The Iowa code is Iowa Code Chapter
81 – 16 Nurse Aide Requirements and Training and Testing Program.
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.
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The Department formed an advisory committee consisting of Department staff, and staff from the Department of Workforce Development, the Department of Public Education, the Wisconsin Association of Homes and Services for the Aging, the Wisconsin Health and Hospital Association, the Wisconsin Health Care Association, the Wisconsin Technical College System, the Wisconsin Long Term Care Workforce Alliance 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.
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The 2002 Economic Census – Wisconsin Geographic Series, compiled by the U.S. Census Bureau every 5 years for each year ending in “2" or “7" contains the latest available economic data compiled from businesses located in Wisconsin. The 2007 data is not yet available.
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Criteria adopted by the Department and approved by the Wisconsin Small Business Regulatory Review Board to determine whether the Department's proposed rules have a significant economic impact on a substantial number of small businesses. Pursuant to the Department's criteria, a proposed rule will have a significant 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, 2007 is the index year. The consumer price index is compiled by the U.S. Department of Labor, Bureau of Labor Statistics and for 2007 is 4.2 percent.
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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.
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DHFS 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 and Testing programs both publicly operated and privately owned are regulated by the Department under ch.
HFS 129 and ch.
146, Stats. Nurse aide training programs are not clearly defined in the North American Industry Classification System (NAICS) data, as most of these programs are a small program within the Wisconsin technical school system or housed within a nursing facility or other major health care provider. These programs are included in NAICS sector 61 Educational Services and further defined in sub-sectors; 6111 Elementary and Secondary schools, 6115 technical & trade schools, and 611699 other miscellaneous schools and instructions. Additional programs are included in sector 62, Health Care and Social Assistance and further defined in sub-sector 6231 Nursing Care Facilities. Revenue, expense, and staffing data are not available from this source as nurse aide training programs are a mere fraction of these many business sectors.
Data from DHFS data sets obtained on July 1, 2007 lists 89 nurse aide training programs. The data from July 1, 2007 is the latest complete data set available for nurse aide training programs. The type of entity and number of programs is provided in the table below.
ENTITY
|
NUMBER
|
Nursing homes
|
33
|
Wisconsin Technical Colleges
|
16
|
High schools
|
15
|
Other*
|
13
|
Hospitals
|
7
|
Facilities for the developmentally disabled
|
3
|
Universities
|
2
|
Total
|
89
|
* Other entities include 3 non profit entities; one nurse aide training program operated by a charitable organization, one program operated by a religious organization and one program operated by the federal government. The remaining 10 entities are for profit agencies.
Based on a review of DHFS licensing data, including, financial reports submitted by the entity, Medicaid reimbursement data, number of beds and whether the entity is a part of a larger health care organization, DHFS has determined that the affected nursing homes, hospitals and facilities for the developmentally disabled are not small businesses as defined by Section
227.114 (1) (a), Stats. The technical colleges, high schools, universities and the 3 non profit entities in the Other category, that provide nurse aide training do not meet the definition of a small business either. The remaining ten nurse aide training programs in the Other category, are for profit entities. The Department is unable to obtain detailed financial data on these entities and assumes for the purpose of this analysis that they are small businesses.
Initial Regulatory Flexibility Analysis
Due to increase in the acuity level of person receiving care by nurse aides, the proposed rule increases the minimum number of hours required for nurse aide training programs from 75 to 120. The fiscal impact of the proposed rule includes the costs associated with providing the additional 45 hours of nurse aide training. Thirty-five of the 89 nurse aide training programs already meet or exceed this requirement. Two of the 35 training programs that meet or exceed the proposed 120 training hours are small businesses. The rule requirement will increase costs for the remaining 54 training programs. Eight of the 54 training programs are identified as small business and will need to increase training time by 24 to 40 hours to meet this standard.
It is estimated that a registered nurse certified to train nurse aides will cost between $45 and $100 per hour. Costs for each course will increase between $2,025 and $4,500 for the 45 additional hours of training required by the proposed rule. All programs currently not meeting the 120 hours standard will experience these increased costs. (It should be noted that nursing homes receive up to $225 from the Medicaid program for each student trained by the facility.) Thirteen of the 54 programs that will need to increase the number of training hours already provide between 100 and 119 hours of trainings. Increased costs for these programs will range between $900 and $2,000 for each course.
The increased cost to provide training may be passed on to students by the training entity in the form of higher tuition. The increased costs to a student enrolled in a program with an average of 100 students ranges from $9 to $45 per student ($900 ÷ 100 students = $9; $4,500 ÷ 100 students = $45). Students who become employed by a nursing home within 12 month of completing nurse aide training are eligible for tuition reimbursement up to $225 indirectly from the Medicaid program.
Based on available data it appears 8 of the 10 nurse aide training programs categorized as Other meet the definition of a small business and will be affected by this rule change. (As noted above, 2 training programs meeting the definition of a small business already provide 120 or more training hours.) This represents 9% of all nurse aide training programs in Wisconsin. It is anticipated that increased costs will be passed on to students in the form of higher tuition, with no significant impact on the affected entities. New training programs will be able to build the 120 hour training requirement into the business plan.
Fiscal Estimate
State fiscal effect
Two of the Wisconsin operated facilities for the developmentally disabled (FDD) provide nurse aide training. One of the facilities will need to increase their training program by 22 hours, potentially increasing costs from $990 to $2,200 per course. (The other facility for the developmentally disabled exceeds the 120 hour training standard.) It is assumed that existing staff will be reallocated to fulfill the increased training requirement. FDDs receive funding for nurse aide training in their Medicaid daily rate.
Local fiscal effect
Fourteen of the 16 technical colleges already meet the proposed training requirement providing 120 or more training hours. The remaining 2 technical colleges provide 100 or more training hours. Costs may increase between $900 and $2,000 depending on the number of training hours each program will need to add to meet the proposed standard. For example, a technical college that offers 7 training programs each year will experience an increase of 140 training hours annually or .07 FTE. It is assumed that existing staff will be reallocated to fulfill the increased training requirement.
Training costs for high schools may increase between $2,025 and $4,500 depending on the number of training hours each program will need to add to meet the proposed standard. For example, a high school that offers 2 training programs each year will experience an increase of 80 training hours annually or .04 FTE. Three of the 15 high schools that provide nurse aide training already meet the proposed training requirement providing 120 or more training hours. An additional 8 high schools provide 100 or more training hours. These high schools will need to provide an additional 40 training hours (2 courses annually) or .02 FTE. It is assumed that existing staff will be reallocated to fulfill the increased training requirement.
One county operated nursing home will need to increase their training program by 42 hours; potentially increasing costs from $1,890 to $4,200 per course. Historically this facility has provided one nurse aide training course every 2 years. This will require .01 FTE annually to provide the increased training. It is assumed that existing staff will be reallocated to fulfill the increased training requirement. This facility is eligible to receive up to $225 from the Medicaid program for each student trained by the facility.
Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s.
601.41(3), Stats., and the procedures set forth in under ss.
227.18, and
227.24 (4), Stats., OCI will hold a public hearing to consider the adoption of proposed and emergency rulemaking orders affecting sections
Ins 3.455,
3.46, and
3.465, Wis. Adm. Code, relating to long-term care plans including the plans qualifying for the Wisconsin long-term care insurance partnership program and affecting small business.
Hearing Information
Date: June 16, 2008
Time: 10:00 a.m., or as soon thereafter as the matter
may be reached
Place: OCI, Room 227, 125 South Webster Street,
2nd Floor, Madison, WI
Submission of Written Comments
Written comments can be mailed to:
Julie E. Walsh
Legal Unit - OCI Rule Comment for Rule Ins 3455er
Office of the Commissioner of Insurance
PO Box 7873
Madison WI 53707-7873
Written comments can be hand delivered to:
Julie E. Walsh
Legal Unit - OCI Rule Comment for Rule Ins 3455er
Office of the Commissioner of Insurance
125 South Webster St – 2nd Floor
Madison WI 53703-3474
Comments can be emailed to:
Julie E. Walsh
The deadline for submitting comments is 4:00 p.m. on the 7th day after the date for the hearing stated in this Notice of Hearing.
Copies of Proposed Rule
A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet Web site at
http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, Public Information and Communications, OCI, at:
inger.williams@wisconsin.gov, (608) 264-8110, 125 South Webster Street – 2
nd Floor, Madison WI or PO Box 7873, Madison WI 53707-7873.
Agency Contact Person
Inger Williams, OCI Services Section, at:
Phone: (608) 264-8110
Address: 125 South Webster Street
2nd Floor, Madison WI 53703-3474
Mail: PO Box 7873, Madison, WI 53707-7873
Small Business Regulatory Coordinator
The OCI small business coordinator is Eileen Mallow and may be reached at phone number (608) 266-7843 or at email address
eileen.mallow@wisconsin.gov
Analysis Prepared by the Office of the Commissioner of Insurance
FINDING OF EMERGENCY
The Commissioner of Insurance finds that an emergency exists and that the attached rule is necessary for the immediate preservation of the public peace, health, safety, or welfare. Facts constituting the emergency are as follows:
The State of Wisconsin will be implementing the Wisconsin Partnership program effective January 1, 2009, the date approved by the federal government in accordance with the Department of Health and Family Services' application for participation. As part of the enabling statute, the state requires all insurance intermediaries receive specific training prior to January 1, 2009. In order to minimize the impact of the additional training, the proposed rule permits the training, if approved, to qualify for continuing education therefore intermediaries can meet two training requirements simultaneously. For training to be approved and courses offered prior to January 1, 2009, the office needs to promulgate this rule to provide the guidelines necessary for creation and submission of training programs. Therefore the office must promulgate this rule as an emergency rule.
In addition, in order for insurers to offer products intended to qualify for the Wisconsin partnership program, such products shall be submitted to the office prior to use. The insurers must submit those products sufficiently in advance of January 1, 2009, so that there is time for review by the office and implementation time for the insurers.
These changes include modifications to s.
Ins 3.455 including repealing and recreating the applicable definitions and modifying the conversion requirements; modifications to Ins 3.46 including deletion of the blanket exemption for group long-term care products replaced with narrow exceptions, modification to the marketing and advertising requirements with notable new requirement for insurers and intermediaries to submit to OCI marketing and advertisement material prior to use new group insurance requirements, modifications to the permissive limitations and exclusions, disclosures, replacement requirements, reporting requirements for insurers added regarding suitability; conversion modifications, incontestability and standards for marketing. The appendices to s. Ins 3.46 have also been repealed and recreated and now include several reporting forms for tracking suitability, rescissions, claims denial, replacement and lapses by state to be filed by insurers. As noted above the major addition to s.
Ins 3.46 is the intermediary training requirement as required by s.
628.348 (1), Stats. Finally, the changes also include a new section, s.
Ins 3.465 and appendices, related to the Wisconsin partnership program that is to be available beginning January 1, 2009.
A combined rule hearing will be held for both the emergency and permanent rule on June 16th as noticed.
Statutes interpreted
Statutory authority
Explanation of agency authority
The OCI, in order to comply and implement the requirements of
2007 Wis. Act 20, creating the Wisconsin Long-Term Care Insurance Partnership Program (Partnership Program) including the requirements for intermediary training and the process by which insurers submit policies that are intended to qualify for the Partnership Program must adopt the 2000 and 2006 National Association of Insurance Commissioners (NAIC) Long-Term Care Insurance Model Act and Model Laws, pursuant to the Deficit Reduction Act of 2005 (Pub.L. 109-171) (DRA). These amendments are needed to expand consumer protection and comply with the requirements of the Center for Medicare and Medicaid Services (CMS) as delegated to the NAIC the function of regulating the insurers offering long-term care insurance products.
Related statutes or rules
The Partnership Program is described at s.
49.45 (31), Stats., and requires coordination between the OCI and the Department of Health and Family Services.
Plain language summary
The current administrative rule was last revised in 2001 and is not fully compliant with the NAIC Long-Term Care Model Act and NAIC Long-Term Care Model Law (NAIC Model Act and Model Law). When
2007 Wis. Act 20 created the Partnership Program, the OCI is required to implement the NAIC Model Act and Model Law in order for insurers to offer policies compliant with the DRA. Significant portions of the proposed rule update and expand definitions and require disclosure of these definitions to insureds so that they understand how the long-term care, home health care or nursing home insurance policy is able to be used and the limitations or exclusions that may be applied by insurers.
In section 3.455, the modifications primarily address the conversion from a group long-term care insurance policy to an individual long-term care insurance policy. The expanded information is intended to both comply with the NAIC Model Act and Model Law and Wisconsin conversion and continuation law. The section also includes expanded definition related to conversion of long-term care insurance policies.
Section
3.46 modifications begin with updated and revised definitions that are intended to provide consumers with greater specificity regarding terms used within long-term care, home health care and nursing home care insurance policies. Of note the current NAIC Model Act and Model Law do not exempt group long-term care insurers and as such the exemption in s.
3.46 (2) has been struck. Consumer protection elements are introduced or existing protections expanded throughout this section. One tool to both provide a check on the industry and its intermediaries and better assist consumers with the purchase of long-term care, home health care or nursing home care insurance is through the consolidation and expansion of the marketing requirements. Intermediaries and insurers are required to report on their prior dealings with consumers and state that the policy being sold is an appropriate product for that person. Although similar tools are currently required, the expansion requires additional data reporting to the OCI so that as the regulator we are provided a clearer picture of what sales are occurring and trends in the marketplace. The information will also highlight for both OCI and the insurers contracting with intermediaries information that may reveal unacceptable practices including high pressure sales tactics or interactions with persons resulting in a higher rate of complaints than other intermediaries. Appropriateness of each sale is to be reviewed and must meet the insurer's guidelines.
Additionally, some of the modifications reflect changes in our society, for instance the recognition and use of the internet or on-line completion of applications. Also, nonforfeiture of benefits provisions reflect the increasing cost of long-term care and the affect those increases have on the insureds. Some seniors, at a time near to when the policy may be most useful are least able to afford premium increases. Nonforfeiture of benefits or contingent nonforfeiture provisions allow those who have paid premiums for many years benefits even after they are no longer able to keep their policy enforce.
New paragraphs are also added regarding upgrade and down-grades of policies, and expanded disclosure requirements are included for various benefits including nonforfeiture benefits. These modifications reflect the marketplace and include oversight provisions. These types of benefits potentially give consumers greater control and options when faced with increasing premiums rather than just lapsing the policy due in part to financial constraints. Expanded notification to insureds of new benefits or changing access to providers is also contained in this proposed rule, a modification that allows insureds options that they may not previously been informed of or had access to from within the same carrier. Requirements monitoring replacement of policies is also expanded to enhance oversight of actions by intermediaries and insurers.
Finally, s.
3.46 includes a new section related to initial and on-going intermediary training for long-term care insurance products. In part, this provision delineates training requirements related to the Wisconsin Partnership Program, but is required for all intermediaries offering, selling or negotiating long-term care contracts. Insurers are required to verify compliance to the OCI and OCI assure the Department of Health and Family Services that the intermediaries dealing with Wisconsin consumers are aware of the unique programs available in Wisconsin.
Section
3.465 is newly created to implement the requirements of the Wisconsin Long-Term Care Insurance Partnership Program. This section contains minimum inflation protection percentage increases by age as outlined by the federal government in order for the policies offered by insurers both meet the requirements of the Deficit Reduction Act of 2005 (Pub.L. 109-171). The section also delineates when and how insurers exchange existing long-term care insurance policies for policies that are intended to qualify for the Partnership Program in both the individual and group market. Appendices outline various notices that are to be provided to consumers at the time of solicitation and again at the point of sale. These are intended to educate the consumer so that the may be better able to make informed decisions.
Comparison with federal regulations
It is understood that CMS is anticipating promulgating rules related to the reciprocity of the Partnership Program. Those rules are not anticipated to affect OCI.
Comparison of rules in adjacent states
