[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 728 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                 S. 728

   To establish a demonstration project to waive certain nurse aide 
  training requirements for specially trained individuals who perform 
   certain specific tasks in nursing facilities participating in the 
 medicare or medicaid programs, and to conditionally authorize the use 
           of resident assistants in such nursing facilities.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 6, 2001

   Mr. Kohl (for himself, Mr. Dorgan, and Mr. Conrad) introduced the 
 following bill; which was read twice and referred to the Committee on 
                                Finance

_______________________________________________________________________

                                 A BILL


 
   To establish a demonstration project to waive certain nurse aide 
  training requirements for specially trained individuals who perform 
   certain specific tasks in nursing facilities participating in the 
 medicare or medicaid programs, and to conditionally authorize the use 
           of resident assistants in such nursing facilities.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Medicare and Medicaid Nursing 
Services Quality Improvement Act of 2001''.

SEC. 2. DEMONSTRATION PROJECT TO WAIVE CERTAIN NURSE AIDE TRAINING 
              REQUIREMENTS FOR SPECIALLY TRAINED INDIVIDUALS WHO 
              PERFORM CERTAIN COVERED TASKS IN MEDICARE AND MEDICAID 
              NURSING FACILITIES.

    (a) Demonstration Project.--Not later than October 1, 2001, the 
Secretary shall conduct a demonstration project under which a resident 
assistant may perform a covered task for a resident of a covered 
nursing facility in a demonstration State.
    (b) Requirements.--
            (1) Minimum staffing requirements not affected.--A resident 
        assistant performing a covered task under this section--
                    (A) may augment, but not replace, existing staff of 
                a covered nursing facility; and
                    (B) shall not be counted toward meeting or 
                complying with any requirements for nursing care staff 
                and functions of such a facility, including any minimum 
                nursing staffing requirement imposed under section 1819 
                or 1919 of the Social Security Act (42 U.S.C. 1395i-3, 
                1396r).
            (2) Exclusion of participation.--
                    (A) Based on replacement of certified nursing 
                staff.--
                            (i) In general.--Subject to clause (ii), 
                        the Secretary may exclude from participation in 
                        the demonstration project any covered facility 
                        that the Secretary determines (on the basis of 
                        data submitted under subsection (c) or 
                        otherwise) has replaced certified nurse 
                        assistants with resident assistants.
                            (ii) Limitation.--The Secretary may not 
                        exclude a facility under clause (i) unless the 
                        Secretary has reviewed all pertinent data that 
                        may reflect on a reduction of nursing staff in 
                        the facility, including changes in resident 
                        population and case mix.
                    (B) Based on poor treatment records or insufficient 
                licensed staff.--The Secretary may exclude from 
                participation in the demonstration project any covered 
                nursing facility that a State survey agency recommends 
                be excluded because of unsatisfactory treatment records 
                or insufficient licensed staff to provide supervision 
                of resident assistants.
    (c) Data Collection.--
            (1) Data regarding initial workforce.--
                    (A) In general.--At the beginning of a covered 
                nursing facility's participation in the demonstration 
                project, the facility shall submit to the appropriate 
                State agency of the demonstration State independently 
                verifiable data regarding the composition of the 
                facility's workforce at the time such participation 
                commences.
                    (B) Data regarding resident assistants.--Such data 
                shall include--
                            (i) the number of resident assistants in 
                        the facility hired solely to perform covered 
                        tasks and the number of such assistants 
                        performing additional tasks; and
                            (ii) the number of residents of the 
                        facility who are served by such resident 
                        assistants.
                    (C) Transmittal of data to Secretary.--The State 
                agency shall forward such data to the Secretary.
            (2) Data regarding performance of resident assistants.--
        Each such facility shall submit to such State agency data, at 
        such times and in such manner as the Secretary may require, 
        regarding the performance of covered tasks by resident 
        assistants under the demonstration project.
            (3) Transmission of data to the secretary.--The State 
        agency shall forward data collected under this subsection to 
        the Secretary. The Secretary shall compile data collected under 
        this section with data collected pursuant to sections 1819 and 
        1919 of the Social Security Act (42 U.S.C. 1395i-3, 1396r) for 
        purposes of excluding a facility from participation in the 
        project under subsection (b)(2) and performing the analysis 
        under subsection (d)(2).
    (d) Reports to Congress.--
            (1) Annual reports.--Not later than December 1 of each of 
        2002 and 2003, the Secretary shall submit to Congress a report 
        on the project, and include an analysis that meets the 
        requirements of paragraph (3).
            (2) Final report.--Not later than December 1, 2004, the 
        Secretary shall submit a report to Congress required under 
        section 3(c)(2)(B) that includes the recommendations of the 
        advisory panel convened under paragraph (4).
            (3) Analysis requirements.--The analysis required under 
        paragraph (1) shall--
                    (A)(i) examine the effect of resident assistants on 
                the quality of resident care in facilities in 
                demonstration States, and
                    (ii) compare such quality of resident care with the 
                quality of resident care in facilities in other States,
                by employing quality indicators determined by the 
                Secretary, including with regard to nutrition and 
                hydration, nutrition and hydration levels, unplanned 
                weight loss or gain, and the number of citations for 
                nutrition-related violations relating to such 
                residents;
                    (B) examine the effect of resident assistants on 
                staffing levels and ratios in covered nursing 
                facilities, including staffing levels for duties 
                performed by resident assistants in other capacities in 
                the facility (such as housekeeping or claims 
                processing);
                    (C) measure the effect that the presence of such 
                resident assistants has on certified nurse assistants, 
                including--
                            (i) recruitment and retention within the 
                        certified nurse assistant profession;
                            (ii) wage structures in effect for such 
                        certified nursing assistants during the 
                        demonstration project and, in particular, 
                        whether payment under such structures decreased 
                        as a result of the use of resident assistants; 
                        and
                            (iii) instances of resident assistants 
                        being promoted to certified nurse assistant 
                        positions; and
                    (D) examine resident satisfaction with respect to 
                nutrition and hydration services provided by resident 
                assistants.
            (4) Advisory panel.--
                    (A) Duties.--Not later than November 1, 2003, the 
                Secretary shall convene an advisory panel that shall--
                            (i) review and evaluate the data collected 
                        in accordance with subsection (c); and
                            (ii) submit recommendations on the use or 
                        improvement of resident assistants in covered 
                        nursing facilities.
                    (B) Membership.--The advisory panel convened under 
                subparagraph (A) shall consist of representatives of 
                the following:
                            (i) The Health Care Financing 
                        Administration of the Department of Health and 
                        Human Services.
                            (ii) National and local organizations 
                        representing for-profit and nonprofit covered 
                        nursing facilities.
                            (iii) Consumer groups.
                            (iv) State long-term care ombudsmen or 
                        other nursing facility resident advocates of 
                        the State.
                            (v) Labor organizations.
                            (vi) State survey and licensure agencies.
                            (vii) Licensed health care providers.
                            (viii) Dietitians.
                            (ix) Speech therapists.
                            (x) Any other entities or individuals that 
                        the Secretary deems appropriate.
    (e) Authorization of Appropriations.--There is authorized to be 
appropriated such sums as may be necessary to carry out this section.
    (f) Definitions.--In this section:
            (1) Demonstration state.--The term ``demonstration State'' 
        means--
                    (A) Wisconsin,
                    (B) North Dakota, and
                    (C) not more than 6 States (other than Wisconsin 
                and North Dakota) as selected by the Secretary which, 
                as of the date of enactment of this Act, have 
                established or proposed a project, program, or policy 
                to permit individuals who do not meet nurse aide 
                training requirements to perform a covered task.
            (2) Covered nursing facility.--The term ``covered nursing 
        facility'' means--
                    (A) a skilled nursing facility (as that term is 
                defined in section 1819(a) of the Social Security Act 
                (42 U.S.C. 1395i-3(a))), and
                    (B) a nursing facility (as that term is defined in 
                section 1919(a) of the Social Security Act (42 U.S.C. 
                1396r(a))).
            (3) Resident assistant.--
                    (A) In general.--The term ``resident assistant'' 
                means an individual who does not meet nurse aide 
                training requirements (as defined in paragraph (5)) but 
                who does meet the requirements specified in 
                subparagraph (B).
                    (B) Resident assistant requirements.--For purposes 
                of subparagraph (A), the requirements specified in this 
                subparagraph are the following:
                            (i) The individual has successfully 
                        completed an initial training program 
                        administered by the facility that meets the 
                        requirements of subparagraph (C) and subsequent 
                        competency evaluations, as reviewed and 
                        approved by the demonstration State (which, 
                        with respect to the training program, may be 
                        during the facility's standard survey).
                            (ii) The individual is performing a covered 
                        task under the onsite supervision (as defined 
                        in paragraph (6)) of a licensed health 
                        professional (as defined in section 
                        1819(b)(5)(G) of the Social Security Act (42 
                        U.S.C. 1395i-3(b)(5)(G))).
                            (iii) In the case of an individual 
                        performing a feeding and hydration covered 
                        task, the determination of the residents who 
                        may receive such a task from a resident 
                        assistant shall be based on the needs and 
                        potential risks to the resident, as observed 
                        and documented in the resident's written plan 
                        of care and the comprehensive assessment of the 
resident's functional capacity required under section 1818(b) or 
1919(b) of the Social Security Act (42 U.S.C. 1395i-3(b), 1396r(b)).
                            (iv) The individual complies with any other 
                        limitations on performance of duties which may 
                        be established by the demonstration State.
                    (C) Training program requirements.--For purposes of 
                subparagraph (B)(i), a training program shall--
                            (i) relate to the performance of the 
                        covered task to be performed by the individual; 
                        and
                            (ii) include--
                                    (I) feeding skills and assistance 
                                with eating;
                                    (II) the importance of good 
                                nutrition and hydration, including 
                                familiarity with signs of malnutrition 
                                and dehydration;
                                    (III) an overview of the aging and 
                                disease process, as it relates to 
                                nutrition and hydration services;
                                    (IV) how to respond to a choking 
                                emergency and alert licensed staff to 
                                other health emergencies;
                                    (V) universal precautions for the 
                                prevention of the spread of 
                                communicable diseases; and
                                    (VI) a statement of residents' 
                                rights.
            (4) Covered task.--
                    (A) In general.--The term ``covered task'' means 
                feeding and hydration.
                    (B) Exclusions.--Such term does not include--
                            (i) administering medication,
                            (ii) providing direct medical care, 
                        including taking vital signs, skin care, or 
                        wound care, or
                            (iii) performing range of motion or other 
                        therapeutic exercises with residents.
            (5) Nurse aide training requirements.--The term ``nurse 
        aide training requirements'' means the requirements of sections 
        1819(b)(5)(F) and 1919(b)(5)(F) of the Social Security Act (42 
        U.S.C. 1395i-3(b)(5)(F) and 1396r(b)(5)(F)) relating to nurse 
        aides.
            (6) Onsite supervision.--The term ``onsite supervision'' 
        means that a licensed health professional referred to in 
        paragraph (3)(B)(ii) is in the unit or floor where services are 
        being provided, and is readily available to provide assistance 
        if necessary.
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (8) Demonstration project.--The term ``demonstration 
        project'' means the demonstration project conducted under this 
        section.
            (9) State.--The term ``State'' has the meaning given such 
        term for purposes of titles XVIII and XIX of the Social 
        Security Act (42 U.S.C. 1395 et seq., 1396 et seq.).

SEC. 3. AUTHORIZING THE USE OF RESIDENT ASSISTANTS IN NURSING 
              FACILITIES RECEIVING PAYMENTS UNDER THE MEDICARE OR 
              MEDICAID PROGRAM.

    (a) In General.--Subsection (b) of sections 1819 and 1919 (42 
U.S.C. 1395i-3, 1396r) of the Social Security Act, as amended by 
section 941 of the Medicare, Medicaid, and SCHIP Benefits Improvement 
and Protection Act of 2000, as enacted into law by section 1(a)(6) of 
Public Law 106-554, are each amended by adding at the end the following 
new paragraph:
            ``(9) Use of resident assistants.--
                    ``(A) In general.--Subject to the succeeding 
                provisions of this paragraph, a skilled nursing 
                facility may use a resident assistant to perform a 
                covered task for a resident of the facility that would 
                otherwise be performed by a nurse aide.
                    ``(B) Definition.--The term `resident assistant' 
                means an individual--
                            ``(i) who has successfully completed an 
                        initial training program and competency 
                        evaluation, and subsequent competency 
                        evaluations, approved by the State under 
                        subsection (e)(6); and
                            ``(ii) who is competent to perform a 
                        covered task.
                    ``(C) Requirement for onsite supervision.--A 
                resident assistant may only perform a covered task 
                under the supervision of a licensed health professional 
                (as defined in paragraph (5)(G)) who is present in the 
                unit or floor where the covered task is performed and 
                who is readily available to provide assistance to the 
                resident assistant.
                    ``(D) Requirement for determination of appropriate 
                patients.--A resident assistant may only perform a 
                covered task for a resident who is approved for such 
                purpose based on the needs of, and potential risks to, 
                the resident, as observed and documented in the 
                resident's written plan of care and the comprehensive 
                assessment of the resident's functional capacity 
                required under this subsection.
                    ``(E) Additional requirements.--The individual 
                complies with any other limitations on performance of 
                duties which may be established by the State in which 
                the covered task is performed.
                    ``(F) Minimum staffing requirements not affected.--
                A resident assistant shall not be counted toward 
                meeting or complying with any requirement for nursing 
                care staff and functions of such facilities under this 
                section, including any minimum nursing staffing 
                requirement.
                    ``(G) Covered task defined.--For purposes of this 
                section, the term `covered task' means feeding and 
                hydration.''.
    (b) Specification of Training Program and Competency Evaluation 
Standards.--
            (1) Requirement for standards.--Subsection (e) of such 
        sections are each amended by adding at the end the following 
        new paragraph:
            ``(6) Specification and review of resident assistant 
        training programs and competency evaluation and of resident 
        assistant competency evaluations.--The State must--
                    ``(A) specify those initial training programs and 
                competency evaluations, and those subsequent competency 
                evaluations, that the State approves for purposes of 
                subsection (b)(9) and that meet the requirements 
                established under subsection (f)(8), and
                    ``(B) provide for the review and reapproval of such 
                evaluations, at a frequency and using a methodology 
                consistent with the requirements established under 
                subsection (f)(8).''.
            (2) Specification of standards.--Subsection (f) of such 
        sections are each amended by adding at the end the following 
        new paragraph:
            ``(8) Requirements for resident assistant training programs 
        and competency evaluations and for resident assistant 
        competency evaluations.--
                    ``(A) In general.--For purposes of subsections 
                (b)(9) and (e)(6), the Secretary shall establish 
                requirements for the approval of resident assistant 
                training programs and competency evaluations 
                administered by the facility, including--
                            ``(i) requirements described in 
                        subparagraph (B),
                            ``(ii) minimum hours of initial and ongoing 
                        training and retraining,
                            ``(iii) qualifications of instructors,
                            ``(iv) procedures for determination of 
                        competency, and
                            ``(v) the minimum frequency and methodology 
                        to be used by a State in reviewing compliance 
                        with the requirements for such evaluations.
                    ``(B) Requirements described.--For purposes of 
                subparagraph (A), the requirements described in this 
                subparagraph are the following:
                            ``(i) Feeding skills and assistance with 
                        eating.
                            ``(ii) The importance of good nutrition and 
                        hydration, including familiarity with signs of 
                        malnutrition and dehydration.
                            ``(iii) An overview of the aging and 
                        disease process, as it relates to nutrition and 
                        hydration services.
                            ``(iv) How to respond to a choking 
                        emergency and alert licensed staff to other 
                        health emergencies.
                            ``(v) Universal precautions for the 
                        prevention of the spread of communicable 
                        diseases.
                            ``(vi) Residents' rights.
                    ``(C) Special rule for state demonstration 
                participants.--In the case of a State that was a 
                demonstration State (as that term is defined in 
                subsection (f)(1) of section 2 of the Medicare and 
                Medicaid Nursing Services Quality Improvement Act of 
                2001), to the extent that the demonstration State has 
                in effect any requirement for the approval of resident 
                assistant training programs and competency evaluations 
                that meets or exceeds the same requirement that the 
                Secretary establishes under this paragraph, 
                notwithstanding subsection (b)(9)(B)(i) resident 
                assistants who performed the covered task in facilities 
                in that State under that demonstration project--
                            ``(i) do not have to complete the entire 
                        initial training program and competency 
                        evaluation required under that subsection; and
                            ``(ii) shall only be required to meet those 
                        requirements for such approval that the 
                        Secretary establishes under this paragraph that 
                        the State does not have in effect.''.
    (c) Contingent Effective Date.--(1) The amendments made by this 
section shall become effective (if at all) in accordance with paragraph 
(2).
    (2)(A) Not later than December 1, 2004, the Secretary of Health and 
Human Services (in this paragraph referred to as the ``Secretary'') 
shall submit to Congress a report on the results of the demonstration 
project established under section 2 that analyzes the effect on 
resident care in authorizing the use of resident assistants to furnish 
feeding and hydration services to residents in skilled nursing 
facilities under the medicare program and residents in nursing 
facilities under the medicaid program in the demonstration States.
    (B) Such project shall be discontinued, and the amendments made by 
this section shall become effective, on January 1, 2005, unless the 
Secretary includes in that report a finding, on the basis of data 
collected under section 2(c) that--
            (i) authorizing the use of such resident assistants to 
        furnish such services diminishes the quality of feeding and 
        hydration services furnished to residents of those facilities; 
        or
            (ii) any decreased recruitment and retention of nursing 
        staff of those facilities and reduced salaries for such nursing 
        staff is directly attributable to the use of such resident 
        assistants to furnish such services.
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