Guidance from the Texas Health and Human Services Commission Waiving Certain Certified Nurse Aide Requirements for Nursing Facilities: COVID-19

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On April 10, 2020, the Texas Health and Human Services Commission (HHSC) issued Provider Letter 20-26Waiver of Certified Nurse Aide Requirements Granted.

Governor Abbott suspended certain provisions prohibiting a nursing facility from hiring, for longer than four months, an individual to complete nurse aid tasks who is not a certified nurse aide (CNA) for longer than four months. The suspension provides flexibility in staffing during the COVID-19 pandemic. According to PL 20-26, the following rules are suspended:

– 40 Texas Administrative Code (TAC) §19.1001(a)(4)(A)(ii)

– 40 TAC §19.1001(a)(4)(B), (C), (E), (F), and (H)

Additionally, 40 TAC §19.1001(a)(4)(D) is partially suspended, only to the extent necessary to allow the employment as a nurse aide of an individual who is not listed in the Nurse Aide Registry due solely to the individual’s having no history of employment as a nurse aide.

Two important requirements were NOT suspended.

First, the waiver does not suspend requirements for supervision or competency. Nursing facilities are still required to ensure that individuals “completing nurse aide task are able to demonstrate competency in skills and techniques to care for residents’ needs….”  Specific training on tasks to be performed, competency demonstration on the skill, and documentation of such demonstration is required. The American Health Care Association (AHCA) has developed a training program for its members that would assist nursing facilities in meeting the competency requirements temporary nurse aides through an online course entitled Temporary Nurse Aid Training and a skills competency checklist.

Second, if an applicant will be completing nurse aide tasks, nursing facilities must still “receive verification that the individual is not designated” in the Nurse Aide Registry or Employee Misconduct Registry with a finding of abuse, neglect, or mistreatment of a resident, or misappropriation of a resident’s property.  Traditional criminal history checks must also be conducted. These checks may be conducted through the HHSC Employability Status Check Search system.

If you have questions related to PL 20-26 or other long-term care matters, please contact Gavin Gadberry (gavin.gadberry@uwlaw.com), Chuck Mallard (chuck.mallard@uwlaw.com), Stephanie James (stephanie.james@uwlaw.com), or Traci Phipps (traci.phipps@uwlaw.com).

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