Dear Ms. Douglas:
On behalf of the Virginia Hospital & Healthcare Association’s (“VHHA”) 26 member health systems, with more than 125,000 employees, we are writing in support of the petition received by the Board of Nursing on January 10, 2022, requesting amendments to the Regulations for Nurse Aide Education Programs (hereafter referred to as the “Proposed Amendments”). The petitioner has requested that regulations pertaining to nurse aide education programs (the “Regulations”) be amended to (i) allow the use of licensed hospitals for clinical education in addition to nursing homes; (ii) eliminate the requirement that registered nurses (“RNs”) and licensed practical nurses (“LPNs”) serving as clinical instructors have experience working in nursing homes; and (iii) allow clinical instructors to be on site and to perform their regular work at the same time, but reduce the ratio from 10:1 to 4:1 for students to instructors. The Commonwealth has been experiencing a health care workforce shortage for several years that has been further exacerbated by the COVID-19 pandemic. Accordingly, we strongly support the proposed amendments as one method of helping to bolster the available number of health care professionals in the Commonwealth.
The Board of Nursing has been provided with the legal authority to establish the minimum standards of and regulations pertaining to nurse aides provided that those regulations are consistent with federal law and regulation. Virginia Code § 54.1-3005 provides that the Board of Nursing may “prescribe minimum standards and approve curricula for education programs preparing persons for licensure or certification…” and has the authority to “certify and maintain a registry of all certified nurse aides and to promulgate regulations consistent with federal law and regulation.”
The Centers for Medicare and Medicaid Services (“CMS”) has promulgated regulations at 42 CFR § 483.150 et seq. establishing minimum standards for state nurse aide training and competency evaluation programs (the “CMS Regulations”) at long term care facilities. Part 483 of the Federal Code of Regulations is specifically intended to apply to long term care facilities and is titled, “Requirements for States and Long Term Care Facilities.” The CMS Regulations note that training can take place at a “facility” but do not expressly identify a hospital as a “facility.” The content of the CMS Regulations suggest that “facility” is intended to specifically refer to nursing, skilled nursing, or other long-term care facilities. For example, the CMS Regulations at subsection (b)(iii)(2) discuss the exclusory criteria for nurse aide training and competency evaluation programs or competency evaluation programs offered by or in a “facility.” The exclusory criteria within subsection (b)(iii)(2) specifically refer to “skilled nursing” and “nursing” facilities but make no mention of hospitals. Similarly, the requirements for instructors contained in 42 CFR § 483.152(a)(5)(i) note that “[t]he training of nurse aides must be performed by or under the general supervision of a registered nurse who possesses a minimum of 2 years of nursing experience, at least 1 year of which must be in the provision of long term care facility services” (emphasis added). Therefore, the Proposed Amendments are consistent with the CMS Regulations which do not require nurse aide instruction to take place in hospitals or prohibit instructors who have experience in other settings from providing instruction in hospitals.
Virginia’s existing nurse aide training regulations at 18VAC90-260-10 et seq. were drafted with the expectation that nurse aide instruction would take place solely within nursing facilities with the intent of ensuring that students caring for geriatric patients would receive training in the environment they would be working upon certification. Despite the original intent of these regulations, the existing regulations at 18VAC90-26-50(C)(3) recognize the benefit of clinical hours outside of a nursing facility setting by allowing for five out of the 40 required clinical hours to be in a setting other than a long term geriatric care facility.
Hospitals are increasingly implementing nurse aides within their staff to augment the ongoing staff shortages, and these health professionals are engaged to care for a variety of patients other than geriatric patients and in a variety of settings. The Proposed Amendments would help to increase opportunities to expand the role of nurse aides to these other settings.
Throughout the COVID-19 pandemic, we have all seen the impact workforce shortages have had on Virginia’s hospitals and health systems. Governor Youngkin recognized the “severe staffing shortages…placing an unsustainable strain on our health care system and health care workforce” in Executive Order 11 and requested flexibilities be provided to healthcare providers throughout the Commonwealth. Indeed, these severe staffing shortages are expected to continue for the foreseeable future. Therefore, we strongly support any measure that will remove entry barriers to the health care profession, such as those suggestions included in the Proposed Amendments.
In closing, we strongly support the Proposed Amendments. The Board of Nursing has been granted broad authority under state law to promulgate regulations pertaining to nurse aide education programs provided that those regulations are consistent with federal law and regulations. As noted above, federal regulations apply to nurse aide education in nursing facilities, but do not prohibit expansion to hospital settings. By implementing the Proposed Amendments, the Board of Nursing would remove barriers to entry for potential nurse aides by allowing instruction to take place in a hospital and thus increasing the availability of training sites throughout Virginia. Additionally, by removing the requirement that RNs and LPNs serving as clinical instructors have experience working in nursing homes and allowing for clinical instructors to be on site and to perform their regular work at the same time, the available pool of instructors would increase and provide the opportunity for those who are currently employed by hospitals or considering leaving a clinical setting with the option to become nurse aide instructors.
Thank you again for the opportunity to comment on the permanent regulation. Please do not hesitate to contact Brent Rawlings (brawlings@vhha.com, 804-965-1228) or me at your convenience if we can provide any additional information.
Sincerely,
Sean T. Connaughton
President & CEO