News Article

CMS Continues to Allow Nursing Homes to Employ Uncertified Staff

August 31, 2022

At the beginning of the COVID-19 pandemic in 2020, the Centers for Medicare & Medicaid Services (CMS) issued a variety of waivers of federal regulations, claiming these waivers were necessary to address the Public Health Emergency (PHE). One of these waivers was the prohibition against nursing homes employing Certified Nursing Assistants (CNAs) for longer than four months unless they met the training and certification requirements. CMS justified allowing untrained aides to provide care during the PHE by citing staffing shortages. Despite acknowledging that they were concerned about poor health outcomes resulting from untrained staff working in nursing homes, CMS allowed this waiver to continue until June 2022. Consumer Voice had grave concerns about the waiver, repeatedly calling for its recission, as we frequently heard from residents who were receiving poor care from untrained staff.

Despite ending the waiver in June, CMS continues to allow nursing homes to employ uncertified staff for longer than four months. On August 29, 2022, CMS issued formal guidance to nursing homes, counties, and states on how they may continue to operate without properly certified staff. Federal regulations require CNAs to meet training and testing requirements, in order for CNAs to continue to work in a nursing home after four months. These requirements include 75 hours of training in a variety of areas, including providing care to residents with cognitively impaired residents, residents’ rights, and mental health and social services needs. 42 C.F.R. § 483.35.152(b). CNAs must also pass a written or oral exam demonstrating their competency in these skills. 42 C.F.R. 483.154(b)(i) and (ii). To ensure these requirements are being met, each state must have a Nurse Aide Competency Evaluation Program (NATCEP).

In its August 29, 2022 guidance, CMS states it is aware that “there may be instances where the volumes of aides that must complete a state approved NATCEP exceed the available capacity for enrollees in a training program or taking the exam.” If a facility, county, or state documents these instances, CMS will waive the requirements that aides be fully trained and certified (passed a certification test) within the 4-month period. CMS is waiving all of the requirements in these instances, regardless of whether it caused by a delay in training or testing. To obtain a waiver a facility need only document a phone call to a NATCEP in which they were told there was a delay, the date the contact occurred, that they told state officials, and an estimate when the aides will be certified. For counties and/or states to obtain waivers they must show what is causing the delay, how many aides are affected, and a plan to address the certification of aides.

Consumer Voice opposes this blanket waiver of certification requirements. Nursing facilities and states had over two years to create plans to have aides trained and certified. Instead, it appears that many facilities and states waited until the waiver ended in June and now are scrambling to meet the regulatory requirements. Additionally, the CMS waiver applies to all the certification requirements, regardless of whether it is caused by an inability to get aides trained or tested. If delays are due to a backlog in testing, CMS should still require the aides to meet the training requirements in the required timeframe. Further, CMS has not taken any steps to make residents, long-term care ombudsmen or the public aware when a facility, county, or state has obtained a waiver. Residents and their families must be made aware when they are receiving care from uncertified staff, and as mandated advocates for residents, long-term care ombudsmen should be similarly informed.

Resident, families, and other consumers concerned as to whether a nursing home is employing uncertified aides can:

• Ask the nursing home administrator if the facility is currently operating with a CNA certification waiver. If so, how many CNAs are uncertified? What is the facility's plan and timeline to get all CNAs fully trained and certified? 
• Contact your local state survey agency to determine whether a facility, county, or state has received a waiver of the CNA certification requirements. 
• If a state or county has been granted a waiver, ask the state survey agency what their plan is to get all CNAs fully trained and certified.
• Report all instances or concerns regarding poor care to the local long-term care ombudsman and the state survey agency.

It has been over two years since this waiver was issued. It is inexcusable that nursing home residents continue to be placed at risk of harm due to receiving care from uncertified staff.