Tennessee § 68-11-209 - Rules and regulations governing operation — Adoption by board — Waiver — Certification of administrator — Rules governing training and testing of nursing assistants — Outpatient services off main campus — Compliance with board rules.

§ 68-11-209. Rules and regulations governing operation — Adoption by board — Waiver — Certification of administrator — Rules governing training and testing of nursing assistants — Outpatient services off main campus — Compliance with board rules.

The board has the duty and power to adopt such rules and regulations pertaining to the operation and management of any facilities required to be licensed under this part, and to rescind, amend or modify such rules and regulations from time to time, as are necessary in the public interest and particularly for the establishment and maintenance of standards of hospitalization required for the efficient care of patients or home for the aged, residential HIV supportive living facility, assisted-care living facility, adult care home residents, or traumatic brain injury residential home residents. For renal dialysis clinics, any rules promulgated after July 1, 2001, but before January 1, 2004, shall not be implemented until January 1, 2004. In addition to any filing or hearing required by the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, regarding such initial rules for renal dialysis clinics, the department shall file a notice of proposed rulemaking concerning such rules promulgated pursuant to this section with the health committee of the house of representatives and the health and welfare committee of the senate, at least thirty (30) days prior to the filing of such rules with the secretary of state pursuant to the Uniform Administrative Procedures Act. The department shall present the substance of such rules in hearings before the previously named committees before the hearing of the rules by the government operations committee. No rule may be filed with the secretary of state, unless the department has complied with this section. The board has the power to waive any of the rules and regulations pertaining to any health care facility covered within the scope of this part, where such waiver would not have a detrimental effect on the health, safety and welfare of the public. The board shall prescribe, by rules and regulations adopted by the board, the minimum standards as to equipment and provision for the care of patients or home for the aged, residential HIV supportive living facility, assisted-care living facility, adult care home residents, or traumatic brain injury residential home residents to which an institution must conform in order to operate lawfully as any facilities required to be licensed under this part. The board shall assess, in writing, the fiscal impact on licensed nursing homes relating to the adoption, repeal or amendment of any rule or minimum standard as to equipment or operating procedure. The cost necessary to bring a facility into compliance with such a directive by the board shall be made available to the comptroller of the treasury as a component of allowable cost in accordance with medicare reimbursement principles. Such costs, however, shall be subject to all reimbursement limits and procedures specified in statute and state regulations for the reimbursement of nursing home services. Any person who wishes to serve as the chief administrator of a licensed residential or institutional home for the aged, residential HIV supportive living facility, or assisted-care living facility shall first be certified by the board as a residential/institutional home administrator. This subsection (d) shall not apply to any individual licensed as a nursing home administrator pursuant to title 63, chapter 16. To be certified as a residential/institutional home administrator, a person must be a high school graduate or the holder of a general equivalence diploma; provided, that this requirement shall not apply to a person who served as the chief administrator of a licensed residential home for the aged, residential HIV supportive living facility, or assisted-care living facility during any continuous period of at least nine (9) months' duration preceding January 1, 1990, or who served as the chief administrator of a licensed institutional home for the aged, residential HIV supportive living facility, or assisted-care living facility during any continuous period of at least nine (9) months' duration preceding January 1, 1992. Certification shall not be issued, maintained, or renewed for any person convicted of a criminal offense involving the abuse or intentional neglect of an elderly or vulnerable individual. As a requisite for biennial renewal of certification, a person shall submit written proof of attendance during at least twenty-four (24) classroom hours of continuing education courses approved by the board and designed to enhance or reinforce the skills, knowledge and competence required of residential and institutional home administrators. The twenty-four (24) hours of continuing education courses required by subdivision (d)(1) shall include: State rules and regulations for homes for the aged; Health care management; Nutrition and food service; Financial management; and Health lifestyles. Persons conducting continuing education courses pursuant to this subsection (d) shall be subject to the following: A program offered for credit must be related to the operations of the homes for the aged, the activities of daily living of the residents, or other pertinent information deemed appropriate to the quality of life for residents; and All curricula pertaining to the educational courses and the names of the instructors must be submitted to the board for approval prior to offering any course to administrators. In accordance with the Uniform Administrative Procedures Act, the board shall promulgate such rules as shall be necessary to implement this subsection (d) in an orderly and efficient manner; provided, that such rules shall not, as a requisite for certification or recertification, impose any substantive requirements in addition to those set forth in this subsection (d). The rules shall establish fees for initial certification and for biennial renewal of certification. The fees shall be set in an amount sufficient to pay all expenses incurred by the board in implementing this subsection (d). Pursuant to the authority granted in subsection (a), the board, in consultation with the Tennessee Health Care Association, shall promulgate rules for the training and testing of nursing assistants in nursing homes that: Require annual publishing of testing schedules and sites; Require that test sites be located so that no individual seeking to take the test has to drive any farther than thirty (30) miles to reach a test site; Require tests to be held as scheduled regardless of the number of individuals scheduled for the test, unless no individuals are scheduled at a particular test site; Require publishing of the number of individuals passing and failing each test; Establish a minimum passing grade for the examination; and Establish a seventy-five-hour training program. Nothing in this subsection (e) is to be construed to alter or impede nursing assistant training and testing programs already in place pending the implementation of the rules described in subdivision (e)(1). Any existing committee charged with developing the nursing assistant test shall include at least three (3) representatives of the nursing home industry with an education or nursing background and nominated by the Tennessee Health Care Association. Nursing assistant testing may, at the nursing assistant's option, be conducted at the facility in which the nursing assistant is or will be employed, unless the facility has had its nursing assistant training program withdrawn pursuant to state or federal regulations. The testing of nurse assistants may be proctored by facility personnel, as long as such testing is secure from tampering, is standardized and is scored by a testing, educational or other organization approved by the board. Such testing shall require no scoring by facility personnel. The board shall revoke a facility's right to proctor such testing in any situation in which the board finds evidence of tampering by facility staff. For purposes of this subdivision (e)(4), “proctor” means supervision of an examination or test. Notwithstanding any rules and regulations of the board, a hospital may provide outpatient diagnostic and therapeutic services at locations other than the hospital's main campus without obtaining a waiver from the board; provided, that such other locations are under the sole control of the hospital. Notwithstanding any rule adopted by the board or any other provisions of this chapter, a hospital that satisfies the standards established by the joint commission on accreditation of health care organizations relative to the timely completion of medical records shall be deemed to comply with the rules of the board relative to the timely completion of medical records. The board shall promulgate in regulations requirements for education, experience and training, continuous education, background check and abuse registry checks for Level 2 adult care home providers and traumatic brain injury residential home providers, resident managers, substitute caregivers and staff. These requirements shall be commensurate with the expected responsibilities and care of residents in each applicable setting, and shall be dependent upon the level of licensure. The education, experience and requirements for Level 2 adult care home providers and traumatic brain injury residential home providers shall be sufficient to demonstrate competency in caring for residents and the ability to adequately maintain the health, safety and welfare of residents. The board shall develop additional standards for Level 2 adult care home providers and traumatic brain injury residential home providers that require education, training and experience necessary to adequately address the needs of persons with traumatic brain injury or ventilator dependent persons. The rules required under subdivision (h)(1) shall include, but not be limited to, the following: A resident manager for a Level 2 adult care home provider must meet the education, experience and training requirements of a Level 2 adult care home provider; A Level 2 adult care home provider serving ventilator dependent residents must hold a current professional license or employ a resident manager who holds a current professional license as a physician, nurse practitioner, registered nurse or respiratory therapist who is trained and experienced in the care of ventilator dependent residents; A Level 2 adult care home provider serving residents with traumatic brain injury must hold a national certification by the Academy of Certified Brain Injury Specialists as a Certified Brain Injury Specialist (CBIS), or hold a current professional license or employ a resident manager who holds a current professional license as a physician, nurse practitioner, registered nurse, licensed rehabilitation professional, CBIS or licensed mental health professional who is trained and experienced in the care and rehabilitation of residents with traumatic brain injury; A substitute caregiver for a Level 2 adult care home for persons with traumatic brain injury must hold a national certification by the Academy of Certified Brain Injury Specialists as a CBIS, or hold a current professional license as a physician, nurse practitioner, registered nurse, licensed rehabilitation professional or licensed mental health professional who is trained and experienced in the care and rehabilitation of residents with traumatic brain injury and must demonstrate competency in caring for persons with traumatic brain injury; A Level 2 resident manager serving residents with traumatic brain injury must hold a national certification by the Academy of Certified Brain Injury Specialists as a CBIS, or hold a current professional license as a physician, nurse practitioner, registered nurse, licensed rehabilitation professional or licensed mental health professional who is trained and experienced in the care and rehabilitation of residents with traumatic brain injury and must demonstrate competency in caring for persons with traumatic brain injury; A substitute caregiver for a Level 2 adult care home serving ventilator dependent residents must hold a current professional license as a physician, nurse practitioner, registered nurse or respiratory therapist who is trained and experienced in the care of ventilator dependent residents and must demonstrate competency in caring for ventilator dependent residents; A traumatic brain injury residential home provider shall hold national certification by the Academy of Certified Brain Injury Specialists as a Certified Brain Injury Specialist (CBIS) or hold a current professional license as a physician, nurse practitioner, registered nurse, licensed rehabilitation professional, or licensed mental health professional who is trained and experienced in the care and rehabilitation of disabled adults suffering from the effects of a traumatic brain injury; and Traumatic brain injury residential home providers shall not be required to live in or employ a resident manager or substitute caregiver to live in a traumatic brain injury residential home. However, a traumatic brain injury residential home provider shall employ staff members to supervise the residents at all times, within the residence, including overnights and during weekends. The staff members providing overnight care and/or supervision must hold a national certification by the Academy of Certified Brain Injury Specialists as a Certified Brain Injury Specialist (CBIS), or hold a current professional license as a physician, nurse practitioner, registered nurse, licensed rehabilitation professional, or licensed mental health professional who is trained and experienced in the care and rehabilitation of residents with traumatic brain injury. All adult care home providers, resident managers and substitute caregivers shall complete annually twelve (12) hours of continuing education related to care of the elderly and persons with disabilities and business operations of adult care homes. The adult care home provider shall train all staff to meet the routine and emergency needs of residents. The adult care home provider is also responsible for training resident managers, substitute caregivers and staff on the health care tasks that can be administered through self-direction. The adult care home provider shall be responsible for supervision, training and overall conduct of resident managers, substitute caregivers and staff as it relates to their job performance and responsibilities. For developing a plan of care in Level 2 adult care homes, a licensed healthcare professional may include, when appropriate, persons holding a national certification by the Academy of Certified Brain Injury Specialists as a Certified Brain Injury Specialist (CBIS). Acts 1947, ch. 13, § 11; C. Supp. 1950, § 5879.10 (Williams, § 4432.11); Acts 1968, ch. 522, §§ 2, 5; 1971, ch. 225, § 6; 1975, ch. 276, § 10; 1976, ch. 447, § 1; 1976, ch. 471, § 10; T.C.A. (orig. ed.), § 53-1310; Acts 1989, ch. 295, § 1; 1991, ch. 476, §§ 2-4; 1992, ch. 668, § 1; 1992, ch. 805, § 4; 1993, ch. 234, § 16; 1993, ch. 423, § 1; 1994, ch. 747, § 5; 1996, ch. 674, § 6; 1996, ch. 818, § 3; 1996, ch. 876, § 1; 1997, ch. 166, § 1; 1998, ch. 1021, § 4; 1999, ch. 353, § 2; 2000, ch. 620, § 1; 2000, ch. 981, §§ 86, 87; 2001, ch. 285, §§ 8, 9; 2001, ch. 438, §§ 11, 12, 19; 2009, ch. 579, §§ 10-12; 2010, ch. 642, § 1; 2012, ch. 978, §§ 1, 2; 2012, ch. 1086, §§ 13-16; 2013, ch. 236, § 55. Compiler's Notes. Acts 1999, ch. 353, § 3 provided that the commissioner of health is authorized to promulgate rules in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to provide for the charging of adequate fees to recover the costs to the department of health of implementing the provisions of Acts 1999, ch. 353. Acts 2001, ch. 438, §§ 11 and 12 purported to amend (a) and (c)(1), respectively, by adding renal dialysis clinics to the facilities listed in those subsections; however, Acts 2001, ch. 285, §§ 8 and 9, respectively, modified the language intended to be amended and the amendment by Acts 2001, ch. 438 was not implemented. Nevertheless, renal dialysis clinics are included in the facilities covered by the affected subsections prior to their licensure on July 1, 2002. Acts 2009, ch. 579, § 1 provided that the title of the act is, and may be cited as the “Critical Adult Care Home Act of 2009.” Acts 2012, ch. 1086, § 1 provided that the act, which amended subsections (a), (c), and (h), shall be known and may be cited as the “Traumatic Brain Injury Residential Home Act of 2012.” Amendments. The 2013 amendment substituted “the health committee of the house of representatives and the health and welfare committee of the senate” for “the health and human resources committee of the house of representatives and the general welfare, health and human resources committee of the senate” near the end of the second sentence in (a)(2). Effective Dates. Acts 2013, ch. 236, § 94. April 19, 2013. Law Reviews. Respecting Our Elders: Can Tennessee Do More to Protect its Elder Population from Institutional Abuse and Neglect?, 66 Tenn. L. Rev. 819 (1999). Attorney General Opinions. Certified nurse aide skills examination, OAG 99-213 (10/27/99). Restrictions on type of outpatient diagnostic and therapeutic services that can be provided in off-campus hospital-based facility; necessity of certificate of need. OAG 14-95, 2014 Tenn. AG LEXIS 98 (10/27/14). Collateral References. Hospital's liability to patient or prospective patient injured as a result of physical condition of premises. 16 A.L.R.3d 1237.