STATE OF NEW JERSEY DEPARTMENT OF HEALTH NOTICE OF

STATE OF NEW JERSEY

DEPARTMENT OF HEALTH

NOTICE OF RULE WAIVERIMODIFICATION/SUSPENSION

PURSUANT TO EXECUTIVE ORDER NO. 103 (MURPHY)(MARCH 9, 2020) AND EXECUTIVE

ORDER NO. 119 (APRIL 7, 2020)

COVID-19 STATE OF EMERGENCY

Temporary Rule

WAIVER/MODIFICATION OF N.J.A.C. 8:39-43.1, 8:39-43.2, 8:39-43.3(a), 8:39-

43.4(a), 8:39-43.6(a) and (d), and 8:431-2.5 - Requirements for Nurse Aide Certification, adopted

the

DEPARTMENT OF HEALTH

Date: April 29, 2020

Authority: N.J.S.A. App. A:9-45

App. A:9-47; Executive Order No. 103 (Murphy)("EO 103") and

Executive Order No. 119 (Murphy) ("EO 119")

Effective Date: April 29, 2020

Expiration Date: Forty-five days following the termination of the Public Health Emergency

This is an emergency adoption of a temporary rule waiver/modification of: N.J.A.C. 8:39-43.1, which

sets forth the requirements for individuals working as nurse aides in licensed long-term care facilities (nurse

aide); of N.J.A.C. 8:39-43.2, which sets forth the requirements for applicants to receive certification as a

nurse aide in long-term care facilities (certification); of N.J.A.C. 8:39-43.3(a), which waives certain

requirements to receive a nurse aide certification; ofN.J.A.C. 8:39-43.4(a), which sets forth the requirement

that nurse aide certificates (certificate) shall be valid for two years from the date of issue; ofN.J.A.C. 8:39-

43.6(a), which sets forth the requirement that certificates be renewed every two years; of N.J.A.C. 8:39-

43.6(d), which sets forth the steps an individual must take if the recertification requirements are not met; and

ofN.J.A.C. 8:431-2.5, which prohibits an individual who has not yet successfully completed a Nurse Aide Training

and Competency Evaluation Program and passed the State skills and written or oral exam from being employed as a

nurse aide for more than 120days.

Section 6 of EO 103, issued in response to the COVID-19 pandemic, authorizes agency heads to

waive/suspend/modify any existing rule, where the enforcement of the rule would be detrimental to the public

welfare during the emergency, notwithstanding the provisions of the Administrative Procedure Act or any

law to the contrary. EO 119 extends this authorization. Pursuant to that authority, as well as the Emergency

Health Powers Act, N.J.S.A. 26:13-1 to -31, and N.J.A.C. 8:36-2.7(a), and with the approval of the Governor

and in consultation with the State Director of Emergency Management, the Department of Health is waiving

its rules as follows:

COVID-19 is a contagious, and at times fatal, respiratory disease that is responsible for the 2019 novel

coronavirus outbreak. The Centers for Disease Control and Prevention (CDC) expects that additional cases

of COVID-19 will be identified in the coming days, including more cases in the United States, and that

person-to-person spread is likely to continue to occur. As of April 26, 2020, there were at least 109,035

positive cases of COVID-19 in New Jersey, with at least 5,935 of those cases having resulted in death. If

COVID-19 continues to spread in New Jersey at a rate comparable to the rate of spread in other affected

areas, it will greatly strain the health care professionals charged with caring for patients ill with COVID-19

and may become too large in scope to be handled by New Jersey's currently certified health care

professionals. Staffing shortages have already been reported at long-term care facilities, assisted living

facilities, assisted living programs and comprehensive personal care homes throughout New Jersey.

NJ.A.C. 8:39-43.1 sets forth the requirements for nurse aide competency to work in long-term care

facilities. Under the rule, individuals must have a currently valid certificate and be registered in good standing

on the New Jersey Nurse Aide Registry. It also restricts the time an uncertified nurse aide is competent to be

employed as a nurse aide in a long-term care facility.

Further, N..T.A.C.8:39-43.2 sets forth the requirements for applicants to receive certification as a nurse

aide in long-term care facilities. Under the rule, applicants must (1) successfully complete a nurse aide in

long-term care facilities training program that has been approved by the Department; (2) provide evidence

that he or she is of good moral character, including, but not limited to, compliance with the requirements of

the Criminal Background Investigation Program in accordance with N ..T.A.C. 8:431; and (3) pass both the

Department's clinical skills competency exam and written/oral exam.

Further, N.lA.C. 8:39-43.3(a) permits certain individuals who have not yet completed a nurse aide

training course and clinical skills evaluation to take the written or oral examination under certain

circumstances;

Further, N..T.A.C. 8:39-43.4(a) directs that a nurse aide certificate shall be valid for a period of two

years from the date of issue.

Further, N.lA.C. 8:39-43.6 requires that a nurse aide certificate be renewed every two years and

establishes the process for that renewal. A nurse aide who does not meet the recertification requirement listed

in subsection (b) and who wishes to be recertified, is currently required to repeat the requirements for

certification at NJ.A.e. 8:39-43.2, unless the original date of issue of the certificate is within the five years

prior to the expiration date listed on the certificate and the nurse aide successfully completes the skills

evaluation and written or oral examination. Further, a nurse aide whose certification has expired must undergo

a criminal background investigation per NJ.A.e. 8:431, regardless of whether the individual must complete a

training program.

Further, N.J.A.C. 8:431-2.5 prohibits an individual who has not yet successfully completed a Nurse Aide

Training and Competency Evaluation Program and passed the State skills and written or oral exam from being

employed as a nurse aide for more than 120days.

A. Nurse aides whose certifications have expired within the past three years

In order to effectively respond to the shortage of nurse aides in long-term care facilities, assisted living

facilities, assisted living programs and comprehensive personal care homes, it is necessary to waive/modify

N.J.A.C. 8:39-43.1(a)(1), N.J.A.C. 8:39-43.2(a)(1) and (3), N..T.A.C. 8:39-43.4(a), N..T.A.C. 8:39-43.6(a) and

N..T.A.C. 8:39-43.6(d) for nurse aides whose certificates have expired within the past three years. Pursuant

to this waiver, facilities are permitted to employ nurse aides whose certificates have expiration dates within

the past three years to work as certified nurse aides. All individuals seeking to work as a certified nurse aide

pursuant to this waiver must comply with the requirements for a criminal background check pursuant to

N..T.A.C. 8:43I.

B. Students, graduate nurses, foreign licensed nurses and others who submit evidence of the

successful, timely completion of a course in the fundamentals of nursing

It is also necessary to expand the exceptions to N.J.A.C. 8:39-43.2 set forth in N.J.A.C. 8:39-43.3.

Accordingly, the Department temporarily waives/modifies N.J.A.C. 8:39-43.3 by adding new subsection (b),

to permit students, graduate nurses, or foreign licensed nurses, pending licensure, who submit to a facility

evidence of the successful completion of a course in the fundamentals of nursing, and other persons who

submit to a facility evidence of the successful completion of a course in the fundamentals of nursing within

the preceding 12 months, to be temporarily employed as certified nurse aides without completing the

requirement to pass the Department's written/oral examination. This waiver/modification of the rule is

necessary to effectively respond to the immediate shortage of staff in long-term care facilities while still

ensuring that individuals who are hired as nurse aides receive the adequate training. All individuals seeking

to work as a nurse aide pursuant to this waiver must comply with the requirements for a criminal background

check pursuant to NJ.A.C. 8:43I.

Extension

the

time during which certain uncertified nurse aides may be employed pending

certification

Finally, it is necessary to waive/modifY NJ.A.C. 8:431-2.5, by extending the 120-day employment

limitation for individuals who have not yet successfully completed a Nurse Aide Training and Competency

Evaluation Program and passed the State skills and written or oral exam by an additional 90 days. All

individuals seeking to work as a nurse aide pursuant to this waiver must comply with the requirements for a

criminal background check pursuant to N.lA.C. 8:43I.

Facilities that hire one or more nurse aides under all the modified requirements created by this

waiver/modification must retain records detailing which, if any, of the above actions were implemented. The

records must also include: (1) a list of the names, Social Security numbers and birth dates of the individuals

temporarily hired pursuant to this waiver/modification; (2) if the waiver requires submission of evidence of

the successful completion of a course in the fundamentals of nursing, the records of each individual's

successful completion of a course in the fundamentals of nursing; (3) the duration of the implementation; and

(4) documentation of any incidents involving the abuse, neglect or misappropriation of property of a resident

of the facility, which are attributable to the nurse aides hired under this waiver/modification. Moreover, any

incidents involving the abuse, neglect or misappropriation of property ofa resident of the facility, which are

attributable to the nurse aides hired under this waiver/modification, must be immediately reported to the

'Department.

Facilities that hire one or more nurse aides under the modified requirements created by this

waiver/modification must, within one week of the hiring of one or more nurse aides, provide the Department

with the names, Social Security numbers and birth dates of the individuals temporarily hired pursuant to this

waiver/modification by sending the information to:

Garlina Finn, Education Program Development Specialist

Certification Program

New Jersey Department of Health

P.O. Box 358

Trenton, New Jersey 08625-0358

This rule waiver/modification will allow the Department to effectively respond to the immediate

shortage of staff in long-term care facilities while still ensuring that individuals who are hired as nurse aides

have received adequate training.

This waiver/modification is effective through the forty-fifth day following the termination of the

Public Health Emergency. Facilities will thereafter be required to return to operation in accordance with all

licensure standards.

Full Text of the modified rules follows, with additional terms and conditions indicated in boldface:

8:39-43.1 - Nurse aide competency

(a) An individual who meets any ofthe following criteria shall be considered by the Department

to be competent to work as a nurse aide in a licensed long-term care facility in New Jersey:

1. Has a currently valid nurse aide in long-term care facilities certificate and is

registered in good standing on the New Jersey Nurse Aide Registry;

2. Has been employed for less than 120 days and is currently enrolled in an approved

nurse aide in long term care facilities training course and scheduled to complete the

competency evaluation program (skills and written/oral examination) within 120

days of employment; or

3. Has been employed for no more than 120 days, has completed the required training

specified in (a)2 above, and has been granted a conditional certificate by the

Department while awaiting clearance from the criminal background investigation

conducted in accordance with N.J.A.C. 8:43I.

(b) Notwithstanding subsection (a)(1) above, during the existence of the Public Health

Emergency and for forty-five days thereafter, an individual whose nurse aide

certification has expired within the last three years must only comply with the

modified requirements ofN.J.A.C. 8:39-43.2, as noted below.

Health Emergency and for forty-five days thereafter, an individual shall also be

considered by the Department to be competent to work as a nurse aide in a licensed

long-term care facility in New Jersey if:

1. The individual has been employed for less than 210 days and is currently

enrolled in an approved nurse aide in long term care facilities training course

and scheduled to complete the competency evaluation program (skills and

written/oral examination) within 210 days of employment; or

2. The individual has been employed for no more than 210 days, has completed

the required training specified in (a)2 above, and has been granted a

conditional certificate by the Department while awaiting clearance from the

criminal background investigation conducted in accordance with N.J.A.C.

8:431.

(d) Nursing homes, assisted living facilities, assisted living programs and comprehensive

personal care homes may temporarily employ individuals who qualify under N.J.A.C.

8:39-43.1(b) and (c). Facilities that hire one or more nurse aides under the modified

requirements created by this waiver/modification must:

1. retain records detailing which, if any, of the above actions were implemented,

including a list of the names, Social Security numbers and birth dates of the

individuals temporarily hired pursuant to this waiver/modification, and the

duration of the implementation; and

2. document and immediately report to the Department any incidents involving

the abuse, neglect or misappropriation of property of a resident of the facility,

which are attributable to the nurse aides hired under this waiver/modification;

and

3. within one week of the hiring of one or more nurse aides, provide the

Department with the names, Social Security numbers and birth dates of the

individuals temporarily hired pursuant to this waiver/modification by sending

the information to:

Garlina Finn, Education Program Development Specialist

Certification Program

New Jersey Department of Health

P.O. Box 358

Trenton, New Jersey 08625-0358

8:39-43.2 - Requirements for Nurse Aide Certification

(a) An applicant for certification as a nurse aide in long-term care facilities shall:

1. Successfully complete a nurse aide in long-term care facilities training program that

has been approved by the Department;

2. Provide evidence that he or she is of good moral character, including, but not limited

to, compliance with the requirements of the Criminal Background Investigation

Program in accordance with N.J.A.C. 8:431; and

3. Pass both the Department's clinical skills competency exam and written/oral exam.

(b) An applicant shall fulfill the requirements in (a) above in order to be listed on the New

Jersey Nurse Aide Registry.

Health Emergency and for forty-five days thereafter, an individual whose nurse aide

certification has expired within the last three years may be eligible for employment as

a nurse aide so long as the individual complies with the requirements for a criminal

background check pursuant to N.J.A.C. 8:431.

8:39-43.3- Exceptions

(a) The following persons may take the Department's written/oral examination without first

completing a nurse aide training course and clinical skills evaluation approved in

accordance with N.lA.C. 8:39-43.10:

1. Students, graduate nurses, or foreign licensed nurses, pending licensure, who submit

evidence of successful completion of a course in the fundamentals of nursing;

2. Persons who submit evidence of the successful completion of a course in the

fundamentals of nursing within the 12 months immediately preceding application

to take the written/oral competency examination, including:

Persons certified as a nurse aide in long-term care facilities in another state

by a state governmental agency and listed on that state's nurse aide registry,

who do not meet the requirements for equivalency specified at (a)l above;

and

11.

Persons who have had training and experience as a nurse aide in a military

service, equivalent to that of a nurse aide;

3. Persons who are certified as homemaker-home health aides by the New Jersey

Board of Nursing, in accordance with N.J.A.C. 13:37-14, and who successfully

complete the Long-Term Care Module of the Core Curriculum for Unlicensed

Assistive Personnel approved by the Department;

4. Persons who successfully complete the Core Curriculum for Unlicensed Assistive

Personnel approved by the Department and the New Jersey Board of Nursing, and

the Long Term Care Module of the Core Curriculum for Unlicensed Assistive

Personnel approved by the Department.

(b) Notwithstanding the above requirements, during the existence of the Public Health

Emergency and for forty-five days thereafter, the following individuals may be

temporarily employed as certified nurse aides without completing the requirement to

pass the Department's written/oral examination:

1. Students, graduate nurses, or foreign licensed nurses, pending licensure, who

submit to a facility evidence of the successful completion of a course in the

fundamentals of nursing; and

2. Other persons who submit to a facility evidence of the successful completion of

a course in the fundamentals of nursing within the preceding 12 months;

3. All individuals seeking to work as a nurse aide pursuant to this

waiver/modification must comply with the requirements for a criminal

background check pursuant to N.J.A.C. 8:431;

4. Nursing homes, assisted living facilities, assisted living programs and

comprehensive personal care homes may temporarily employ individuals who

qualify under N.J.A.C. 8:39-43.3(b). Facilities that hire one or more nurse

aides under the modified requirements created by this waiver/modification

must:

a. retain records detailing which, if any, of the above actions were

implemented, including a list of the names, Social Security numbers and

birth dates of the individuals temporarily hired pursuant to this

waiver/modification, the records of each individual's successful

completion ofa course in the fundamentals of nursing, and the duration

of the implementation; and

b. document and immediately report to the Department any incidents

involving the abuse, neglect or misappropriation of property of a

resident of the facility, which are attributable to the nurse aides hired

under this waiver/modification; and

c. within one week of the hiring of one or more nurse aides, provide the

Department with the names, Social Security numbers and birth dates

of the individuals temporarily hired pursuant to this

waiver/modification

sending the information to:

Garlina Finn, Education Program Development Specialist

Certification Program

New Jersey Department of Health

P.O. Box 358

Trenton, New Jersey 08625-0358

8:39-43.4 - Certificates

(a) A nurse aide in long-term care facilities certificate shall be valid for a period of two years

from

the date of issue.

(b) A nurse aide certificate shall not be retained by an employer for any reason.

shall not be forged or altered.

(d) During the existence of the Public Health Emergency and for forty-five days

thereafter, individuals whose certificates have expired within the past three years who

meet the requirements ofN.J.A.C. 8:39-43.2(c) shall not be subject to the requirement

set forth in subsection (a).

8:39-43.6 - Recertification

(a) The Department shall require the renewal and updating of a nurse aide listing on the registry

least once every two years on a schedule established by the Department.

(b) In order to be recertified, an individual shall have a currently valid nurse aide in long-term

care facilities certificate and shall have been employed performing nursing or nursing-

related services for at least seven hours for pay, in a licensed health care facility or for an

agency licensed by the Department, within the past 24 months from the date of expiration

as specified on the nurse aide certificate, and shall not have had his or her certificate revoked

in accordance with NJ.A.C. 8:39-43.5(a), and shall not have his or her certificate suspended

in accordance with NJ.A.C. 8:39-43.5(b).

individual's recertification data mailer upon request of the individual.

(d) Any individual who does not meet the recertification requirement listed in (b) above and

who wishes to be recertified, shall repeat the requirements for certification at NJ.A.C. 8:39-

43.2, unless the original date of issue of the certificate is within the five years prior to the

expiration date listed on the certificate and the nurse aide successfully completes the skills

evaluation and written/oral examination.

1. Any individual who has allowed his or her certificate to expire must undergo a

criminal background investigation as required by NJ.A.C. 8:431, regardless of

whether the person must complete a training program.

(e) Subsections (a) and (d) are waived during the existence of the Public Health Emergency

and for forty-five days thereafter, for individuals whose nurse aide in long-term care

facilities certification has expired within the last three years, except that the individual

must comply with the requirements for a criminal background check pursuant to

N.J.A.C. 8:39-43.2(c) and N.J.A.C. 8:431.

8:431-2.5 Conditional Certification

(a) An applicant for certification as a nurse aide may be issued a conditional certification and

may be employed in the capacity of a nurse aide for a period of up to 120 days, as follows:

1. The Department will issue a conditional certification to the applicant for a period not

to exceed 120 days if the application demonstrates that the candidate has provided

a sworn statement indicating that her or she has not been convicted of any of the

offenses listed at N.J.A.C. 8:431-2.3, and has not been placed on the Department's

Nurse Aide Abuse Registry pursuant to N.J.A.C. 8:39-43.7(b).

2. All conditional certification documents issued by the Department shall bear the issue

and expiration date, and are non-renewable.

3. Nothing in this chapter shall be construed as to permit an individual with a

conditional certification authority to perform those duties of a nurse aide for which

the applicant has not yet been trained or authorized to perform.

4. Nothing in this chapter shall be construed as to permit an individual to remain

employed as a nurse aide for more than 120 days prior to successfully completing a

NATCEP and passing the State skills and written or oral exam as required by 42

U.S.C. §§ 1396r(b)5 or 13951-3(b)5.

5. If a conditionally certified applicant is disqualified from certification, the

Department shall issue a notice to the applicant and employer, ifknown. The notice

to the employer shall state that the applicant is disqualified, but shall not disclose

the offenses upon which the disqualification is based.

1. Upon receipt of the notice, the employer shall immediately remove the

person from duties which require regular contact with patients, residents or

clients. The person shall not have unsupervised contact with any patient,

resident or client, nor shall the property of those persons be entrusted to any

disqualified applicant.

11. If the employer receives notice from the Department that the applicant has

filed for a hearing to contest the accuracy of their criminal history record

background investigation, the person may remain employed pending a final

decision on the person's petition, but the employer shall not permit the

person to have unsupervised contact with elderly patients, residents or

clients.

iii. The Department will notify the employer of any requests for hearings, and

the results of any hearings, within five days of receipt of such request or

disposition.

(b) Notwithstanding subsection (a)(l) and (4) above, an applicant for certification as a

nurse aide may also be issued a conditional certification and may be employed in the

capacity of a nurse aide for a period of up to 210 days during the existence of the

Public Health Emergency and for 45 days thereafter, as follows:

1. The Department will issue a conditional certification to the applicant for a

period not to exceed 210 days if the application demonstrates that the

candidate has provided a sworn statement indicating that he or she has not

been convicted of any of the offenses listed at N.J.A.C. 8:431-2.3, and has not

been placed on the Department's Nurse Aide Abuse Registry pursuant to

N.J.A.C.8:39-43.7(b).

I find that waiver/modification of the rules above is necessary because enforcement of the existing

rules would be detrimental to the public welfare during this emergency.

JUDITH M. PERSICHILLI, RN, BSN, MA

COMMISSIONER

DEPARTMENT OF HEALTH

DATE

WAIVER - N.J.A.C. 8:39-43.1 (a)(1), 8:39-43.2(a)(1) and (3), 8:39-43.4(a) and 8:39-43.6(a) and (d)