Nursing services in the HCS and TxHmL waivers FAQs (Revised August 15, 2011)
Texas Department of Aging and Disability Services (DADS) Home and Community-based Services (HCS) and Texas Home Living (TxHmL) waivers program staff have worked with the Texas Board of Nursing (BON) staff to clarify the Standards of Nursing Practice and RN Delegation Rules as they pertain to the HCS/TxHmL practice settings. The Frequently Asked Questions (FAQs) below, are consistent with the references found in the Texas Administrative Code (TAC), Title 22, Part II, Chapters 217 and 225, Texas Board of Nursing, and Senate Bill (SB)1857 passed in the 82nd Texas Legislature, Regular Session, 2011(Human Resources Code, Title 11, Chapter 161, Subchapter D, Department of Aging and Disability Services, Powers and Duties of Department. The BON rules are available at www.bon.state.tx.us.
Question 1: What is the criteria for using 22 TAC, Chapter 225 (RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation In Independent Living Environments For Clients With Stable and Predictable Conditions)?
According to the BON, §225.1 (a) (1-3), a RN may only use 22 TAC, Chapter 225 when:
- An individual is in an independent living environment;
- The individual, if 16 or older, or the individual's responsible adult (CRA) is willing and able to participate in decisions about the overall management of the individual's healthcare; and
- The task is for a stable, predictable condition as defined by §225.4 (relating to Definitions).
§225.1 (b) states if the situation does not meet the above criteria, any delegation of nursing tasks by the RN to an unlicensed person must comply with 22 TAC, Chapter 224 (Delegation of Tasks Relating to Acute Conditions or Settings Other Than Independent Living Environments).
§225.1 (c) states "Should the client develop an acute condition that is unstable or unpredictable, this chapter may still be applicable to tasks that relate solely to the client's stable and predictable condition(s) and not to the acute condition(s)."
Question 2: What does "supervision of practice" mean in relation to an LVN functioning with a directed scope of practice?
Section 301.353 of the Nursing Practice Act (NPA) and Rule 217.11(2) require an LVN to practice under the supervision of an RN, advanced practice nurse, physician, podiatrist, dentist or physician assistant. The supervision requirement correlates with § 301.002(5) of the NPA that states that LVNs have a directed scope of practice. It should be noted that Position Statement 15.25 clarifies that the supervision and the implementation of medication orders may be expanded to include "any other practitioner legally authorized to prescribe the ordered medication(s)".
Supervision is required for the LVN scope of practice. LVNs are not licensed for independent nursing practice. An LVN must ensure that he/she has an appropriate clinical supervisor, i.e., RN, APRN, physician, PA, dentist or podiatrist. The proximity of a clinical supervisor depends on skills and competency of the LVN, patient conditions and practice setting. Direct, on-site supervision may not always be necessary depending on the LVN's skill and competence and should be determined on a case-by-case situation taking into consideration the practice setting laws. However, clinical supervisors must provide timely and readily available supervision and may have to be physically present to assist LVNs should emergent situations occur. Factors to be considered should include:
- the type of practice setting;
- the stability of the patient's condition;
- the tasks to be performed;
- the LVN's experience; and
- any laws and regulations that apply to the specific practice setting.
To illustrate, consider the LVN who performs routine nursing tasks or nursing tasks learned through ongoing continuing education (such as intravenous therapy) and an LVN who performs a delegated medical act (such as botox administration). These are different situations and will differ in who (RN or physician) is appropriate to supervise the LVN as well as the proximity of the supervisor. Other regulations, such as those related to reimbursement, may also be a factor in the latter situation.
As noted previously, remember that whether a task is a nursing act or a delegated medical act, the nurse (LVN or RN) is responsible for the tasks he/she chooses to perform. See Position Statements 15.27, The LVN Scope of Practice, 15.28, The RN Scope of Practice and 15.14, Duty of a Nurse in Any Setting, located under Nursing Practice, then Position Statements on the BON webpage for complete information on accepting assignments and a nurse's duty.
Note: S.B. 1857, (Human Resources Code, Chapter 161, Subchapter D), permits an LVN to train and determine the competency of an unlicensed person in regards to medication administration, only under the direction of an RN. When a program provider and an LVN have agreed to participate in the on-call pilot, the LVN must have an RN clinical supervisor. The RN clinical supervisor or another RN must be on back-up call to the LVN when providing on-call services. (See Question #8).
Question 3: Who can act as the Client's Responsible Adult (CRA)?
§225.4 (5) defines the CRA as, "an individual, 18 or older, normally chosen by the client, who is willing and able to participate in decisions about the overall management of the client's health care and to fulfill any other responsibilities required under this chapter for the care of the client. The term includes but is not limited to parent, foster parent, family member, significant other, or legal guardian." The CRA may/may not live in the same residence as the individual served. DADS recommends that provider employees not act as an individual's CRA unless the employee is a foster/companion care provider. The unrelated foster/companion care provider may act as a CRA if the individual does not have an identified adult (parent, family member, legal guardian, or significant other) that is willing and able to participate in decisions about the overall management of the individual's healthcare.
Question 4: What is the difference between a comprehensive and focused health assessment? When is a comprehensive assessment required?
Registered Nurses conduct comprehensive health assessments. A comprehensive assessment as defined by the BON is, "An extensive data collection (initial and on-going) for individuals, families, groups and communities addressing anticipated changes in client conditions as well as emergent changes in a client's health status; recognizing alterations to previous conditions; synthesizing the biological, psychological, spiritual and social aspects of the client's condition; and using this broad and complete analysis to make independent decisions and nursing diagnoses; plan nursing interventions, evaluate need for different interventions, and the need to communicate and consult with other health team members." §217.11 (3) (A) (i) and http://www.bon.state.tx.us/practice/position.html#15.28.
Licensed Vocational Nurses may only conduct focused health assessments. "A focused assessment is an appraisal of an individual client's status and situation at hand [what is occurring at that moment], contributing to the comprehensive assessment by the RN, supporting on-going data collection, and deciding who needs to be informed of the information and when to inform." §217.11 (2) (A) (i) and http://www.bon.state.tx.us/practice/position.html#15.27.
In order for an RN to use 22 TAC, Chapter 225 for delegation, the RN must perform a comprehensive assessment in consultation with the individual and/or CRA to determine if the care: "a. qualifies as an ADL [Activity of Daily Living] or HMA [Health Maintenance Activity] not requiring delegation; or b. can be delegated to an unlicensed person; or c. should not be delegated" as outlined in §225.6 (a) (1-3), (b) (1-6), (c).
Any individual receiving HCS services, regardless of the residential setting, must have an initial comprehensive assessment completed by the RN. In addition to the initial comprehensive assessment, any individual receiving HCS supported home living, respite, or day habilitation in which nursing tasks are being performed by the provider's paid unlicensed staff/contracted staff must have an annual comprehensive assessment. In addition, any individual who has a nursing service plan in which nursing services are reimbursed through the HCS waiver must have an annual comprehensive assessment. The RN comprehensive assessment must be updated when there is a change in condition. These assessments (annual or change in condition) must include at least an updated physical assessment of the individual. An example of a change in condition would be when an individual is discharged from the hospital. The RN would perform an assessment and revise the nursing service plan as needed to address the changes in condition.
The initial and annual RN comprehensive assessments are not required for individuals receiving TxHmL services unless nursing tasks are being performed by the provider's paid unlicensed staff/contracted staff while providing waiver services such as community supports, employment assistance, respite or day habilitation. Any individual who has a nursing service plan in which nursing services are reimbursed through the TxHmL waiver must have an annual comprehensive assessment.
Within this assessment, the RN determines if the care includes tasks for delegation to unlicensed personnel. In a foster/companion care situation, the RN might also determine that delegation is not required because the foster/companion care provider is able to assume responsibility for the individual's healthcare. The comprehensive assessment cannot be performed by an LVN. The comprehensive assessment provides more information than is available from a self-administration of medication assessment and may allow the RN to determine tasks that may be delegated or designated as health maintenance activities (HMAs).
Question 5: Can the foster/companion care provider be excluded from the definition of "unlicensed person" in 22 TAC, §225.4 (12) (A)? [The BON definition of "unlicensed person" includes anyone who receives monetary compensation for providing direct supports. Historically, this definition would therefore include foster/companion care providers in HCS. However, DADS and BON staff have agreed to allow the assessing RN to determine if HCS foster/companion care providers may be excluded from this definition and therefore allow the same nursing criteria that apply to "unpaid" supports to apply to the "paid" foster/companion care provider.])
Yes, after completing the comprehensive assessment, the RN may determine that delegation is not required because the foster/companion care provider can assume responsibility and accountability for the individual's healthcare. In making this determination, the RN would consider how long the foster/companion care provider has had the individual living in the home, their relationship, the ability of the foster/companion care provider to assume this responsibility, and the supports available to the foster/companion care provider. The RN would then serve as a resource, consultant or educator and should intervene when necessary to ensure safe and effective care, § 225.6 (a) (3). Documentation of the assessment process and subsequent interventions (including when additional follow-up is needed) should also be a part of the RN's nursing service plan. In addition, the comprehensive assessment must be updated annually to support the continued exclusion of the foster/companion care provider from the BON definition of "unlicensed person." There may be some situations in which the RN does not believe it is safe to relinquish his or her delegation responsibilities; therefore, the RN must be allowed to decide if it is safe and in the best interest of the individual to transfer the responsibility and accountability to the foster/companion care provider. If the RN determines that it is unsafe to relinquish his or her delegation responsibilities to the foster/companion care provider, then the RN is required to follow the delegation rules in 22 TAC Chapter 225. If an individual living in foster/companion care has an identified CRA other than the foster/companion care provider, the RN is required to follow the delegation rules in 22 TAC Chapter 225.
Question 6: What is a nursing service plan?
The nursing service plan is an individualized plan that:
- is based on information obtained by the RN from the comprehensive assessment,
- may be altered as needed by the RN to reflect changes in the individual's condition and related interventions, and
- describes how, who, when and what nursing care/supports will be provided to the individual served.
Question 7: What is the difference between the Provider Advocate Committee (PAC) and CRA? When does the PAC act in the capacity of a CRA?
When the individual is unable to determine who will serve as a CRA, the BON recommends that the decision not rest solely with the RN, but that an independent third party who has the individual's best interest in mind, make the decision. DADS and the BON have agreed that a provider advocate committee (PAC) comprised of the assessing RN, the program provider's CEO/designee and, if applicable, a person employed by the provider who is responsible for service delivery oversight may serve as the CRA. Therefore, if the individual cannot make decisions regarding his/her health care, does not have a legally authorized representative (LAR), and does not have an identified adult that is willing and able to participate in the decisions about the overall management of the individual's health care, the provider must establish a PAC to determine if delegation to paid unlicensed personnel is appropriate. The committee must review the RN comprehensive nursing assessment, the nursing service plan for training and verification of competency of the paid unlicensed person(s) as well as the level of supervision and frequency of supervisory visits required (§225.9 (a) (1), (2) (A-B), (3) (A-E), (4), (b), (c)). The PAC may approve only task(s) identified for delegation by the assessing RN to a paid unlicensed person. In situations where a PAC is used, Health Maintenance Activities (HMAs) cannot be exempt from delegation. The PAC must document this decision in writing on the DADS form titled "Provider Advocate Committee Acting as the Client's Responsible Adult."
Question 8: Does the BON allow paid unlicensed persons to administer medications/assist in medication administration when supporting persons with intellectual and developmental disabilities in the HCS and TxHmL waivers?
Senate Bill (SB) 1857, (Human Resources Code, Chapter 161, Subchapter D) permits the unlicensed caregiver to administer specified types of medication to an individual whose health status is stable or predictable without delegation or oversight of each administration by a RN if the following criteria are met.
- The medication must be:
- an oral medication;
- a topical medication; or
- a metered dose inhaler;
- The medication is administered to the individual for a stable or predictable condition, including any PRN medication that the individual uses on a routine basis, but excluding any PRN medication used to manage behavior; [See Question #14 for additional clarification regarding PRN medications.]
- The individual has been personally assessed by a RN initially and in response to changes in the individual's health status, and the RN has determined that the individual's health status permits the administration of medication by an unlicensed person; and
- The unlicensed person has been:
- trained by a RN or LVN (under the direction of a RN) regarding proper administration of medication; or
- determined to be competent by a RN or LVN under the direction of a RN regarding the proper administration of medication, including through a demonstration of proper administration technique by the unlicensed person.
SB 1857 limits the liability of the RN/LVN to properly:
- performing the assessment (RN);
- conducting training (RN/LVN); and
- determining the competency of the unlicensed person providing medications to individuals served by the HCS and TxHmL waiver programs (RN/LVN).
The administration of any other medication other than those described above is subject to the rules of the Texas Board of Nursing regarding delegation of nursing tasks to unlicensed persons in independent living environments such as the HCS and TxHmL waivers.
Question 9. What is the expectation of Waiver, Survey and Certification (WS&C) regarding monitoring of medications and medication administration records (MARs)?
WS&C generally requires monitoring of medications (routine and PRN) and some type of MAR for all individuals who require administration of medications or assistance with medications by paid HCS or TxHmL staff. The MAR is no longer required in foster/companion care settings when the RN has determined through the comprehensive assessment to exclude the foster/companion care provider from the BON definition of "unlicensed person". (See question #5). Monitoring also includes the licensed nurse's interview with paid unlicensed staff about medication administration. For example, any side effects, changes or concerns can be identified and discussed through the interview process. The licensed nurse should periodically visit the home and assess the knowledge of the paid unlicensed person(s) regarding medications being administered as well as what medications are actually being given compared to what is prescribed.
The use of PRN medications should also be monitored by the licensed nurse. If an individual is receiving an increased number of PRN medications, the individual's health status should be assessed by a nurse. An increase in the use of PRN medications may be an indication of an underlying medical condition that requires follow-up.
WS&C expects to see a current and accurate MAR when paid staff (other than a foster/ companion care provider who has been excluded from the definition of "unlicensed person") is assisting with/administering medications. A MAR is not required if the individual independently takes medications or if an unpaid person administers the medications to the individual. WS&C also expects that training (related to medication administration) and interviews/observations (conducted to ensure competency of the paid staff) be documented and available for review.
Question 10. What information is the RN/LVN required to document in an individual's record?
Nurses must accurately and completely report and document:
- the individual's status including signs and symptoms;
- nursing care rendered;
- physician, dentist or podiatrist orders;
- administration of medications and treatments;
- individual response(s); and
- contacts with other health care team members concerning significant events regarding individual's status. (§217.11 (1) (D))
This standard applies in all situations whether or not the people providing supports meet the BON definition of an "unlicensed person".
Question 11. Who can develop the plan for nursing hours on the implementation plan?
The RN must develop the plan for the nursing services that are needed by the individual. LVNs cannot develop nursing service plans. LVNs may participate and contribute information but they cannot develop a plan [§217.11 (2) (A) (ii-iii)]. A nursing service plan must be developed from the RN's comprehensive assessment for any individual receiving foster/companion care, supervised living, residential support, or respite that includes nursing services. The nursing service plan is also required when the RN has determined that delegation does not apply. (See question #3). The RN would then serve as a resource, consultant or educator and should intervene when necessary to ensure safe and effective care, §225.6 (a) (3). A nursing service plan is required for any individual receiving supported home living when there are nursing hours on the individual plan of care (IPC). Nursing service plans must be current and updated when there is a change in condition or at least annually.
Question 12. What nursing tasks can be excluded from delegation and designated as HMAs?
In addition to the comprehensive assessment (§225.6), the RN may determine that an allowable HMA may be performed by a paid unlicensed person without being delegated because it does not fall within the practice of professional nursing. In making this determination, ALL the following criteria must be met (§225.8):
- The task will be performed for an individual with a functional disability;
- The individual would perform the task(s) but for his/her functional disability;
- The task(s) can be directed by the individual or CRA to be performed by a paid unlicensed person(s) without RN supervision;
- The individual or CRA is able, and has agreed in writing, to participate in directing the paid unlicensed person's actions in carrying out the HMA; and either
- The individual or CRA is willing and capable of training the paid unlicensed person(s) in the proper performance of the task, and
- Will be present when the task is performed, or
- If not present, will have observed the paid unlicensed person(s) perform the task at least once to assure he/she can competently perform the task and will be immediately accessible in person or by telecommunications to the paid unlicensed person(s) when the task is performed.
The RN may exempt allowable (HMAs) (§225.4 (8) (A-D) from delegation if all the criteria are met at (§225.8). The ONLY tasks that may be exempted from delegation as HMAs are:
Administering oral medications that are normally self-administered, including administration through a permanently placed feeding tube with irrigation;
Administering of a bowel and bladder program, including suppositories, enemas, manual evacuation, intermittent catheterization, digital stimulation associated with a bowel program, tasks related to external stoma care including but limited to pouch changes, measuring intake and output, and skin care surrounding the stoma area;
Routine care of a Stage I decubitus (skin redness that blanches or disappears on fingertip pressure; the skin and underlying tissues are still soft);
Feeding and irrigation through a permanently placed feeding tube inserted in a surgically created orifice or stoma
When an RN has decided not to relinquish his/her delegation responsibilities to a foster/companion care provider, the RN may exempt an allowable HMA from delegation if the CRA (foster/companion care provider) is also acting as the paid unlicensed person performing the task. (See Question #3). If the individual is living in foster/companion care but has a CRA other than the foster/companion care provider, the RN may exempt the allowable HMA only if the CRA agrees in writing to train, supervise, and be immediately available in person or by telecommunications to the foster/companion care provider when performing the task(s) as outlined in §225.8.
The delegation criteria in §225.9 requires that the RN verify the paid unlicensed person's training and level of competency. The RN must also develop a schedule to verify that the paid unlicensed staff and/or CRA remain proficient in safely carrying out the task(s) that have been exempted from delegation.
In the three- or four-person home settings, when there is rotating paid unlicensed staff, a CRA usually does not train and supervise all the paid unlicensed personnel that would be performing health-related tasks. In the group home setting where there is multiple paid unlicensed staff performing the task(s), the RN would be required to delegate tasks that may be exempt from delegation in a foster/companion care setting with a CRA.
In three-person homes, where only supervised living is provided and the paid unlicensed staff sleep over, the RN may exempt allowable HMAs from delegation if the CRA has agreed in writing to oversee the task(s). It is advisable for the RN to consider how many staff would be involved in performing the task(s) and ensure that the CRA will train, direct, and supervise all the paid unlicensed personnel performing the task(s). The CRA must also agree to be immediately available in person or by telecommunications when the task(s) is being performed.The RN must always consider what is safest and in the best interest for the individual.
Question 13: What tasks CANNOT be designated as HMAs but MAY be delegated?
The following tasks are considered nursing tasks that may be delegated or must be performed by a licensed nurse. Unless otherwise noted, they cannot be exempt from delegation. Reference BON (§225.10) and Human Resources Code, Chapter 161, Subchapter D)
- An ADL that the RN has determined requires delegation*;
- An HMA (§225.4 (8)) that the RN has determined requires delegation under §225.8 (relating to HMAs Not Requiring Delegation);
- Non-invasive and non-sterile treatments with low risk of infection;
- Collecting, reporting, and documenting data including, but not limited to:
- Vital signs, height, weight, intake and output, capillary blood test, and urine test for sugar and hematest results,
- Environmental situations/living conditions that affect the client's health status,
- Client or significant other's comments relating to the client's health status, and
- Behaviors related to the plan of care;
- Reinforcement of health teaching provided by the RN;
- Inserting tubes in a body cavity or instilling or inserting substances into an indwelling tube limited to the following:
- Insertion and/or irrigation of urinary catheters for the purpose of intermittent catheterization (Note: may not require delegation if the criteria is met at §225.8) and
- Irrigation of an indwelling tube such as a urinary catheter or permanently placed tube (Note: irrigation of an indwelling catheter must be delegated but the irrigation of a permanently placed feeding tube may not require delegation if the criteria is met at §225.8);
- Tracheostomy (trach) care including instilling normal saline and suctioning of a trach with routine supplemental oxygen administration;
- Care of broken skin with low risk of infection;
- Sterile procedures involving a wound or an anatomical site that could potentially become infected;
- Administration of medications:
- Orally or by permanently placed feeding tube inserted in a surgically created orifice or stoma (Note: this is also a HMA at (§225.4 (8) (A) that may not require delegation if all the criteria is met §225.8) (The RN may determine that routine oral medications do not require delegation; refer to Question #8.)
- Topically; (The RN may determine that routine topical (applied to the skin) medications do not require delegation; refer to Question #8.)
- Eye, ear drops and sprays;
- Vaginal and rectal suppositories (That are not part of bowel or bladder program at §225.4 (8) (B);
- Unit dose medication administration by inhalation for prophylaxis and/or maintenance; (The RN may determine that routine inhalers do not require delegation; refer to Question #8.)
- Oxygen administration for the purpose of non-acute respiratory maintenance;
- Administration of oral unit dose medications from the client's daily pill reminder container; and (refer to 225.11 (a) (11) (1-5) for the specific rule)
- Administration of insulin SQ, nasally, or by insulin pump (refer to 225.11 (b) (1-7 for the specific rule).
* An example of an ADL that may need to be delegated is the transfer of an individual in a Hoyer lift. The safe operation of this type of lift requires additional training.
Question 14: Can PRN interventions be delegated?
The RN may decide to delegate certain PRN medications to a paid unlicensed staff provided an appropriate (initial/annual) assessment and a nursing service plan (which includes protocols) have been completed. The nursing service plan must also include emergency plans (should untoward reactions occur) and any necessary follow-up that is needed. Over-the-counter (OTC) medication such as Tylenol may be delegated if it has been taken by the individual with no adverse reactions IF very specific written instructions are provided. The nursing service plan must include written protocols with specific instructions for when the paid unlicensed person will contact the RN**. Protocols need to include actions the paid unlicensed person must complete if complications arise or if the medication is ineffective. A provider is not prohibited from developing a policy/procedure that requires the paid unlicensed staff to call the RN prior to administering a PRN medication. The RN must document the conversation and instructions given in the individual's record. The unlicensed person must call the RN prior to administering a PRN medication that is prescribed to manage maladaptive behavior. The use of a PRN medication to manage maladaptive behaviors must be included in a behavior support plan. These medications are chemical restraints and are considered highly intrusive measures.
** If an LVN is participating in the on-call pilot, paid unlicensed providers of HCS or TxHmL services that have not been excluded from the BON definition of "unlicensed person" must call the LVN prior to administering the chemical restraint. The LVN must verify that the behavior support plan has been followed and that the chemical restraint is necessary according to the parameters in the plan and authorize the chemical restraint to be administered. The LVN must notify the RN clinical supervisor within one hour of authorizing the administration of the chemical restraint.
Question 15: Is the foster care provider that the RN has excluded from the definition of "unlicensed person," allowed to administer a PRN chemical restraint without notifying a RN?
In the event that the RN determines that delegation is not required because the foster/companion care provider can assume responsibility and accountability for the individual's healthcare, the paid foster/companion care provider must contact an RN*** prior to administering a PRN chemical restraint. The program provider is required to have a formal behavior support plan that includes the use of a chemical restraint to manage maladaptive behaviors.
***If an LVN is participating in the on-call pilot, the foster/companion care provider may call the LVN prior to administering the chemical restraint. The LVN would verify that the behavior support plan has been followed and that the chemical restraint is necessary according to the parameters in the plan and authorize the administration of the chemical restraint. The LVN must notify the RN clinical supervisor within one hour of authorizing the administration of the chemical restraint.
Question 16: Can the initial dose of a medication be delegated to a paid unlicensed person?
§225.12 (5) (E) allows the RN to determine if it is appropriate to delegate the initial dose of a medication. The RN must document in the individual's medical record the rationale for authorizing a paid unlicensed person to administer the initial dose of prescribed or OTC medication. It is advisable that the RN document side effects from a reliable drug reference book in the medical record in addition to reviewing this information with the paid unlicensed person administering the medication.
If an individual self-administers his/her medications, then he/she can self-administer the initial dose.
Initial dose of medication falls under §225.12 (Tasks Prohibited from Delegation). Under prohibited tasks, §225.12 (5) (E) includes "administration of the initial dose of a medication that has not been previously administered to the client unless the RN documents in the client's medical record the rationale for authorizing the paid unlicensed person to administer the initial dose." BON staff recommends the RN base this decision on sound nursing judgment. The RN would be expected to consider the possibility of allergic reactions, interactions with other medications the individual is taking, the potential side effects, and the individual's medical diagnosis that could possibly be affected by the new medication. For example, the initial dose of an OTC decongestant may not be safe to authorize a paid unlicensed person to administer if the individual has a history of high blood pressure or other risk factors. The excluded foster/companion care provider may administer the initial dose without involvement of the RN.
Question 17: Can an LVN train and supervise the paid unlicensed person performing delegated tasks?
Training and supervising task(s) delegated to paid unlicensed personnel is the RN's responsibility. An LVN may assist in training and supervision; however, the RN retains the overall accountability and responsibility for delegation. On-site supervisory visits must be conducted and documented for each paid unlicensed person that performs delegated tasks. BON staff does not recommend conducting training or supervision over the telephone. The LVN may be in the home more often than the RN and may encounter a problem with the unlicensed personnel performing a task. The LVN is then expected to intervene on behalf of the individual. An intervention may require the LVN to stop the unlicensed staff from performing the task and immediately report this to the RN. The RN is then expected to follow-up with a supervisory visit to evaluate the competency of the unlicensed person. The RN may need to re-train the unlicensed person or may determine that the unlicensed person is not competent to perform the task. The RN must document these situations.
Information provided in 22 TAC, Chapter 225 is specific to the practice of RNs. The LVN's contributions are important to the healthcare team and provide valuable assistance to the RN in delivering safe and effective nursing care. However, an LVN cannot make decisions regarding delegation and cannot take the place of the RN in making supervisory visits. The LVN may ONLY assist the RN in the supervision, teaching, training and education of the client, CRA, and unlicensed personnel. The RN retains the overall responsibility and accountability for teaching and health counseling.
When a new nurse is hired, providers are advised to have a skills self-assessment or checklist that is completed during orientation to identify areas of strength and those that require additional training. Not all nurses have the same training and experience. For example, if the LVN assists in training unlicensed personnel on trach care, then the supervising RN needs to ensure that the LVN is competent to perform and train others in this task.
Question 18: What is the RN's responsibility when another licensed practitioner has delegated tasks to an unlicensed person?
In the event an RN practices in a collegial relationship with another licensed practitioner who has delegated tasks to a paid unlicensed person, the RN must:
- verify the training of the unlicensed person;
- verify the unlicensed person can properly and adequately perform the task; and
- adequately supervise the unlicensed person.
If the RN cannot verify the unlicensed person's capability, the RN must communicate this fact to the licensee who delegated the task (§225.13).
Note: The RN on duty is responsible for the supervision of paid unlicensed staff performing nursing functions.
Question 19: What kind of emergency procedures can be performed by paid unlicensed staff?
Unlicensed personnel may be trained to perform a life saving procedure such as CPR and the Heimlich maneuver. These interventions do not require delegation. Unlicensed personnel may also be trained to administer Epi-pens, Glucagon, Diastat, or metered dosed inhalers in an emergency. However, these life-saving procedures CANNOT be delegated by an RN under 22 TAC, Chapter 225 (stable or predictable) but may be delegated under 22 TAC, Chapter 224 (acute conditions). The unlicensed person may take any action that a reasonable and prudent non-health care professional would take in an emergency and then call 911.
Question 20: How do the responsibilities of an RN differ between paid and unpaid caregivers?
When an individual lives in his/her own home/family home and no paid waiver service providers provide nursing tasks, the RN is not required to make a delegation decision. If the RN or LVN has reason to believe that the unpaid caregiver is not performing the task(s) correctly, they are expected to intervene on behalf of the individual to ensure his/her safety.
If the caregiver is paid, including respite providers in HCS/TxHmL, the RN is required to make a delegation decision, which must be based on a comprehensive nursing assessment. Please refer to Question #3 relating to foster/companion care providers being excluded from the definition of unlicensed person in §225.4 (12) (A) in certain situations.
Question 21: Can LVNs perform onsite and telephone on-call services?
The BON staff previously determined that a nurse must be licensed as an RN to perform telephone triage/on-call services. However, SB 1857 includes language that instructs DADS and the BON to conduct a pilot program to evaluate LVNs who provide on-call services by telephone to individuals with intellectual and developmental disabilities, as defined by Section 161.091, Health and Human Services Code. LVNs involved in the pilot are required to use standardized and validated protocols or decision trees in performing on-call services in the pilot program. The pilot is scheduled to begin in September 2011 and end in September 2015.
Question 22: Are HCS/TxHmL providers required to have a Nursing Peer Review Committee?
The Texas Occupations Code (TOC), Nursing Peer Review, §303.0015 lists the requirements for employers regarding nursing peer review. Employers of 10 or more nurses must have a Nursing Peer Review Committee. A nurse may NOT serve on the committee when a nurse he/she supervises is being reviewed. §217.19 (c).
Question 23: Is an electronic signature by the physician acceptable, such as a signature on a prescription that is securely generated?
Yes, a signature generated electronically with security measures is acceptable.
Question 24: What is a newly hired RN's responsibility regarding the prior delegation to unlicensed personnel by a RN formerly employed by the company?
The newly hired RN is now accountable for the care of the individuals. The RN should make reasonable progress in conducting supervisory visits of the unlicensed personnel to verify the appropriateness of the delegation and continued competency of the unlicensed personnel performing the delegated tasks. The RN should consider the type of task(s) being performed and the medical issues of the individual when planning the timeline to accomplish the supervisory visits.
Question 25: What is the RN's responsibility when the paid unlicensed staff at the day habilitation is performing nursing task(s) for an individual?
The same requirements apply regardless of whether the day habilitation staff are direct employees of the program provider or employees of another agency with which the program provider contracts. The HCS or TxHmL program provider is responsible to ensure that all services for which they receive reimbursement comply with all applicable laws, statute and program rules.
Question 26: Does the individual served have the right to refuse services?
Yes, the individual served by a program administered by DADS has the right to refuse any of the services offered; however, the individual may not refuse a comprehensive nursing assessment. Chapter161, Subchapter D, Human Resources Code, requires individuals who receive HCS or TxHmL services to have a comprehensive nursing assessment by an RN initially and in response to significant changes in condition. If the RN's comprehensive assessment indicates that the individual does not require nursing services, the nurse will document the determination in the individual's record and nursing services may not be included in the individual's service plan. In the event that an individual does not receive nursing services and there are significant changes to an individual's condition, nursing units would be added to the IPC, the RN would complete or revise the comprehensive nursing assessment and a nursing service plan would be developed if appropriate. If the individual's need for nursing services is indicated by the RN comprehensive assessment, but the individual refuses nursing services, the service coordinator will document the discussion related to the recommendation for nursing services and the individual's/LAR's decision to refuse waiver nursing services in the individual's record.
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May 3, 2013