Who runs a Tennessee home care agency: the licensee and the person responsible

TDMHSAS’s general definitions describe the licensee as the business itself: the licensee "means the proprietorship, partnership, association, governmental agency, or corporation which operates a facility under the licensure jurisdiction of the Department" (0940-05-01-.01(29)). The PSSA rules give the licensee five governance duties:

1. "The licensee shall comply with all federal, state, and local laws, ordinances, rules and regulations." (0940-05-38-.05(1))
2. Make sure the agency is run under written policies and procedures, including at least those the rules list (.05(2)). The 17 policy items and 8 personnel topics.
3. "The licensee shall exercise general direction over the agency and establish policies governing the operation of the agency and the welfare of service recipients." (.05(3))
4. Designate an individual responsible for the operation of the agency (.05(4); below).
5. Serve only clients who will not put the agency outside its licensed category (.05(5)).

The governing body. The general definitions describe it as "the person or persons with primary legal authority and responsibility for the overall operation of the facility and to whom a director/chief executive officer is responsible", and say it may be an owner or owners or a board (0940-05-01-.01(18)). A corporation, association or other collective body lists every governing body member on the Initial Application (MH-4385, item 6).

A management company. If a management firm has been contracted to manage the agency, a copy of the contract goes with the application. (MH-4385, item 3)

Honest information. Submitting false information to TDMHSAS is a ground for denying, suspending or revoking a license, and so is subterfuge, such as reapplying through a second party after a denial (0940-05-02-.14(1)(d); .14(1)).

This is the only leadership role the PSSA rules create: "The licensee shall designate an individual responsible for the operation of the agency." (0940-05-38-.05(4)). DDA’s PSSA chapter, for agencies serving mainly people with an intellectual or developmental disability, uses exactly the same words (0465-02-17-.03(4)).

What the rules do not say. We found nothing in 0940-05-38, 0940-05-02 or 0940-05-06-.03(1)-(6) that sets this person’s qualifications, training, experience, title, hours or duties, or that requires a written designation or a backup. If the person also gives care to clients, the worker rules apply, including the minimum age of 18 (0940-05-38-.07(2)(a)).

What TDMHSAS still asks about them. The application rule asks for background information on "the person or persons responsible for the operation", including a criminal background check (0940-05-02-.04(3)(c)), and TDMHSAS’s general definitions describe a chief executive officer or director as the person "appointed, designated, or hired by the governing body to be responsible for the day-to-day operation of the facility or facilities operated by the licensee" (0940-05-01-.01(7)). By our reading, the person you designate under .05(4) is usually the person named as having overall responsibility on the application, or the site manager on the Fact Sheet. If they are three different people, ask your regional office whether it wants background papers for each.

Pick a title and keep it. The forms use chief executive officer, executive director and site manager or director (MH-4385, item 3; MH-4386, item 5). Tennessee does not name the role, so any title works if it is the same on your designation, chart, job descriptions and forms. CareRulebook’s manual suggests Agency Director and lets you change it.

What the job involves, in practice. The rules put the governance duties on the licensee. By our reading, the person responsible carries them out day to day: keeping the license and TDMHSAS paperwork current, being TDMHSAS’s main contact at the desk audit and inspections, staffing visits, hiring, checking, training and evaluating workers, making sure incidents are reported, and keeping records. When TDMHSAS quotes the statute on records, it says "The chief officer shall keep records detailing services or supports received by each person." (PSSA slides, slide 30).

CareRulebook’s manual has the licensee designate the person responsible on a signed form that also names a backup, and lists the duties above (Policy 1.1). The backup and the duty list are the manual’s choices, not rule requirements.

Who signs. The application is made by the owner, CEO, executive director or another governing body member responsible for the agency’s standards, policies and procedures, and goes to the regional office where the license will be issued. (MH-4385, Instructions) The Fact Sheet has the same rule for its signer (MH-4386), and the application rule allows the licensee applicant, or the person it charges with certifying the application and ensuring compliance with the licensure rules, to sign (0940-05-02-.04(3)(e)). The signer certifies the application is true and agrees to comply with the rules (MH-4385, Certification).

A contact for invoices and compliance documents. Item 4 asks for one, with a billing address (MH-4385, item 4). TDMHSAS sends its fee invoice after it receives the forms (TDMHSAS, step 3), so by our reading this should be someone who reads the agency’s mail and email every day.

The forms set no list of offenses that bar a person from running a PSSA. We could not save the Tennessee Code; ask TDMHSAS or a Tennessee lawyer if anyone in charge has a conviction to disclose. For workers’ checks, see Tennessee caregiver background checks.

Item (b) of the 17 policy items is "an organizational chart which clearly shows or describes the lines of authority" (0940-05-38-.06(1)(b)). The rule does not say what the chart must contain beyond the lines of authority. Our suggestion: show the licensee, the person responsible and their backup, whoever arranges replacement workers, whoever workers call for consultation, any registered nurse, the workers and the clients, with each person’s name, and redraw it when anyone changes.

• Job descriptions. Each worker’s file holds "a written, signed and dated job description including the employment requirements and job responsibilities for each staff position held", with verification that the worker meets those requirements (0940-05-38-.07(1)(a)-(b)). By our reading, writing one for the person responsible too makes the chart and the files match.
• The roster. "The licensee shall maintain a current roster of all personal support workers at all times including workers kept on an on-call or back-up basis." (0940-05-38-.07(4))
• The same names everywhere. The person with overall responsibility on the application and the site manager on the Fact Sheet should match your designation and chart. By our reading, a desk audit reviewer can compare them.

CareRulebook’s manual fills the chart from your answers and has the person responsible update it within seven days of any change in a named role (Policy 1.1). The seven days are the manual’s choice.

We found no rule in Chapter 0940-05-38 setting supervisory visits, supervisor qualifications or a number of workers per supervisor. What the rules and TDMHSAS do say:

• Consultation for any service. "Personal support services workers shall have access to consultation for any of the services provided under this chapter." It "may include providing the personal support service worker access to or consultation with a registered nurse, other agency staff or the primary family caregiver to assist the staff in providing personal support services" (0940-05-38-.07(2)(g)). The rule sets no hours; by our reading, someone should be reachable whenever workers are in clients’ homes.
• Competency before work. The licensee ensures and documents that workers show basic competency in seven areas before working with clients (.08(1)(a)), and gives job-related training at least yearly (.08(1)(c)).
• An annual evaluation of every worker. "Annual performance evaluation reports evaluating, at a minimum, the ability of personal support services workers to provide daily supports to service recipients" (.07(1)(g)). Missing evaluations are on TDMHSAS’s list of common PSSA deficiencies (PSSA slides, slides 12-16).
• Say who supervises day to day. The consumer notice given before services start must clearly set out the client’s responsibility, if any, for "day to day supervision of the personal support services worker", and for assigning duties, hiring, firing and discipline (0940-05-38-.09(1)(p)). For an agency that employs its workers, by our reading the answer is that the agency supervises.
• Covering absences is a supervisor’s job. In TDMHSAS’s words: "TDMHSAS feels it is not appropriate for care coverage to fall back on the client." If a caregiver calls in and the visit is not covered, the agency would likely be substantiated for not carrying out its back-up plan, and "the supervisor aware of the coverage shortage would be at risk of an individual substantiation" (PSSA slides, slide 31).
• TDMHSAS can talk to your workers. One of the 17 policy items gives TDMHSAS licensure staff access to workers to discuss investigations, and another commits the agency to cooperate with TDMHSAS’s abuse and neglect investigations (.06(1)(k); .06(1)(p)).

CareRulebook’s manual covers consultation, day-to-day oversight and the annual evaluation in Policy 4.7. Its supervisory visits (a check in the first two weeks of each new worker and client pairing, and a yearly observed visit) are offered as recommended practice, labelled as going beyond the rules. Once you adopt them, TDMHSAS can expect you to make them.

Two definitions disagree on education services: the 2003 definitions chapter says education services are given by a "licensed nurse"; the 2016 PSSA chapter says a registered nurse. By our reading the PSSA chapter controls. (0940-05-01-.15(4))

Medication administration by staff certified under Public Chapter 730 is a separate route with its own training and paperwork. Medication assistance and administration in a Tennessee PSSA →

Many new Tennessee agencies start with the owner doing everything. The sources allow for that in places and are silent in others:

• The application expects it. For a sole proprietor or partnership, the person with overall responsibility is one of the owners (MH-4385, item 3).
• An owner who gives care is a worker. The rules define a worker as "a person licensed as a personal support services agency, or an employee or an individual subcontracted by a personal support services agency" (0940-05-38-.01(4)). By our reading, an owner who gives care needs the same checks, competency, training, evaluation and personnel file as any worker.
• No rule says the roles must be split. Nothing we saved says the licensee’s representative, the person responsible, the site manager and the consultation contact must be different people, or that they may not be. Because no qualifications are set, by our reading one person can hold them all.

Two practical points if one person holds every role: someone else still has to be reachable for consultation when that person is busy or away, and someone has to evaluate the owner’s own work each year. CareRulebook’s manual names a backup on the designation form and has the licensee evaluate a person responsible who also gives care (Policies 1.1 and 4.7). Those are the manual’s choices.