Resident Councils of Washington v. Thompson

No. CV 04-1691 (W.D. Wa. filed January 24, 2005) ; Clearinghouse Number: 55820

Description

Claiming Violations of Nursing Home Reform Act and Administrative Procedure Act, Nursing Home Residents Challenge HHS Regulations That Allow “Feeding Assistants”

Abstract

Plaintiffs--a class of residents of federally certified nursing homes in states that permit nursing homes to employ paid feeding assistants and organizations advocating on nursing home residents’ behalf--seek an order to prohibit defendant U.S. secretary of health and human services from implementing regulations that create a “feeding assistant” job category in nursing homes and to direct him to rescind the regulations. Plaintiffs contend that defendant’s regulations violate the Nursing Home Reform Act and the Administrative Procedure Act and that defendant adopted the regulations without a reasoned explanation or empirical support. Plaintiffs say that a central provision of the Reform Act, which was passed to address substandard care in nursing homes receiving Medicare or Medicaid reimbursement, requires that only licensed health professionals or certified nurse aides with at least seventy-five hours of initial training may provide direct care. Plaintiffs contend that, before the challenged regulations were promulgated, defendant interpreted feeding assistance as a “nursing-related service” that the Reform Act prohibited nonnurse aides from performing; in fact, defendant found states that allowed feeding assistants to be in violation of the Reform Act. However, plaintiffs say that in 2002 defendant abruptly changed course, citing an alleged shortage of nurse aides and the experience of states that used feeding assistants in violation of the Reform Act. Under defendant’s regulations issued in 2003, nursing homes may hire feeding assistants with only eight hours of training and no testing or ongoing evaluation, and more than fifteen states have authorized their use. They contend that the regulations will diminish the quality of care they receive and that they will be more likely to suffer injury or death.

Additional Information

Attorney Information
Plaintiff represented by Jeanne Finberg, National Senior Citizens Law Center, 405 14th St., Suite 1400, Oakland, CA 94612 (telephone number: 510.663.1055); Eric M. Carlson National Senior Citizens Law Center ,3435 Wilshire Blvd., Suite 2860, Los Angeles, CA 90010 (telephone number: 213.639.0930); Toby S. Edelman, Center for Medicare Advocacy, 1101 Vermont Ave. NW, Suite 1001, Washington, DC 20005 (telephone number: 202.216.0028).
Docket Date
2005-01-24 00:00:00+00:00