2019 Tennessee Code
Title 68 - Health, Safety and Environmental Protection
Health
Chapter 1 - Department of Health
Part 1 - General Provisions
§ 68-1-135. Performance of health maintenance tasks by paid personal aide.
(a) For purposes of this section:
(1) “Caregiver” means a person who is:
(A) Directly and personally involved in providing care for a minor child or incompetent adult; and
(B) The parent, foster parent, family member, friend, or legal guardian of such minor child or incompetent adult;
(2) “Competent adult” means a person eighteen (18) years of age or older who has the capability and capacity to evaluate knowledgeably the options available and the risks attendant upon each and to make an informed decision, acting in accordance with the person's own preferences and values. A person is presumed competent unless a determination to the contrary is made;
(3) “Health maintenance task” means a healthcare task that:
(A) A person without a functional disability or a caregiver would customarily and personally perform without the assistance of a licensed healthcare provider;
(B) The person is unable to perform for the person's own self due to a functional or cognitive limitation;
(C) The licensed healthcare provider determines can be safely performed in the home for the person by a paid personal aide acting under the direction of a competent adult with a functional disability or caregiver;
(D) Enables the person to maintain independence, personal hygiene, and safety in the person's own home; and
(E) Includes, but is not limited to, as determined by rule, administration of glucometer tests, administration of eye or ear drops, nebulizer treatment, and ostomy care, including skin care and changing appliance;
(4) “Home” means the dwelling in which the person resides, whether the person owns, leases, or rents such residence or whether the person resides in a dwelling owned, leased, or rented by someone else;
(5) “Licensed healthcare provider” means the treating physician licensed under title 63, chapter 6 or 9, or a registered nurse; and
(6) “Paid personal aide” is any person providing paid home care services, such as personal care or homemaker services, that enable the person receiving care to remain at home whether a paid personal aide is employed by the person receiving care, a caregiver, or by a contracted provider agency that has been authorized to provide home care services to that person.
(b) Notwithstanding any law or rule to the contrary, a competent adult with a functional disability living in the adult's own home or a caregiver acting on behalf of a minor child or incompetent adult living in the minor child's or the incompetent adult's own home may choose to direct and supervise a paid personal aide in the performance of a health maintenance task subject to the aide having been taught as required by subsection (d).
(c) A paid personal aide may perform health maintenance tasks required by an individual receiving long-term supports and services and be paid to provide those tasks while performing services constituting home and community based long-term care, as defined in § 71-2-103, or under a private pay arrangement. Self-direction of healthcare tasks by an individual receiving medicaid-reimbursed home and community based long-term care services shall be provided pursuant to the Long-Term Care Community Choices Act of 2008, compiled in title 71, chapter 5, part 14.
(d) If a licensed healthcare provider, after completing an assessment of an individual's healthcare needs, determines health maintenance tasks can be performed by paid personal aides, the licensed healthcare provider shall evaluate the ability of the paid personal aide to perform the health maintenance task, teach the health maintenance task to the paid personal aide, ensure supervision of the paid personal aide, and re-evaluate the health maintenance task performed by the paid personal aide at regular intervals. The requirements for documentation of the training required by this subsection (d) are to be determined by rule.
(e) A licensed healthcare provider acting with ordinary and reasonable care under the circumstances and within the protocols of the provider's authority who has ordered treatment to be provided by a paid personal aide, shall not be individually liable for the negligence or intentional acts of such paid personal aide when such negligence or intentional acts are outside the scope of the health maintenance tasks to be performed.
