PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 556. NURSE AIDES

26 TAC §§556.2, 556.3, 556.5, 556.8

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 26, Part 1, Chapter 556, Nurse Aides, amendments to §556.2, concerning Definitions; §556.3 concerning Nurse Aide Competency Evaluation Program (NATCEP) Requirements; §556.5, concerning Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements; and §556.8, concerning Withdrawal of Approval of a Nurse Aide Training and Competency Evaluation Program (NATCEP). These rules contain references to §556.4, concerning Filing and Processing an Application for a NATCEP, and §556.7, concerning Review and Reapproval of a NATCEP, which are not being changed.

BACKGROUND AND PURPOSE

The purpose of the proposal is to amend the rules to stipulate that NATCEPs must accept 60 hours of classroom training through HHSC's computer-based training (CBT) for nurse aide candidates seeking to qualify for the Certified Nurse Aide (CNA) exam. The proposal updates definitions and references associated with the nurse aide CBT training and clarifies related requirements. Also, the proposal revises rule language regarding required credentials for NATCEP directors and instructors to align the rules more closely with federal requirements. More specifically, the Code of Federal Regulations (CFR) does not differentiate between the credentials required by the NATCEP program director versus the program instructor but states that the program must train nurse aides under the general supervision of a registered nurse with at least two years of nursing experience, at least one of which must be in providing long term care services. This proposal removes specific credentialing requirements in rule for NATCEP directors and instructors and replaces them with language allowing either or both to meet the federal requirements outlined in the CFR.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §556.2 revises definitions for nurse aide rules and updates references. Paragraph (6) updates the definition of "classroom training" to include HHSC's CBT. Paragraph (10) removes the definition of "curriculum" and renumbers the rule accordingly. Paragraph (12) updates the definition of facility to include a hospice inpatient unit licensed under Texas Health and Safety Code, Chapter 142. New paragraph (25) defines the acronym "NATCEP." New paragraph (29) adds a definition for "nurse aide curriculum." Paragraph (34) amends the definition of "performance record" to require documentation of the nurse aide's performance on HHSC Form 5497-NATCEP. Paragraph (37) updates a rule reference. Paragraph (38) updates the rule references for required program instructor credentials. Paragraph (41) updates the rule reference for required skills examiner credentials.

The proposed amendment to §556.3 changes the title to use the acronym "NATCEP" and revises NATCEP requirements. New subsection (j) provides that a NATCEP using a hospice inpatient unit as a clinical site may provide clinical training only in those services authorized to be provided to clients under Texas Health and Safety Code, Chapter 142. The addition of subsection (j) renumbers the subsequent subsections in the section. Subsection (n) states that the NATCEP must ensure the trainee has completed 100 hours of training, provides that the 60 hours of classroom training may be taught by the NATCEP or obtained by a trainee through HHSC's CBT, and clarifies that the 40 hours of clinical training is provided by the NATCEP. Subsection (o) updates the rule reference for requirements regarding the maintenance of NATCEP records. Subsection (p) clarifies that NATCEPs must include 16 hours of classroom training except as provided in subsection (q). Subsection (q) includes the new requirement that a NATCEP must accept proof of completion of HHSC's CBT in lieu of the 16 hours of introductory classroom training in subsection (p) and eight hours of infection control training in subsection (t); it also specifies that the trainee only performs services for which the trainee has been trained and found by a program instructor to be proficient and that such trainee may only do so under appropriate supervision and as clearly identified as a trainee during the clinical training portion of the NATCEP. Subsection (r) stipulates that a NATCEP that fails to accept proof of completion of HHSC's CBT for classroom training may be subject to withdrawal of program approval.

Additionally, subsection (s) within §556.3 provides updated references related to program instructor requirements. Subsection (t) clarifies that a NATCEP must teach eight hours of infection control to trainees except as provided in subsection (q), which allows trainees to complete HHSC's CBT. Subsection (w) makes a non-substantive editorial revision for clarity. Subsection (x) clarifies that a NATCEP must use HHSC Form 5497-NATCEP to document a trainee's performance of duties or skills taught and maintain a copy of it. New subsection (y) includes a provision stipulating that if a trainee successfully completes HHSC's CBT, the NATCEP must retain a copy of the HHSC-issued certificate of completion. The proposed amendment also includes non-substantive editorial and renumbering changes. Subsection (z) makes non-substantive editorial changes for clarity. Subsections (aa) and (dd) clarify rule language to differentiate between a "facility" and a "nursing facility" within the rule.

The proposed amendment to §556.5 makes the rule consistent with 42 CFR §483.152 and affords NATCEP staff more flexibility to meet the requirements. Subsection (a) stipulates that a NATCEP must have an approved program director and instructor to provide training, that the training must be performed by or under the general supervision of a registered nurse (RN) who has a minimum of two years of nursing experience, one of which must be in a nursing facility, and that the NATCEP application must certify that the program meets this requirement. Subsection (b) reiterates the requirement that a program director must be an RN in the state of Texas, have a minimum of two years of nursing experience, and have completed a course with a focus on teaching adult students or have experience in teaching adult students or supervising nurse aides. Subsection (c) allows an instructor to be a licensed vocational nurse (LVN) or RN in the state of Texas who has a minimum of two years of nursing experience and has completed a course with a focus on teaching adult students or has experience in teaching adult students or supervising nurse aides. Subsection (d) stipulates that either the program director or instructor must have at least one year of experience providing long term care services in a nursing facility. It also provides that if a NATCEP instructor is an LVN, the NATCEP must have a director with at least one year of experience providing long term care services in a nursing facility or an instructor who is an RN with at least one year of providing long term care services in a nursing facility. Subsection (e) moves the credentialing requirements for program director to subsection (d). It also clarifies that the NATCEP director must determine if trainees pass both the classroom and clinical training portions of the program and sign a competency evaluation application and the certificate of completion or a letter on letterhead stationary of the NATCEP or nursing facility stating that the training passed both the classroom and clinical portions of the competency portions of the NATCEP. Finally, it adds that completion of the classroom training for trainees who complete the HHSC CBT is determined by the certificate of completion, which includes the date the trainee completed it. Subsection (f) moves the credentialing requirements for program instructor to subsection (d). Non-substantive edits update references and renumber and improve clarity and readability.

The proposed amendment to §556.8 changes the title to use the acronym "NATCEP" and revises procedures relating to withdrawal of approval of a NATCEP. Subsection (a) clarifies that HHSC immediately withdraws approval of a facility-based NATCEP assessed a civil money penalty of $5,000 or more, which is adjusted annually under 45 CFR §102. Subsection (b) provides that HHSC will review allegations of noncompliance with this chapter by a NATCEP, notifying the program in writing and giving the program an opportunity to correct the noncompliance or providing documentation showing compliance, in writing, to HHSC within 10 days of receipt of notice of noncompliance. It further stipulates that if the NATCEP fails to correct the noncompliance, provide documentation showing compliance, or respond to HHSC's first notification, HHSC sends a second notice, which the NATCEP has 20 days to comply with or have its approval withdrawn. Subsection (d) replaces HHSC's means of notification of noncompliance via certified mail with email. Non-substantive edits improve clarity and readability.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand existing rule;

(7) the proposed rules will not change the number of individuals subject to the rule; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there may be an adverse economic effect on small businesses, micro-businesses, or rural communities. We are unable to determine what the economic effect on NATCEPs may be, as NATCEPs may make changes in their business practices pursuant to the rule.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COST TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from development of the labor pool of qualified nurse aides to care for nursing facility residents, greater flexibility for NATCEPs to meet federal regulations, and clarified requirements regarding NATCEP approval.

Trey Wood has also determined that for the first five years the rules are in effect, there are no economic costs to persons who are required to comply with the proposed rules because nurse aides opting to take HHSC's free trainings will not need to pay a NATCEP to complete their training.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Caroline Sunshine, Policy Specialist, by email to HHSCLTCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 23R025" in the subject line.

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §250.0035(d), which stipulates that the Executive Commissioner of HHSC shall adopt rules necessary to implement §250.0035, related the issuance and renewal of certificates of registration and the regulation of nurse aides as necessary to protect the public health and safety.

The amendments implement Texas Government Code §531.0055 and Texas Health and Safety Code §531.0035.

§556.2.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 Social Security Act, codified at United States Code, Title 42, Chapter 7.

(3) Active duty--Current full-time military service in the armed forces of the United States or as a member of the Texas military forces, as defined in Texas Government Code §437.001, or similar military service of another state.

(4) Active status--The designation given to a nurse aide listed on the NAR who is eligible to work in a nursing facility.

(5) Armed forces of the United States--The Army, Navy, Air Force, Space Force, Coast Guard, or Marine Corps of the United States, including reserve units of those military branches.

(6) Classroom training--The teaching of curriculum components through in-person instruction taught in a physical classroom location, which may include skills practice [, or] through online instruction taught in a virtual classroom location, or through an HHSC-approved computer-based training (CBT).

(7) Clinical training--The teaching of hands-on care of residents in a nursing facility under the required level of supervision of a licensed nurse, which may include skills practice prior to performing the skills through hands-on care of a resident. The clinical training provides the opportunity for a trainee to learn to apply the classroom training to the care of residents with the assistance and required level of supervision of the instructor.

(8) Competency evaluation--A written or oral examination and a skills demonstration administered by a skills examiner to test the competency of a trainee.

(9) Competency evaluation application--An HHSC form used to request HHSC approval to take a competency evaluation.

[(10) Curriculum--The publication titled Texas Curriculum for Nurse Aides in Long Term Care Facilities developed by HHSC.]

(10) [(11)] Direct supervision--Observation of a trainee performing skills in a NATCEP.

(11) [(12)] Employee misconduct registry (EMR)--The registry maintained by HHSC in accordance with Texas Health and Safety Code, Chapter 253, to record findings of reportable conduct by certain unlicensed employees.

(12) [(13)] Facility--Means:

(A) a nursing facility licensed under Texas Health and Safety Code, Chapter 242;

(B) a licensed intermediate care facility for an individual with an intellectual disability or related condition licensed under Texas Health and Safety Code, Chapter 252;

(C) a type B assisted living facility licensed under Texas Health and Safety Code, Chapter 247; [or]

(D) a general or special hospital licensed under Texas Health and Safety Code, Chapter 241; or

(E) a hospice inpatient unit licensed under Texas Health and Safety Code, Chapter 142.

(13) [(14)] Facility-based NATCEP--A NATCEP offered by or in a nursing facility.

(14) [(15)] General supervision--Guidance and ultimate responsibility for another person in the performance of certain acts.

(15) [(16)] HHSC--The Texas Health and Human Services Commission or its designee.

(16) [(17)] Infection control--Principles and practices that prevent or stop the spread of infections in the facility setting.

(17) [(18)] Informal Review (IR)--An opportunity for a nurse aide to dispute a finding of misconduct by providing testimony and supporting documentation to an impartial HHSC staff person.

(18) [(19)] Licensed health professional--A person licensed to practice healthcare in the state of Texas including:

(A) a physician;

(B) a physician assistant;

(C) a physical, speech, or occupational therapist;

(D) a physical or occupational therapy assistant;

(E) a registered nurse;

(F) a licensed vocational nurse; or

(G) a licensed social worker.

(19) [(20)] Licensed nurse--A registered nurse or licensed vocational nurse.

(20) [(21)] Licensed vocational nurse (LVN)--An individual licensed by the Texas Board of Nursing to practice as a licensed vocational nurse.

(21) [(22)] Military service member--A person who is on active duty.

(22) [(23)] Military spouse--A person who is married to a military service member.

(23) [(24)] Military veteran--A person who has served on active duty and who was discharged or released from active duty.

(24) [(25)] 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.

(25) NATCEP--Nurse Aide Training and Competency Evaluation Program.

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

(27) Non-facility-based NATCEP--A NATCEP not offered by or in a nursing facility.

(28) Nurse aide--An individual who provides nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse and who has successfully completed a NATCEP or has been determined competent by waiver or reciprocity and who has been issued a certificate of registration. This term does not include an individual who is a licensed health professional or a registered dietitian or who volunteers services without monetary compensation.

(29) Nurse aide curriculum--The publication titled Texas Curriculum for Nurse Aides in Long Term Care Facilities, developed by HHSC.

(30) [(29)] Nurse Aide Registry (NAR)--A listing of nurse aides, maintained by HHSC, that indicates if a nurse aide has active status, revoked status, or is unemployable based on a finding of having committed an act of abuse, neglect, or misappropriation of resident property.

(31) [(30)] Nurse aide training and competency evaluation program (NATCEP)--A program approved by HHSC to train and evaluate an individual's ability to work as a nurse aide in a nursing facility.

(32) [(31)] Nurse aide training and competency evaluation program (NATCEP) application--A HHSC form used to request HHSC initial approval to offer a NATCEP, to renew approval to offer a NATCEP, or to request HHSC approval of changed information in an approved NATCEP application.

(33) [(32)] 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.

(34) [(33)] Performance record--An evaluation of a trainee's performance of major duties and skills taught by a NATCEP and documented on HHSC Form 5497-NATCEP, Texas Nurse Aide Performance Record.

(35) [(34)] Person--A corporation, organization, partnership, association, natural person, or any other legal entity that can function legally.

(36) [(35)] Personal protective equipment (PPE)--Specialized clothing or equipment, worn by an employee for protection against infectious materials.

(37) [(36)] Program director--An individual who is approved by HHSC and meets the requirements in §556.5(b) and (d) [§556.5(a)] of this chapter (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(38) [(37)] Program instructor--An individual who is approved by HHSC to conduct the training in a NATCEP and who meets the requirements in §556.5(c) and (d) [§556.5(b)] of this chapter.

(39) [(38)] Resident--An individual accepted for care or residing in a facility.

(40) [(39)] Registered nurse (RN)--An individual licensed by the Texas Board of Nursing to practice professional nursing.

(41) [(40)] Skills examiner--An individual who is approved by HHSC and meets the requirements in §556.5(h) [§556.5(d)] of this chapter.

(42) [(41)] Trainee--An individual who is enrolled in and attending, but has not completed, a NATCEP.

§556.3.NATCEP [Nurse Aide Training and Competency Evaluation Program (NATCEP)] Requirements.

(a) To train nurse aides, a nursing facility must apply for and obtain approval from HHSC to offer a NATCEP or contract with another entity offering a NATCEP. The nursing facility must participate in Medicare, Medicaid, or both, to apply for approval to be a NATCEP.

(b) A person who wants to offer a NATCEP must file a complete NATCEP application with HHSC.

(c) A person applying to offer a NATCEP must submit a separate NATCEP application for each location at which training is delivered or administered.

(d) A NATCEP application must identify one or more facilities that the NATCEP uses as a clinical site. The clinical site must have all necessary equipment needed to practice and perform skills training.

(e) A NATCEP may offer clinical training hours in a laboratory setting under the following circumstances:

(1) no appropriate and qualified clinical site is located within 20 miles of the location of the NATCEP; or

(2) HHSC has determined that clinical training provided in a facility poses a risk to an individual's health or safety based on the existence of a disaster declared at the federal or state level. A NATCEP must request the ability to complete clinical training hours in a laboratory setting under the circumstances described in subsection (e)(1) of this section. HHSC will alert the public of the availability of laboratory training under the circumstances described in subsection (e)(2) of this section.

(f) HHSC does not approve a NATCEP offered by or in a nursing facility if, within the previous two years, the nursing facility:

(1) has operated under a waiver concerning the services of a registered nurse under §1819(b)(4)(C)(ii)(II) or §1919(b)(4)(C)(i) - (ii) of the Act;

(2) has been subjected to an extended or partially extended survey under §1819(g)(2)(B)(i) or §1919(g)(2)(B)(i) of the Act;

(3) has been assessed a civil money penalty of not less than $5,000 as adjusted annually under 45 Code of Federal Regulations (CFR) part 102 for deficiencies in nursing facility standards, as described in §1819(h)(2)(B)(ii) or §1919(h)(2)(A)(ii) of the Act;

(4) has been subjected to denial of payment under Title XVIII or Title XIX of the Act;

(5) has operated under state-appointed temporary management to oversee the operation of the facility under §1819(h) or §1919(h) of the Act;

(6) had its participation agreement terminated under §1819(h)(4) or §1919(h)(1)(B)(i) of the Act; or

(7) pursuant to state action, closed or had its residents transferred under §1919(h)(2) of the Act.

(g) Clinical training provided by a NATCEP in a facility other than a nursing facility must be provided under the direct supervision of the NATCEP instructor and cannot be delegated to any staff of the facility.

(h) A NATCEP using an assisted living facility as a clinical site may provide clinical training only in those services that are authorized to be provided to residents under Texas Health and Safety Code, Chapter 247.

(i) A NATCEP using an intermediate care facility for an individual with an intellectual disability or related conditions as a clinical site may provide clinical training only in those services that are authorized to be provided to individuals under Texas Health and Safety Code, Chapter 252.

(j) A NATCEP using a hospice inpatient unit as a clinical site may provide clinical training only in those services that are authorized to be provided to clients under Texas Health and Safety Code, Chapter 142.

(k) [(j)] A nursing facility that is prohibited from offering a NATCEP under subsection (e) of this section may contract with a person to offer a NATCEP in accordance with §1819(f)(2)(C) and §1919(f)(2)(C) of the Act so long as the person has not been employed by the nursing facility or by the nursing facility's owner and:

(1) the NATCEP is offered to employees of the nursing facility that is prohibited from training nurse aides under subsection (e) of this section;

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

(3) there is no other NATCEP offered within a reasonable distance from the nursing facility; and

(4) an adequate environment exists for operating a NATCEP in the nursing facility.

(l) [(k)] A person who wants to contract with a nursing facility in accordance with subsection (k) [(j)] of this section must submit a completed application to HHSC in accordance with §556.4 of this chapter (relating to Filing and Processing an Application for a Nurse Aide Training and Competency Evaluation Program (NATCEP)) and include the name of the prohibited nursing facility in the application. HHSC may withdraw the application within two years of approving it if HHSC determines that the nursing facility is no longer prohibited from offering a NATCEP.

(m) [(l)] A nursing facility that is prohibited from offering a NATCEP under subsection (e)(3) of this section may request a Centers for Medicare and Medicaid Services waiver of the prohibition related to the civil money penalty in accordance with §1819(f)(2)(D) and §1919(f)(2)(D) of the Act and 42 CFR §483.151(c) if:

(1) the civil money penalty was not related to the quality of care furnished to residents;

(2) the NATCEP submits a request to HHSC for the waiver; and

(3) the Centers for Medicare and Medicaid Services approves the waiver.

(n) [(m)] A NATCEP must ensure the trainee has completed 100 hours of training [provide at least 100 hours of training to a trainee]. The 100 hours must include:

(1) 60 hours of classroom training: [; and]

(A) taught by the NATCEP either in-person or virtually; or

(B) completed by the trainee through HHSC's computer-based training (CBT) within the preceding 12 months; and

(2) 40 hours of clinical training provided by the NATCEP with at least one program instructor for every 10 trainees.

(o) [(n)] A NATCEP that provides online training must:

(1) maintain records in accordance with subsection (y) [(q)] of this section and otherwise comply with this chapter;

(2) adopt, implement, and enforce a policy and procedures for establishing that a trainee who registers in an online training is the same trainee who participates in and completes the course. This policy and associated procedures must describe the procedures the NATCEP uses to:

(A) verify a trainee's identity;

(B) ensure protection of a trainee's privacy and personal information; and

(C) document the hours completed by each trainee; and

(3) verify on the NATCEP application that the online course has the security features required under paragraph (2) of this subsection.

(p) [(o)] A NATCEP must teach the curriculum established by HHSC and described in 42 CFR §483.152. Except as provided in subsection (q) of this section, the [The ] NATCEP must include at least 16 introductory hours of classroom training in the following areas before a trainee has 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 a resident's independence;

(5) respecting a resident's rights;

(6) basic nursing skills, including:

(A) taking and recording vital signs;

(B) measuring and recording height and weight;

(C) caring for a resident's environment;

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

(E) caring for a 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 the aide's behavior in response to a resident's behavior;

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

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

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

(E) using a 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 a resident with a dementia disorder including Alzheimer's disease;

(B) communicating with a cognitively impaired resident;

(C) understanding the behavior of a cognitively impaired resident;

(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 a 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) a 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.

(q) If a trainee completes HHSC's 60-hour classroom training CBT, a NATCEP must accept proof of completion of the CBT in lieu of the 16 introductory hours of classroom training in subsection (p) of this section and the eight hours of infection control training in subsection (t) of this section. The NATCEP must ensure that the trainee:

(1) only performs services for which the trainee has been trained and has been found to be proficient by a program instructor;

(2) is under the direct supervision of a licensed nurse when performing skills as part of a NATCEP until the trainee has been found competent by the program instructor to perform that skill;

(3) is under the general supervision of a licensed nurse when providing services to a resident after a trainee has been found competent by the program instructor; and

(4) is clearly identified as a trainee during the clinical training portion of the NATCEP.

(r) A NATCEP that fails to accept proof of completion of the classroom training in accordance with subsection (n)(1)(B) of this chapter may be subject to §556.8 of this chapter (relating to Withdrawal of Approval of a NATCEP).

(s) [(p)] A NATCEP must have a program director and a program instructor when the NATCEP applies for initial approval by HHSC in accordance with §556.7 of this chapter (relating to Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)) and to maintain HHSC approval. The program director and program instructor must meet the requirements of §556.5(b) - (d) [§556.5(a) and (b)] of this chapter (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(t) [(q)] Except as provided in subsection (q) of this section, a [A] NATCEP must teach eight hours of infection control that includes the proper use of personal protective equipment (PPE) before a trainee has any direct contact with a resident.

(u) [(r)] A NATCEP must verify that a trainee:

(1) is not listed on the NAR in revoked status;

(2) is not listed as unemployable on the EMR; and

(3) has not been convicted of a criminal offense listed in Texas Health and Safety Code (THSC) §250.006(a) or convicted of a criminal offense listed in THSC §250.006(b) within the five years immediately before participating in the NATCEP.

(v) [(s)] A NATCEP must ensure that a trainee:

(1) completes the first 16 introductory hours of training (Section I of the curriculum) before having any direct contact with a resident;

(2) only performs services for which the trainee has been trained and has been found to be proficient by a program instructor;

(3) is under the direct supervision of a licensed nurse when performing skills as part of the [a] NATCEP until the trainee has been found competent by the program instructor to perform that skill;

(4) is under the general supervision of a licensed nurse when providing services to a resident after a trainee has been found competent by the program instructor; and

(5) is clearly identified as a trainee during the clinical training portion of the NATCEP.

(w) [(t)] A NATCEP must submit a NATCEP application to HHSC if the information in an approved NATCEP application changes. The [A] NATCEP may not continue training or start new training until HHSC approves the change. HHSC conducts a review of the NATCEP information if HHSC determines the changes are substantive.

(x) [(u)] A NATCEP must use [an ] HHSC Form 5497-NATCEP, Texas Nurse Aide Performance Record, [performance record] to document major duties or skills taught, trainee performance of a duty or skill, satisfactory or unsatisfactory performance, and the name of the instructor supervising the performance. At the completion of the NATCEP, the trainee and the employer, if applicable, will receive a copy of the performance record. The NATCEP must maintain a copy of the performance record.

(y) [(v)] A NATCEP must maintain records for each session of classroom training, whether offered in person or online, and of clinical training, and must make these records available to HHSC or its designees at any reasonable time.

(1) The classroom and clinical training records must include:

(A) dates and times of all classroom and clinical training;

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

(C) a record of the date and time of each classroom and clinical training session a trainee attends;

(D) a final course grade that indicates pass or fail for each trainee; and

(E) a physical or electronic sign-in record for each classroom and clinical training session. An electronic sign-in must include a form of identity verification for the trainee conducted in compliance with the requirements of subsection (o)(2) [(i)(2)] of this section.

(2) If a trainee completes the classroom training by successfully completing HHSC's CBT, a NATCEP must retain records that include a copy of the trainee's certification of completion for the CBT. The certificate of completion must be issued by HHSC and include the date the trainee completed the CBT.

(3) [(2)] A NATCEP must provide to HHSC, on the NATCEP application, the physical address where all records are maintained and must notify HHSC of any change in the address provided.

(z) [(w)] A nursing facility must not charge a nurse aide for any portion of a [the] NATCEP, including any fees for textbooks or other required course materials, if the nurse aide is employed by or has received an offer of employment from a facility on the date the nurse aide begins the [a] NATCEP.

(aa) [(x)] HHSC reimburses a nurse aide for a portion of the costs incurred by the nurse aide to complete a NATCEP if the nurse aide is employed by or has received an offer of employment from a nursing facility within 12 months of [after] completing the NATCEP.

(bb) [(y)] HHSC must approve a NATCEP before the NATCEP solicits or enrolls trainees.

(cc) [(z)] HHSC approval of a NATCEP only applies to the required curriculum and hours. HHSC does not approve additional content or hours.

(dd) [(aa)] A new employee or trainee orientation given by a nursing facility to a nurse aide employed by the facility does not constitute a part of a NATCEP.

(ee) [(bb)] A NATCEP that provides training to renew a nurse aide's listing on the NAR must include training in geriatrics and the care of residents with a dementia disorder, including Alzheimer's disease.

§556.5.Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements.

(a) A NATCEP must have an approved program director and program instructor to provide training.

(1) Training of trainees must be performed by or under the general supervision of a registered nurse (RN) who has a minimum of two years of nursing experience, at least one year of which must be in a nursing facility.

(2) An applicant for a NATCEP must certify on the NATCEP application that the NATCEP meets the requirements in paragraph (1) of this subsection.

(b) A program director must:

(1) be an RN in the state of Texas;

(2) have a minimum of two years of nursing experience; and

(3) have completed a course focused on teaching adult students or have experience in teaching adult students or supervising nurse aides.

(c) An instructor must:

(1) be a licensed vocational nurse (LVN) or an RN in the state of Texas;

(2) have a minimum of two years of nursing experience; and

(3) have completed a course focused on teaching adult students or have experience in teaching adult students or supervising nurse aides.

(d) Either the program director or a program instructor must have at least one year of experience providing long term care services in a nursing facility. If an instructor is an LVN, a NATCEP must have:

(1) a director with at least one year of providing long term care services in a nursing facility; or

(2) an instructor who is an RN with at least one year of providing long term care services in a nursing facility.

(e) [(a)] Program director. A program director must directly perform training or have general supervision of the program instructor and supplemental trainers. A NATCEP must have a program director when the NATCEP applies for initial approval by HHSC in accordance with §556.7 of this chapter (relating to Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)) and to maintain HHSC approval.

[(1) The program director must:]

[(A) be an RN in the state of Texas;]

[(B) have a minimum of two years of nursing experience, with at least one year of providing long term care services in a nursing facility; and]

[(C) have completed a course that focused on teaching adult students or have experience in teaching adult students or supervising nurse aides.]

(1) [(2)] In a facility-based NATCEP, the director of nursing (DON) for the nursing facility may be approved as the program director but must not conduct the training.

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

(3) [(4)] A program director's responsibilities include, but are not limited to:

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

(B) directly performing training or having general supervision of the program instructor and supplemental trainers;

(C) ensuring that NATCEP records are maintained;

(D) determining if trainees have passed both the classroom and clinical training portions [portion] of the NATCEP;

(E) signing a competency evaluation application completed by a trainee who has passed both the classroom and clinical training portions [portion] of the NATCEP; and

(F) signing a certificate of completion or a letter on letterhead stationery of the NATCEP or the nursing facility, stating that the trainee passed both the classroom and clinical training portions [portion] of the NATCEP if the trainee does not take the competency evaluation with the same NATCEP. The certificate or letter must include the date training was completed, the total training hours completed, and the official NATCEP name and number on file with HHSC.

(G) Completion of the classroom training for trainees who complete the HHSC CBT is determined by the certificate of completion, which includes the date the trainee completed the CBT.

(4) [(5)] A NATCEP must submit a NATCEP application for HHSC approval if the program director of the NATCEP changes.

(f) [(b)] Program instructor. A NATCEP must have at least one qualified program instructor when the NATCEP applies for initial approval by HHSC in accordance with §556.7 of this chapter and when training occurs.

[(1) A program instructor must:]

[(A) be a licensed nurse;]

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

[(C) have completed a course that focused on teaching adult students or have experience teaching adult students or supervising nurse aides; and]

[(D) work under the general supervision of the program director or be the program director.]

(1) [(2)] The program instructor is responsible for conducting the classroom and clinical training of the NATCEP under the general supervision of the program director.

(2) [(3)] An applicant for a NATCEP must certify on the NATCEP application that all program instructors meet the requirements in subsection (c) of this section [paragraph (1)(A) - (D) of this subsection].

(3) [(4)] A NATCEP must submit a NATCEP application for HHSC approval if a program instructor of the NATCEP changes.

(g) [(c)] Supplemental trainers. Supplemental trainers may supplement the training provided by the program instructor in a NATCEP.

(1) A supplemental trainer must be a licensed health professional acting within the scope of the professional's practice and have at least one year of experience in the field of instruction.

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

(3) A supplemental trainer must not act in the capacity of the program instructor without HHSC approval. To request approval, a NATCEP must submit a NATCEP application to HHSC.

(h) [(d)] Skills examiner. A skills examiner must administer the [a] competency evaluation.

(1) HHSC or its designee approves an individual as a skills examiner if the individual:

(A) is an RN;

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

(C) has completed a skills training seminar conducted by HHSC or its designee.

(2) A skills examiner must:

(A) adhere to HHSC standards for each skill examined;

(B) conduct a competency evaluation in an objective manner according to the criteria established by HHSC;

(C) validate competency evaluation results on forms prescribed by HHSC;

(D) submit prescribed forms and reports to HHSC or its designee; and

(E) not administer a competency evaluation to an individual who participates in a NATCEP for which the skills examiner was the program director, the program instructor, or a supplemental trainer.

§556.8.Withdrawal of Approval of a NATCEP [Nurse Aide Training and Competency Evaluation Program (NATCEP)].

(a) HHSC immediately withdraws approval of a [nursing ] facility-based NATCEP if the nursing facility where the NATCEP is offered has:

(1) been granted a waiver concerning the services of an RN under §1819(b)(4)(C)(ii)(II) or §1919(b)(4)(C)(i)-(ii) of the Act;

(2) been subject to an extended (or partially extended) survey under §1819(g)(2)(B)(i) or §1919(g)(2)(B)(i) of the Act;

(3) been assessed a civil money penalty of not less than $5,000, as adjusted annually under 45 Code of Federal Regulations (CFR), Part 102, for deficiencies in nursing facility standards, as described in §1819(h)(2)(B)(ii) or §1919(h)(2)(A)(ii) of the Act;

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

(5) operated under state-appointed or federally appointed temporary management to oversee the operation of the facility under §1819(h) or §1919(h) of the Act;

(6) had its participation agreement terminated under §1819(h)(4) or §1919(h)(1)(B)(i) of the Social Security Act;

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

(8) refused to permit unannounced visits by HHSC.

(b) HHSC withdraws approval of a NATCEP if the NATCEP does not comply with §556.3 of this chapter (relating to NATCEP [Nurse Aide Training and Competency Evaluation Program (NATCEP)] Requirements).

(1) HHSC reviews allegations of noncompliance with this chapter by a NATCEP. If HHSC receives an allegation of noncompliance, HHSC notifies the NATCEP in writing and gives the NATCEP an opportunity to correct the noncompliance or provide documentation showing compliance. The NATCEP must correct the noncompliance or provide evidence of compliance and submit notification of the correction or documentation to show compliance to HHSC, in writing, within 10 days after receipt of the notice of noncompliance.

(2) If the NATCEP fails to correct the noncompliance, provide documentation showing compliance, or respond to the first notification from HHSC, HHSC sends a second notice. The NATCEP must correct the noncompliance or provide documentation showing compliance and submit notification of the correction or documentation to show compliance to HHSC, in writing, within 20 days after receipt of the second notice. Failure to comply will result in withdrawal of approval of the NATCEP.

(c) If HHSC withdraws approval of a NATCEP for failure to comply with §556.3 of this chapter, HHSC does not approve the NATCEP for at least two years after the date the approval was withdrawn.

(d) If HHSC proposes to withdraw approval of a NATCEP based on subsection (a) of this section, HHSC notifies the NATCEP [by certified mail] of the facts or conduct alleged to warrant the withdrawal. HHSC sends [mails] the notice to the facility's last known email address as shown in HHSC records.

(e) A dually certified nursing facility that offers a NATCEP may request a hearing to challenge the findings of noncompliance that led to the withdrawal of approval of the NATCEP, but not the withdrawal of approval of the NATCEP itself, in accordance with 42 CFR [Code of Federal Regulations (CFR)], Part 498.

(f) A nursing facility that offers a NATCEP and that participates only in Medicaid may request a hearing to challenge the findings of noncompliance that led to the withdrawal of approval of the NATCEP, but not the withdrawal of approval of the NATCEP itself. A hearing is governed by 1 Texas Administrative Code (TAC) Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), and 40 TAC Chapter 91 (relating to Hearings Under the Administrative Procedure Act), except the nursing facility must request the hearing within 60 days after receipt of the notice described in subsection (d) of this section, as allowed by 42 CFR §431.153.

(g) A nursing facility may request a hearing under subsection (e) or (f) of this section, but not both.

(h) If the finding of noncompliance that led to the denial of approval of the NATCEP by HHSC is overturned, HHSC rescinds the denial of approval of the NATCEP.

(i) If HHSC proposes to withdraw approval of a NATCEP based on §556.3 of this chapter or §556.7 of this chapter (relating to Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)), the NATCEP may request a hearing to challenge the withdrawal. A hearing is governed by 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedures Act), and 40 TAC Chapter 91 (relating to Hearings Under the Administrative Procedures Act). 1 TAC §357.484 (relating to Request for a Hearing) requires a hearing to be requested in writing within 15 days after the date the notice is received by the applicant. If a NATCEP does not make a timely request for a hearing, the applicant has waived the opportunity for a hearing and HHSC may withdraw the approval.

(j) A trainee who started a NATCEP before HHSC sent notice that it was withdrawing approval of the NATCEP may complete the NATCEP.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 12, 2023.

TRD-202303793

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: November 26, 2023

For further information, please call: (512) 438-3161