Reporting, bookkeeping and other procedures required for compliance with proposed rule:
No new reporting or bookkeeping are required under the proposed rule. New procedures required of abatement contractors and others who disturb asbestos include creation and maintenance of occupant protection plans for work in occupied buildings, project logs for each regulated project, and training records for exterior asbestos workers. New procedures required of asbestos training providers include examination and documentation of student identification records, photographing each student and submitting the photos electronically to the Department, submittal of class and student data for each class to the Department.
Professional skills necessary for compliance with the proposed rule:
Training providers must be competent with basic functions of electronic submittal of various types of files using email and use of an online data entry program to submit course notifications. Other businesses would also benefit from computer and internet skills for submitting applications and notifications, but these skills are not mandatory.
Fiscal Estimate
Since 1988 when asbestos program fees were established in statute and rule, program costs have increased annually due to inflation with no subsequent revision in fees. Revenue from current fees is no longer sufficient to cover operating expenses. To meet current costs, the Department is proposing to revise and increase fees as follows:
•
Asbestos worker certification - increase from $50 to $75
•
Asbestos supervisor certification - increase from $100 to $125
•
Asbestos inspector certification - increase from $150 to $175
•
Asbestos management planner certification - increase from $100 to $125
•
Asbestos project designer certification - increase from $150 to 175
•
Exterior asbestos worker (was roofing worker) – increase from $25 to a one-time fee of $125
•
Exterior asbestos supervisor (was roofing supervisor) – increase from $50 to $75
•
Asbestos company certification – new fees of $200 for asbestos company (including abatement, consulting and training provider companies) and $100 for exterior asbestos company
•
Training course application – new one-time fee of $200 per day of training (ranges from $200 to $1,000)
•
Initial training course accreditation – change from one-time fee of $750 to annual fee of $900
•
Refresher training course accreditation – change from one-time fee of $250 to annual fee of $250
•
Instructor approval – new annual fee of $50
•
Asbestos project notification – new fees of $50 with 2 days or more notice or $100 for less than 2 days notice
•
Replacement card for lost or damaged certification card – increase from $8 to $25
•
Handling of incomplete applications – new $25 fee
•
Training course audit when a third audit is needed to verify correction of course deficiencies identified on 2 previous audits of the same course – audit fee includes the actual cost of conducting the audit, including staff time and travel expenses.
The Asbestos Certification Program has been operating in deficit since SFY04 with a projected deficit total of $341,242 by the end of SFY08. This deficit will continue to increase until a fee increase is in place. The proposed fee increase is expected to eliminate the deficit within five to six years after implementation. The net effect of this rule would be to provide sufficient revenue for the asbestos certification program to operate for the next five to seven years.
The proposed fee structure spreads expenses more evenly among entities regulated by the rule. Currently, individual certification fees make up 99% of program revenue. Under the proposed rule, individuals would continue to account for the majority of revenue, at 68%. Companies (abatement, consulting, exterior abatement, training providers and non-asbestos companies with in-house certified staff) would cover the remaining 32% of fees. Companies conducting more asbestos abatement projects would pay proportionately more in fees than companies doing fewer projects because they would pay more notification fees.
Under the proposed fee structure, it is estimated that individual certification fees in the first full year would be about $403,000, company certification fees would be about $153,000, and course accreditation fees would be about $36,000. The projected average annual cost to a small business conducting asbestos abatement would be $1,150 (for company certification and project notification fees, which are paid only when a company conducts asbestos abatement and can be passed on to the client); for a small business conducting asbestos consulting the annual cost would be $200 (for company certification only); and, for a small business conducting exterior-only abatement the average annual cost would be about $300 (for company certification and project notifications). For a training course, the annual cost to the training provider would be $1,150 to maintain accreditation of both the initial and refresher course in a discipline.
It is expected that state government would have some increased costs, but no additional FTE's, to process company certifications and the additional certification and notification fees. No fiscal impact is expected on local government agencies. The overall fiscal effect on small businesses is expected to be minimal or indeterminate.
Notice of Hearings
Health and Family Services
NOTICE IS HEREBY GIVEN that pursuant to Sections
146.40 (5) and
227.11 (2) (a), Stats., and interpreting s.
146.40, Stats., the Wisconsin Department of Health and Family Services will hold public hearings on its proposal to repeal and recreate ch.
HFS 129, relating to certification of programs for training and testing nurse assistants, home health aides, and hospice aides on the dates, times, and locations listed below.
Hearing Information
Date and Time
|
Location
|
June 12, 2008
9:00 AM –
11:00 AM
June 13, 2008
10:00 AM –
12:00 PM
June 16, 2008
11:00 AM –
1:00 PM
June 17, 2008
11:00 AM –
1:00 PM
|
Wilson Street State Office Bldg.
1 West Wilson Street
Room 950 A
Madison, Wisconsin
Southeastern Regional Office
819 North 6th Street
Room 40
Milwaukee, Wisconsin
Northcentral Technical College
Center for the Health Sciences Building – Auditorium
1000 West Campus Drive
Wausau, Wisconsin
Wisconsin Indianhead Technical
College
Room 174/176
1900 College Drive
Rice Lake, Wisconsin
|
The hearing site is fully accessible to people with disabilities. If you are hearing impaired, do not speak English or have circumstances that might make communication at a hearing difficult; you require an interpreter or a non-English large print or taped version of the proposed rules, contact the person at the address or telephone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Submission of Written Comments
Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at
http://adminrules.wisconsin.gov.
The deadline for submitting comments to the Department is 4:30 p.m. on June 24, 2008.
Copies of Proposed Rules
A copy of the full text of the rules and the fiscal estimate can be obtained at no charge from the Wisconsin Administrative Rules Website at http://adminrules. wisconsin.gov or by contacting the person listed below.
Agency Contact Person
Pat Benesh, Quality Assurance Program Spec-Senior
Division of Quality Assurance
1 West Wilson St. Room 1150
Madison, WI 53701
Phone: 608-264-9896
Fax: 608-267-7119
Small Business Regulatory Coordinator
Rosie Greer
(608) 266-1279
Analysis Prepared by the Department of Health and Family Services
Statute interpreted
Statutory authority
Explanation of agency authority
Related statute or rule
Plain language analysis
Chapter
HFS 129 establishes conditions for certification of instructional programs, including standards for instructors, curriculum, and criteria for the competency evaluation programs for persons who work as nurse aides in hospitals, nursing homes, facilities for the developmentally disabled, home health agencies or hospices. HFS 129 also establishes standards for the development of a registry of persons who have satisfactorily completed the training and competency program or who otherwise are eligible for listing in the registry. Through this rulemaking order, the Department proposes to repeal and re-create ch.
HFS 129, relating to the certification of programs and requirements for training and testing of nurse aides for the following reasons:
1. To reflect the Department's decision to standardize the administration and operation of nurse aide training and competency evaluation statewide by contracting for this service. Federal regulations set forth under CFR 483.152 and 483.154 authorize states to choose to offer a nurse aide training and competency evaluation program. The Department has been reviewing, and approving or disapproving nurse aide training and competency evaluation programs based on standards in s.
HFS 129.08.
However, the Department believes that specifying standards for competency evaluation programs cannot assure the maintenance of neutral and objective facility-sponsored instructional and competency evaluation tests that are free from possible inherent conflicts of interest posed by the need to meet facility staffing requirements. The Department proposes to modify ch.
HFS 129 to reflect the Department's contracting for such competency testing.
2. To improve the accuracy of the nurse aide registry. Under s.
146.40 (4g), Stats., and s.
HFS 129.10, the Department is required to maintain a list, known as a “registry," of all persons deemed qualified to work in Wisconsin as a nurse aide. Aside from committing an offense that would bar a person from remaining on the list in good standing, there are currently no Wisconsin statutory provisions for removing a person's name from the list, even though the person may no longer be available or be interested in serving as a nurse aide. The Department believes that the list of qualified nurse aides, currently numbering over 196,000, contains many persons who no longer are available or interested in working as a nurse aide. Therefore, the Department proposes to modify s.
HFS 129.10 to require nurse aides to periodically update their registration information and, in the process, allow the Department to maintain a more accurate list of active nurse aides. Periodic updating will also provide the Department the opportunity to check the accuracy of the information provided by nurse aides.
3. To clarify who may be included on the registry and who is eligible to work as a nurse aide and specifically as a medication aide. The Department will also clarify the circumstances under which a person not currently included on the registry may work in a health care facility as an RN, LPN, etc.
4. To make ch.
HFS 129 more consistent with current federal regulations governing nurse aides. The Department proposed to update aspects of ch.
HFS 129 to reflect federal requirements established since ch.
HFS 129 that was originally promulgated April 1992. Specifically, the Department will propose to incorporate federal requirements relating to:
•
Withdrawal of Department approval of a nurse aide training and competency evaluation program or a nurse aide competency evaluation program if the entity providing the program refuses to permit unannounced visits by the Department.
•
Nurse aide training needing to be performed by or under the general supervision of a RN who possesses a minimum of 2 years of nursing experience, at least 1 year of which must be in the provision of long term care facility services.
•
The inability of a facility to charge fees for training and competency testing to a person who is employed by or has received an offer of employment from a health care facility. In addition, in the case of a person becoming employed by a federally certified nursing home within 12 months after completing training and testing program, the requirement for the Department to reimburse the person for the costs of such training and testing.
•
Requiring that the skills demonstration part of the evaluation be performed in a facility or laboratory setting comparable to the setting in which the person will function as a nurse aide and be administered and evaluated by a RN with at least 1 year's experience in providing care for the elderly or the chronically ill of any age.
•
Requiring a competency testing program to use systems that prevent disclosure of both the pool of questions and the individual competency evaluations.
•
Requiring that the skills demonstrated must consist of a demonstration of randomly selected items drawn from a pool consisting of the tasks generally performed by nurse aides.
•
Establishing what happens if a person does not complete the evaluation satisfactorily.
5. To expand the mechanisms available to the Department for enforcing compliance of testing and evaluation programs. Existing enforcement options in s.
HFS 129.05 (2) (c) are limited to suspension or revocation of certification or imposing a plan of correction. Although these are valuable enforcement tools, they do not give the Department the flexibility it needs to tailor its response to the severity of non-compliance with this chapter. The Department proposes to revise ch.
HFS 129 to include additional enforcement options such as requiring a training or competency program whose approval has been revoked to remain ineligible to submit a new nurse aide training or testing program application for a period of up to one year, issuing a statement of deficiency and placing conditions on certification. The Department will also propose additional enforcement penalties for instructors and examiners who fail to follow program requirements.
6. To include the feeding assistant training and testing program requirements. The Department proposes updating ch.
HFS 129 to include reference to federal regulations set forth under
42 CFR 483.35 and
42 CFR 483.160 which authorize states to choose to offer a paid feeding assistant training and competency evaluation program or to review and approve or disapprove program application upon request. This training and testing is conducted in nursing homes or intermediate care facilities for persons with mental retardation to assist residents who have no feeding complication with eating and drinking.
7. To include the medication aide training and testing program requirements. Federal regulations set forth under
42 CFR 483.60 permit the use of unlicensed personnel, if State law permits, to administer drugs under the general supervision of a licensed nurse. This training and testing is conducted in nursing homes, technical colleges and private enterprises. The Department proposes to update ch.
HFS 129 to include these medication aide requirements.
8. To increase the minimum number of hours required for nurse aide training programs from 75 to 120 hours due to the increase in the acuity level of persons receiving care by certified nurse aides. Studies completed by the federal government and other interested parties found that nurse aides need more than 75 hours of training to adequately care for today's elderly. Thirty one other States have already increased the required minimum number of hours for nurse aide training programs.
9. To include the process for requesting, reviewing and approving or disapproving waivers of Federal sanctions to training programs. The Department proposes to include reference to Public Law 105-15 (H. R. 968), revising specific provisions of the Social Security Act, which permits a State to waive the two-year prohibition of Nurse Aide training offered in, but not by certain nursing homes if the State determines there is no other such program offered within a reasonable distance of the facility, assures through an oversight effort that an adequate environment exists for operation of the program in the facility, and provides notice of such determination and assurances to the State long term care ombudsman.
Comparison with 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 in the Code of Federal Regulation,
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 nurse aide 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 to one another, however the state requirements augment more general federal regulations providing specificity in certain areas. The intent of these regulations is to foster safe and adequate care and treatment of clients by these caregivers.
There are no proposed federal regulations that address the activities to be regulated by the proposed rule.
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. The opportunity to appeal any adverse action taken by the State is afforded through the Illinois Departments Rules of Practice and Procedure in Administrative Hearings. In addition, the code 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. Illinois code exceeds the federal minimum number of training hours and requires a minimum of 120 hours of instruction, excluding breaks, lunch and any orientation to specific policies of the employing facility. The code also establishes a minimum of 12 hours for instruction related to Alzheimer's disease and related dementias. Federal regulation requires a minimum of 75 hours for nurse aide training.
The Illinois code is 77 Admin Code 395 Long-Term Care Assistants and Aides Training Programs code.
Iowa: Iowa code closely mirrors the federal requirements by including standards for denial, suspension and revocation of program approval. The rule requires the same federal minimum number of hours for the training course at 75 hours. 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. The code also includes provisions for Iowa to remove the names of certified nurse aides from the registry who have performed no nursing or nursing related services for monetary compensation for a period of 24 consecutive months unless the person's registry entry includes documented findings of conviction by a court of law of abuse, neglect, mistreatment or misappropriation of property.
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
