SB548: Bill Text

LRB-1127/1

DAK:jld:nwn

2007 - 2008 LEGISLATURE

2007 Senate BILL 548

February 29, 2008 - Introduced by Law Revision Committee. Referred to Committee on Public Health, Senior Issues, Long Term Care and Privacy.

SB548,2,10 An Act to repeal 49.45 (8) (a) 1., 49.498 (2) (e) 1., 146.40 (1) (bm), 146.40 (1) (bp), 146.40 (2) (am), 146.40 (2) (b), 146.40 (2) (bm), 146.40 (2) (f) and 146.40 (4r) (am) 2.; to renumber and amend 146.40 (2) (c); to amend 46.275 (5) (b) 4., 46.278 (1), 46.278 (1m) (am), 46.278 (2) (a), 46.278 (4) (a), 46.278 (5) (a), 46.278 (6) (e) 1. a., 46.278 (6) (e) 1. b., 46.278 (6) (e) 1. c., 46.279 (1) (b), 48.685 (8), 49.45 (6m) (am) 1. bm., 49.45 (30m) (a) 2., 49.45 (42) (b), 49.498 (1) (h), 49.498 (2) (e) 2., 49.498 (2) (e) 3., 50.01 (2), 50.04 (2) (c) 2. b., 50.04 (2) (d) (intro.), 50.04 (2r), 50.065 (8), 50.095 (3) (b), 50.097, 50.14 (1) (a), 50.14 (1) (b), 50.14 (2) (bm), 51.06 (8) (a) 1., 51.06 (8) (b) (intro.), 51.06 (8) (b) 4., 51.06 (8) (b) 7., 51.62 (4), 146.40 (title), 146.40 (1) (bo), 146.40 (1) (bt), 146.40 (1) (d), 146.40 (2) (intro.), 146.40 (2) (a), 146.40 (2) (d), 146.40 (2) (e), 146.40 (2) (em), 146.40 (2) (g), 146.40 (3), 146.40 (3m), 146.40 (4), 146.40 (4d) (a), 146.40 (4d) (c), 146.40 (4d) (d), 146.40 (4m), 146.40 (4r) (am) 1., 146.40 (4r) (b), 146.40 (4r) (c), 146.40 (4r) (e), 146.40 (4r) (em), 146.40 (5) (a), 146.40 (5) (b) (intro.), 146.40 (5) (b) 1., 146.40 (5) (b) 2. (intro.), 146.40 (5) (b) 2. a., 155.20 (2) (a) 2., 155.30 (3), 250.042 (4) (a) 3., 250.042 (4) (b), 250.042 (4) (c) 12., 440.03 (3q), 632.895 (1) (b) 2. and 632.895 (2) (d); to repeal and recreate 49.45 (8) (a) 4. and 146.40 (4d) (am); and to create 49.45 (8) (a) 2m., 146.40 (1) (aw), 146.40 (2) (c) 1., 146.40 (2) (c) 2. and 146.40 (2m) of the statutes; relating to: changing the terms home health aide, hospice aide, and nurse's assistant to the term nurse aide; changing requirements for instructional and competency evaluation programs for nurse aides; changing certain requirements for review and investigation of reports of client abuse or neglect; and requiring the exercise of rule-making authority (suggested as remedial legislation by the Department of Health and Family Services).

Analysis by the Legislative Reference Bureau

Under current law, numerous requirements apply to the employment or contracting for services of home health aides, hospice aides, and nurse's assistants by hospitals, nursing homes, intermediate care facilities for the mentally retarded, home health agencies, and hospices. Generally, before being employed or contracting for services, a home health aide, hospice aide, or nurse's assistant must have successfully completed instruction in an instructional and competency evaluation program certified by the Department of Health and Family Services (DHFS) or a competency evaluation program approved by DHFS or a program that meets the DHFS standards, although this requirement does not apply to certain individuals providing services under one of these classifications who have been employed or under contract for numerous years. DHFS must review the curriculum of an instructional and competency evaluation program every 36 months and may suspend or revoke certification for the program or impose a plan of correction on it; DHFS may also suspend or revoke approval for a competency evaluation program or impose a plan of correction on it. DHFS maintains a registry of individuals who have successfully completed an instructional and competency evaluation program or a competency evaluation program. DHFS maintains another registry of persons, employed by or under contract with a facility, organization, or service that is licensed or certified by or registered with DHFS to provide direct care and treatment to clients, who are reported to have, allegedly, misappropriated the property of a client or neglected or abused a client. Such a facility, organization, or service must report to the Department of Regulation and Licensing (DRL) any such allegation for a person who is licensed, permitted, certified, or registered by DRL, an examining board, or an affiliated credentialing board (credentialed). DHFS must review and investigate any such report, and, if the person is credentialed, refer the report to DRL.

Effective January 1, 2009, this bill changes the terms "nurse's assistant," "hospice aide," and "home health aide" to "nurse aide" and changes the term "intermediate care facility for the mentally retarded" to "intermediate care facility for persons with mental retardation." The bill changes the term "instructional and competency evaluation program" to "instructional program" and requires that DHFS approve, rather than certify, such programs that meet standards specified by DHFS by rule. Further, DHFS must review the curriculum of each approved instructional program every 24 months, rather than 36 months, after the date of approval.

The bill creates a new classification of caregiver, termed a "feeding assistant." A feeding assistant must successfully complete a state-approved training and testing program to perform one nursing-related duty before being employed by or contracting with a nursing home or intermediate care facility for persons with mental retardation. A nursing home may not use hours of service provided by a feeding assistant in fulfilling certain staffing requirements.

The bill eliminates the requirement that a facility, organization, or service that is licensed or certified by or registered with DHFS report to DRL any allegation, for a person who is credentialed, concerning the misappropriation of property of a client or the neglect or abuse of a client.

The bill eliminates certain exceptions, by persons who have worked for numerous years as home health aides, hospice aides, or nurse's assistants, to the requirement for successful completion of instructional programs or competency evaluation programs.

For further information, see the Note provided by the Law Revision Committee of the Joint Legislative Council.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Law Revision Committee prefatory note: This bill is a remedial legislation proposal, requested by the Department of Health and Family Services and introduced by the Law Revision Committee under s. 13.83 (1) (c) 4., stats. After careful consideration of the various provisions of the bill, the Law Revision Committee has determined that this bill makes minor substantive changes in the statutes, and that these changes are desirable as a matter of public policy.

SB548, s. 1 Section 1. 46.275 (5) (b) 4. of the statutes is amended to read:

SB548,4,2 46.275 (5) (b) 4. Provide services, except respite care that is approved by the department, within a skilled nursing facility, intermediate care facility or intermediate care facility for the mentally retarded persons with mental retardation, as defined in s. 46.278 (1m) (am), including a state center for the developmentally disabled.

SB548, s. 2 Section 2. 46.278 (1) of the statutes is amended to read:

SB548,4,15 46.278 (1) The intent of the programs under this section is to provide home or community-based care to serve in a noninstitutional community setting a person who meets eligibility requirements under 42 USC 1396n (c) and who is diagnosed as developmentally disabled under the definition specified in s. 51.01 (5) and relocated from an institution other than a state center for the developmentally disabled or who meets the intermediate care facility for the mentally retarded persons with mental retardation or a brain injury rehabilitation facility level of care requirements for medical assistance reimbursement in an intermediate care facility for the mentally retarded persons with mental retardation or a brain injury rehabilitation facility and is ineligible for services under s. 46.275 or 46.277. The intent of the program is also that counties use all existing services for providing care under this section, including those services currently provided by counties.

SB548, s. 3 Section 3. 46.278 (1m) (am) of the statutes is amended to read:

SB548,4,19 46.278 (1m) (am) "Intermediate care facility for the mentally retarded persons with mental retardation" has the meaning given for "intermediate care facility for the mentally retarded" under 42 USC 1396d (c) and (d).

SB548, s. 4 Section 4. 46.278 (2) (a) of the statutes is amended to read:

SB548,5,4 46.278 (2) (a) The department may request one or more waivers from the secretary of the federal department of health and human services, under 42 USC 1396n (c), authorizing the department to serve medical assistance recipients, who meet the level of care requirements for medical assistance reimbursement in an intermediate care facility for the mentally retarded persons with mental retardation or in a brain injury rehabilitation facility, in their communities by providing home or community-based services as part of medical assistance. If the department requests a waiver, it shall include all assurances required under 42 USC 1396n (c) (2) in its request.

SB548, s. 5 Section 5. 46.278 (4) (a) of the statutes is amended to read:

SB548,5,13 46.278 (4) (a) Sections 46.27 (3) (b) and 46.275 (3) (a) and (c) to (e) apply to county participation in a program, except that services provided in the program shall substitute for care provided a person in an intermediate care facility for the mentally retarded persons with mental retardation or in a brain injury rehabilitation facility who meets the intermediate care facility for the mentally retarded persons with mental retardation or brain injury rehabilitation facility level of care requirements for medical assistance reimbursement to that facility rather than for care provided at a state center for the developmentally disabled.

SB548, s. 6 Section 6. 46.278 (5) (a) of the statutes is amended to read:

SB548,5,24 46.278 (5) (a) Any medical assistance recipient who meets the level of care requirements for medical assistance reimbursement in an intermediate care facility for the mentally retarded persons with mental retardation or in a brain injury rehabilitation facility and is ineligible for service under s. 46.275 or 46.277 is eligible to participate in a program, except that persons eligible for the brain injury waiver program must meet the definition of brain injury under s. 51.01 (2g), and except that the number of participants may not exceed the number approved under the waiver received under sub. (3). Such a recipient may apply, or any person may apply on behalf of such a recipient, for participation in a program. Section 46.275 (4) (b) applies to participation in a program.

SB548, s. 7 Section 7. 46.278 (6) (e) 1. a. of the statutes is amended to read:

SB548,6,2 46.278 (6) (e) 1. a. An intermediate care facility for the mentally retarded persons with mental retardation that closes under s. 50.03 (14).

SB548, s. 8 Section 8. 46.278 (6) (e) 1. b. of the statutes is amended to read:

SB548,6,6 46.278 (6) (e) 1. b. An intermediate care facility for the mentally retarded persons with mental retardation or a distinct part thereof that has a plan of closure approved by the department and that intends to close within 12 months.

SB548, s. 9 Section 9. 46.278 (6) (e) 1. c. of the statutes is amended to read:

SB548,6,11 46.278 (6) (e) 1. c. An intermediate care facility for the mentally retarded persons with mental retardation that has a plan of closure or significant reduction in capacity approved by the department and that intends to close or significantly reduce its capacity within 60 months.

SB548, s. 10 Section 10. 46.279 (1) (b) of the statutes is amended to read:

SB548,6,16 46.279 (1) (b) "Intermediate facility" means has the meaning given for an intermediate care facility for the mentally retarded, as defined in under 42 USC 1396d (d), other than a center for the developmentally disabled, as defined in s. 51.01 (3).

SB548, s. 11 Section 11 . 48.685 (8) of the statutes, as affected by 2007 Wisconsin Act 20, is amended to read:

SB548,6,25 48.685 (8) The department, the department of health services, a county department, a child welfare agency, or a school board may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a) or for providing information to an entity to enable the entity to comply with sub. (2) (b) 1. or (3) (b). The fee may not exceed the reasonable cost of obtaining the information. No fee may be charged to a nurse's assistant nurse aide, as defined in s. 146.40 (1) (d), for obtaining or maintaining information if to do so would be inconsistent with federal law.

SB548, s. 12 Section 12. 49.45 (6m) (am) 1. bm. of the statutes is amended to read:

SB548,7,3 49.45 (6m) (am) 1. bm. Nonbillable services of a registered nurse, licensed practical nurse, and nurse's assistant nurse aide.

SB548, s. 13 Section 13. 49.45 (8) (a) 1. of the statutes is repealed.

SB548, s. 14 Section 14. 49.45 (8) (a) 2m. of the statutes is created to read:

SB548,7,6 49.45 (8) (a) 2m. "Nurse aide" has the meaning given in s. 146.40 (1) (d).

SB548, s. 15 Section 15. 49.45 (8) (a) 4. of the statutes, as affected by 2007 Wisconsin Act 20, is repealed and recreated to read:

SB548,7,17 49.45 (8) (a) 4. "Patient care visit" means a personal contact with a patient in a patient's home that is made by a registered nurse, licensed practical nurse, nurse aide, physical therapist, occupational therapist, or speech-language pathologist who is on the staff of or under contract or arrangement with a home health agency, or by a registered nurse or licensed practical nurse practicing independently, to provide a service that is covered under s. 49.46, 49.47, or 49.471. "Patient care visit" does not include time spent by a nurse, therapist, or nurse aide on case management, care coordination, travel, record keeping, or supervision that is related to the patient care visit.

SB548, s. 16 Section 16. 49.45 (30m) (a) 2. of the statutes is amended to read:

SB548,7,21 49.45 (30m) (a) 2. Services in an intermediate care facility for the mentally retarded persons with mental retardation, as defined in s. 46.278 (1m) (am), other than a state center for the developmentally disabled.

SB548, s. 17 Section 17. 49.45 (42) (b) of the statutes is amended to read: