A few North Dakota nursing homes would rather commit civil disobedience against HCFA than stop using workers the facilities consider vital to patient care.
The workers are known as "feeding assistants" or "single-task workers," and North Dakota nursing homes have been employing them since the late 1980s.
They are trained to perform simple tasks such as helping with meals or transporting residents in their wheelchairs, but they do not take a complete certified nursing-assistant's course.
Officials from several homes said publicly they will flout the regulation if some of their feeding assistants decide against taking the extra training, said Shelly Peterson, president of the North Dakota Long Term Care Association.
"People, I think at this point, would rather risk a deficiency (during an inspection) than risk worsening patient care or outcomes," Peterson said.
Wisconsin is in the same boat, with homes there having employed single-task workers since the early 1990s.
"If we're not successful with getting a waiver or pilot program, or passing legislation, I don't know whether people will (flout) the law or not," said Brian Purtell, legal services director of the Wisconsin Health Care Association. "I've heard some people say, `I don't care. We're going to keep doing this.' "
Wisconsin's involvement in the issue may be a key factor in whether the two states win a reprieve. Industry officials are hoping that Tommy Thompson, the former Wisconsin governor who now is HHS secretary, will influence HCFA to change its ruling.
"Certainly, (former) Gov. Thompson knows the experience of the resident assistants firsthand," said Terrence Kavanaugh, executive director of the Illinois Council on Long Term Care. Illinois legislators approved a single-task worker law in 1999, just as HCFA signaled it would disapprove of them, Kavanaugh said. A Minnesota state legislator is interested in pushing for passage of a similar law there.
U.S. Rep. Paul Ryan, a Wisconsin Republican, also is lobbying Thompson to weigh in with HCFA on the matter. Ryan also plans to introduce a bill to allow feeding assistants in the next month. He filed a similar bill last year, but it stalled.
HCFA's ruling affects about 450 workers in North Dakota and from 500 to 1,500 workers in Wisconsin. Nursing home officials question how many feeding assistants will take courses that can run 75 to 120 hours, depending on the state. Many are part-time workers, such as students or younger retirees, or work primarily in an administrative setting in a home and are available to help during meals.
Unions adamantly oppose the use of feeding assistants because they believe nursing homes will use them to replace more highly trained and higher-paid workers. Resident advocates are leery of feeding assistants for the same reason.
HCFA got wind of the practice about three years ago. The agency ruled last summer that feeding assistants must receive nurse-assistant training to continue in their jobs. HCFA said the workers perform "nursing or nursing-related" tasks, and only workers with the full training course may do so under the Social Security Act governing Medicaid and Medicare payments to nursing homes.
HCFA approved each state's plans to comply with the statute-or what providers in both states see as HCFA's interpretation of it-in separate letters, with Wisconsin's dated Jan. 23 and North Dakota's Feb. 5.
In North Dakota, all single-task workers must be enrolled in or have completed a certified nursing-assistant training program by Sept. 30. Wisconsin's remediation plan gives workers there until the end of October to complete the training.