§ 71-5-1414 — Self-directed health care

(a) The commissioner shall, upon approval of a waiver amendment granting authority from the federal government, develop and make available consumer-directed options for persons receiving home and community-based long-term care services under the long-term care program, which may include, but are not limited to, the ability to select, direct or employ persons delivering unskilled hands-on or support services, such as personal care services, personal care assistants/attendants, homemaker services, in-home respite, the ability to direct and supervise a paid personal aide in the performance of a health care task and the ability to manage, utilizing the services of a fiscal intermediary, an individual home and community-based services budget allowance based on functional assessment performed by a qualified entity and the availability of family and other caregivers who can help provide needed support. (b) Members eligible to receive home and community-based long-term care pursuant to this part may, subject to regulations promulgated by the commissioner, be permitted to use the budget allowance to direct payment, utilizing the services of a fiscal intermediary, for those home and community-based services that are necessary to meet the member's long-term care needs and to prevent or delay institutionalization and that are a cost-effective use of long-term care funds. Such services shall include only those services that are permitted under the medicaid state plan or any federal waivers or amendments thereto. (c) 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 care task. (d) For purposes of this section: (1) A competent adult is 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; (2) A caregiver is 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; (3) A person's home is 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. A person's home may include specified community-based residential alternatives to nursing facility care as promulgated in rules and regulations by the commissioner, but shall not include a nursing facility or assisted-care living facility setting; (4) A 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 the 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; and (5) Health care tasks are those medical, nursing or home health services, beyond activities of daily living, that: (A) A person without a functional disability or a caregiver would customarily and personally perform without the assistance of a licensed health care provider; (B) The person is unable to perform for the person's own self due to a functional or cognitive limitation; (C) The treating physician, advanced practice registered nurse, or registered nurse determines can be safely performed in the home and community by a paid personal aide acting under the direction of a competent adult or caregiver; and (D) Enable the person to maintain independence, personal hygiene, and safety in the person's own home. (e) The individual or caregiver who chooses to self-direct a health care task is responsible for initiating self-direction by informing the health care professional who has ordered the treatment that involves the health care task of the individual or caregiver's intent to perform that task through self-direction. (f) When a licensed health care provider orders treatment involving a health care task to be performed through self-directed care, the responsibility to ascertain that the patient or caregiver understands the treatment and will be able to follow through on the self-directed care task is the same as it would be for a patient or caregiver who performs the health care task for the patient's or caregiver's own self, and the licensed health care provider incurs no additional liability when ordering a health care task that is to be performed through self-directed care. (g) The role of the personal aide in self-directed care is limited to performing the physical aspect of health care tasks under the direction of the person for whom the tasks are being done or that person's caregiver. This shall not affect the ability of a personal aide to provide other home care services, such as personal care or homemaker services, that enable the person to remain at home. (h) The responsibility to initiate self-directed health care tasks, to possess the necessary knowledge and training for those tasks and to exercise judgment regarding the manner of their performance rests and remains with the person or caregiver who has chosen to self-direct those tasks, including the decision to employ and dismiss a personal aide or to decide that a personal aide will no longer perform a health care task. (i) A description of health care tasks to be performed through self-directed care will be included in the person's care plan. (j) The commissioner shall promulgate rules that define the qualifications, training and oversight requirements for self-direction of health care tasks. The commissioner shall develop the rules with input from licensed health care professionals, including, but not limited to, representatives of the nursing and medical professions, as well as persons with functional limitations, caregivers and home and community-based services providers.

Legislative History

Amended by 2016 Tenn. Acts, ch. 980, s 24, eff. 7/1/2016. Acts 2008 , ch. 1190, § 15.