Feeding assistants causing legal trouble for HHS.

A Washington state ombudsman program and long term care residents' coalition have filed a class action lawsuit against the U.S. Department of Health and Human Services (HHS), alleging the agency violated the federal Nursing Home Reform Law by allowing use of improperly trained feeding assistants to provide care to nursing home residents.

Filed in U.S. District Court in the Western District of Washington by the Washington State Long Term Care Ombudsman Program and the Resident Councils of Washington (RCW), the suit seeks to prevent HHS from allowing facilities to use assistants with as few as eight hours of training instead of the 75 hours minimum required by the Nursing Home Reform Law.

In the suit, the coalition stated HHS's contention that the reform law's provisions do not apply to feed ing assistants because their duties are not considered nursing-related. In October 2003, HHS reversed a 13-year-old rule against use of feeding assistants, giving states the option of allowing their use.

Officials with HHS did not return calls by press time

As of early September, 14 states, including Washington, regularly use feeding assistants, according to plaintiff attorney Toby Edelman at the Center for Medicare Advocacy Inc., in Washington, D.C. Feeding assistant regulations are pending in four other states, Edelman said.

Two states, Wisconsin and North Dakota, successfully used feeding assistants for several years, according to HHS Secretary Tommy Thompson, the lawsuit's defendant. Although the states' use was illegal at the time under the reform law, the actions offered evidence "of the value and benefit of using paid feed ing assistants," the lawsuit stated

In the lawsuit, Thompson estimated that roughly 20 percent of the nation's 17,000 Medicare or Medicaid program involved nursing homes would ultimately use feeding assistants

RCW and the state ombudsman program filed the suit because members expressed concern that using feeding assistants would diminish the quality of care for nursing home residents and make it more likely that they will suffer injury or death, according to Kary Hyre, Washington state's ombudsman in Federal Way, Wash.

A feeding assistant, for example, wouldn't have the training necessary to deal with sudden medical emergencies such as a resident choking, or handling issues such as encouraging difficult residents to eat, according to the lawsuit.

Facilities could also attempt to cut costs by reducing the number of certified nurse aides as they hire more feeding assistants.

"When the state agreed to begin using feeding assistants, it was under the understanding that the training requirements would be much more than what HHS said was required, and that they would use only currently paid staff, such as a nursing home administrator, kitchen staff or housekeeping staff," Hyre said.

"But when the state decided to go ahead with the program, it said, 'if you just follow Tommy Thompson's rules, that's good enough' Residents came to us saying that no, that wasn't going to be good enough."

The lawsuit could have the intended effect of stopping feeding assistant use, Hyre said "[W]hat is happening is not many facilities in Washington are following through and starting a feeding assistant program," he said "Why would they want to start a program, (if a) court may tell them to take it down?"

Alan Naditz Senior Editor