Tenn. Comp. R. & Regs. 0720-46-.04 - [Effective until 5/5/2024] MINIMUM REQUIREMENTS AND RECORD RETENTION

(1) Corporate Documents. An agency shall retain current and legible copies and have immediately available during the agency's regular operating hours:

(a) The articles and bylaws for the registrant entity;

(b) Copies of records required by the United States Internal Revenue Service to be prepared by the agency for each direct care staff employee or independent contractor;

(c) Records documenting the work performed by each direct care staff including date of personnel referral by the agency and the dates and locations of each personnel placement. Copies of time records or invoices identifying the services provided are acceptable documentation for this requirement; and

(d) Evidence of current worker's compensation coverage as required by T.C.A § 50-6-406.

(2) Direct Care Staff Records. An agency shall have immediately available during the agency's regular operating hours an individual file for each direct care staff. Each individual file shall contain current copies of the following information:

(a) The person's name and address, Social Security number, and date of birth;

(b) A copy and verification of the current license or certification, when licensure or certification is applicable for a particular job;

(c) Documentation to verify each person's employment eligibility in compliance with the immigration laws of the United States;

(d) Documentation of each personnel's employment history;

(e) Health and medical records sufficient to document adequate medical screenings have been performed of each employee to exclude communicable diseases, and to ensure required immunizations have been received;

(f) Accurate information as to the education, training, experience and personnel background of the employee, including documentation that references were verified;

(g) Documentation that each direct care staff contracted with or employed by the agency meets all licensing, certification, training, and continuing education standards for the position in which the direct care staff will be working. Each direct care staff shall comply with any federal, state, or local requirements;

(h) Documentation the agency has, for any direct care staff assigned by the agency to provide services to a healthcare facility, determined that the individual is not currently nor has ever been included on the U.S. Department of Health and Human Services' Office of Inspector General's List of Excluded Individuals/Entities (located at https://www.oig.hhs.gov) or the System for Award Management's Exclusion List (located at https://www.sam.gov);

(i) Documentation the agency has conducted any name and/or registry checks required by federal or Tennessee law, including, but not limited to, the abuse and sex offender registry checks required by T.C.A.§ 68-11-271 and T.C.A.§ 68-11-1004; and verified that any individual assigned by the agency to provide services is not listed on any such registry; and

(j) The agency must send copies of direct care staff records required by this rule to any healthcare facility with which it contracts or refers direct care staff, upon the request of that healthcare facility.

(3) Healthcare Facility Specific Requirements. If the healthcare facility to which the direct care staff has been assigned by the agency requires additional requirements or screening of its facility employees, the agency must perform such screenings of the direct care staff before referral by the agency. The agency shall maintain evidence that it has completed any such screenings of its direct care staff referred to the applicable healthcare facility.

(4) Direct Care Staff Agreements. The agency must retain current and legible copies of any written employment contracts or other agreements entered into between the agency and each direct care staff. These copies must be immediately available during the agency's regular operating hours.

(a) Any such contract or agreement shall specifically and clearly advise if the direct care staff is an employee of the agency or is an independent contractor referred by the agency.

(b) If the direct care staff is retained as an independent contractor, the contract or agreement shall specifically state that the independent contractor is responsible for paying federal income taxes.

(c) Prior to placement in a health care facility, the agency shall provide a document to each direct care staff, for his or her signature, which states that the individual understands his or her relationship with the agency, either as an employee or independent contractor. The signed acknowledgement shall be filed in each direct care staff's file.

(5) Healthcare Facility Agreements. Current and legible copies of contracts, if any, between an agency and a health care facility setting forth terms and conditions under which the agency will provide specific health services staff to the facility must be retained by the agency and be immediately available during the agency's regular operating hours. Such contracts shall state whether the staff provided by the agency are referred as employees of the agency or as independent contractors.

(6) Record Retention and Availability. Each agency shall retain legible copies of the records and reports required by this rule for five (5) years. The agency shall make such records and reports immediately available to the Commission upon request.

(7) Response to Investigations. Each agency shall provide any records in its possession, unless otherwise privileged, that are pertinent to an investigation conducted by any of the following:

(a) A representative of adult protective services actively involved in the conduct of an investigation pursuant to title 71, chapter 6;

(b) The department of health or its representatives, designees, or employees under T.C.A. § 63-1-117, in the same manner that a healthcare provider must make records available;

(c) The Commission, if related to a violation of these rules or any law or regulation of the board for licensing healthcare facilities relating to a healthcare facility with which the agency contracts;

(d) Any law enforcement agency conducting a criminal investigation of the agency, staff, or contractors, including, but not limited to, the Medicaid Fraud Control Unit; and

(e) Such records must be provided within five (5) business days, unless required to be provided in a shorter period by court order, law, or regulation.

(8) No Retaliation for Complaints. No agency shall retaliate against or, in any manner, discriminate against any person because of a complaint made in good faith and without malice to the Commission, the Tennessee Department of Health (TDH), the Department of Human Services Adult Protective Services, the long-term care ombudsman, or any government agency. An agency shall neither retaliate, nor discriminate, because of information lawfully provided to these authorities, because of a person's cooperation with them, or because a person is subpoenaed to testify at a hearing involving one of these authorities.

Notes

Tenn. Comp. R. & Regs. 0720-46-.04

Emergency rules filed 11/7/2023; exp. through 5/5/2024 (Emergency).

Authority: T.C.A. §§ 68-11-2202 and 68-11-2205.