

Compliance Schedule:

The proposed regulations will be effective upon publication of a Notice of Adoption in the New York State Register.

Regulatory Flexibility Analysis

Pursuant to Section 202-b of the State Administrative Procedure Act, a regulatory flexibility analysis is not required. The regulations only implement existing Federal regulations requiring accompanying State approval. They permit but do not require the use of trained feeding assistants in nursing facilities. There will be no negative impact on small businesses or local government in New York State. Facilities choosing to use feeding assistants will be subject to only very minor additional recordkeeping, no reporting or additional compliance requirements will be imposed as a result of these regulations.

Rural Area Flexibility Analysis

Pursuant to Section 202-bb of the State Administrative Procedure Act, a rural flexibility analysis is not required. The regulations only implement existing Federal regulations permitting the use of paid feeding assistants in nursing homes. There will be no adverse impact on rural areas in New York State, and no reporting or compliance requirements will be imposed. Minimal additional recordkeeping will be required for facilities choosing to use feeding assistants.

Job Impact Statement

A Job Impact Statement is not included because it is apparent from the nature and purpose of these amendments that they will not have a substantial adverse impact on jobs and employment activities. The regulations permit a new type of paid employee in nursing facilities.