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:
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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.
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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.
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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.
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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.
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Requiring a competency testing program to use systems that prevent disclosure of both the pool of questions and the individual competency evaluations.
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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.
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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
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
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Nursing homes
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33
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Wisconsin Technical Colleges
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16
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High schools
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15
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Other*
|
13
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Hospitals
|
7
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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
