PROPOSED
ORDER
OF
DEPARTMENT
OF
HEALTH
SERVICES
TO
ADOPT
RULES
The
Wisconsin
Department
of
Health
Services
(“department”)
proposes
to
amend
DHS 129.01,
DHS 129.07, DHS 129.07 (2) (b),
DHS 129.07 (3) (d), DHS 129.07(3) (e), and
to create
DHS 129.03 (30m),
DHS 129.07 (1m), and
DHS 129.07 (20 (
bm
)
,
relating
to
certification
of
programs
for
training
and
testing
nurse
aides
,
medication
aides
and
feeding
assistants
.
RULE SUMMARY
Statute
interpreted
Statutory
authority
Explanation
of
agency
authority
The
d
epartment’s authority to promulgate rules is as follows:
Section
146.40
(5)
Stat
s
.,
reads:
(a)
The department shall promulgate rules specifying standards for approval in this state of instructional programs and competency evaluation programs for nurse aides. The standards shall include specialized training in providing care to individuals with special needs.
(b)
The department shall promulgate rules specifying criteria for acceptance by this state of an instructional program and a competency evaluation program that is certified in another state, including whether the other state grants nurse aide privileges to persons who have completed instruction in an instructional program that is approved under
s
ub.
(3)
and
whether one of the following is true:
1.
If the other state certifies instructional programs and competency evaluation programs for nurse aides, the state's requirements are substantially similar, as determined by the department, to certification requirements in this state.
.
2.
If the other state certifies nurse aides, that state's requirements are such that one of the following applies:
a.
The instructional programs required for attendance by persons receiving certificates are substantially similar, as determined by the department, to instructional programs approved under
sub.
(3)
.
b.
The competency evaluation programs required for successful completion by persons receiving certificates are substantially similar, as determined by the department, to competency evaluation programs approved under
sub.
(3m)
.
Section
227.11 (2) (a)
, Stats., reads:
Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1.
A statutory or
nonstatutory
provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's
rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2.
A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3.
A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Related
statute
or
rule
See the “Statute
interpreted” and “Statutory authority
”
sections.
Plain
language
analysis
Currently,
under
chapter DHS 12
9,
a person must
have completed
120 hours of instruction through a department
-
approved nurse aide training program and pass a competency examination
in order to be employed as a nurse aide in Wisconsin
.
However, s.
146.40
(3g)
, Stats., as created by
2013 Wisconsin Act 357
, directed
the department
to
establish standards, by rule, for the approval of instructional programs that provide a pathway to certification for nurse aides who have
received similar
instruction
in another state
(hereinafter “bridge programs”)
.
B
ridge programs
are intended to
be combined with instruction received in another state
and result in
training that
is substantially equivalent to
that
obtained
through a department-approved
,
Wisconsin program. The department hereby intends to establish
standards for approval of bridge programs
, as directed by the Wisconsin Legislature
.
Pursuant to the authority granted
in
s.
146.40
(5)
Stats.,
t
he department also intends to revise existing standards of appr
oval for instructional programs
to address requirements relating to training hours
in a clinical setting
and curriculum requirements addressing the needs of persons with dementia, the effects of
certain
medication
s
, restorative services
,
and client rights.
Summary
of,
and
comparison
with,
existing
or
proposed
federal
regulations
Federal
conditions
of
participation
for
the
registry
of
nurse
aides,
nurse
aide
training
and
testing
programs,
and
training
of
paid
feeding
assistants
are
contained
in
42
CFR
483.150
through
483.160
.
These
regulations
establish
conditions
and
standards
for
the
approval
of
nurse
aide
training
and
competency
evaluation
programs,
for
the
maintenance
and
operation
of
a
registry,
and
for
conducting
training
and
testing
programs
for
nurse
aides
and
paid
feeding
assistants.
State
and
federal
regulations
for
registry
services
and
training
and
testing
of
nurse
aide
and
paid
feeding
assistants
are
comparable,
however
the
department
intends to
supplement these requirements
to address
therapeutic
interventions and non-pharmacological pain control interventions, techniques of restorative nursing, client rights and reporting abuse or neglect of a client or misappropriation of a client’s property
.
Comparison
with
rules
in
adjacent
states
Illinois:
Illinois
adopted
significant
portions
of
the
federal
regulation
including
the
standards
for
the
denial,
suspension
and
revocation
of
program
approval
in 77
Admin
Code
395,
Long-Term
Care
Assistants
and
Aides
Training
Programs
Code
.
Illinois
specifies
a
comprehensive
list
of
topics
that
must
be
addressed
in
any
approved
program
including
patient
rights,
communication,
psychological
needs
of
patient
and
family,
hand
washing,
body
mechanics,
basic
anatomy,
nutrition,
etc.
Each
set
of
topics
includes
course
objectives
and
proficiency
measures.
Iowa:
Iowa
Code
Chapter
81
–
16
Nurse
Aide
Requirements
and
Training
and
Testing
Program
closely
mirrors
federal
requirements
by
including
standards
for
denial,
suspension
and
revocation
of
program
approval.
Like
Illinois,
Iowa
code
contains
an
extensive
list
of
topics
that
must
be
included
in
any
approved
training
program
including
bathing,
dressing,
toileting,
assistance
with
eating,
skin
care,
transfers
,
responding
to
behaviors,
restorative
care
and
avoiding
the
need
for
restraints
.
Michigan:
Michigan
has
no
state
rule
regarding
certified
nurse
aide
training
programs
or
maintenance
of
a
registry
and
relies
solely
on
federal
regulation.
Minnesota:
Minnesota
has
no
state
rule
regarding
certified
nurse
aide
training
programs
or
maintenance
of
a
registry
and
relies
solely
on
federal
regulation.
Summary
of
factual
data
and
analytical
methodologies
The
department
relied
on
all
of
the
following
sources
to
draft
the
proposed
rule
and
to
determine
the
impact
on
small
businesses.
•
The
department
formed
an
advisory
committee
consisting
of
department
staff,
staff from the Board on Aging and Long-Term Care – Ombudsman Program,
the
Department
of
Workforce
Development,
LeadingAge
Wisconsin
,
the
Wisconsin
Health
Care
Association,
the
Wisconsin
Technical
College
System
and
private
industry.
The
advisory
committee
reviewed
the
initial
draft
of
the
rule
and
provided
comments.
The
rule
was
revised
based
upon
the
comments
made
by
the
advisory
committee.
•
The
department considered c
riteria
it
adopted
and
that were
approved
by
the
Wisconsin
Small
Business
Regulatory
Review
Board
to
determine
whether
proposed
rules
have
a
significant
economic
impact
on
a
substantial
number
of
small
businesses.
A
proposed
rule
is understood to have
an
economic
impact
on
a
substantial
number
of
small
businesses
if
at
least
10%
of
the
businesses
affected
by
the
proposed
rules
are
small
businesses
and
if
operating
expenditures,
including
annualized
capital
expenditures,
increase
by
more
than
the
prior
year’s
consumer
price
index,
or
revenues
are
reduced
by
more
than
the
prior
year’s
consumer
price
index.
For
the
purposes
of
this
rulemaking,
2012
is
the
index
year.
The
consumer
price
index
is
compiled
by
the
U.S.
Department
of
Labor,
Bureau
of
Labor
Statistics
as of December 2012 was 229.601. This represented an increase of 1.7 percent over the prior 12 months.
•
Section
227.114
(1)
(a)
,
Stats.,
defines
“small
business”
as
a
business
entity,
including
its
affiliates,
which
is
independently
owned
and
operated
and
not
dominant
in
its
field,
and
which
employees
25
or
fewer
full-time
employees
or
which
has
gross
annual
sales
of
less
than
$5,000,000.
•
The
Department of Health Services
/
Division of Quality Assurance Databases – Nurse Aides
–
Training Options
databases
that
contain
demographic,
licensing,
program,
and
compliance
history
of
nurse
aide
training
programs
and
certified
nurse
aides
in
Wisconsin.
Analysis
and
supporting
documents
used
to
determine
effect
on
small
business:
Nurse aide training programs are not defined
by
the North American Industry Classification System (NAICS), as most of these programs
operate
within the Wisconsin
T
echnical
College
S
ystem or within a
health care
facility.
Specific r
evenue, expense, and staffing data
is therefore
not
available from this source
.
The department instead relies on d
ata
obtained
through
the Department of Health Services/Division of Quality Assurance Data
b
ases – Nurse Aides - Training Options.
As
of
July
25, 2016
,
120
nurse
aide
training
programs
are operate
d
by various entity types
within
state
.
The
type
of
entity
and
number
of
programs
is
provided
in
the
table
below.
Wisconsin
Technical
Colleges
|
47
|
Facilities
serving people with
developmental
disabilities
|
4
|
Based
on
a
review
of
d
epartment
licensing
data,
including,
financial
reports
submitted
by
the
entities,
Medicaid
reimbursement
data,
number
of
beds
and
whether
the
entity
is
a
part
of
a
larger
health
care
organization,
the
Department
has
determined
that
the
affected
nursing
homes,
hospitals
and
facilities
serving people with
developmental
disabilities
are
not
small
businesses
as
defined
by
Section
227.114
(1)
(a)
,
Stats.
The
technical
colleges,
high
schools,
universities
and
the
USDA Forest Service
also
do
not
meet
the
definition
of
a
small
business.
Effect on small business
Based on the foregoing analysis, the rules are anticipated to have little to no economic impact on small businesses.
Statement on quality of agency data
The data sources used to draft the rules and analyses are accurate, reliable and objective and are listed in the Summary of Factual Data and Analytical Methodologies section of this rule order.
Agency contact person
Patricia Benesh
Phone: (608) 264-9896
Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The deadline for submitting comments and the notice of public hearing will be posted on the Wisconsin State Legislature’s Administrative Rules website
http://docs.legis.wisconsin.gov/co
de
.
RULE TEXT
SECTION 1.
DHS 129
.01 is amended to read:
DHS 129.01 Authority and purpose.
This chapter is promulgated under the authority of ss.
146.40 (2m)
,
(3)
and
(5)
,
146.40 (3g)
and
227.11 (2) (a)
, Stats., to provide conditions of approval for training programs and competency evaluation programs for persons who work as nurse aides, medication aides or feeding assistants in hospitals, nursing homes or facilities for the developmentally disabled, home health agencies or hospices certified under 42USC 1395 to 1395ccc, and conditions for including persons in the
department’s registry of nurse aides.
SECTION 2.
DHS 129.03 (
30m
) is created to read:
DHS 129.03
(30
m)
“Nurse aide training program” means an instructional program for a nurse aide that is approved
by the department
as mandated by
s.
146.40 (3)
or
(3g)
. Nurse aide training programs can be one of two types:
(a)
“120-hour training program” means a Wisconsin nurse aide training program that is designed for an individual seeking to be eligible to work as a nurse aide in Wisconsin.
(b)
“45-hour training program” means a nurse aide training program that is designed for an individual who received nurse aide training of less than 120 hours in another state, that when combined with an instruction program in the other state, will result in the individual receiving substantially the same instruction as an individual who completed a 120-hour training program in Wisconsin.
SECTION 3.
DHS
129.07
(1)
is
amended
to read:
DHS 129.07 Standards for nurse aide training programs.
(1)
CURRICULUM FOR 120-HOUR TRAINING PROGRAM.
A
120-
hour
training program shall include theory and practice in all of the following care areas:
SECTION 4.
DHS 129.07 (
1m
)
is
created to read:
SECTION
5
.
DHS 129.07
(
2
)
(b)
is
amended
to read:
DHS 129.07
(
2
)
(b)
Program standards
for 120-hour training programs.
1. A
120-hour
training program shall be a minimum of 120 hours in length. This requirement includes at least 32 hours of clinical experience in a clinical setting approved by the department. The first 16 hours of training shall be provided in a classroom setting before a student has direct contact with clients. Tours of a facility
,
including observations of clients and day−to−day facility activities
,
may be incorporated into the classroom hours. Competency evaluation
under DHS 129.08
and provider orientation may not be counted toward meeting the 120−hour minimum requirement.
2. The program shall cover all of the following during the first 16 hours of classroom training:
a. Communication
and interpersonal skills.
b. Infection
control.
c. Safety
and emergency procedures.
d. Promoting
residents’ independence.
e. Residents’
rights.
3. A health care provider may employ a student as a nurse aide after the student has completed 16 hours of classroom training in the topics in
subd
.
2.
, and if the student is a full−time permanent employee, and is enrolled in an approved training program. The training program shall provide the health care provider with verification that the program has provided the instruction specified in
subd
.
2.
4. The program shall provide notification to students sponsored by Medicaid−certified nursing facilities that the students are not responsible for any costs associated with training, including deposits for textbooks or supplies used.
SECTION 6.
DHS 129.07 (2
)
(
bm
) is created to read:
(2)
(
bm
)
Program standards for 45-hour training programs.
1.
The 45-hour training program shall be a minimum of 45 hours in length. This requirement includes at least 16 hours of clinical experience in a clinical setting approved by the department working with residents with Alzheimer’s disease or a related dementia. Competency evaluation and provider orientation may not be counted toward meeting the 45−hour minimum requirement.
2.
The program shall provide notification to students sponsored by Medicaid−certified nursing facilities that the students are not responsible for any costs associated with training, including deposits for textbooks or supplies used.
SECTION
7
.
DHS 129.07 (
2
) (
d
)
i
s amended to read:
DHS 129.07
(2)
(
d
)
Nursing home−based program
. Training of nurse aides may be performed under the general supervision of the director of nursing for a facility; however, the director of nursing may not act as the primary instructor or as a program trainer.
Primary
instructors
I
nstructors
shall not be involved in more than one role while supervising students in the clinical area.
SECTION
8
.
DHS 129.07(
2
) (
e
)
i
s amended to read:
DHS 129.07
(
2
)
(
e
)
Expectations and records
. 1. The training program shall maintain a list of the
required
skills and
competencies
a summary of the knowledge
that a student will complete by the end of the training program.
2. On the list of skills, the primary instructor shall verify, by initialing and dating each individual skill, that the student has satisfactorily performed that skill. When a student has satisfactorily completed all required skills and competencies and attained the necessary knowledge, as well as achieved the stated course completion criteria, the trainee qualifies to enter a competency evaluation program.
3. The primary instructor shall provide a copy of the student’s performance record to the student at the conclusion of the student’s training.
SECTION
9
.
EFFECTIVE DATE:
This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register, as provided in s.
227.22 (2)
, Stats.
