[Federal Register Volume 67, Number 61 (Friday, March 29, 2002)]
[Proposed Rules]
[Pages 15149-15154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7344]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 483 and 488

[CMS-2131-P]
RIN 0938-AL04


Medicare and Medicaid Programs; Requirements for Paid Feeding 
Assistants in Long Term Care Facilities

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would provide States the flexibility to 
allow long term care facilities to use paid feeding assistants to 
supplement the services of certified nurse aides if their use is 
consistent with State law. If facilities choose this option, feeding 
assistants must complete a specified training program. This proposed 
rule would improve the quality of care in long term care facilities by 
ensuring that residents are assisted with eating and drinking as 
needed.

DATES: We will consider comments if we receive them at the appropriate 
address, as provided below, no later than 5 p.m. on May 28, 2002.

ADDRESSES: In commenting, please refer to file code CMS-2131-P. Because 
of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    Mail written comments (one original and three copies) to the 
following address only:
    Centers for Medicare & Medicaid Services, Department of Health and 
Human Services, Attention: CMS-2131-P, PO Box 8017, Baltimore, MD 
21244-8017.
    Please allow sufficient time for mailed comments to be timely 
received in the event of delivery delays.
    If you prefer, you may deliver (by hand or courier) your written 
comments (one original and three copies) to one of the following 
addresses: Room 443-G, Hubert H. Humphrey Building, 200 Independence 
Avenue, SW., Washington, DC 20201, or Mailstop S3-02-01, 7500 Security 
Boulevard, Baltimore, Maryland 21244.
    (Because access to the interior of the HHH Building is not readily 
available to persons without Federal Government identification, 
commenters are encouraged to leave their comments in the CMS drop slots 
located in the main lobby of the building. A stamp-in clock is 
available for commenters wishing to retain a proof of filing by 
stamping in and retaining an extra copy of the comments being filed.)
    Comments mailed to the addresses indicated as appropriate for hand 
or courier delivery may be delayed and could be considered late.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Nola Petrovich, (410) 786-4671.

SUPPLEMENTARY INFORMATION:

Inspection of Public Comments

    Comments received timely will be available for public inspection as 
they are received, generally beginning approximately 3 weeks after 
publication of a document, in Room C5-14-03 of the Centers for Medicare 
& Medicaid Services, 7500 Security Boulevard, Baltimore, MD, on Monday 
through

[[Page 15150]]

Friday of each week from 8:30 a.m. to 4 p.m. (Phone (410) 786-7201).
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I. Background

Legislation

    Sections 1819(a) through (e) and 1919(a) through (e) of the Social 
Security Act (the Act) set forth the requirements that long term care 
facilities must meet to participate in the Medicare and Medicaid 
programs, respectively. Sections 1819(f)(2) and 1919(f)(2) of the Act 
contain requirements for nurse aide training and competency evaluation 
programs (NATCEP). Sections 1819(g) and 1919(g) of the Act contain the 
criteria that we use to assess a facility's compliance with the 
requirements. These statutory provisions were mandated by the Omnibus 
Budget Reconciliation Act of 1987 (Pub. L. 100-203, enacted December 
22, 1987). The requirements for long term care facilities are codified 
at 42 CFR part 483, subpart B; the nurse aide training and competency 
evaluation program requirements are codified at 42 CFR part 483, 
subpart D; and the survey, certification and enforcement procedures are 
codified at 42 CFR part 488, subparts E and F. Sections 1819(b)(5)(F) 
and 1919(b)(5)(F) of the Act and regulations at Sec. 483.75(e) define a 
nurse aide as any individual furnishing nursing or nursing-related 
services to residents in a facility, who is not a licensed health 
professional, a registered dietitian, or someone who volunteers to 
furnish services without pay. Sections 1819(f)(2) and 1919(f)(2) of the 
Act set forth the requirements for approval of a nurse aide training 
and competency evaluation program, but do not define ``nursing'' or 
``nursing related'' skills. Section 483.152 of the regulations 
specifies nurse aide training requirements. These include, for example, 
basic nursing skills, personal care skills, communication and 
interpersonal skills, infection control, safety and emergency 
procedures, mental health and social service needs, residents' rights, 
care of cognitively impaired residents, and basic restorative services.

Current Program Experience

    Currently, there is no provision in the regulations for the use of 
single-task workers, such as paid feeding assistants, in nursing homes. 
To ensure the safety of facility residents, we require that qualified 
nursing staff provide assistance with eating and drinking, although 
there is some question whether or not all residents need medical 
supervision. This group of personnel includes registered nurses, 
licensed practical nurses, and certified nurse aides who have completed 
75 hours of training. However, volunteers, who are usually family 
members, may also feed residents, because the law and regulations 
exclude volunteers from the definition of certified nurse aide.
    Nursing homes in many States report a continuing shortage of 
certified nurse aides. Nursing homes are finding it increasingly 
difficult to train and retain sufficient numbers of qualified nursing 
staff, especially certified nurse aides. Certified nurse aides perform 
the majority of resident care tasks. Other employers often pay similar 
wages for less physically and emotionally demanding jobs. This makes it 
harder for nursing homes to employ enough nursing staff to perform 
routine nursing care and to feed residents who need minimal help or 
just encouragement at mealtimes. Feeding residents is often a slow 
process and competes with more complex tasks, such as bathing, 
toileting, and dressing changes, as well as urgent medical care.
    For many elderly nursing home residents, physical and psychological 
changes often interfere with eating ability and meal consumption. 
Residents may need assistance with feeding if they have, for example, 
cognitive impairment, impaired swallowing due to muscular weakness or 
paralysis, a tendency to aspirate or choke, poor teeth, ill-fitting 
dentures or partial plates, or poor muscular or neurological control of 
their arms or hands, as with Parkinson's disease.

Current Trends

    Nursing homes are caring for an aging population that has more 
acute clinical conditions than in the past. The result is a higher 
percentage of nursing home residents who need higher levels of medical 
care, which takes more staff time and leaves less time for routine 
tasks, such as ensuring that residents eat their meals and drink enough 
fluids.
    In addition, evidence suggests that there has been a recent 
increase in assisted living facilities that house many individuals with 
minimal medical needs who previously would have been cared for in 
nursing homes. Both of these trends have resulted in a frailer nursing 
home population than previously, with residents who are more dependent 
on nursing staff for basic needs, such as feeding and personal care. A 
critical shortage of certified nurse aides in many parts of the country 
has resulted in a need for staff who are specially trained to help 
residents eat at mealtimes, to supplement, not replace certified nurse 
aides.
    Some residents only need encouragement or minimal assistance, which 
does not require medical training. Properly trained nonmedical 
personnel could provide this type of assistance. Nurse aides and other 
nursing staff receive training so that they are able to feed residents 
with all kinds of feeding problems. A higher level of training is 
required of nurse aides because they need to be able to deal with 
complicated feeding problems. However, when there is a nurse aide 
shortage, it is often the case that residents without complicated 
feeding problems receive little or no assistance at mealtimes with 
eating or drinking, while the nursing staff focuses on feeding 
residents with complicated problems. We believe there is a place in 
nursing homes for the use of feeding assistants who, after proper basic 
training in feeding techniques and working with the elderly, are able 
to feed residents who do not have complicated feeding problems. It is 
reasonable to require that feeding assistants receive a lower level of 
training than a nurse aide because feeding assistants would not handle 
complicated feeding cases. This would allow facilities, if they choose, 
to train other facility employees as feeding assistants so that 
available staff can feed residents at mealtimes.

Facility Staff Shortages

    Because of the shortage of certified nurse aides and the 
increasingly complex medical needs of residents, facilities in some 
States have used paid

[[Page 15151]]

feeding assistants to supplement certified nurse aides to ensure that 
residents take in adequate food and fluids. Generally, feeding 
assistants used by these facilities are part-time workers, often 
retired individuals, or homemakers who are available for a few hours a 
day. They may also be older students who come into the facility between 
1 and 2 hours either at the noon or evening meal. In other facilities, 
staff shortages are so acute that all nonmedical employees, including 
the administrator of the facility, are required to complete training 
and help feed residents at mealtimes. Training facility personnel for 
functions other than their primary position is known as cross-training. 
There is anecdotal evidence that cross-training of personnel increases 
coordination and continuity of care. It also contributes to increased 
morale and lower staff turnover.
    There is no provision in Federal regulations for the employment of 
nursing home workers who perform only a single task without completing 
75 hours of nurse aide training. Currently, residents must be fed by a 
registered nurse, licensed practical nurse, or a nurse aide who has 
completed 75 hours of medical training and who has been certified as 
competent to perform all nurse aide tasks. Volunteers may also feed 
residents. The reason for this existing policy is to ensure that 
residents who cannot, or do not, feed themselves are fed by nursing 
staff who have medical training. This is intended to protect residents 
from unskilled workers who might injure a resident by not recognizing 
serious medical complications associated with eating.
    Wisconsin and North Dakota are two States in which nursing homes 
have had serious difficulty hiring enough certified nurse aides and 
have used feeding assistants as a supplement to certified nurse aides. 
Other States have expressed interest in using paid feeding assistants, 
including Ohio, Minnesota, Florida, California, and Illinois. Florida 
and Illinois have both passed laws that permit the use of single task 
workers in their States, but they have not yet implemented the 
provisions.
    Wisconsin nursing homes have been using single-task feeding 
assistants for more than 7 years. Wisconsin uses a structured, formal 
program that requires a facility wanting to implement a feeding 
assistant program to submit an application for approval by the State. 
The classes are taught by a registered nurse, with a registered 
dietitian teaching the dietary elements of the program. A facility's 
approved program must include the following core areas: Interpersonal 
communication and social interaction; Basic nursing skills (including 
infection control); Personal care skills (assisting with eating, 
hydration); Basic restorative services (assistive devices for eating); 
Resident rights; and special problems associated with Dementia 
(specialized feeding and intake problems). Participants who complete 
the training must demonstrate skills and pass a written test with a 
score of 80 percent or better. Feeding assistants are used solely for 
feeding residents who have no feeding complications. They are permitted 
to feed residents only in the dining room and operate under the 
direction of a registered nurse or licensed practical nurse. Feeding 
assistants serve to supplement care delivered by certified nurse aides, 
which frees up more extensively trained aides to perform more complex 
resident care tasks.
    North Dakota has used paid feeding assistants for a number of years 
and has a slightly less formal program than that of Wisconsin. The 
residents to be fed are selected by the dietary and nursing staff. If a 
facility has a nurse aide training program, the training coordinator 
and dietitian work together to train new feeding assistants 
individually. After training and orientation, a new feeding assistant 
is assigned to one resident who needs minimal assistance. As the 
assistant gains skill and confidence, he or she is assigned to more 
residents at a meal or to a resident who requires a higher level of 
skill to feed. Typically, feeding assistants work only about 1\1/2\ 
hours per day, providing assistance at either the noon or evening meal.

Conclusion

    We are committed to ensuring that long term care residents receive 
the best possible care. We recognize that a shortage of certified nurse 
aides adversely affects resident care and prevents many residents from 
receiving adequate help with eating and drinking. Further, we are 
persuaded by the experience of States that have used paid feeding 
assistants, that proper training and medical direction of these feeding 
assistants minimizes the risk to residents, while providing substantial 
benefits to residents. After thoroughly considering this issue, we 
believe that the benefits to residents outweigh the potential risks and 
so we are taking steps to resolve the issue by publishing this proposed 
rule. We believe that a policy change to allow the use of feeding 
assistants can be accommodated under existing statute. There is nothing 
in the statute governing requirements for long term care facilities 
(sections 1819 and 1919 of the Act) that would preclude the use of 
these workers and we believe that there is no conflict with other 
statutory requirements.

II. Provisions of the Proposed Regulations

    We would provide States the flexibility to allow a facility the 
option to use paid feeding assistants to help residents with eating and 
drinking at mealtimes. In new Sec. 483.35(h), we would specify that if 
a facility uses paid feeding assistants, the feeding assistants must 
complete a State-approved training course that meets minimum 
requirements. The proposed course requirements are listed in 
Sec. 483.160 and would include only non-nursing-related services and 
items that are currently part of the nurse aide training requirements. 
In addition to training in proper feeding techniques and how to assist 
residents with eating and drinking, we would include in the training 
other basic skills necessary to work with elderly and disabled nursing 
home residents. These include communication and interpersonal skills; 
appropriate responses to resident behavior; safety and emergency 
procedures, including the Heimlich Maneuver; infection control; 
resident rights; and recognizing changes in patients that are 
inconsistent with their normal behavior, and the importance of 
reporting those changes to the supervisor. Some States may want to 
include other requirements in their training, for example, the use of 
assistive devices for the unique needs of the cognitively impaired. We 
are not, however, including these other requirements. We anticipate 
that this training could easily be implemented in any facility with an 
approved nurse aide training program because the requirements are not 
new. We note that these requirements are the minimum and States and 
facilities must use these as a baseline, but may add any others that 
they believe are appropriate to structure a feeding assistance program 
that meets their needs.
    We would require that each facility maintain a record of 
individuals it uses as feeding assistants who have successfully 
completed the feeding assistance training. In keeping with other 
similar requirements, we would require States to require facilities to 
report to the States any incidents of feeding assistants who have been 
found to neglect or abuse a resident, or misappropriate a resident's 
property. The States must maintain records of all reported incidents. 
States are not required to maintain a formal registry, as required for 
nurse aides, but the intent is similar.

[[Page 15152]]

    The facility may use paid feeding assistants to feed residents who 
do not have a clinical condition that would require the training of a 
nurse or nurse aide. It is important for the professional nursing staff 
in the facility to identify residents who need help eating and drinking 
and those who can be fed by feeding assistants. We believe that this 
can be established by the comprehensive assessment (Sec. 483.20). 
Often, residents need help on some days and not on others. This means 
that the nurse in charge may need to make feeding decisions on a daily 
basis. Nurses or certified nurse aides would continue to feed residents 
with clinical conditions that require nursing training, including for 
example, recurrent lung aspirations, difficulty swallowing, or those on 
feeding tubes or parenteral/IV feedings. All feeding assistants must 
work under the direct supervision of a registered nurse or licensed 
practical nurse. This means that a nurse is in the unit or on the floor 
where the feeding assistance is furnished and is immediately available 
to give help, if necessary. We would also revise ``nurse aide'' at 
Sec. 483.75(e) to clarify that paid feeding assistants are not 
performing nursing or nursing-related tasks.
    We would define ``paid feeding assistant'' in Sec. 488.301, as an 
individual who is paid by a facility or paid under an arrangement with 
another agency or organization to feed residents and who meets the 
requirements specified in Sec. 483.35(h). Any nonprofessional nursing 
home employee, including the administrator, activity staff, clerical, 
laundry, or housekeeping staff may be considered a feeding assistant 
and may feed residents at mealtimes if he or she has completed the 
training requirements in Sec. 483.160.
    These requirements would not apply to volunteers, including family 
members. Sections 1819(b)(5)(F) and 1919(b)(5)(F) of the Act exempt 
volunteers from the definition of ``nurse aide'' and nurse aide 
training requirements, which are more stringent than feeding 
requirements. Therefore, we believe that it is logical to exempt 
volunteers from requirements concerning feeding assistants. However, 
volunteers may take the training if they wish, but there is no 
requirement that they do so.
    Feeding assistants are intended to supplement certified nurse 
aides, not be a substitute for certified or licensed nursing staff. 
Therefore, feeding assistants may not be counted toward the minimum 
staffing requirements in Sec. 483.30. Facilities that choose the option 
to use paid feeding assistants, when consistent with State law, remain 
responsible for any adverse actions resulting from the use of these 
assistants, as with any other employee.

III. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. In 
order to fairly evaluate whether OMB should approve an information 
collection, section 3506(c)(A) of the Paperwork Reduction Act of 1995 
requires that we solicit comment on the following issues:
     The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
     The accuracy of our estimate of the information collection 
burden.
     The quality, utility, and clarity of the information to be 
collected.
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    Nursing homes in two States currently use feeding assistants. While 
we know of eight other States that have expressed an interest in 
implementing this policy, it is a facility option and we do not know 
how many facilities in which States will choose this option. There are 
approximately 17,000 nursing homes in the nation, and they are not 
evenly distributed within States. We are soliciting public comment on 
each of these issues for the following sections of this document that 
contain information collection requirements:

Section 483.160(b)

1. Requirement
    A facility must maintain a record of all individuals, used by the 
facility as feeding assistants, who have successfully completed the 
training course for paid feeding assistants.
2. Burden
    Our rough estimate is that 10 States will implement this policy, 
that is, 20 percent of nursing homes (20 percent of 17,000 = 3400 
facilities/respondents). We estimate that each facility will hire two 
feeding assistants, resulting in a total of 6,800 feeding assistants. 
Depending on the method chosen by a facility to collect this 
information, we believe that each facility (respondent) would spend no 
more than 30 minutes per month (6 hours per year) to enter feeding 
assistant information into its record-keeping system. Some months, 
facilities may have no information to add. With 3,400 facilities at 6 
hours/year, the total would be 20,400 hours for facilities. Using a 
wage cost of $10 per hour, the total facility burden is estimated to be 
$204,000.

Section 483.160(c)

1. Requirement
    Each State must require a facility to report to the State all 
incidents of any paid feeding assistant who has been found to neglect 
or abuse a resident or misappropriate a resident's property. Each State 
must maintain a record of all reported incidents.
2. Burden
    We estimate that each facility and State will spend no more than 30 
minutes per month to add new information to the system. This comes to 6 
hours annually per facility and State  x  10 facilities/States = 60 
hours. Using a wage cost of $10 per hour, the total facility or State 
cost is estimated to be $600.
    If you comment on these information collection and recordkeeping 
requirements, please mail copies directly to the following addresses:
    Centers for Medicare & Medicaid Services, Office of Information 
Services, Information Technology Investment Management Group, Attn.: 
John Burke, Room N2-14-26, 7500 Security Boulevard, Baltimore, MD 
21244-1850; and Office of Information and Regulatory Affairs, Office of 
Management and Budget, Room 10235, New Executive Office Building, 
Washington, DC 20503, Attn: Allison Herron Eydt, CMS Desk Officer.

IV. Response to Comments

    Because of the large number of items of correspondence we normally 
receive on Federal Register documents published for comment, we are not 
able to acknowledge or respond to them individually. We will consider 
all comments we receive by the date and time specified in the DATES 
section of this preamble, and, if we proceed with a subsequent 
document, we will respond to the major comments in the preamble to that 
document.

V. Regulatory Impact Statement

A. Overall Impact

    We have examined the impact of this proposed rule, as required by 
Executive Order 12866 (September 1993, Regulatory Planning and Review) 
and the Regulatory Flexibility Act (RFA) (September 19, 1980 Pub. L. 
96-354). Executive Order 12866 directs agencies to assess all costs and 
benefits of

[[Page 15153]]

available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). A regulatory impact analysis (RIA) 
must be prepared for major rules with economically significant effects 
($100 million or more annually).
    This proposed rule is not a major rule. It would not result in any 
budget impact. A facility could employ a feeding assistant under the 
current regulations. This proposed rule simply reduces the amount of 
training that would be required for an individual that would furnish 
only feeding assistance and provides States with the option of using 
paid feeding assistants, rather than CNAs, to provide feeding 
assistance.
    The RFA requires agencies to determine whether a rule would have 
significant economic impact on a substantial number of small entities 
(analyze options for regulatory relief of small businesses). For 
purposes of the RFA, small entities include small businesses, nonprofit 
organizations, and government agencies. Most hospitals and most other 
providers and suppliers are small entities, either by nonprofit status 
or by having revenues of $5 to $25 million or less annually (see 65 FR 
69432). For purposes of the RFA, 85 percent of long term care 
facilities with revenues of $10.0 million or less are considered to be 
small entities. Individuals and States are not included in the 
definition of a small entity.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if a rule may have a significant impact on 
the operations of a substantial number of small rural hospitals. This 
analysis must conform to the provisions of section 603 of the RFA. For 
purposes of section 1102(b) of the Act, we define a small rural 
hospital as a hospital that is located outside of a Metropolitan 
Statistical Area and has fewer than 100 beds.
    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule that may result in expenditure in any one year by 
State, local, or tribal governments, in the aggregate, or by the 
private sector, of $110 million. We have determined that this proposed 
rule would not have consequential effects on State, local, or tribal 
governments, or on the private sector. This proposal is an option that 
does not constitute an unfunded mandate.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. We believe that this proposed rule would not have a 
substantial effect on State or local governments. This proposal is an 
option, which facilities may choose to adopt if it is consistent with 
State law and the State promotes this option.

B. Anticipated Effects

    These proposed provisions would affect long term care facilities. 
We expect the provisions to be a substantial benefit both to facilities 
that are short-staffed and to beneficiaries that need help with eating 
and drinking. By using feeding assistants, facilities can use trained 
certified nurse aides to perform more complex resident care tasks. 
There are approximately 17,000 long term care facilities participating 
in the Medicare and Medicaid programs. We do not know how many 
facilities would choose the option to hire feeding assistants. We know 
of two States that have used feeding assistants for a number of years. 
Wisconsin nursing homes have been using single-task feeding assistants 
for more than 7 years, and North Dakota has used them since the 1980s. 
Several other States have passed laws, or indicated that they wish to 
implement a feeding assistant program, but have not yet done so 
(including Ohio, Minnesota, Florida, California, and Illinois). If 
these States adopt this option, they will realize the benefits of using 
paid feeding assistants. If we receive additional information from 
public comments about the number of States that may choose this option 
and costs to the States and facilities, we will summarize the 
information in the subsequent final rule.
    We believe that both residents and providers would benefit from 
these provisions. Residents would receive more assistance with eating 
at meals. Facilities would have greater choices in hiring staff to meet 
their needs and the needs of residents, freeing certified nurse aides 
to perform more complex tasks that require their medical training.

C. Alternatives Considered

    One alternative to this policy would be for facilities to hire more 
nursing staff, including nurse aides. However, not only would this cost 
more, but due to the continuing shortage of certified nurse aides, we 
know of no other alternatives at the moment that would meet our 
objectives. Certified nurse aides perform the majority of resident care 
in a long term care facility and frequent nurse aide shortages often 
result in less than adequate care for residents and greater stress on 
certified nurse aides and other staff.

D. Conclusion

    For these reasons, we are not preparing analyses for either the RFA 
or section 1102(b) of the Act because we have determined, and we 
certify, that this rule would not have a significant economic impact on 
a substantial number of small entities or a significant impact on the 
operations of a substantial number of small rural hospitals.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects

42 CFR Part 483

    Grant programs-health, Health facilities, Health professions, 
Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting 
and recordkeeping requirements, Safety.

42 CFR Part 488

    Health facilities, Medicare, Reporting and recordkeeping 
requirements.
    For the reasons set forth in the preamble, CMS proposes to amend 42 
CFR chapter IV as set forth below:
    A. Part 483 is amended as follows:

PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES

Subpart B--Requirements for Long Term Care Facilities

    1. The authority citation for part 483 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

    2. In Sec. 483.35, the introductory text is republished, paragraph 
(h) is redesignated as paragraph (i) and republished, and a new 
paragraph (h) is added to read as follows:


Sec. 483.35  Dietary services.

    The facility must provide each resident with a nourishing, 
palatable, well-balanced diet that meets the daily nutritional and 
special dietary needs of each resident.
* * * * *
    (h) Paid feeding assistants--(1) General rule. A facility may use a 
paid feeding assistant, as defined in Sec. 488.301 of this chapter, to 
feed

[[Page 15154]]

residents who meet the following conditions:
    (i) Need assistance with eating and drinking.
    (ii) Based on the comprehensive assessment, do not have a clinical 
condition that requires the assistance with eating and drinking of a 
registered nurse, licensed practical nurse, or nurse aide.
    (2) Requirements on facilities. If a facility uses a paid feeding 
assistant, the facility must ensure that the feeding assistant meets 
the following requirements:
    (i) Training. Completes a State-approved training course that meets 
the requirements of Sec. 483.160.
    (ii) Supervision. Works under the direct supervision of a 
registered nurse or licensed practical nurse. This means that a nurse 
is in the unit or on the floor where the feeding assistance is 
furnished and is immediately available to give help, if necessary.
    (i) Sanitary conditions. The facility must--
    (1) Procure food from sources approved or considered satisfactory 
by Federal, State, or local authorities;
    (2) Store, prepare, distribute, and serve food under sanitary 
conditions; and
    (3) Dispose of garbage and refuse properly.
* * * * *


Sec. 483.75  [Amended]

    3. In Sec. 483.75(e), the definition of ``nurse aide'' is amended 
by adding the following sentence to the end of the definition: ``Nurse 
aides do not include those individuals who furnish services to 
residents only as paid feeding assistants as defined in Sec. 488.301 of 
this chapter.''
* * * * *

Subpart D--Requirements That Must Be Met by States and State 
Agencies: Nurse Aide Training and Competency Evaluation; and Paid 
Feeding Assistants

    4. The heading of subpart D is revised to read as set forth above.
    5. A new Sec. 483.160 is added to read as follows:


Sec. 483.160  Requirements for training of paid feeding assistants.

    (a) A State-approved training course for paid feeding assistants 
must include, at a minimum, the following:
    (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.
    (8) Recognizing changes in residents that are inconsistent with 
their normal behavior and the importance of reporting those changes to 
the supervisory nurse.
    (b) A facility must maintain a record of all individuals, used by 
the facility as feeding assistants, who have successfully completed the 
training course for paid feeding assistants.
    (c) A State must require a facility to report to the State all 
incidents of a paid feeding assistant who has been found to neglect or 
abuse a resident, or misappropriate a resident's property. The State 
must maintain a record of all reported incidents.
    B. Part 488, subpart E is amended as follows:

PART 488--SURVEY, CERTIFICATION, AND ENFORCEMENT PROCEDURES

Subpart E--Survey and Certification of Long Term Care Facilities

    1. The authority citation for part 488 continues to read as 
follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1895hh).

    2. Section 488.301 is amended by adding a new definition of ``Paid 
feeding assistant'' in alphabetical order to read as follows:


Sec. 488.301  Definitions.

    As used in this subpart--
* * * * *
    Paid feeding assistant means an individual who meets the 
requirements specified in Sec. 483.35(h)(2) of this chapter and who is 
paid to feed residents by a facility, or who is used under an 
arrangement with another agency or organization.
* * * * *

(Catalog of Federal Domestic Assistance Program No. 93.778, Medical 
Assistance Program)

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: November 5, 2001.
Thomas A. Scully,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: December 14, 2001.
Tommy G. Thompson,
Secretary.
[FR Doc. 02-7344 Filed 3-28-02; 8:45 am]
BILLING CODE 4120-01-P