Long Term
CARE
& Senior Housing Practice
Feeding Assistants Class Action
Summer/Fall 2004
ing in the following areas: (1) feeding techniques; (2) assistance with
feeding and hydration; (3) communication and interpersonal skills;
(4) appropriate responses to resident behavior; (5) safety and emergency procedures, including the Heimlich maneuver; (6) infection
control; (7) resident rights; and (8) recognizing changes in residents
that are inconsistent with their normal behavior and the importance
of reporting those changes to a supervisory nurse.
By Barbara Duffy
and
Mary K. Schug
Although not without controversy at their inception, the regula-
Prior to the feeding assistant regulations, only qualified nursing
staff, including registered nurses, licensed practical nurses, certified nurses aides who have completed seventy-five hours of training, and volunteers (usually family members or friends) were allowed to assist facility residents with eating and drinking. HHS
found that based upon the critical shortage of certified nursing
aides and the increasing frailty of nursing home populations there
exists a need for specially trained staff to help residents eat at
mealtimes. The use of feeding assistants to help residents with
eating and drinking is intended not to replace certified nursing
aides, but rather to allow them to perform other, more complex
tasks.
tions adopted by the Department of Health and Human Services
that allow the use of paid feeding assistants by nursing facilities are
officially under attack. On July 30, 2004, a class action complaint,
Residents Council of Washington et al. v. Thompson, was filed in the
United States District Court for the Western District of Washington
seeking to invalidate the regulations and to prevent their implementation.
The Residents Council of Washington et al. v. Thompson complaint alleges that the regulations are in conflict with the Nursing Home
Reform Law, which sets quality of care standards for every nursing
home certified for reimbursement from Medicare or Medicaid.
Plaintiffs also allege that the Secretary of the Department of Health
and Human Services violated the Administrative Procedure Act by
promulgating regulations that depart from agency precedent without a reasoned explanation and empirical support.
HHS specifically notes that the feeding assistants, after proper
basic training in feeding techniques and working with the elderly,
would assist only those residents who do not have complicated
feeding problems. The regulations dictate that the decision as to
whether a resident is to be fed by a feeding assistant is based on
the charge nurse’s assessment and the resident’s latest assessment
and plan of care. HHS notes that, as with any employee, facilities
that choose to use paid feeding assistants remain responsible for
any adverse actions resulting from the use of these assistants.
The Regulations
The Department of Health and Human Services (HHS), Centers
for Medicare & Medicaid Services (CMS) recently promulgated
regulations permitting nursing facilities to use paid feeding assistants to supplement the services of certified nurses aides under
certain defined conditions. The regulations are intended to help
more residents with eating and drinking, thereby reducing the risk
of unplanned weight loss and dehydration. Review of the regulations and the agency’s decision-making process illuminate not only
the crisis nursing facilities face in adequately staffing their facilities,
but also the potential that utilization of trained and supervised
feeding assistants can help alleviate that problem.
In promulgating the regulations, Wisconsin and North Dakota
were recognized by HHS as two states that have had serious difficulty hiring enough certified nursing aides. To address the shortage, both states allowed nursing homes to use single-task feeding
assistants in years prior to the passage of the federal regulations.
HHS states that it evaluated Wisconsin and North Dakota’s experiences as part of its review. The States reported that in facilities
using feeding assistants, the benefits to residents included fewer
cases of unexplained weight loss and dehydration than in facilities that did not use feeding assistants, with no reported ill effects.
Based upon these states’ experiences and the shortage of certified
nursing aides, HHS concluded that the benefits to residents were
outweighed by the potential risks.
Effective October 27, 2003, the regulations, 42 C.F.R. Parts 483
and 488, set minimum federal standards for the use of feeding
assistants who complete an eight-hour State-approved training program, and work under the supervision of a registered nurse or licensed practical nurse. The training program must include train1
Central to plaintiffs’ complaint is the allegation that the use of paid
feeding assistants would diminish the quality of care provided in nursing homes, placing nursing home residents at risk of serious injury
and possibly death. Plaintiff Resident Councils alleges that the use of
feeding assistants in Washington will result in its members being threatened with harm and possible death. Additionally, Resident Councils
states that other of its members would suffer from the overall decline
of care caused by the regulations. Plaintiff the Ombudsman Program
asserts that its program will be harmed by the paid feeding assistant
regulations because it will be forced to devote scarce resources to
inform residents of the regulations and their alleged harm. Finally,
the four individual plaintiffs who are current residents of long-term
care facilities in Washington have not been fed by feeding assistants
and allege merely that they are “worried” or “concerned” about the
utilization of these individuals in their facilities.
Plaintiffs Seek Court Invalidation of Regulations
The Residents Council of Washington et al. v. Thompson case seeks to invalidate the federal regulations that allow the use of paid feeding assistants by long-term care facilities. Plaintiffs are: (1) Resident Councils
of Washington (Resident Councils), a not-for-profit corporation, whose
membership consists primarily of nursing home and boarding home
residents, and also includes residents’ family members, ombudsmen,
and representatives of nursing homes and other health care providers
in Washington; (2) Washington State Long-Term Care Ombudsman
Program acting through Kary Hyre, the State Long-Term Care Ombudsman (the Ombudsman Program); and (3) four individual residents of nursing home facilities in the state of Washington. Plaintiffs
bring the action on their own behalf and on behalf of the a class
consisting of “residents of all federally-certified nursing homes in
states that have decided or will decide to permit nursing homes to
employ paid feeding assistants pursuant to the federal feeding assistant regulations.” The defendant is Tommy Thompson, in his capacity as Secretary of the United States Department of Health and Human Services.
Barbara J. Duffy is a partner in the Seattle office of Lane Powell
Spears Lubersky LLP. Barb is the Chair of the Long-term Care Practice
Group and focuses her trial practice on class actions and complex
commercial disputes. Barbara can be reached at 206.223.7944 or at
duffyb@lanepowell.com
Plaintiffs claim that since the effective date of the federal feeding
assistant regulations, more than 15 states have chosen to authorize
the use of feeding assistants, including Washington. The Washington
Department of Health and Human Services authorized the use of
feeding assistants, called “dietary aides,” on February 23, 2004. The
State approved a single training curriculum developed by the American Health Care Association.
Mary K. Schug is an associate in the Seattle office of Lane Powell
Spears Lubersky LLP. Mary focuses her practice on litigation matters.
She can be reached at 206.223.7936 or at schugm@lanepowell.com
Article printed with permission by Lane Powell Spears Lubersky LLP
© 2004 Lane Powell Spears Lubersky LLP
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