(2) No Compliance Actions Before Effective Date of Guidelines. In light of the confusion that has resulted from HCFA's delay in publishing regulations relating to nurse aide training and competency evaluation programs and to nurse aide competency evaluation programs, the committee bill prohibits the Secretary from taking any compliance action against any State that has a made a good faith effort, prior to May 12, 1989 (the effective date of HCFA's interpretative guidelines), to comply with these OBRA '87 requirements. Such efforts would include a State's approval (prior to May 12, 1989) of a nurse aide training and competency evaluation program which the State had reasonably believed, at the time it made its certification, was in compliance with the OBRA '87 requirements. However, for periods occurring after May 12, 1989 and until HHS nurse aide training regulations are effective, the committee intends for States to meet fully, the requirements of the statute, as specified in HCFA's May 1989 guidance document (as periodically updated).

In providing for this good faith exception, the committee emphasizes that the Secretary's past failure to implement the OBRA '87 nurse aide training and competency evaluation provisions through regulation, while, regrettable, should not be construed to undermine the validity of the requirements specified in HCFA's May 12, 1989 interpretative guidelines. OBRA '87 did not mandate that the Secretary issue such regulations and explicitly did not predicate implementation of the nurse aide training and competency evaluation requirements upon the issue of final regulations.

(3) Publication of Proposed Regulations. The committee bill requires the Secretary to promulgate proposed regulations to implement OBRA 87's nurse aide training and competency evaluation requirements within 90 days of enactment of this Act. The committee intends for such proposed regulations to include among its requirements the items and issues discussed throughout section 4271(b).

Because nurse aides provide most of the "hands-on" care to nursing facility residents, the nurse aide training requirements wereand continue to be-one of the cornerstones of OBRA '87. Accordingly, HCFA's missed deadlines for taking interim steps towards full implementation of these requirements have become of particular concern to the committee as October 1, 1990 (the date on which the entire nursing home reform law becomes effective) quickly approaches. Effective as of that date, States will be able to waive the statute's minimum nurse staffing requirements (with respect to both registered nurses and licensed practical nurses) in all nursing facilities, and in turn, to leave residents under the exclusive care of nurse aides.

The committee stresses that, while it expects the Secretary to issue proposed regulations in a timely manner, the failure of the Secretary to issue proposed (or final) regulations, as required under the committee bill, does not, and is not to be construed to, delay the applicability of the statutory requirements relating to nurse aide training and competency evaluation. Under current law, these requirements are effective January 1, 1990 (and under section 4271(b)(1), above, October 1, 1990), without regard to whether final implementing regulations have been published. If such requirements were conditioned on the Secretary's taking specific actions,

the Secretary would have the ability to forestall-in violation of the intent of OBRA '87-the implementation of these critical protections against the provision of substandard care. The Secretary was not given this power in OBRA '87 and the committee declines to give it to him now.

(4) Clarification of Grace Period for Nurse Aide Training of Individuals. Under current law, effective January 1, 1990, a nursing facility participating in Medicaid may not use (on a full-time, temporary, per diem, or other basis) any individual as a nurse aide for more than a 4-month period unless the individual has completed an approved nurse aide training program and is determined to be competent to provide nursing related services.

As discussed in section 4271 (b)(1), above, under the committee bill, the January 1, 1990 effective date would be postponed until October 1, 1990.

This section of the bill simply clarifies what Congress had originally intended in enacting the OBRA '87 requirements relating to the use of nurse aides: no individual may work as a nurse aide for more than 90 days at any point in his or her career without having completed an approved nurse aide training and competency evaluation program and without having demonstrated competency to provide nursing and nursing-related services. This requirement applies whether such an individual is an employee of a nursing facility or is a per diem worker from an agency pool. For example, an individual may perform nurse aide work as an employee of nursing facility "A" for 70 days, then quit and obtain employment at nursing facility "B". Under the committee's bill, it is now clear that this individual could be used as a nurse aide at facility "B" (or any other nursing facility) for only 20 days without having completed an approved training and competency evaluation program and without having demonstrated competency to provide services. Similarly, if an individual is employed by an agency (or as an independent contractor) and works 15 days at nursing facility "A", 15 days at nursing facility "B", 15 days at nursing facility "Č", and 45 days at nursing facility "D", such individual may not be used as a nurse aide by any other nursing facility until he or she has completed an approved training and competency evaluation program and has demonstrated competency.

The committee bill includes this clarification not only to explain its purpose in enacting the OBRA '87 requirements regarding the use of nurse aides, but also to stress its intent that the 90-day exemption from the training and competency evaluation requirements is only a grace period, not a "loophole" for circumventing the law.

(5) Requirements for Training and Evaluation Programs. Under current law, effective January 1, 1989, States are required to specify those approved nurse aide training and competency evaluation programs and, approved nurse aide competency evaluation programs, that meet the minimum requirements for those programs as set forth in OBRA '87. For nurse aide training and competency evaluation programs, these requirements relate to covered subject matter; the minimum number of training hours; training; instructor qualifications; and the procedures for determining competency. For nurse aide competency evaluation programs, these require

ments relate to the covered subject matter and the procedures for determining competency.

It has come to the attention of the committee that several States have approved-or plan to approve programs which include elements that OBRA '87 never intended to be a part of the training and evaluation process. In the committee's view, these elements act as obstacles both to the retention of currently employed nurse aides and to the recruitment of new candidates. Of particular concern are those programs which impose charges or fees for textbooks and other related course material, and those programs which require that the competency of nurse aides be determined solely on the basis of a written examination or which require nurse aides to travel unreasonable distances in order be evaluated. The committee bill includes a number of provisions designed to clarify the intent of OBRA '87 with regard to these practices.

With respect to charges for textbooks or related course material or for the competency evaluation itself, the committee bill requires that approved training and evaluation programs specifically prohibit the imposition of such charges on nurse aides. It is well known that nurse aides are among the nursing home industry's lowest paid workers, with wages at or near the minimum wage. In the committee's view, the imposition of any charges relating to training and competency evaluation on these employees would be a real hardship for them. This action would also discourage other individuals to seek work as a nurse aide. Such a result would be both contrary to the intent of Congress and to the best interests of nursing home residents who need nurse aide services.

With respect to competency determinations, the committee bill requires that approved training and competency evaluation programs provide for procedures which allow nurse aides, at their option, (i) to establish competency through procedures or methods other than the passing of a written examination; and (ii) to have the competency evaluation conducted at the nursing facility at which they are (or will be) employed (unless such facility is not in compliance with the OBRA '87 mandates).

In the committee's view, even well-trained, experienced nurse aides, by virtue of either their educational background or their usual nursing facility responsibilities, may be intimidated or threatened by the idea of being "tested" through the use of a written examination. Moreover, the committee believes that, considering the tasks that nurse aides generally perform, there are other, perhaps more appropriate and less formal ways of evaluating nurse aide competency. Indeed, the Conference Report that accompanied OBRA '87 (H. Rept. 100-495) noted that the word "testing" was struck from the agreement and replaced with the words "competency evaluation" in order "to emphasize that [training and competency evaluation] programs shall include manual and oral evaluation" (emphasis added) (p.678). The committee agrees and affirms the position taken in the OBRA '87 Conference Report (as quoted above). Thus, the committee stresses again, as it did in 1987, its intent that nurse aides be evaluated under methods or procedures that are the most comfortable, the most appropriate, and the most reasonable for them.

In response to these views, the committee believes HCFA should be take appropriate action (through its interpretive guidelines and forthcoming regulations) to ensure that both manual and oral methods of competency evaluation-at a minimum-are available to nurse aides. In the committee's view, too, States should not approve any training and competency evaluation program in which such methods are not offered. Under the committee's bill, it is clear they cannot do so. It is also clear that individual nurse aides—and not the State and not the nursing facilities-have the right to choose for themselves, within reason, the process or procedures by which they are to be evaluated. Thus, the committee does not intend that a request from a nurse aide working in Pennsylvania to have a competency evaluation performed in California, be granted. It does intend, however, that there be several methods of competency evaluation available to nurse aides and that each individual nurse aide be able to choose among them or any other reasonable competency evaluation procedures.

In requiring that approved programs permit nurse aides to have their competency evaluation conducted at the nursing facility at which they are or will be employed, the committee again believes that it is simply clarifying the intent of OBRA '87, that is, nurse aides should be evaluated for competency in a manner that is the most reasonable and least burdensome for the aides themselves. In the committee's view, this standard does not include training and competency evaluation program requirements which demand that nurse aides travel significant distances for their competency evaluation. Nor does it include any other program requirement, such as a travel mandate, that would involve relatively great expense (in relation to nurse aides' income) to nurse aides who wish to be evaluated.

The committee bill makes it clear, therefore, that individual nurse aides have the right to be evaluated in the nursing facility at which they are or will be employed. An aide is not entitled to exercise this right, however, if he or she is used or is to be used in a nursing facility that has been determined to be out of compliance with OBRA '87 requirements within the previous 2 years. In such instances, the committee intends that aides who express a preference, be evaluated at the most convenient, alternative location available.

This section of the committee bill also corrects an inconsistency in the minimum requirements for approved training and competency evaluation programs and approved competency evaluation programs with regard to the subject matters they are to cover. The committee bill simply clarifies that both such programs must include skills relating to the care of the cognitively impaired residents.

(6) Delay and Transition in 75-hour Training Program Requirement. Under current law, approved nurse aide training and competency evaluation programs must, among other requirements, provide for a minimum of 75 hours of initial training. As noted above, current law also provides that, effective January 1, 1990, all nurse aides used by nursing facilities participating in Medicaid must (i) have completed such an approved training and competency evaluation program within 4 months; and (ii) be competent to provide

nursing related services. The committee bill considers this requirement to be met with respect to nurse aides, who as of July 1, 1989, have completed a training and evaluation program of at least 60 hours and have received up to 15 hours of supervised practical training or regular in-service education.

(7) Clarification of State Responsibility to Determine Competency. Under OBRA '87, States are specifically required to make determinations about the competency of individual nurse aides to provide nursing related services. OBRA '87 also specifically prohibits States from delegating this responsibility to a nursing facility. It has come to the attention of the committee, however, that some States may be circumventing this prohibition by entering into subcontracts with nursing facilities (or entities related to nursing facilities) to carry out the States' responsibility to make nurse aide competency determinations. Under the committee bill, such subcontracts (or any other legal device designed to relieve a State directly or indirectly of its duty to conduct nurse aide competency evaluations), are specifically prohibited.

(8) Clarification of Temporary Enhanced Federal Financial Participation for Nurse Aide Training By Nursing Facilities. Under OBRA '87, Federal Medicaid matching funds are available for State expenditures with respect to nurse aide training and competency evaluation programs, and competency evaluation programs, regardless of whether the programs are conducted in or outside of nursing facilities, and regardless of the skill of the personnel involved in such programs. During the period July 1, 1988, to July 1, 1990, the matching rate on these expenditures is the lesser of (i) 90 percent or (ii) the State's regular matching rate plus 25 percentage points.

The committee bill clarifies that the expenditures subject to Federal matching at the enhanced matching rate during the July 1, 1988 to July 1, 1990 period include the costs for nurse aides to complete competency evaluation programs, regardless of whether the programs are conducted in or outside of nursing facilities. Effective July 1, 1990, expenditures attributable to nurse aide training and competency evaluation programs, and competency evaluation programs, are subject to a 50 percent matching rate.

Under current law, as a general rule, Medicaid funds are available only for expenditures attributable to Medicaid beneficiaries. One exception is the start-up expenditures for nurse aide training and competency evaluation. The committee bill clarifies that the Secretary may not take into account, or allocate amounts expended for nurse aide training and competency evaluation on the basis of the proportion of nursing facility residents entitled to Medicare or Medicaid. This prohibition applies with respect to expenditures for activities under nurse aide training and competency evaluation programs, and competency evaluation programs, prior to October 1, 1990. Thereafter, the committee expects that the costs of nurse aide training and competency evaluation, subject to Federal matching payments, will be allocated on the basis of the proportion of residents eligible for Medicare and Medicaid.

(9) Effective Dates. The committee bill provides that, except for those changes made under section 4271(b)(5) above, all of the amendments made with respect to the OBRA '87 nurse aide train