| (a) The facility must have sufficient staff with the
appropriate competencies and skill sets to provide nursing and related
services to assure resident safety and attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each
resident. This is determined by resident assessments and individual
comprehensive care plans and considering the number, acuity and diagnoses
of the facility's resident population in accordance with the facility
assessment required at §554.1931 of this chapter (relating to
Facility Assessment). Staff who have been instructed and who have
demonstrated competence in the care of children must provide nursing
services to children. Care and services are to be provided as specified
in §554.901 of this chapter (relating to Quality of Care).
(1) Sufficient staff.
(A) The facility must provide services by sufficient
numbers of each of the following types of personnel on a 24-hour basis
to provide nursing care to all residents in accordance with resident
care plans:
(i) licensed nurses, except when waived under paragraph
(5) of this subsection; and
(ii) other nursing personnel, including nurse aides.
(B) The facility must designate a licensed nurse to
serve as a charge nurse on each shift, except when waived under paragraph
(5) of this subsection.
(C) The facility must ensure that licensed nurses have
the specific competencies and skill sets necessary to care for a resident's
needs, as identified through resident assessments, and described in
the comprehensive care plan.
(D) The facility must provide care that includes assessing,
evaluating, planning, and implementing resident comprehensive care
plans and responding to a resident's needs.
(2) Registered nurse.
(A) The facility must use the services of a registered
nurse for at least eight consecutive hours a day, seven days a week,
except when waived under paragraph (5) or (6) of this subsection.
(B) The facility must designate a registered nurse
to serve as the director of nursing on a full-time basis, 40 hours
per week, except when waived under paragraph (6) of this subsection.
(C) The director of nursing may serve as a charge nurse
only when the facility has an average daily occupancy of 60 or fewer
residents.
(3) Proficiency of nurse aides. The facility must ensure
that nurse aides are able to demonstrate competency in skills and
techniques necessary to care for a resident's needs, as identified
through resident assessments, and described in the resident's comprehensive
care plan.
(4) Requirements for facility hiring and use of nurse
aides.
(A) General rule. A facility must not use any individual
working in the facility as a nurse aide for more than four months,
on a full-time basis, unless:
(i) the individual is competent to provide nursing
and nursing related services; and
(ii) the individual:
(I) has completed a training and competency evaluation
program, or a competency evaluation program approved by the state
as meeting the requirements of 42 CFR §§483.151-483.154;
or
(II) has been deemed or determined competent as provided
in 42 CFR §483.150(a) and (b).
(B) Nonpermanent employees. A facility must not use
on a temporary, per diem, leased, or any basis other than a permanent
employee any individual who does not meet the requirements in subparagraphs
(4)(A)(i) and (ii) of this paragraph.
(C) Competency. A facility must not use any individual
who has worked less than four months as a nurse aide in that facility
unless the individual:
(i) is a full-time employee in a state-approved training
and competency evaluation program;
(ii) has demonstrated competence through satisfactory
participation in a state-approved nurse aide training and competency
evaluation program, or competency evaluation program; or
(iii) has been deemed or determined competent as provided
in 42 CFR §483.150(a) and (b).
(D) Registry Verification. Before allowing an individual
to serve as a nurse aide, a facility must receive registry verification
that the individual has met competency evaluation requirements and
is not designated in the registry as having a finding concerning abuse,
neglect or mistreatment of a resident, or misappropriation of a resident's
property, unless:
(i) the individual is a full-time employee in a training
and competency evaluation program approved by the state; or
(ii) the individual can prove that the individual has
recently successfully completed a training and competency evaluation
program, or competency evaluation program approved by the state and
has not yet been included in the registry. A facility must follow
up to ensure that such an individual actually becomes registered.
(E) Multi-state registry verification. Before allowing
an individual to serve as a nurse aide, a facility must seek information
from every state registry, established under §1819(e)(2)(A) or §1919(e)(2)(A)
of the Social Security Act (42 U.S.C. §1395i-3(e)(2)(A); 42 U.S.C. §1396r(e)(2)(A)),
that the facility believes will include information about the individual.
(F) Required retraining. If, since an individual's
most recent completion of a training and competency evaluation program,
there has been a continuous period of 24 consecutive months during
none of which the individual provided nursing or nursing-related services
for monetary compensation, the individual must complete a new training
and competency evaluation program or a new competency evaluation program.
(G) Regular in-service education. The facility must
complete a performance review of every nurse aide at least once every
12 months, and must provide regular in-service education based on
the outcome of these reviews. The in-service training must:
(i) be sufficient to ensure the continuing competence
of a nurse aide, but must be no less than 12 hours per year;
(ii) include at least two hours of training on infection
control and personal protective equipment per year;
(iii) address areas of weakness as determined in nurse
aides' performance reviews and facility assessment at §554.1931
of this chapter, and may address the special needs of a resident as
determined by the facility staff;
(iv) for a nurse aide providing services to an individual
with cognitive impairments, address the care of the cognitively impaired;
and
(v) include dementia management training and resident
abuse prevention training.
(H) The facility must comply with the nurse aide training
and registry rules found in Chapter 556 of this title (relating to
Nurse Aides).
(5) Waiver of requirement to provide licensed nurses
on a 24-hour basis.
(A) To the extent that a facility is unable to meet
the requirements of paragraphs (1)(B) and (2)(A) of this subsection,
the state may waive these requirements with respect to the facility,
if:
(i) the facility demonstrates to the satisfaction of
HHSC that the facility has been unable, despite diligent efforts (including
offering wages at the community prevailing rate for nursing facilities),
to recruit appropriate personnel;
(ii) HHSC determines that a waiver of the requirement
will not endanger the health or safety of individuals staying in the
facility;
(iii) the state finds that, for any periods in which
licensed nursing services are not available, a registered nurse or
a physician is obligated to respond immediately to telephone calls
from the facility; and
(iv) the waivered facility has a full-time registered
or licensed vocational nurse on the day shift seven days a week. For
purposes of this requirement, the starting time for the day shift
must be between 6 a.m. and 9 a.m. The facility must specify in writing
the schedule that it follows.
(B) A waiver granted under the conditions listed in
this paragraph is subject to annual state review.
(C) In granting or renewing a waiver, a facility may
be required by the state to use other qualified, licensed personnel.
(D) The state agency granting a waiver of these requirements
provides notice of the waiver to the State Ombudsman and the protection
and advocacy systems in the state for individuals with mental illness
established under the Protection and Advocacy for Mentally Ill Individuals
Act (42 USC Chapter 114, Subchapter I) and individuals with intellectual
or developmental disabilities established under the Developmental
Disabilities Assistance and Bill of Rights Act (42 USC Chapter 144,
Subchapter I, Part C).
(E) The nursing facility that is granted a waiver by
the state notifies residents of the facility and the resident representatives
of the waiver.
(6) Waiver of the requirement to provide services of
a registered nurse for more than 40 hours a week in a Medicare skilled
nursing facility (SNF).
(A) The secretary of the U.S. Department of Health
and Human Services (secretary) may waive the requirement that a Medicare
SNF provide the services of a registered nurse for more than 40 hours
a week, including a director of nursing specified in paragraph (2)
of this subsection, if the secretary finds that:
(i) the facility is located in a rural area and the
supply of Medicare SNF services in the area is not sufficient to meet
the needs of individuals residing in the area;
(ii) the facility has one full-time registered nurse
who is regularly on duty at the facility 40 hours a week; and
(iii) the facility either has:
(I) only residents whose physicians have indicated
(through physician's orders or admission notes) that they do not require
the services of a registered nurse or a physician for a 48-hour period;
or
(II) made arrangements for a registered nurse or a
physician to spend time at the facility, as determined necessary by
the physician, to provide necessary skilled nursing services on days
when the regular full-time registered nurse is not on duty.
(B) The secretary provides notice of the waiver to
the State Ombudsman and the protection and advocacy systems in the
state for individuals with mental illness established under the Protection
and Advocacy for Mentally Ill Individuals Act (42 USC Chapter 114,
Subchapter I) and individuals with intellectual or developmental disabilities
established under the Developmental Disabilities Assistance and Bill
of Rights Act (42 USC Chapter 144, Subchapter I, Part C).
(C) The SNF that is granted a waiver notifies residents
of the facility and the resident representatives of the waiver.
(D) A waiver of the registered nurse requirement under
subparagraph (A) of this paragraph is subject to annual renewal by
the secretary.
(7) Request for waiver concerning staffing levels.
The facility must request a waiver through the local HHSC Regulatory
Services Division, in writing, at any time the administrator determines
that staffing will fall, or has fallen, below that required in paragraphs
(1) and (2) of this subsection for a period of 30 days or more out
of any 45 days.
(A) The following information must be included in the
request:
(i) beginning date when facility was or is unable to
meet staffing requirements;
(ii) type waiver requested (24-hour licensed nurse
or seven-day-per-week R.N.);
(iii) projected number of hours per month staffing
reduced for 24-hour licensed nurse waiver or seven-day-per-week R.N.
waiver; and
(iv) staffing adjustments made due to inability to
meet staffing requirements.
(B) Waivers for licensed-only or certified facilities
will be granted by HHSC Regulatory Services Division staff. Waivers
for a Medicare SNF receive final approval from the CMS.
(C) If a facility, after requesting a waiver, is later
able to meet the staffing requirements of paragraphs (1) and (2) of
this subsection, HHSC Regulatory Services Division staff must be notified,
in writing, of the effective date that staffing meets requirements.
(D) Verification that the facility appropriately made
a request and notification will be done at the time of survey.
(E) Amounts paid to Medicaid-certified facilities in
the per diem payment to meet the staffing requirements of paragraphs
(1) and (2) of this subsection may be adjusted if staffing requirements
are not met.
(8) Duration of waiver. Approved waivers are valid
throughout the facility licensure or certification period, unless
approval is withdrawn. During the relicensure or recertification survey,
the determination is made for approval or denial for the next facility
licensure or certification period if a waiver continues to be necessary.
The facility requests a redetermination for a waiver from HHSC Regulatory
Services Division staff at the time the survey is scheduled. At other
times if a request is made, HHSC staff may schedule a visit for waiver
determination.
(9) Requirements for waiver approval. To be approved
for a waiver, the nursing facility must meet all of the requirements
stated in this subchapter and the requirements specified throughout
this chapter. In some instances, the survey agency may require additional
conditions or arrangements such as:
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