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 (1), DHS 129.07 (2) (b) (title) and 1., DHS 129.07 (2) (d), DHS 129.07 (2) (e) 1., and to create DHS 129.03 (30m), DHS 129.07 (1m), and DHS 129.07 (2) (bm), relating to certification of programs for training and testing nurse aides, medication aides and feeding assistants.
Sections 146.40 (3 ) and (3g), 146.40 (5), Stats.
Explanation of agency authority
The department’s authority to promulgate rules is as follows:
Section 146.40 (5) Stats., 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 sub. (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
Sections 146.40 (3 ) and (3g), Stats.
Plain language analysis
Currently, under chapter DHS 129, 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”). Bridge 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., the department also intends to revise existing standards of approval 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 medications, 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 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 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 has no state rule regarding certified nurse aide training programs or maintenance of a registry and relies solely on federal regulation.
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 criteria 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.