(a) A program provider must:
  (1) ensure that nursing is provided in accordance with the individual's person-directed plan (PDP); individual plan of care (IPC); implementation plan; Texas Occupations Code Chapter 301 (Nursing Practice Act); 22 Texas Administrative Code (TAC) Chapter 217 (relating to Licensure, Peer Assistance and Practice); 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions); and Appendix C of the HCS Program waiver application approved by the Centers for Medicare and Medicaid Services (CMS) and found on the Texas Health and Human Services Commission (HHSC) website, and consists of performing health care activities and monitoring the individual's health conditions;
  (2) this includes:
    (A) administering medication;
    (B) monitoring the individual's use of medications;
    (C) monitoring health risks, data, and information, including ensuring that an unlicensed service provider is performing only those nursing tasks identified from a nursing assessment;
    (D) assisting the individual to secure emergency medical services;
    (E) making referrals for appropriate medical services;
    (F) performing health care procedures ordered or prescribed by a physician or medical practitioner and required by standards of professional practice or law to be performed by a registered nurse (RN) or licensed vocational nurse (LVN);
    (G) delegating nursing tasks to an unlicensed service provider and supervising the performance of those tasks in accordance with state law and rules;
    (H) teaching an unlicensed service provider about the specific health needs of an individual;
    (I) performing an assessment of an individual's health condition;
    (J) ensuring a registered nurse (RN):
      (i) performs a nursing assessment for each individual:
        (I) before an unlicensed service provider performs a nursing task for the individual, unless a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician; and
        (II) as determined necessary by an RN, including if the individual's health needs change;
      (ii) documents information from performance of a nursing assessment;
      (iii) if an individual is receiving a service through the consumer directed services (CDS) option, provides a copy of the documentation described in clause (ii) of this subparagraph to the individual's service coordinator;
      (iv) develops the nursing service portion of an individual's implementation plan, which includes developing a plan and schedule for monitoring and supervising delegated nursing tasks; and
      (v) makes and documents decisions related to the delegation of a nursing task to an unlicensed service provider; and
    (K) in accordance with Texas Human Resources Code Chapter 161:
      (i) allowing an unlicensed service provider to provide administration of medication to an individual without the delegation or oversight of an RN if:
        (I) an RN has performed a nursing assessment and based on the results of the assessment, determined that the individual's health permits the administration of medication by an unlicensed service provider;
        (II) the medication is:
          (-a-) an oral medication;
          (-b-) a topical medication; or
          (-c-) a metered dose inhaler;
        (III) the medication is administered to the individual for a predictable or stable condition; and
        (IV) the unlicensed service provider has been:
          (-a-) trained by an RN or a licensed vocational nurse (LVN) under the direction of an RN regarding the proper administration of medication; or
          (-b-) determined to be competent by an RN or LVN under the direction of an RN regarding proper administration of medication, including through a demonstration of proper technique by the unlicensed service provider; and
      (ii) ensuring that an RN or LVN under the supervision of an RN reviews the administration of medication to an individual by an unlicensed service provider at least annually and after any significant change in the individual's condition.
(b) A program provider may determine that an individual does not require a nursing assessment if:
  (1) nursing services are not on the individual's IPC and the program provider has determined that no nursing task will be performed by an unlicensed service provider as documented on HHSC form "Nursing Task Screening Tool"; or
  (2) a nursing task will be performed by an unlicensed service provider and a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician.
(c) If an individual or LAR refuses a nursing assessment described in subsection (a)(1)(J)(i) of this section, the program provider must not:
  (1) provide nursing services to the individual; or
  (2) provide host home/companion care, residential support, supervised living, supported home living, respite, employment assistance, supported employment, individualized skills and socialization, or CFC PAS/HAB to the individual unless:
    (A) an unlicensed service provider does not perform nursing tasks in the provision of the service; and
    (B) the program provider determines that it can ensure the individual's health, safety, and welfare in the provision of the service.
(d) If an individual or LAR refuses a nursing assessment and the program provider determines that the program provider cannot ensure the individual's health, safety, and welfare in the provision of a service as described in subsection (c) of this section, the program provider must:
  (1) immediately notify the individual or LAR and the individual's service coordinator, in writing, of the determination; and
  (2) include in the notification required by paragraph (1) of this subsection the reasons for the determination and the services affected by the determination.
(e) If notified by the service coordinator that the individual or LAR refuses the nursing assessment after the discussion with the service coordinator as described in §263.901(e)(22) of this title (relating to LIDDA Requirements for Providing Service Coordination in the HCS Program), the program provider must immediately send the written notification described in subsection (d) of this section to HHSC.

Source Note: The provisions of this §565.13 adopted to be effective June 21, 2023, 48 TexReg 3246