Texas Standards for Nurse Aide Registry and Training Handbook

TSNART, Chapter 94, Standards for Nurses Aide Registry and Training

Revision: 08-1

 

 

§94.1  Basics

The chapter implements the requirements of the Omnibus Budget Reconciliation Act of 1987, Public Law 100-203, §§4201-4214, as amended (amending the Social Security Act, §1819 and §1919), Code of Federal Regulations (CFR), Title 42, §§483.151-483.154, and changes made to the initial determination regulations at Title 42 CFR, Part 498, and the Medicaid hearing regulations at 42 CFR, Part 431, concerning program requirements for the training and competency evaluation of nurse aides employed in nursing facilities (Medicaid only), skilled nursing facilities (Medicare), or dually participating nursing facilities (Medicaid and Medicare), and the registry of nurse aides.

 

§94.2  Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse — The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.

(2) Act — The Omnibus Budget Reconciliation Act of 1987, Public Law 100-203, §§4201-4214, December 22, 1987 (amending the Social Security Act, §1819 and §1919), as amended and the federal regulations promulgated under Public Law 100-203 in Title 42, Code of Federal Regulations (CFR), Part 483 (Act).

(3) Active status — The designation given to a nurse aide listed on the Nurse Aide Registry who:

(A) does not have a finding of abuse, neglect, or misappropriation of a resident's property against them; and

(B) has provided verification of employment as a nurse aide within 24 months.

(4) Competency evaluation program (CEP) — A skills examination and a written or oral examination approved by DADS.

(5) Curriculum — The publication titled Texas Curriculum for Nurse Aides in Long Term Care Facilities developed by DADS.

(6) DADS — The Texas Department of Aging and Disability Services.

(7) DHS — Formerly, this referred to the Texas Department of Human Services; it now refers to DADS, unless the context concerns an administrative hearing. Administrative hearings were formerly the responsibility of DHS; they are now the responsibility of the Texas Health and Human Services Commission (HHSC).

(8) Direct supervision — Actual observation of students performing tasks in a nurse aide training and competency evaluation program (NATCEP).

(9) Entity — An educational institution, organization of any kind, facility or division thereof, or licensed nursing facility that does not participate in Medicare, Medicaid, or dually participating facility (Medicare and Medicaid).

(10) Examination — A CEP or the competency evaluation portion of a training and competency evaluation program.

(11) Facility — A nursing facility (Medicaid only), skilled nursing facility (Medicare), or dually participating nursing facility (Medicaid and Medicare).

(12) Facility-based program — NATCEP offered by or in a facility.

(13) General supervision — The provision of necessary guidance and ultimate responsibility for the NATCEP.

(14) Licensed health professional — A:

(A) physician;

(B) physician assistant;

(C) nurse practitioner;

(D) physical, speech, or occupational therapist;

(E) physical or occupational therapy assistant;

(F) registered professional nurse;

(G) licensed vocational nurse; or

(H) certified social worker.

(15) Licensed nurse — A registered nurse or licensed vocational nurse.

(16) Licensed vocational nurse (LVN) — An individual currently licensed by the Texas Board of Nursing to practice as a licensed vocational nurse.

(17) Misappropriation of resident property — The deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent.

(18) Neglect — The failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

(19) Non-facility-based program — A NATCEP not offered by or in a facility.

(20) Nurse aide — An individual providing nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse who has successfully completed a NATCEP approved by the state or has been determined competent by waiver or reciprocity and is listed as active on the Nurse Aide Registry. This definition does not include an individual who is a licensed health professional or a registered dietitian or who volunteers such services without monetary compensation.

(21) Nurse Aide Registry — Also referred to as the registry, a state listing of all individuals who have satisfactorily completed a NATCEP or a CEP approved by DADS or qualified by waiver or reciprocity and are deemed active and employable in a nursing facility. Nurse aides who have a finding entered on the registry of committing an act of abuse, neglect, or misappropriation of resident or consumer property are deemed unemployable in a nursing facility pursuant to 42 CFR, §483.156.

(22) Nurse aide training and competency evaluation program (NATCEP) — A program approved by DADS to train and evaluate an individual's ability to act in the capacity of a nurse aide for the purpose of working in a nursing facility.

(23) Nursing facility — An institution that participates in the Medicaid program or dually participates in both Medicaid and Medicare programs as defined in the Social Security Act, §1919(a), 42 United States Code Annotated §1396r.

(24) Nursing services — Services provided by nursing personnel that include, but are not limited to:

(A) promotion and maintenance of health;

(B) prevention of illness and disability;

(C) management of health care during acute and chronic phases of illness;

(D) guidance and counseling of individuals and families; and

(E) referral to other health care providers and community resources when appropriate.

(25) Official forms — The forms required and provided by DADS or its designees.

(26) Performance record — An evaluation of the trainee's performance of major duties and skills taught by the program.

(27) Program — A nurse aide training and competency evaluation program (NATCEP).

(28) Program director — An individual approved by DADS to provide general supervision of a NATCEP in accordance with §94.5 of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(29) Program instructor — An individual approved by DADS who is responsible for conducting the training in a NATCEP and meets the requirements in §94.5 of this title.

(30) Registered nurse (RN) — An individual currently licensed by the Texas Board of Nursing to practice professional nursing.

(31) Resident — A person accepted for care or residing in a facility.

(32) Skilled nursing facility — A nursing facility or distinct part of a facility that participates in the Medicare program as defined in the Social Security Act, §1819(a), 42 United States Code Annotated §1395i-3.

(33) Skills examiner — A qualified individual responsible for conducting the competency evaluation portion of a NATCEP in accordance with §94.5 of this title.

(34) Supplemental trainers — Licensed health professionals who are qualified to participate in teaching a program in accordance with §94.5 of this title.

(35) Trainee — An individual who is enrolled and attending, but has not completed a program.

 

§94.3  Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements

(a) A facility may offer a NATCEP or contract with another NATCEP in order to train nurse aides.

(b) A person or entity that desires to offer a NATCEP must file a complete application for approval on official forms prescribed by DADS.

(c) A facility that is prohibited from participating in the training and testing of nurse aides under subsection (g) of this section may arrange with an external entity to provide training in the facility according to provisions under §1819(f)(2) of the Act (42 United States Code (USC) 1395i-3(f)(2)) and §1919(f)(2) of the Act (42 USC 1396r(f)(2)) if:

(1) the program is offered in order to train employees of a facility that is prohibited from training under subsection (g) of this section;

(2) the program is offered in, but not by, the prohibited facility;

(3) there is no other such program offered within a reasonable distance of the facility; and

(4) an adequate environment exists for operating the program in the facility.

(d) A waiver of prohibition will be approved for a period not to exceed two years; however, approval will be withdrawn earlier if the facility is subsequently found to no longer meet the waiver criteria.

(e) A person or entity desiring to apply for NATCEP according to subsection (c) of this section must submit a completed application as per §94.6 of this title (relating to Filing and Processing an Application for a Nurse Aide Training and Competency Evaluation Program (NATCEP)), and include the name of the prohibited facility within the application.

(f) Applicants must submit one application for each classroom location.

(g) DADS will not approve a NATCEP offered by or in a facility if, within the previous two years, the facility:

(1) has operated under a waiver concerning the services of a registered nurse under 42 United States Code (USC), §1395i-3(b)(4)(C)(ii)(II) (Social Security Act (SSA)), §1819(b)(4)(C)(ii)(II) or under 42 USC, §1396r(b)(4)(C)(ii) (SSA, §1919(b)(4)(C)(i)-(ii));

(2) has been subject to an extended or partially extended survey under 42 USC, §1395i-3(g) (SSA, §1819(g)(2)(B)(i)) or under 42 USC, §1396r(g) (SSA, §1919(g)(2)(B)(i));

(3) has been assessed a civil money penalty of not less than $5,000 as described in 42 USC, §1395i-3(h) (SSA, §1819(h)(2)(B)(ii)) or in 42 USC, §1396r(h) (SSA, §1919(h)(2)(A)(ii));

(4) has been subject to denial of payment under Title XVIII or Title XIX;

(5) operated under state-appointed temporary management to oversee the operation of the facility under 42 USC §1395i-3(h) (SSA, §1819(h)) or under 42 USC, §1396r(h) (SSA, §1919(h));

(6) had its participation agreement terminated under 42 USC §1395i- 3(h)(4) (SSA, §1819(h)(4)) or under 42 USC, §1396r(h)(1)(B)(i) (SSA, §1919(h)(1)(B)(i)); or

(7) pursuant to state action, closed or had its residents transferred under 42 USC §1396r(h)(2) (SSA, §1919(h)(2)).

(h) Each NATCEP must teach a minimum of 75 clock hours of training, including at least:

(1) 51 clock hours of classroom training defined as classroom and skills training that does not involve direct care of residents by trainees; and

(2) 24 clock hours of clinical training defined as hands-on care of residents in a nursing facility.

(i) Each NATCEP must teach the curriculum established by DADS, and as described in the Code of Federal Regulations, Title 42, §483.152, to include at least 16 introductory hours of training in the following areas before any direct contact with a resident:

(1) communication and interpersonal skills;

(2) infection control;

(3) safety and emergency procedures, including the Heimlich maneuver;

(4) promoting the resident's independence;

(5) respecting the resident's rights;

(6) basic nursing skills, including:

(A) taking and recording vital signs;

(B) measuring and recording height and weight;

(C) caring for the resident's environment;

(D) recognizing abnormal changes in body functioning and the importance of reporting such changes to a supervisor; and

(E) caring for the resident when death is imminent;

(7) personal care skills, including:

(A) bathing;

(B) grooming, including mouth care;

(C) dressing;

(D) toileting;

(E) assisting with eating and hydration;

(F) proper feeding techniques;

(G) skin care; and

(H) transfers, positioning, and turning;

(8) mental health and social service needs, including:

(A) modifying aide's behavior in response to the resident's behavior;

(B) awareness of developmental tasks associated with the aging process;

(C) how to respond to the resident's behavior;

(D) allowing the resident to make personal choices, providing and reinforcing other behavior consistent with the resident's dignity; and

(E) using the resident's family as a source of emotional support;

(9) care of cognitively impaired residents, including:

(A) techniques for addressing the unique needs and behaviors of an individual with dementia (Alzheimer's disease and others);

(B) communicating with a cognitively impaired resident;

(C) understanding the behavior of cognitively impaired residents;

(D) appropriate responses to the behavior of a cognitively impaired resident; and

(E) methods of reducing the effects of cognitive impairments;

(10) basic restorative services, including:

(A) training the resident in self care according to the resident's abilities;

(B) use of assistive devices in transferring, ambulation, eating, and dressing;

(C) maintenance of range of motion;

(D) proper turning and positioning in bed and chair;

(E) bowel and bladder training; and

(F) care and use of prosthetic and orthotic devices; and

(11) resident's rights, including:

(A) providing privacy and maintenance of confidentiality;

(B) promoting the resident's right to make personal choices to accommodate their needs;

(C) giving assistance in resolving grievances and disputes;

(D) providing needed assistance in getting to and participating in resident, family, group, and other activities;

(E) maintaining care and security of the resident's personal possessions;

(F) promoting the resident's right to be free from abuse, mistreatment, and neglect and the need to report any instances of such treatment to appropriate facility staff; and

(G) avoiding the need for restraints in accordance with current professional standards.

(j) A NATCEP must have a DADS-approved program director and program instructor at the time of initial approval and during the time training occurs who meet the requirements of §94.5(a) and (b) of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(k) A NATCEP must ensure that trainees:

(1) are not listed on the Nurse Aide Registry in revoked status;

(2) are not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(3) have not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006;

(4) complete at least the first 16 hours of training (Section I of the curriculum) before any direct contact with a resident;

(5) do not perform any services for which they have not been trained and have been found to be proficient by an instructor;

(6) are under the direct supervision of a licensed nurse when performing skills on individuals as part of a NATCEP;

(7) are under the general supervision of a licensed nurse when providing services to a resident; and

(8) are clearly identified as trainees during the clinical training.

(l) A NATCEP must notify DADS of any change in the information presented in an approved application, including a change in program director or program instructor. DADS must approve such changes before the effective date of the change. DADS will conduct a review of the program if it determines the changes are substantive.

(m) Each NATCEP must use a DADS performance record to account for major duties or skills taught, trainee performance of duty or skill, satisfactory or unsatisfactory performance, and name of instructor supervising the performance. At the completion of the NATCEP, the trainee and his or her employer, if applicable, will receive a copy of the performance record.

(n) The NATCEP must maintain records that must be available to DADS or its designees at any reasonable time, which include for each new session of the NATCEP:

(1) dates and times of all classroom and clinical hours;

(2) full name and social security number of each trainee;

(3) attendance record of each trainee; and

(4) final course grade for the training portion of the NATCEP that indicates pass or fail for each trainee.

(o) Each NATCEP must meet the requirements of this title and the CEP as specified in §94.4(b)-(n) of this title (relating to Competency Evaluation Program (CEP) Requirements).

(p) A nurse aide who is employed by, or who has received an offer of employment from, a facility on the date on which the nurse aide begins a NATCEP may not be charged for any portion of the NATCEP, including any fees for textbooks or other required course materials.

(q) If an individual does not meet the requirements of subsection (p) of this section, but becomes employed as a nurse aide by, or receives an offer of employment as a nurse aide from, a facility not later than 12 months after completing a NATCEP, the state provides for the reimbursement of costs incurred in completing the NATCEP on a pro rata basis during the period in which the individual is employed as a nurse aide.

(r) DADS must approve a NATCEP before operation or solicitation or enrollment of trainees.

(s) DADS approval of a NATCEP covers only approval of the required DADS curriculum and hours and should not be considered approval of additional content or hours.

(t) An orientation given by a facility to a nurse aide employed in the facility does not constitute a part of a NATCEP.

 

§94.4  Competency Evaluation Program (CEP) Requirements

(a) All examinations will be administered by a DHS-designated examiner to individuals who have successfully completed the training portion of a NATCEP or are eligible to take a CEP under §94.9 of this title (relating to Waiver, Reciprocity, and Exemption Requirements).

(b) Requirements for the competency evaluation portion of a NATCEP are:

(1) A trainee is eligible to take the competency evaluation portion of a NATCEP if he or she has successfully completed the training portion of a NATCEP as determined by the program director.

(2) An eligible trainee will take the examination as part of the same NATCEP. If it is not possible to test with the same NATCEP, a nurse aide may take the examination at another approved facility or at a NATCEP that has volunteered to serve as an examination site.

(3) An eligible trainee who does not test with the same NATCEP must obtain from the program director of the NATCEP a signed CEP application or a certificate or letter to present to the skills examiner before taking the examination, as described in §94.5(a)(4)(E)-(F) of this title (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(c) An approved facility or NATCEP serving as an examination site is responsible for:

(1) providing the facility where the skills examination will be given and the location where the written or oral examination will be given;

(2) offering the examination to its own trainees promptly after successful completion of the training portion of a NATCEP;

(3) offering the examination to an eligible examinee employed by or who has received an offer of employment from the facility, if the individual desires to be examined at the facility;

(4) offering the examination to other eligible examinees the facility or NATCEP has voluntarily accepted for the examination;

(5) scheduling examinations and retests with DHS's designated examiner; and

(6) ensuring applications for examination are completed accurately.

(d) The examinee is responsible for:

(1) taking the examination within 24 months of completion of the training portion of the NATCEP:

(A) with the NATCEP where the examinee was trained;

(B) at an approved facility from which the individual has received an offer of employment or is employed; or

(C) at an approved facility or NATCEP that has volunteered to accept the examinee for examination;

(2) verifying the arrangements for examination with the examination site;

(3) presenting the completed application for examination and documentation to the skills examiner before the examination, as required under subsection (b)(3) of this section or §94.9(c) of this title;

(4) requesting a retest if the examinee fails the examination; and

(5) meeting any other procedural requirements specified by DHS or its designated examiner.

(e) DHS or designated examiner is responsible for:

(1) providing instructions and eligibility forms to applicants for a CEP and provide a letter of approval as specified in §94.9(c) of this title;

(2) assisting an eligible examinee find an approved facility or NATCEP to serve as an examination site;

(3) scheduling examinations and retests for the requesting approved facility or NATCEP; and

(4) administering examinations and report results of examinations as required by DHS.

(f) The examination must consist of:

(1) the skills examination, which includes the trainee demonstrating five randomly selected skills drawn from a pool of skills that are generally performed by nurse aides, including all personal care skills listed in the curriculum; and

(2) the written or oral examination, which includes 60 scored multiple choice questions selected from a pool of test items that address each course requirement in the curriculum. The written examination questions are printed in a test booklet with a separate answer sheet. The oral examination is a tape-recorded presentation read from a prepared text in a neutral manner that includes additional questions to test reading comprehension.

(g) A nurse aide with a disability may take the examination to establish competency under this section by requesting a reasonable accommodation pursuant to the Americans with Disabilities Act.

(h) Successful completion of the examination consists of a passing grade on the:

(1) skills examination as determined by DHS; and

(2) written or oral examination as determined by DHS.

(i) A person who fails the skills examination or the written or oral examination may retest twice on the failed examination.

(1) The person will be advised of the areas he or she did not pass.

(2) The person must request re-examination through the approved facility, NATCEP, or DHS's designated examiner.

(3) DHS is not required to set special re-examination schedules.

(4) After failing the examination three times, the individual must complete the training portion of a NATCEP before retesting.

(j) The state must advise in advance any individual who takes the examination that a record of the successful completion of the examination will be included on the Nurse Aide Registry.

(k) A record of successful completion of the examination must be included on the Nurse Aide Registry within 30 days of the date the examination was passed.

(l) An examination will not be offered by or in a facility if the facility falls within any of the provisions of §94.3(g) of this title (relating to Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements).

(m) A nurse aide who is employed by, or who has received an offer of employment from, a facility on the date on which the nurse aide begins a CEP may not be charged for any portion of the CEP.

(n) If an individual does not fall under this subsection, but becomes employed as a nurse aide by, or receives an offer of employment as a nurse aide from, a facility not later than 12 months after completing a CEP, the state must provide for the reimbursement of costs incurred in completing the CEP on a pro rata basis during the period in which the individual is employed as a nurse aide.

 

§94.5  Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements

(a) Program director. The training of nurse aides must be performed by or under the general supervision of a DHS-approved program director. Each approved NATCEP must have an approved program director at the time of initial application and during the time training occurs.

(1) The program director must:

(A) be licensed as an RN in the state of Texas;

(B) have a minimum of two years of nursing experience, at least one year of which must be in the provision of long term care services in a facility; and

(C) have completed a course in teaching adults or have experience in teaching adults or supervising nurse aides.

(2) In a facility-based program, the director of nursing (DON) for the facility may be approved as the program director but is prohibited from performing the actual training.

(3) A program director may supervise more than one NATCEP.

(4) The program director's responsibilities include, but are not limited to:

(A) directing the NATCEP in compliance with the Act and this chapter;

(B) teaching the NATCEP or supervising the program instructor and supplemental trainers;

(C) ensuring that NATCEP records are maintained;

(D) determining if trainees have passed the training portion of the NATCEP;

(E) signing an application for examination for each trainee who has passed the training portion of the NATCEP and has completed DHS's application; and

(F) signing a certificate of completion or a letter on letterhead stationery, at the request of an eligible trainee, stating that the trainee has passed the training portion of the NATCEP under the circumstance in which a trainee does not take the competency evaluation with the same NATCEP. The certificate or letter must include the date of training completion, the total training hours completed, and the official NATCEP name and number on file with DHS.

(5) A NATCEP must submit a change application for approval for a change of program director.

(b) Program instructor. The actual training of nurse aides must be conducted by a DHS-approved instructor who may be the approved program director, pursuant to meeting the requirements in subsection (a)(1)-(5) of this section. Each approved NATCEP must have at least one qualified program instructor at the time of initial application and during the time training occurs.

(1) The program instructor must:

(A) be a licensed nurse in the state of Texas;

(B) have a minimum of one year of nursing experience in a facility;

(C) have completed a course in teaching adults or have experience in teaching adults or supervising nurse aides; and

(D) work under the general direction of the program director or be the approved program director who meets the requirements in subsection (a)(1)-(5) of this section.

(2) The program instructor is responsible for conducting the classroom and clinical training under the general direction of the approved program director or be the approved program director conducting the classroom and clinical training, who meets the requirements in subsection (a)(1)-(5) of this section.

(3) A NATCEP or applicant for a NATCEP must certify on the NATCEP application that all program instructors will meet the requirements in paragraph (1)(A)-(D) of this subsection.

(4) A NATCEP must submit a change of application for approval for a change of program instructor.

(c) Supplemental trainers. Licensed health professionals may supplement the training provided in a NATCEP.

(1) A supplemental trainer must have at least one year of experience in his or her field of instruction.

(2) The program director will select and supervise each supplemental trainer.

(3) A supplemental trainer cannot act in the capacity of program instructor without DHS approval, which is obtained by the NATCEP submitting an application to DHS for a change of program instructor.

(d) Skills examiner. An approved skills examiner must conduct the competency evaluation of a nurse aide. An applicant who meets the requirements of this subsection will be approved as a skills examiner.

(1) A skills examiner must:

(A) be licensed as an RN in the state of Texas;

(B) have completed a minimum of one year of professional experience in providing care for the elderly or chronically ill of any age;

(C) have completed a skills training seminar conducted by DHS or its designee; and

(D) not be an employee of any facility or training program.

(2) A skills examiner is responsible for:

(A) adhering to DHS's standards for each skill examined;

(B) conducting the examination in an objective manner according to the criteria established by DHS;

(C) validating the examination results on form(s) prescribed by DHS; and

(D) submitting prescribed forms and reports to DHS or its designee.

 

§94.6  Filing and Processing an Application for a Nurse Aide Training and Competency Evaluation Program (NATCEP)

(a) A person or entity that desires to offer a NATCEP must file a complete application for approval on forms prescribed by DHS.

(b) DHS will consider whether the applicant complies with the Act and this chapter.

(c) Notice of approval, proposed disapproval of the application, or request for additional information will be given to the applicant within 90 days of the receipt of a complete application. If the application is proposed to be disapproved due to noncompliance with the requirements of the Act or this chapter, the reason for disapproval must be given in the notice.

(d) The applicant will be notified in writing of any deficiencies or errors found in the application and given an opportunity to make corrections with provisions of the Act and this chapter by providing a written response within 10 days of receipt of the notice.

(e) If DHS proposes to deny approval of NATCEP based on the criteria listed at §94.3(a)-(f) and (h)-(t) of this title (relating to Nurse Aide Training and Competency Evaluation Program Requirements (NATCEP)), or the requirements found at §94.7 of this title (relating to Approval, Reapproval, and Inspection of a Nurse Aide Training and Competency Evaluation Program (NATCEP)), the applicant (individual, facility, or entity) may request a hearing. Such requests must be made, in writing, within 20 days of the date the notice is received by the applicant. Such hearing will be held pursuant to the applicable provisions of DHS's formal hearing procedures provided in Chapter 79, Subchapter Q, of this title (relating to Formal Appeals). The final hearing decision will be made as provided in this subsection. The administrative law judge, on completion of the hearing, must prepare a written decision based solely on the evidence presented at the hearing and the statutory and regulatory provisions of the Act and this chapter. The decision must state the reasons for the decision.

(1) If an applicant does not make a timely request for a hearing, the applicant is deemed to have waived the opportunity for a hearing and the proposed action may be taken.

(2) If an applicant who has requested a hearing fails to appear or be represented at the scheduled hearing, the applicant is deemed to have waived the opportunity for a hearing and the proposed action may be taken.

 

§94.7  Approval, Reapproval, and Inspection of a Nurse Aide Training and Competency Evaluation Program (NATCEP)

(a) Initial approval of a NATCEP is made on the basis of the application submitted to DHS.

(b) Approval of a NATCEP is granted for a period of two years.

(c) DHS sends a notice of renewal and a renewal application form to a NATCEP at least 60 days before the expiration date of the approval.

(d) A NATCEP must file the renewal application 30 days before the expiration date of the approval. An application filed after the 30 days, or failure to file an application, will result in the expiration of approval.

(e) The results of an on-site visit to determine NATCEP compliance with the Act and this chapter will be used in the decision to renew the approval of a NATCEP.

(f) DHS may conduct an on-site review of a NATCEP at any reasonable time.

(g) DHS will provide written notification to a NATCEP of any deficiencies found as the result of any on-site review.

(1) The NATCEP must submit a written response to DHS, which includes a plan of correction (POC) to correct all deficiencies.

(2) DHS may direct a NATCEP to comply with the requirements of the Act and this chapter.

(3) A NATCEP that does not meet the requirements of the Act and this chapter by failing to provide an adequate POC will be subject to withdrawal of approval.

 

§94.8  Withdrawal of Approval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)

(a) DHS will immediately withdraw approval of a NATCEP in a facility that has:

(1) been granted a waiver concerning the services of an RN under 42 United States Code (USC), §1395i-3(b)(4)(C)(ii)(II) (Social Security Act (SSA), §1819(b)(4)(C)(ii)(II)) or under 42 USC, §1396r(b)(4)(C)(ii) (SSA, §1919(b)(4)(C)(i)-(ii)).

(2) been subject to an extended (or partially extended) survey under 42 USC, §1395i-3(g) (SSA, §1819(g)(2)(B)(i)) or under 42 USC, §1396r(g) (SSA, §1919(g)(2)(B)(i));

(3) been assessed a civil money penalty of not less than $5,000 as described in 42 USC, §1395i-3(h) (SSA, §1819(h)(2)(B)(ii)) or in 42 USC, §1396r(h) (SSA,§1919(h)(2)(A)(ii));

(4) been subject to denial of payment under Title XVIII or Title XIX;

(5) operated under state-appointed temporary management to oversee the operation of the facility under 42 USC §1395i-3(h) (SSA, §1819(h)) or under 42 USC, §1396r(h) (SSA, §1919(h));

(6) had its participation agreement terminated under 42 USC §1395i-3(h)(4) (SSA, §1819(h)(4)) or under 42 USC, §1396r(h)(1)(B)(i) (SSA, §1919(h)(1)(B)(i));

(7) pursuant to state action, closed or had its residents transferred under 42 USC §1396r(h)(2) (SSA, §1919(h)(2)); or

(8) refused to permit unannounced visits by DHS.

(b) DHS may withdraw approval of a NATCEP because of program noncompliance with §94.3 of this title (relating to Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements).

(c) If DHS proposes to withdraw approval of a NATCEP based on the criteria listed in subsection (a)(1)-(8) of this section, DHS will notify the facility by certified mail of the facts or conduct alleged to warrant the action at the last known address as shown in DHS's records.

(d) Dually certified and skilled nursing facilities offering a NATCEP may appeal the findings of noncompliance that led to the loss of their NATCEP, but not the loss of the NATCEP itself, by requesting a hearing pursuant to Code of Federal Regulations (CFR), Title 43, §498.3(b)(14)(ii) and §498.3(b)(16).

(e) Facilities offering a NATCEP that participate only in Medicaid may appeal the findings of noncompliance that led to the loss of their NATCEP, but not the loss of the NATCEP itself, by requesting a hearing in accordance with provisions in Chapter 79, Subchapter Q, of this title (relating to Formal Appeals). A facility has 60 days from receipt of the certified mail notice to request a hearing.

(f) A facility may appeal under subsection (d) or (e) of this section, but not both. A facility is not entitled to two appeals of the findings of noncompliance that led to the loss of its NATCEP.

(g) If the facility requests an informal dispute resolution or formal appeal for the non-compliance that resulted in the loss of the NATCEP, and the allegation of non-compliance is overturned, the withdrawal of approval for the NATCEP will be rescinded.

(h) If DHS proposes to withdraw a NATCEP based on the criteria listed at §94.3(a)-(f) and (h)-(t) of this title, or the requirements found at §94.7 of this title (relating to Approval, Reapproval, and Inspection of a Nurse Aide Training and Competency Evaluation Program (NATCEP)), the NATCEP may request a hearing. Such request must be made, in writing, within 20 days of the date the notice is received by the NATCEP. Such hearing will be held pursuant to the applicable provisions of DHS's formal hearing procedures as provided in Chapter 79, Subchapter Q, of this title. The final hearing decision will be made as provided in this subsection. The administrative law judge, on completion of the hearing, must prepare a written decision based solely on the evidence presented at the hearing and the statutory and regulatory provisions of the Act and this chapter. The decision must staten the reasons for the decision.

(1) If the NATCEP does not make a timely request for a hearing, the NATCEP is deemed to have waived the opportunity for a hearing and the proposed action may be taken.

(2) If the NATCEP that has requested a hearing fails to appear or be represented at the scheduled hearing, the NATCEP is deemed to have waived the opportunity for a hearing and the proposed action may be taken.

(i) Students who have started a NATCEP from which approval is to be or has been withdrawn will be allowed to complete the NATCEP.

 

§94.9  Waiver, Reciprocity, and Exemption Requirements

(a) A nurse aide will be deemed competent and placed on the Nurse Aide Registry by waiver of the requirements if the individual:

(1) was found to be competent before July 1, 1989, after completion of a nurse aide training course of at least 100 hours duration;

(2) verifies employment as a nurse aide who performed nursing or nursing-related services for monetary compensation at least every two years since July 1, 1989;

(3) is not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(4) has not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006; and

(5) completes the documentation required by DADS.

(b) A nurse aide who is listed in active status on a registry in another state will be placed on the Nurse Aide Registry by reciprocity if:

(1) the state nurse aide registry in question is in compliance with the Act;

(2) the individual is not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(3) the individual has not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006; and

(4) the individual completes the required documentation.

(c) An individual will be eligible to take the CEP with an exemption from training if the individual:

(1) meets one of the following requirements for eligibility:

(A) falls under §94.11 of this title (relating to Requirements for Recertification);

(B) successfully completed the training portion of a NATCEP approved under the Act or by any state within 24 months and has not completed the CEP or been placed on the registry in another state;

(C) successfully completed military training of 100 hours or more on or after July 1, 1989, equivalent to civilian nurse aide training;

(D) successfully completed a state-accredited RN or LVN school accredited by any state at the time of completion within 24 months and:

(i) is not licensed as an RN or LVN in the state of Texas; and

(ii) has not held a license as an RN or LVN that has been revoked; or

(E) is currently enrolled in a state-accredited school of nursing in any state and has demonstrated competency in providing basic nursing skills in accordance with the school's curriculum;

(2) is not listed as unemployable on the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253;

(3) has not been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006;

(4) submits documentation required to verify eligibility to take the CEP;

(5) arranges for a facility or NATCEP to serve as an examination site; and

(6) provides the original letter of approval to take the CEP to the skills examiner before taking the examination.

 

§94.10  Registry, Findings, and Inquiries

(a) Each individual listed on the registry will keep DADS informed of his or her current address and telephone number.

(b) Nurse aide certification expires 24 months after being added to the Nurse Aide Registry or after the last date of verified employment. To maintain active Nurse Aide Registry status, the following requirements must be met:

(1) Facilities must submit a DADS form to DADS annually to document all nurse aides who are performing or have performed paid nursing or nursing-related services at the facility during the past year.

(2) A nurse aide must submit a DADS form to DADS to document that the nurse aide has performed paid nursing or nursing-related services, unless documentation was submitted by the facility or facilities at which he or she was employed.

(c) DADS reviews and investigates allegations of abuse, neglect, or misappropriation of resident property by a nurse aide employed in a facility. If there is a finding of an alleged act of abuse, neglect, or misappropriation of resident property by a nurse aide, before entry of the finding on the Nurse Aide Registry, DADS will provide the nurse aide an opportunity to demonstrate compliance with the law through an informal reconsideration and a formal hearing as provided in 1 TAC Chapter 357 (relating to Hearings) and 42 Code of Federal Regulations, §488.335.

(d) Informal reconsideration procedures are:

(1) DADS will provide notice to the nurse aide of the facts or conduct alleged to warrant the proposed finding and the nurse aide's right to an informal reconsideration to show compliance with the law for the retention of his or her certificate;

(2) the nurse aide may submit a written request for an informal reconsideration to the local Regulatory Services office within 10 calendar days after the date of receipt of DADS' notice.

(3) This informal reconsideration will be limited to a review of documentation submitted by the nurse aide and information DADS used as the basis for its proposed finding and will not be conducted as an adversary hearing.

(4) DADS will give the nurse aide a written affirmation or reversal of the proposed finding.

(5) If DADS does not reverse the finding or the nurse aide fails to attend the scheduled informal reconsideration, a notice of adverse action and right to a formal hearing is sent to the nurse aide.

(e) A nurse aide may request a formal hearing within 30 days after receipt of DADS' notice of adverse action in accordance with 1 TAC Chapter 357.

(1) If the nurse aide fails to request a hearing, DADS will enter the finding on the Nurse Aide Registry.

(2) If the nurse aide or representative fails to appear at the scheduled hearing, the Administrative Law Judge may sustain DADS' finding and DADS will enter the finding on the Nurse Aide Registry.

(3) If a hearing is conducted and the finding of an alleged act of abuse, neglect, or misappropriation of resident property is upheld:

(A) the nurse aide will be informed of the final decision within 120 days after the date the request was received by DADS; and

(B) DADS will enter the finding on the Nurse Aide Registry.

(f) If an alleged act of abuse, neglect, or misappropriation of resident property by a nurse aide, who also is a permitted medication aide under Chapter 95 of this title (relating to Medication Aides--Program Requirements), violates the sections in this chapter and Chapter 95 of this title, DADS must comply with the formal hearing procedures as required in subsection (e) of this section. Determinations are made through the formal hearing on both the certificate of nurse aide practice and the permit for medication aide practice.

(g) DADS will not make a finding that an individual has neglected a resident if the individual demonstrates the neglect was caused by factors beyond the individual's control.

(h) The following must be notified of the findings:

(1) the Nurse Aide Registry;

(2) the nurse aide;

(3) the administrator of the facility where the event occurred; and

(4) the administrator of the facility that currently employs the nurse aide, if different from the facility in which the incident occurred.

(i) The Nurse Aide Registry must include the documented findings involving an individual listed on the registry, as well as any brief statement of the individual disputing the findings.

(j) The information on the registry must be made available to the public.

(k) In the case of inquiries to the Nurse Aide Registry, DADS must:

(1) verify if the individual is listed on the registry;

(2) disclose information concerning findings of abuse, neglect, or misappropriation of resident property involving an individual listed on the registry; and

(3) disclose any statement by the individual related to the finding.

(l) If a nurse aide has a finding of abuse, neglect, or misappropriation and is listed as unemployable in the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253, DADS enters that finding in the Nurse Aide Registry. The due process procedure offered to an individual before a finding is entered in the Employee Misconduct Registry satisfies the due process required for listing the individual as unemployable in the Nurse Aide Registry. DADS does not provide the nurse aide with an informal review or a formal hearing, as described in subsections (c)-(e) of this section.

 

§94.11  Requirements for Recertification

(a) A certified nurse aide who has had 24 consecutive months during which he or she has neither performed nursing or nursing-related services nor has acted as a nurse aide for monetary compensation loses his or her certification and is removed from active status on the Nurse Aide Registry as stated in §94.10(b) of this title (relating to Registry, Findings, and Inquiries).

(b) A person who has been removed from active status on the Nurse Aide Registry must successfully complete a new CEP or a new NATCEP to be restored to active status.

(c) DADS does not recertify a nurse aide for whom a finding of abuse, neglect, or misappropriation is listed in either the Nurse Aide Registry or the Employee Misconduct Registry established pursuant to Texas Health and Safety Code, Chapter 253.

(d) DADS does not recertify a nurse aide who has been convicted of a criminal offense listed in Texas Health and Safety Code, §250.006.

TSNART, Revisions

Revision No. Subject
08-1 Deeming a Nurse Aide Unemployable
03-1 New Handbook
01-1 Release of Standards for Nurse Aides Handbook Online
98-1 n/a

TSNART, Contact Us

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