Section 471-12-012 - NURSE AIDES IN NURSING FACILITIES012.01GENERAL RULE. An individual may be employed by a certified facility as a nurse aide only if all of the following requirements have been met: (A) That individual is competent to provide nursing and nursing-related services;(B) The nurse aide has met the training and competency requirements found at 42 CFR 483.75, 150 and 154, or that individual has been deemed or determined competent as provided in 42 CFR 483.150;(C) The nurse aide has met the requirements set out in Neb. Rev. Stat. § 71-6038 and 6039; and(D) The nurse aide has not: (i) Been found guilty of abusing, neglecting, or mistreating residents by a court of law; or(ii) Had a finding entered into the State nurse aide registry concerning abuse, neglect, or mistreatment of residents or misappropriation of their property under the provisions of this chapter.012.02FACILITY RESPONSIBILITY.012.02(A)REGISTRY VERIFICATION. Before allowing an individual to serve as a nurse aide, a facility must contact the State nurse aide registry and verify that the individual has met competency evaluation requirements unless: (i) The individual is a full-time employee currently participating in a training and competency evaluation program approved by the State; or(ii) The individual can prove that he or she has recently successfully completed a training and competency evaluation program or competency evaluation program approved by the State and has not yet been included in the registry. Facilities must follow up to ensure that the individual actually becomes registered.012.02(B)MULTI-STATE REGISTRY VERIFICATION. Before allowing an individual to serve as a nurse aide, a facility must seek information from every State nurse aide registry the facility believes will include information on the individual.012.02(C)DUTY TO REPORT. A facility must report any knowledge it has of actions by a court of law against an employee that would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry or licensing authorities.012.03NURSE AIDE REQUIREMENTS.012.03(A)PURPOSE. This section incorporates the requirements of 42 CFR 483.13, 75, 150, 151, 152, 154 and 156; and 42 CFR 488.332 and 335, effective as of October 1, 1995, regarding nurse aides and the nurse aide registry.012.04ESTABLISHMENT OF NURSE AIDE REGISTRY.012.04(A)PURPOSE. A registry of nurse aides is established and maintained by the State for the purpose of providing a central data bank of individuals who are eligible to function as nurse aides in certified facilities. The State Medicaid agency contracts with the State Survey and Certification agency to operate and maintain the registry. Pursuant to federal requirements found at 42 CFR 483.151 and 42 CFR 483.152 and State statute, the State approves training and competency programs for nurse aides. Those provisions are found at Neb. Rev. Stat. § 71-6039 and 172 NAC 108.012.04(B)REGISTRY ELIGIBILITY. The registry must comply with the following: (i) To be included on the nurse aide registry as eligible to function as a nurse aide, an individual must meet the requirements in this chapter;(ii) An individual may be deemed or determined competent for eligibility for placement on the registry as provided in 42 CFR 483.150;(iii) Adverse findings of abuse, neglect, or misappropriation of property are placed on the registry after a determination by the State survey and certification agency; and(iv) No monetary charges related to registration of individuals on the registry are imposed.012.04(C)REGISTRY CONTENT. The registry contains the following information on each individual who has successfully completed a nurse aide training and competency evaluation program, or who has completed a competency evaluation and has been found to be competent to function as a nurse aide pursuant to this chapter: (i) The individual's full name;(ii) Information necessary to identify each individual;(iii) The date the individual became eligible for placement in the registry;(iv) With a finding of abuse, neglect, or misappropriation of property by the individual, the following information is included, this information must be placed on the registry within ten working days of the finding and remains on the registry permanently, unless the finding was made in error, the individual was found not guilty in a court of law, or the State is notified of the individual's death: (1) Documentation of the investigation, including the nature of the allegation and the evidence that led to the conclusion that the allegation was valid;(2) If the individual chose to have a hearing, its date and outcome; and(v) If the individual chooses to dispute the allegation, their statement;(vi) Information related to the provisions of 471 NAC 12-012.04(A), items 3 and 4a; and(vii) Documentation of the ineligibility of individuals who have performed no nursing or nursing-related services for a period of 24 consecutive months.012.04(D)REMOVAL OF REGISTRY CONTENT.012.04(D)(i)REMOVAL OF FINDINGS OF NEGLECT FROM NURSE AIDE REGISTRY. In the case of a finding of neglect under this chapter, a nurse aide may petition the State survey and certification agency in writing, to have the findings removed from the registry provided that: (1) The employment and personal history of the nurse aide does not reflect a pattern of abusive behavior or neglect;(2) The neglect involved in the original finding was a singular occurrence; and(3) More than one year has lapsed since the finding of neglect was added to the nurse aide registry.012.04(D)(ii)CONTENT OF PETITION. Petitions may be submitted on a form provided by the Department, or may be submitted in other written format as long as the petition includes the following: (1) The subject matter of the petition;(3) A signed release of information for employer references;(4) A statement indicating why the petitioner believes the findings of neglect should be removed from the registry; and(5) Information regarding any education or rehabilitation efforts that the individual has completed since the finding of neglect was placed on the registry.012.04(D)(iii)REVIEW OF PETITION. The State survey and certification agency will: (1) Contact past employers to determine if the petitioner had any documented incidents of abusive or neglectful behavior during their employment as a nurse aide that resulted in any employment action including counseling;(2) Conduct a review of records to determine if criminal conviction information is recorded;(3) Review the petition and all other requested information to determine whether the petitioner's findings of neglect should be removed from the registry. Consideration will be given to the following factors in making the determination: (a) The amount and degree of neglect involved in the original incident;(b) The severity of the potential negative resident outcome;(c) The severity of the actual negative resident outcome;(d) The opinion of the individual's employer at the time of the incident regarding removing the finding from the registry, including the employer's willingness to rehire the individual;(e) Any rehabilitation or education completed by the individual since the incident;(f) Employer reports, to ensure a majority do not identify personal action taken regarding abusive or neglectful behavior; and(g) The criminal background report to determine if there is a history of mistreatment findings, including instances of domestic abuse, the granting of a restraining order which has not been overturned, or any conviction of any crime involving violence or the threat of violence.012.04(D)(iv)REVIEW OUTCOME. Based on factors identified above, the State survey and certification agency may: (1) Remove the finding from the registry;(2) Require the individual to demonstrate successful completion of a state-approved nurse aide training and competency evaluation program prior to the finding being removed from the registry;(3) Require the individual to complete a rehabilitation or education program prior to the finding being removed from the registry; or(4) Implement any combination of the above sanctions.012.04(D)(v)NOTIFICATION. Conditions for notification. 012.04(D)(v)(1)REMOVAL. If the State survey and certification agency determines the findings of neglect should be removed from the nurse aide registry, the petitioner will be notified in writing within 150 days of receipt of the petition.012.04(D)(v)(2)ADDITIONAL ACTIONS. If the State survey and certification agency determines the findings of neglect should not be removed from the registry or that additional actions are required for removal, the individual will be notified in writing within 150 days of receipt of the petition of their right to request a hearing to contest the determination. Hearings must be requested in writing within 30 days from the state of the denial notice. Hearings will be conducted in accordance with this chapter.012.04(D)(v)(3)PERMANENT FINDINGS. If a new finding of neglect is placed on the individual's registry listing after the previous finding of neglect has been removed, the new finding will remain on the registry permanently with no opportunity for review.012.04(E)DISCLOSURE OF INFORMATION. The date the individual became eligible for placement in the registry, documentation of any investigation, including the nature of the allegation and the evidence that led to the conclusion that the allegation was valid, if there was a hearing its date and outcome, and if the individual disputes the allegation their statement, is disclosed to all requesters. This information is: (i) Provided to the individual affected when adverse findings on them are placed in the registry, or(ii) Provided to the individual upon their request. Individuals on the registry must have sufficient opportunity to correct any misstatements or inaccuracies contained in the registry.012.05INVESTIGATION OF COMPLAINTS AND PLACEMENT OF ADVERSE FINDINGS.012.05(A)REVIEW OF ALLEGATIONS. The State survey and certification agency reviews all allegations of resident neglect and abuse, and misappropriation of resident property by nurse aides. If there is reason to believe, either through oral or written evidence that an individual used by a facility to provide services to residents could have abused or neglected a resident or misappropriated a resident's property, the State investigates the allegation.012.05(B)NOTIFICATION. If the State survey and certification agency makes a preliminary determination, based on oral or written evidence and its investigation, that the abuse, neglect or misappropriation of property occurred, the following are notified in writing within ten working days of the State's survey and certification agency's investigation: (1) The individuals implicated in the investigation; and(2) The current administrator of the facility in which the incident occurred. 012.05(B)(i)CONTENT OF NOTICE. The notice includes the following: (1) The nature of the allegation;(2) The date and time of the occurrence;(3) The right to a hearing; and(4) The survey and certification agency's intent to report the substantiated findings in writing, once the individual has had the opportunity for a hearing, to the nurse aide registry or appropriate licensure authority;(5) The fact that the individual's failure to request a hearing in writing within 30 days from the date of the notice will result in the survey and certification agency reporting the substantiated findings to the nurse aide registry or appropriate licensure authority;(6) The consequences of waiving the right to a hearing;(7) The consequences of a finding through the hearing process that the alleged resident abuse or neglect, or misappropriation of resident property did occur; and(8) The fact that the individual has the right to be represented by an attorney at the individual's own expense.012.05(C)CONDUCT OF THE HEARING AND JUDICIAL REVIEW. The hearing is conducted under the following provisions: (i) The hearing and the hearing record are completed within 120 days from the day the State survey and certification agency receives the request for a hearing;(ii) The hearing is held at a reasonable place and time convenient for the individual;(iii) The hearing will be conducted in accordance with the provisions of the Nebraska Administrative Procedure Act; and(iv) Any individual aggrieved by a final decision following a hearing may seek judicial review of that decision. Procedures for said review are governed by the provisions of the Nebraska Administrative Procedure Act.012.05(D)FACTORS BEYOND THE INDIVIDUAL'S CONTROL. A finding that an individual has neglected a resident will not be made if the individual demonstrates that such neglect was caused by factors beyond the control of the individual.012.05(E)REPORT OF FINDINGS. If the finding is that the individual has neglected or abused a resident or misappropriated resident property or if the individual waives the right to a hearing, the State survey and certification agency, which may not delegate this responsibility, reports the findings in writing within ten working days to the following: (ii) The current administrator of the facility in which the incident occurred;(iii) The administrator of the facility that currently employs the individual, if different than the facility in which the incident occurred;(iv) The licensing authority for individuals used by the facility other than nurse aides, if applicable; and(v) The nurse aide registry for nurse aides. The findings must be included in the registry within 10 working days of the findings.471 Neb. Admin. Code, ch. 12, § 012
Amended effective 12/19/2018Amended effective 6/28/2020Amended effective 12/23/2020Amended effective 6/26/2021Amended effective 6/6/2022