Section 129.04. Waivers and variances.

 

(1)   Requirements for waivers or variances. The department may grant a request for a waiver of or a variance from a requirement of this chapter if the department finds that the waiver or variance will not adversely affect the health, safety or welfare of any client; and that either:

(a) The requirement that the health care provider or program seeks relief from would result in unreasonable hardship or is infeasible as applied to the training program or competency evaluation program.

(b) If the request is for a variance, the proposed alternative to a rule, including new concepts, methods, procedures, practice, techniques, equipment, personnel qualifications, pilot project or other alternative is in the interest of client care and management or more effective training or testing programs or management.

(2)   Procedures.

(a) Requests . A request for a waiver or variance may be made at any time, shall be made in writing to the department and shall state all of the following:

1. The rule from which the waiver or variance is requested.

2. The time period for which the waiver or variance is requested.

3. The reason or reasons for which the waiver or variance is requested.

4. If the request is for a variance, the proposed alternative to the rule, including new concepts, methods, procedures, practice, techniques, equipment, personnel qualifications, pilot project or other alternative or alternatives the program proposes and a description of how the proposed alternative or alternatives serves the interests of training and competency evaluation in a manner that is as protective as the requirement from which the variance is sought; and

5. Assurances that sub. (1) will be satisfied.

6. The department may require additional information from the health care provider or program prior to acting on the request.

(b) Grants and denials .

1. The department shall grant or deny in writing each request for a waiver or variance. The notice of denial shall contain reasons for the denial.

2. The terms of a waiver or variance shall be modified upon agreement between the department and the health care provider or program.

3. The department may impose additional conditions on a waiver or variance it considers necessary to protect the health, safety or welfare of clients.

4. The department may limit the duration of any waiver or variance.

(c) Revocation. The department may revoke a waiver or variance, with written notice to the program, subject to the hearing requirements in par. (d) , for any of the following reasons:

1. The department determines the waiver or variance is adversely affecting the effectiveness of the health care provider or program.

2. The health care provider or program failed to comply with the waiver or variance as granted or with a condition of the waiver or variance.

3. The health care provider or program notifies the department in writing that the program wishes to relinquish the waiver or variance and be subject to the rule previously waived or varied.

4. Revocation is required by a change in law.

(d) Hearings. A health care provider or program may contest the denial of a requested waiver or variance by requesting a hearing under ch. 227 , Stats. , and s. DHS 129.10 .

(3)   Nurse aide training or competency evaluation program waiver of prohibition. Pursuant to amendments made to Public Law 105-15, Section 1819 (f) (2) and Section 1919 (f) (2) of the Social Security Act, and 42 U.S.C. 1395i 3 (f) (2) and 42 U.S.C. 1396r (f) (2), the department may authorize a waiver of the 2-year prohibition for approval of training programs or the competency evaluation program offered in but not by a facility under the following circumstances:

(a) No other department-approved program is offered within a reasonable distance of the facility. A reasonable distance means any of the following:

1. There is no department-approved program within 45 miles or 60 minutes away, one-way, from the facility requesting a waiver.

2. The only program within 45 miles or 60 minutes away, one-way, from the facility is out-of-state and would require the person to first qualify on another state's registry and then apply to be added to the registry as an out-of-state transfer applicant.

3. There is a documented lack of qualified instructors to fulfill the program requirements at other sites within the 45 miles or 60 minutes, away, one-way radius.

(b) The facility shall have an adequate environment for operating the program. An adequate environment means the citations leading to the prohibition were non-resident and non-nursing care related.

(c) If the citations leading to the prohibition were resident or nursing care related:

1. The citations were corrected at revisit and there were no cites at or since the previous standard survey that were resident or nursing care related; or

2. The program termination resulted from a new citation at a standard survey revisit and the facility had no other citations at or since the previous standard survey that were resident or nursing care related; or

3. The facility had an immediate jeopardy situation in a resident or nursing care related area that was corrected at the time of survey and had no other citations at or since the previous standard survey that were resident or nursing care related; or

4. The facility had a history of resident or nursing care related citations, but has demonstrated efforts beyond normal means to attain and maintain substantial compliance. History means since the most recent training program approval.

(d) The facility's physical environment is adequate in that the physical or structural requirements are in substantial compliance or there is a waiver request pending.

(e) The program provided in the facility shall be by another entity unrelated to the facility that has agreed to provide the training. Competency testing shall also be done by an entity unrelated to the facility or the training program.

(f) The facility requesting the waiver shall notify the State long term care ombudsman of the request for waiver. The ombudsman may comment to the department identifying any concerns about whether the facility may serve as a training site.

CR 08-042 : cr. register November 2008 No. 635, eff. 12-1-08.

Note

A request for a waiver or variance should be addressed to the Division of Quality Assurance, P.O. Box 2969, Madison, WI 53701-2969 or faxed to 608-264-6340. Microsoft Windows NT 6.1.7601 Service Pack 1