The Agency proposes to amend Rule 59A-8.0095 governing home health agency personnel. Pursuant to changes from 2020-009 and 2022-048, L.O.F., the rule will be revised to align the requirements for an administrator and alternate ....

 

AGENCY FOR HEALTH CARE ADMINISTRATION

Health Facility and Agency Licensing

RULE NO.:RULE TITLE:

59A-8.0095Personnel

PURPOSE AND EFFECT: The Agency proposes to amend Rule 59A-8.0095 governing home health agency personnel. Pursuant to changes from 2020-009 and 2022-048, L.O.F., the rule will be revised to align the requirements for an administrator and alternate administrator as well as a director of nursing and alternate director of nursing, require submission of the license application form to report certain personnel changes, and clarify requirements for home health aide training.

SUMMARY: : Rule 59A-8.0095 outlines the requirements governing home health agency personnel. The Agency is proposing to revise the rule to align the requirements for an administrator and alternate administrator as well as a director of nursing and alternate director of nursing, require submission of the license application form to report certain personnel changes, and clarify requirements for home health aide training.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: A SERC has not been prepared by the agency. For rules listed where no SERC was prepared, the Agency prepared a checklist for each rule to determine the necessity for a SERC. Based on this information at the time of the analysis and pursuant to section 120.541, Florida Statutes, the rule will not require legislative ratification.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 400.488, 400.497 F.S.

LAW IMPLEMENTED: 400.476, 400.487, 400.488, 400.497 F.S.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: January 26, 2023, 2:00 p.m. to 3:00 p.m.

PLACE: Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee, Florida 32308, Building 3, Conference Room A

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 3 days before the workshop/meeting by contacting: Ruby Grantham, Bureau of Health Facility Regulation, 2727 Mahan Drive, Tallahassee, Florida, [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Ruby Grantham at [phone] or email at: [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

59A-8.0095 Personnel.

(1) Administrator.

(a) The administrator of the agency shall:

1. Meet the criteria as defined in sections 400.462(1) and 400.476(1), F.S.

2. Designate, in writing a direct employee or an individual covered under a management company contract to manage the home health agency or an employee leasing contract that provides the agency with full control over all operational duties and responsibilities to serve as an on-site alternate administrator during absences of the administrator. This person will be available during designated business hours, when the administrator is not available. Available during designated business hours means being readily available on the premises or by telecommunications. During the absence of the administrator, the on-site alternate administrator will have the responsibility and authority for the daily operation of the agency. The alternate administrator must meet the criteria as defined qualifications as stated in sections Section 400.462(1) and 400.476(1) F.S.

(b) If an agency changes administrator or alternate administrator,  the agency shall notify the AHCA Home Care Unit office in Tallahassee as required in subsection 59A-35.110(1), F.A.C., by submitting the application forms referenced in subsection 59A-8.003(1), F.A.C. Level 2 background screening compliance is required pursuant to Section 408.809, F.S. and Rule 59A-35.090, F.A.C. Notification shall consist of submission of the person’s name and a statement that the person meets the qualifications in sections 400.476(1) and 400.462(1), F.S. Send the notification by email, fax or mail to [e-mail], fax [phone], or mail to AHCA Home Care Unit, 2727 Mahan Drive, Mail Stop #34, Tallahassee, Florida 32308. The administrator also must submit level 2 screening, pursuant to section 408.809, F.S., and rule 59A-35.090, F.A.C. or inform the Home Care Unit that level 2 screening was previously submitted.

(2) Director of Nursing.

(a) The director of nursing of the agency shall:

1. Meet the criteria as defined in Sections 400.462(10) and 400.476(2), F.S.;

2. through 4. no change

(b) no change.

(c) The director of nursing shall:

1. through 2. no change

3. Coordinate patient care services; and,

4. Set or adopt policies for, and keep records of criteria for admission to service, case assignments and case management; and

5. Establish and adopt policies and procedures for the delegation process of nursing tasks and activities as specified in Chapter 64B9-14, F.A.C.

(d) through (f) no change

(g) If the director of nursing serves as the director of nursing for more than two licensed home health agencies, then the director of nursing shall designate, in writing, an alternate director of nursing to serve during the director of nursing’s absence. This person will be available during designated business hours, when the director of nursing is not available. Available during designated business hours means being readily available on the premises or by telecommunications. The alternate director of nursing must meet the criteria as defined in sections 400.462(10) and 400.476(2), F.S. 

(h) If an agency changes the director of nursing or alternate director of nursing, the agency shall notify AHCA as required in section 400.476(2)(b), F.S., by submitting the application forms referenced in subsection 59A-8.003(1), F.A.C.  Level 2 background screening compliance is required pursuant to Section 408.809, F.S. and Rule 59A-35.090, F.A.C.

(i) An agency that does not provide skilled care is not required to have a director of nursing. 

(3) Registered Nurse.

(a) A registered nurse shall be currently licensed in the state, pursuant to chapter 464, F.S., and:

1. Be the case manager in all cases involving nursing or both nursing and therapy care;

2. Be responsible for the clinical record for each patient receiving nursing care; and,

3. Assure that progress reports are made to the physician, physicians assistant or advanced practice registered nurse for patients receiving nursing services when the patient’s condition changes or there are deviations from the plan of care; and

4. Provide nursing services within the scope of practice authorized by the license issued by the State of Florida for a registered nurse.

(b) Each home health agency that provides skilled care or non-skilled care may have an RN assign personal care tasks A registered nurse may assign selected portions of patient care to licensed practical nurses, certified nursing assistants and home health aides but always retains the full responsibility for the care given and for making supervisory visits to the patient’s home. The registered nurse maintains full responsibility for personal care tasks assigned to home health aides or CNAs and must ensure the home health aide or CNA is qualified to carry out those assignments based on their training and experience.  

(c) Each home health agency that provides skilled care or non-skilled care must have an RN provide supervisory visits of unlicensed assistive personnel, as defined in 64B9-10.001(1), who are employed by or under contract with the home health agency, in accordance with Section 400.487(3), F.S.  The agency must obtain written consent from the patient, or the patient’s guardian or legal representative, to send an RN into the home to conduct supervisory visits.

(d) The RN must provide on-site supervision as needed, based upon the severity of patient’s medical condition and the home health aide’s or CNA’s training and experience. Supervisory visits must be documented in patient files.

(e) Delegation of tasks for which additional training and validation is required. If the home health agency provides skilled care, an RN may delegate tasks in addition to assigned personal care tasks, including medication administration, to a home health aide or CNA qualified to perform the task pursuant to rules 59A-8.0097, 59A-8.0219 and 59A-8.0216, F.A.C.

(4) No change.

(5) Home Health Aide and Certified Nursing Assistant.

(a) A home health aide or a certified nursing assistant (CNA) shall provide personal care services assigned by and under the supervision of a registered nurse. When only physical, speech, or occupational therapy is furnished, in addition to home health aide or CNA services, supervision can be supplied by a licensed therapist directly employed by the home health agency or by an independently contracted employee.

(b) Supervision of the home health aide and CNA by a registered nurse in the home will be in accordance with section 400.487(3), F.S. Home health agencies will need to obtain the patient’s verbal permission to send a registered nurse into the home to conduct supervisory visits.

(b)(c) Prior to a CNA providing services, For every certified nursing assistant the home health agency shall have documentation of the CNA’s current on file the person’s State of Florida certification. A CNA that is currently certified in another state may work as a home health aide in a home health agency in Florida if they present a copy of their current certificate as a nursing assistant from that state. A copy of the screen of the Florida Department of Health web site’s Certified Nursing Assistant Information that shows the person’s name, address, certificate number, original issue date, expire date and status will meet this requirement.

(c)(d) Prior to a home health aide providing services For every home health aide, a home health agency shall have on file documentation of the home health aide’s successful completion of at least forty hours of training in the following subject areas or successful passage of the competency test as stated in section (i) paragraph (j), pursuant to section 400.497(1), F.S. An individual may complete home health aide training through a home health agency licensed under Chapter 400, Part III, F.S. for the purpose of employment with the agency.  Home health aides who are licensed, certified or trained in another state must provide documentation of course completion, such as transcripts or a certificate that includes the course curriculum, to the employing home health agency as evidence of required training.

1. through 16. no change

(d) A home health aide seeking employment with a Medicare or Medicaid certified home health agency may be required to provide evidence of additional training incorporated within the Medicare Conditions for Participation, 42 C.F.R., Part 484, and available at https://ecfr.io/Title-42/Part-484.

(e) If a home health aide successfully completes training through a vocational school or a nonpublic post-secondary career school approved by the Florida Florida’s Department of Education, the individual must present to a home health agency a diploma or certificate issued by that institution the vocational school. If the home health aide completes the training through a home health agency, and wishes to be employed at another agency, the individual must present to the other second home health agency documentation of successful completion of training as listed in section (5)(c) subparagraphs 59A-8.0095(5)(d)1. through 16., F.A.C.

(f) A home health agency that teaches Home health agencies which teach the home health aide course to their employees pursuant to section 400.497(1), F.S., but is who are not classified as a nonpublic post-secondary career school by the Florida Florida’s Department of Education, must issue the following documentation to individuals at the time of successful completion of the training course. The documentation must include the following: the title “Home Health Aide Documentation;” the name, address, phone number, and license number of the home health agency; the student’s name, address, phone number, and social security number; total number of clock hours completed in the training; the number of clock hours for each unit or topic of training; signature of the person who directed the training; and the date the training was completed. It must be stated on the documentation that section 400.497(1), F.S., permits the home health agency conducting this training to provide such documentation.

(g) Home health training documentation issued by a home health agency on or after October 1, 1999, must contain language as listed in paragraph (f), above.

(g)(h) A home health agency that teaches Home health agencies which teach the home health aide course, but is who are not an approved nonpublic post-secondary career school, cannot charge a fee for the training and cannot issue a document of completion with the words “diploma,” “certificate,” “certification of completion,” or “transcript.” The home health agency is limited to advertising in the “Help Wanted” section of the papers. The home health agency cannot advertise that they are offering “training for home health aides.” The agency can indicate that they are hiring home health aides with the intention of providing training and will train.

(i) renumbered (h) no change

(j) renumbered (i) no change

1. through 2. no change

3. When a home health aide completes the competency test through the employing agency and wishes to be employed at another agency, the home health agency shall furnish documentation of successful passage of the test to the requesting agency pursuant to section 400.497(1), F.S. Documentation of successful passage may be provided in a format established by the home health agency, except as prohibited in sections (5)(f) and (g) paragraphs 59A-8.0095(5)(f)-(h), F.A.C., that specifies limitations on the manner in which a home health agency may describe home health aide training. The documentation, at minimum, should include the home health aide’s name, address and social security number; the home health agency’s name and address; date the test was passed; the signature of the person providing the documentation; and any other information necessary to document the aide’s passage of the test.

(k) Home health aides and CNA’s must receive in-service training each calendar year.  Training must be provided to obtain and maintain a certificate in cardiopulmonary resuscitation. Medicare and Medicaid agencies should check federal regulations for additional in-service training requirements.  Home health aides and CNAs must also maintain current cardiopulmonary resuscitation (CPR) certification from an instructor or training provider approved to provide CPR by the American Red Cross, the American Heart Association, the National Safety Council, or an organization whose training is accredited by the Commission on Accreditation for Pre-Hospital Continuing Education.   

(l) Responsibilities of the home health aide and CNA shall include:

1. The performance of all personal care activities contained in a written assignment by a licensed health professional employee or contractor of the home health agency and which include assisting the patient or client with personal hygiene, ambulation, eating, dressing, shaving, physical transfer, and other duties as assigned.

2. Maintenance of a clean, safe and healthy environment, which may include light cleaning and straightening of the bathroom, straightening the sleeping and living areas, washing the patient’s or client’s dishes or laundry, and such tasks to maintain cleanliness and safety for the patient or client.

3. Other activities as taught by a licensed health professional employee or contractor of the home health agency for a specific patient or client and are restricted to the following:

a. Assisting with reinforcement of dressing.

b. Applying and removing anti-embolism stockings and hosiery prescribed for therapeutic treatment of the legs.

c.b. Assisting with tasks associated with elimination:

(I) Toileting.

(II) Assisting with the use of the bedpan and urinal.

(III) Providing catheter care including changing the urinary catheter bag.

(IV) Collecting specimens.

(V) Emptying ostomy bags or changing bags that do not adhere to the skin.

(VI) Assisting with the placement and removal of colostomy bags, excluding the removal of the flange or manipulation of the stoma’s site.

d.c. Assisting with the use of devices for aid to daily living, such as a wheelchair or walker;

e.d. Assisting with prescribed range of motion exercises;

f.e. Assisting with prescribed ice cap or collar;

g.f. Performing Doing simple urine tests for sugar, acetone or albumin;

h. Assisting with the use of a glucometer to perform blood glucose testing;

i.g. Measuring and preparing special diets;

j.h. Measuring intake and output of fluids, and,

k.i. Measuring vital signs including temperature, pulse, respiration or blood pressure.

l. Assisting with oxygen nasal cannulas and continuous positive airway pressure (CPAP) devices, excluding the titration of the prescribed oxygen levels.

4. Keeping records of personal health care activities.

5. Observing appearance and gross behavioral changes in the patient or client, reporting to the registered nurse.

6. Supervision of self-administered medication in the home is limited to the following:

a. Obtaining the medication container from the storage area for the patient or client;

b. Ensuring that the medication is prescribed for the patient or client;

c. Reminding the patient or client that it is time to take the medication as prescribed; and,

d. Observing the patient or client self-administering the medication.

(m) In cases where a home health aide or a CNA will provide assistance with self-administered medications in accordance with section 400.488, F.S., a review must be conducted by a registered nurse to ensure the patient is medically stable with the self-administration of routine, regularly scheduled medications. The Registered Nurse must review and reconcile all currently prescribed and over-the-counter medications to ensure the home health aide or CNA can provide assistance in accordance with their training and paragraph (o) below, an assessment of the medications for which assistance is to be provided shall be conducted by a licensed health care professional to ensure the unlicensed caregiver provides assistance in accordance with their training and with the medication prescription.

(n) No change

(o) In providing assistance with self-administered medication, in addition to the requirements outlined in section 400.488, F.S., home health aide or CNA may The home health aide and CNA may also provide the following assistance with self-administered medication, as needed by the patient, in accordance with section 400.488, F.S.:

1. Prepare necessary items such as juice, water, cups, or spoons to assist the patient in the self-administration of medication;

2. Open and close the medication container or tear the foil of prepackaged medications;

3. Assist the patient resident in the self-administration process. Examples of such assistance include the steadying of the arm, hand, or other parts of the patient’s body so as to allow the self-administration of medication;

4. Assist the patient by placing unused doses of solid medication back into the medication container.

(p) Responsibilities of the home health aide and CNA shall not include:

1. The performance of any therapeutic service that requires licensure as a health care professional;

2. Changing sterile dressings;

3. Irrigating body cavities such as giving an enema;

4. Performing irrigation of any wounds (such as vascular ulcers, diabetic ulcers, pressure ulcers, surgical wounds) or apply agents used in the debridement of necrotic tissues in wounds of any type;

5. Performing a gastric irrigation or enteral feeding;

6. Catheterizing a patient;

7. Administering any controlled substance listed in Schedule II, Schedule III, or Schedule IV of s. 893.03 or 21 U.S.C. s. 812.;

8. Applying heat by any method;

9. Caring for a tracheotomy tube;

10. Providing any personal health service which has not been included in the plan of care; or

11. Filling and removing medications from a pill organizer or electronic medication dispenser.

(p) The home health aide or CNA shall not change sterile dressings, irrigate body cavities such as giving an enema, irrigate a colostomy or wound, perform a gastric irrigation or enteral feeding, catheterize a patient, administer medication, apply heat by any method, care for a tracheotomy tube, nor provide any personal health service which has not been included in the plan of care.

(q) Individuals who have graduated from an accredited school of nursing, and are waiting to take their boards for licensure in Florida, may work as a home health aide. RNs or LPNs who can show proof they are licensed in another state or in Florida, may work as a home health aide in Florida.

(r) Pursuant to section 381.0035, F.S., all home health agency employees, with the exception of employees subject to the requirements of section 456.033, F.S., must complete a one-time education course on HIV and AIDS, within 30 days of employment.

(q) CNA’s who earn their certificate in another state may work as a home health aide in a home health agency in Florida if they present a copy of their current CNA certificate from that state. For CNA’s, who have a certificate from out of state and who want to obtain a Florida CNA certificate, they can contact the Florida Certified Nursing Assistant office at the Department of Health to inquire about taking the written examination, pursuant section 464.203, F.S.

(r) Home health aides who are trained in another state must provide documentation of course completion to the employing home health agency. Individuals who have graduated from an accredited school of nursing and are waiting to take their boards for licensure in Florida, can work as a home health aide. Registered nurses and licensed practical nurses who can show proof they are licensed in another state or in Florida, can work as a home health aide in Florida.

(6) through (12) no change

Rulemaking Authority 400.488, 400.497 FS. Law Implemented 400.476, 400.487, 400.488, 400.497 FS. History–New 1-20-97, Amended 1-17-00, 7-18-01, 9-22-05, 8-15-06, 7-11-13,                           .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Ruby Grantham

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Simone Marstiller

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 12/14/2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 7/5/2022