WISCONSIN DEPARTMENT OF HEALTH SERVICES
PROPOSED ORDER TO ADOPT EMERGENCY RULES
The Wisconsin Department of Health Services (“the department”) proposes an order to: repeal
(8), 129.03 (30) (a) (intro), 129.03 (30) (a) 4., 129.03 (37), and 129.06 (1) (a), and 129.11 to .20.
FINDING OF EMERGENCY
Preservation of the public peace, health, safety, or welfare necessitates adoption of an emergency rule. The following rules should be addressed because many facilities that employ certified nursing assistants (CNAs) and feeding assistants are losing these staff because they care for residents who are at a higher risk to contract COVID-19 due to age and pre-existing conditions, which therefore puts staff at increased risk of contracting COVID-19. There is currently a high demand to bring new CNAs into the workforce via “emergency” or expedited training programs, but those programs are not compliant with many of the requirements under ch. DHS 129. If emergency rules are not passed, those emergency training programs will either have to: (1) individually seek waivers or variances, which will add delay and uncertainty regarding training new CNAs; or (2) close, which will result in a supply of CNAs that is inadequate to meet the state’s increased demand.
Sections 146.40 (3 ) and (3g), 146.40 (5), Stats.
Sections 146.40 (5), 227.11 (2) (a), Stats.
Explanation of agency authority
The department’s authority to promulgate rules is as follows: Section 146.40 (5) Stat.:
(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), Stat.:
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
On March 12, 2020, Governor Evers issued Executive Order 72, which, in accordance with s. 323.10, Stat., declared a public health emergency related to COVID-19. Executive Order 72 further designated the department as the lead agency to respond to the public health emergency. The Governor directed the department to take all necessary and appropriate measures to respond to, and prevent the spread of, COVID-19 in the state—including suspending any administrative rule provisions for which strict compliance would prevent, hinder, or delay necessary actions to respond to the emergency and increase the health threat. On April 3, 2020, Governor Evers and Secretary-designee Palm signed Emergency Order 21, which ordered the suspension of a number of administrative rules, including various sections of ch. DHS 129. Those suspensions aimed to address increased demand for CNAs and feeding assistants due to higher turnover in those positions because their clientele typically posed a higher risk to contract COVID-19. The rule suspensions allowed nursing homes, technical colleges, and private training programs to offer “emergency” or expedited training programs for CNAs to help meet a growing demand. The Governor’s public health emergency declaration expired on May 11, 2020, per s. 323.10, Stats., and that expiration nullified Emergency Order 21. These emergency training programs do not comport with all of the requirements of ch. DHS 129, and if emergency rules are not promulgated, these programs will either have to: (1) individually seek waivers or variances, which will add delay and uncertainty regarding training new CNAs; or (2) close, which will result
in an inadequate number of CNAs and feeding assistants necessary to meet the state’s increased demand to combat the COVID-19 pandemic.
In order to preserve the public peace, health, safety, and welfare under s. 227.24 (1) (a), Stat., the department proposes to suspend or revise certain provisions of DHS 129 to permit greater flexibility for CNA and feeding assistant requirements during the COVID-19 pandemic.