Home Health Agency Update State Regulation Set used by Surveyors Anne Menard Home Care Unit Bureau of Health Facility Regulation Agency for Health Care Administration September, 2013

Home Health Agency Rules Florida Administrative Code, Chapter 59A-8 Chapter 59A-8 was updated with some new items added that were required in state law, some items removed for regulatory reduction, and some items revised. The rule revisions were effective July 11, 2013. This resulted in changes to 43 survey standards:  16 had changes in the requirements 10 had changes only to make the requirements clearer 13 were minor technical changes such as changes in rule numbering 4 standards were deleted (1 was combined with an existing standard) The survey standards will be used beginning October 1, 2013

Is every home health agency required to have a director of nursing? No Additional Requirements for Directors of Nursing in State Survey Standards Is every home health agency required to have a director of nursing? No “A home health agency that is not Medicare or Medicaid certified and does not provide skilled care or provides only physical, occupational, or speech therapy is not required to have a director of nursing.” 400.476(2)(c), Florida Statutes The state law 400.497(5),F.S., requires AHCA to write the rules for oversight by the director of nursing. There are three parts to this law: 1. Standards for oversight: 400.497, Florida Statutes “Rules establishing minimum standards.—The agency shall adopt, publish, and enforce rules ….which must provide reasonable and fair minimum standards relating to: … (5) Oversight by the director of nursing. The agency shall develop rules related to: (a) Standards that address oversight responsibilities by the director of nursing of skilled nursing and personal care services provided by the home health agency’s staff;”  

Director of Nursing Duties H 223 The new rule quoted in survey standard H 223 says: “The director of nursing shall establish a process to verify that skilled nursing and personal care services were provided.” 59A-8.0095(2)(d), FAC The process is not specified in the rule and is left up to each home health agency to determine. The home health agency should have already have some way of verifying that, for example, Nurse James went to the home of patient John Smith on Tuesday to provide nursing care. The rule is quoted in H 223 and added to the duties in this standard. All HHAs should already have some kind of process now. The home health agencies that attended the rules workshops said that they did. Also, since the HHAs bill for the services they provide, we understand from HHAs that they have various means of determining services were provided, i.e. from their own signed work sheets, to entries into their own computer systems, to telephone calls made into telephony systems. Federal regulations for Medicare and Medicaid home health agencies (42 Code of Federal Regulation 484.18) already require that services be provided as ordered and specified in the plan of care. State law at 400.487(6), F.S., requires plans of care, and 400.491(2), F.S. requires service provision plans. 71% of the HHAs are already surveyed for compliance with the federal regulation. All HHAs are surveyed for compliance with state law.

Director of Nursing Duties - H 223 additions 2. A certified daily report upon request 400.497(5)(b), Florida Statutes, requires rules on: “Requirements for a director of nursing to provide to the agency [AHCA], upon request, a certified daily report of the home health services provided by a specified direct employee or contracted staff member on behalf of the home health agency. The agency may request a certified daily report only for a period not to exceed 2 years prior to the date of the request;” The new rule 59A-8.0095(2)(d) quoted in the standard says: “When requested by an AHCA employee, the director of nursing shall provide a certified report that lists the home health services provided by a specified direct service staff person or contracted staff person for a specified time period.”

What is meant by “home health services”? 400.462(14), F.S. ‘Home health services’ means health and medical services and medical supplies furnished by an organization to an individual in the individual’s home or place of residence ……: (a) Nursing care (b) Physical, occupational, respiratory, or speech therapy (c) Home health aide services [includes CNAs] (d) Dietetics and nutrition practice and nutrition counseling (e) Medical supplies, restricted to drugs and biologicals prescribed by a physician. “Nursing care” is defined as “treatment of the patient’s illness or injury by a registered nurse or a licensed practical nurse that is ordered as required in 400.487(2), F.S.* and included in the plan of care.” 59A-8.002(20), FAC *400.487(2), Florida Statutes, refers to treatment orders by a physician, physician’s assistant or advanced registered nurse practitioner. (This state law applies to licensed agencies. Medicare and Medicaid agencies still are required to have orders by physicians per federal regulation 42 CFR 484.18(c).) CNAs do home health aide services as well as home health aides. Some agencies have used LPNs to do home health aide services. Also, nurses who are waiting to take their state tests & get their nursing license can work as home health aides.

Director of Nursing Duties H 223 The new rule also says: “A certified report shall be in the form of a written or typed document or computer printout and signed by the director of nursing. The report must be provided to the surveyor within two hours of the request, unless the time period requested is longer than one year, then the report must be provided within three hours of the request.” What does the home health agency already have in place that could be used to show that the specified staff person provided the service (home health aide, nursing care, physical therapy…etc.) on the requested days? Are there scheduling documents or computer scheduling type programs that show the patient visits made by staff each day? Telephony reports for Medicaid visits? A log or other document staff turn in that shows the patients that were visited and the service (i.e. home health aide, nursing care, etc.)?

When would a certified report be requested? Here are some examples: A surveyor may ask for such a report when there is concern that services were not provided by a staff person -- such as when investigating complaints of patient neglect, false billing or falsification of records. On a survey, 3 patient records have no notes to show that all the nursing visits were made more than 2 months ago as specified in each patient’s plan of care. The HHA cannot provide any nurses notes when requested, but says the nurses did make the visits. AHCA Medicaid Program Integrity is doing an audit of billing by a HHA and requests a certified report for specified staff for a certain period of time.

Director of Nursing and Quality Assurance H 224 3. A quality assurance program The state law, 400.497(5)(c), F.S. requires AHCA to develop rules related to: “A quality assurance program for home health services provided by the home health agency.” The state rule: A quality assurance program was already in rule and in H 224. New items have been added and are underlined below: 59A-8.0095(2)(e), FAC “The director of nursing shall establish and conduct an ongoing quality assurance program. The program shall include at least quarterly, documentation of the review of the care and services of a sample of both active and closed clinical records by the director of nursing or his or her delegate. The director of nursing assumes overall responsibility for the quality assurance program. How many records should the agency review in its sample? The home health agency decides how many. A quality assurance program was already required for HHAs that provide skilled nursing in 59A-8.0095(2)(c). The new rule specifies that a quarterly sample of active and closed clinical records, but the sample size is not specified. Federal regulations for Medicare and Medicaid HHAs require a similar clinical record review at least quarterly, and a continuing review every 60 days in 42 CFR 484.52(b). Thus, this would not be a new requirement for Medicare and Medicaid home health agencies. 71% of the HHAs are Medicare and/or Medicaid. Of the remaining HHAs without Medicare and Medicaid, only about 100 are not required to have directors of nursing per 400.476(2)(c.),F.S., since they do not provide skilled nursing. Thus, the remaining home health agencies will have to include quarterly records reviews in their existing quality assurance programs if they are not already reviewing records quarterly.

Director of Nursing - Quality Assurance H 224 “The quality assurance program is to assure that: 1. The home health agency accepts patients whose home health service needs can be met by the home health agency; 2. Case assignment and management is appropriate, adequate, and consistent with the plan of care, medical regimen and patient needs. Plans of care are individualized based on the patient’s needs, strengths, limitations and goals.; 3. Nursing and other services provided to the patient are coordinated, appropriate, adequate, and consistent with plans of care. 4. All services and outcomes are completely and legibly documented, dated and signed in the clinical service record; 5. The home health agency’s policies and procedures are followed; 6. Confidentiality of patient data is maintained; and 7. Findings of the quality assurance program are used to improve services.” 59A-8.0095(2)(e) The underlined statements are new rules. Re #1 – Do not accept patients if you cannot provide all the services & visits they need. Re #5 – HHAs should already be following their own policies & procedures.

Director of Nursing - Quality Assurance H 224 Are all patient records required to be sampled for quality assurance? No. Quality assurance is required only for clinical records of patients receiving skilled services (nursing care, physical, occupational, respiratory and speech therapy, dietetics and nutrition practice and nutrition counseling, social work). The therapy-only home health agencies are not required to have a director of nursing in state law and thus, are not included. Patients that are only receiving home health aide services (including services provided by certified nursing assistants), homemaker, and companion services are not included. A patient receiving skilled services may also be receiving home health aide services and the services by the aide would be reviewed as well.

Director of Nursing Duties – H 223 Rule on biomedical waste has been updated Policies and procedures may now be developed by the administrator or alternate administrator, not just the direct of nursing. The revision clarifies that rule only apply to agencies that provide nursing and physical therapy The requirement to comply with specific Department of Health rules has been removed, referring instead to the Department’s web site. 59A-8.0095(2)(b), FAC “The director of nursing, the administrator, or alternate administrator shall establish policies and procedures on biomedical waste for home health agencies providing nursing and physical therapy services. The Department of Health website has information on biomedical waste handling and the requirements at ww.doh.state.fl.us/Environment/Community/biomedical.”

Other changes to state survey standards HHA staff that provide services 1. Removes the 1-year experience requirement for physical therapist, occupational therapists, and therapists assistants; 59A-8.0095(6)(8) H 260- PT, PTA; H 266- OT, OTA 2. Rather than specify tasks that can be performed in the rules, the RN, LPN, PT, PTA, OT and OTA rules refer to the scope of practice authorized by the license issued for each of these professions. Here’s one: An LPN shall… “provide care to the patient, including the administration of medications within the scope of practice authorized by the license issued by the state of Florida for a licensed practical nurse.” RN - H 230; LPN - H 236; PT, PTA – H 260, 261; OT, OTA – H 266 The Interpretive Guidelines with each standard give information on scope of practice. 3. Permits training of home health agency staff to be done at drop-off sites to save costs; 59A-8.003(8) H 107

Direct Services – H 310 The new definition of “nursing care”, as used in the definition of “home health services,” has been added: “Nursing care” is defined as “treatment of the patient’s illness or injury by a registered nurse or a licensed practical nurse that is ordered as required in 400.487(2), F.S. and included in the plan of care.” 59A-8.002(20), FAC This standard already quotes the law that failure to provide one service directly for a period of 60 days is grounds to deny or revoke the HHA’s license (400.474(1)(2)(e),F.S.). If a home health agency only has one direct employee, a registered nurse that only does patient assessments, then the home health agency is not providing any direct services. Just doing patient assessments is not providing nursing care.

Certified Nursing Assistants – H 243 Removes the requirement for certified nursing assistants to have training on specific items (59A-8.0095(5)(i)). The rule used to say: 59A-8.0095(5)(h) A home health agency shall ensure that a certified nursing assistant has competency in the home health core curriculum listed in subparagraphs 59A-8.0095(5)(d)2. and 13. through 16., F.A.C. The requirement in the law is sufficient without the training that was specified in rule.. 400.476(3), F.S. “TRAINING.—A home health agency shall ensure that each certified nursing assistant employed by or under contract with the home health agency and each home health aide employed by or under contract with the home health agency is adequately trained to perform the tasks of a home health aide in the home setting.” It is up to the home health agency to determine if the CNA is “adequately trained to perform the tasks of a home health aide” or not as the law requires. This change should make it easier for home health agencies to hire certified nursing assistants.

Certified Nursing Assistants – H 243 Here are some possible ways for HHAs to determine if the CNA is adequately trained to perform the tasks of a home health aide --- A. A reference check to any prior employer that was home health agency , nurse registry, hospice, senior citizens program, or individual patient that shows CNA was able to provide services to patients in their homes; or B. Document that the DON, RN or an LPN has gone with the CNA into one or more patient home(s) to observe the CNA providing services and finds the CNA adequately trained to perform tasks of a home health aide in a home setting; or C. Passage of the AHCA home health aide competency test; or D. Documentation of a competency evaluation by the DON or RN that the CNA is adequately skilled in to perform the tasks of a home health aide in a home setting, such as competency evaluation for a Medicare or Medicaid certified home health agency; or E. A certificate of completion of the home health aide training program through a vocational school or other career training school licensed by the Dept of Education; or F. Documentation of home health aide training by a home health agency.

Home Health Aides and CNAs Responsibilities – H 248 59A-8.0095(5)(l)3 adds the tasks associated with elimination that a home health aide and certified nursing assistant may do 3. 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”

Homemakers – H 291 Here are the changes in the rule that is quoted in the standard: 59A-8.0095(12)(a) The homemaker shall:… “2. Perform the functions generally undertaken by the customary homemaker, including such duties as preparation of meals, laundry, shopping, household chores, and care of children;” “8. If requested by the client or his responsible party, the homemaker may verbally remind the client that it is time to for the client to take his or her medicine.”

Companions - H 292 Here are the changes in the rule that is quoted in the standard: 59A-8.0095(12)(b) The companion shall:…. “2. Accompany the client to doctor appointments, recreational outings, or shopping;” “8. If requested by the client or his responsible party, the companion may verbally remind the client that it is time for the client to take his or her medicine.”

Patient Records Changes Clinical Records – 59A-8.022(6)(b) H 356 Rubber stamp signatures for physicians are no longer permitted. Advanced Directives 59A-8.0245(2)(a) H 322 Use the April 2006 version of the “Health Care Advanced Directives – The Patient’s Right to Decide” rather than the 2004 for new patients. Still available at www.FloridaHealthFinder.gov.

Change of administrator or alternate - H 219 Removes requirement to submit a resume and affidavit of good moral character when there is a change in the administrator or alternate administrator. Still requires notification of new administrator (not alternates) and a statement that the person meets the requirements in law. Notification should be within 21 days of the change per 59A-35.110(1) – HZ 821 59A-8.0095(1)(b) “If an agency changes administrator the agency shall notify the AHCA Home Care Unit office in Tallahassee as required in subsection 59A-35.100(1), 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 …The administrator also must submit level 2 screening…or inform the Home Care Unit that level 2 screening was previously submitted.”

Comprehensive Emergency Management Plans H 373 Rule 59A-8.027 Changes to the Comprehensive Emergency Management Plan (CEMP) form: The one-page “Information for Home Health Agency Patients” (Appendix B of the CEMP form) to the patient has one important sentence changed: “(1) If the patient has a caregiver*, the caregiver must accompany the patient and must remain with the patient at the special needs shelter.” *Caregivers can be relatives, household members, guardians, friends, neighbors and volunteers. The title “safety liaison” is used for the person in charge during an emergency as required in 408.821(1), F.S. HHAs do not have to re-do their CEMP Plans because of these changes, but need to use the updated Information for HHA patients that may go to the special needs shelter. The Department of Health requested the change to Appendix B. Please give to patients that may go to a special needs shelter.

Comprehensive Emergency Management Plan Updates H 376 Reminder for HHAs Review your plan annually and update procedures Submit changes in telephone #s and names of staff who lead your agency’s emergency response (your “Safety Liaison” ) to the county emergency management office and to the county health department in each county on the HHA license. Must include phone #s where staff can be contacted outside of the HHA’s regular office hours.

See “Laws, Rules and Survey” Tab The latest laws and rules for HHAs For more information see www.ahca.myflorida.com/homecare, select ‘Home Health Agency’ See “Laws, Rules and Survey” Tab The latest laws and rules for HHAs Changes to the rules with reasons for the changes Summary listing of changes (by rule) To be posted by 9/20/13: Link to updated ASPEN State Regulation Set effective October 1 Summary listing of all standards in the State Regulation Set Summary listing of all changes to the State Regulation Set Questions? Call or Anne Menard or Jan Benesh Anne.Menard@ahca.myflorida.com (850) 412-4385 Janet.Benesh@ahca.myflorida.com (850) 412-4386