2007 WISCONSIN ACT 153
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).
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
153,1
Section
1. 46.275 (5) (b) 4. of the statutes is amended to read:
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.
153,2
Section
2. 46.278 (1) of the statutes is amended to read:
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.
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Section
3. 46.278 (1m) (am) of the statutes is amended to read:
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).
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Section
4. 46.278 (2) (a) of the statutes is amended to read:
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.
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Section
5. 46.278 (4) (a) of the statutes is amended to read:
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.
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Section
6. 46.278 (5) (a) of the statutes is amended to read:
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.
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Section
7. 46.278 (6) (e) 1. a. of the statutes is amended to read:
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).
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Section
8. 46.278 (6) (e) 1. b. of the statutes is amended to read:
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.
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9. 46.278 (6) (e) 1. c. of the statutes is amended to read:
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.
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Section
10. 46.279 (1) (b) of the statutes is amended to read:
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).
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.
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Section
12. 49.45 (6m) (am) 1. bm. of the statutes is amended to read:
49.45 (6m) (am) 1. bm. Nonbillable services of a registered nurse, licensed practical nurse, and nurse's assistant nurse aide.
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Section
13. 49.45 (8) (a) 1. of the statutes is repealed.
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Section
14. 49.45 (8) (a) 2m. of the statutes is created to read:
49.45 (8) (a) 2m. "Nurse aide" has the meaning given in s. 146.40 (1) (d).
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.
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Section
16. 49.45 (30m) (a) 2. of the statutes is amended to read:
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.
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Section
17. 49.45 (42) (b) of the statutes is amended to read:
49.45 (42) (b) The individual is not eligible to receive home health aide services under medicare, as defined in sub. (3) (L) 1. b.
153,18
Section
18. 49.498 (1) (h) of the statutes is amended to read:
49.498
(1) (h) "
Nurse's assistant
Nurse aide" has the meaning given
for "nurse aide" under
42 USC 1396r (b) (5) (F).
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Section
19. 49.498 (2) (e) 1. of the statutes is repealed.
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Section
20. 49.498 (2) (e) 2. of the statutes is amended to read:
49.498 (2) (e) 2. A nursing facility may not use the individual as a nurse's assistant nurse aide unless the nursing facility has inquired of the department concerning information about the individual in the registry under s. 146.40 (4g).
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Section
21. 49.498 (2) (e) 3. of the statutes is amended to read:
49.498 (2) (e) 3. A nursing facility shall provide the regular performance review and regular in-service education that assures that individuals used as nurse's assistants nurse aides are competent to perform services as nurse's assistants nurse aides, including training for individuals to provide nursing and nursing-related services to nursing facility residents with cognitive impairments.
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Section
22. 50.01 (2) of the statutes is amended to read:
50.01 (2) "Nurse's assistant
Nurse aide" means a person who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the person, for the direct health care of a patient or resident. "Nurse's assistant Nurse aide" does not mean a feeding assistant, as defined in s. 146.40 (1) (aw); a person who is licensed, permitted, certified, or registered under ch. 441, 448, 449, 450, 451, 455, 459, or 460; or a person whose duties primarily involve skills that are different than those taught in instructional programs for nurse's assistants nurse aides.
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Section
23. 50.04 (2) (c) 2. b. of the statutes is amended to read:
50.04 (2) (c) 2. b. A shortage of nurses or nurse's assistants nurse aides available for employment by the nursing home exists.
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Section
24. 50.04 (2) (d) (intro.) of the statutes is amended to read:
50.04 (2) (d) (intro.) Each nursing home, other than nursing homes that primarily serve the developmentally disabled, shall provide at least the following hours of service by registered nurses, licensed practical nurses, or nurse's assistants nurse aides and may not use hours of service by a feeding assistant, as defined in s. 146.40 (1) (aw), in fulfilling these requirements:
153,25
Section
25. 50.04 (2r) of the statutes is amended to read:
50.04
(2r) Admissions requiring approval. Except in an emergency, a nursing home that is not certified as a provider of medical assistance or that is an intermediate care facility for
the mentally retarded persons with mental retardation, as defined in s. 46.278 (1m) (am), or an institution for mental diseases, as defined under
42 CFR 435.1009, may not admit as a resident an individual who has a developmental disability, as defined in s. 51.01 (5), or who is both under age 65 and has mental illness, as defined in s. 51.01 (13), unless the county department under s. 46.23, 51.42 or 51.437 of the individual's county of residence has recommended the admission.
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Section
26. 50.065 (8) of the statutes is amended to read:
50.065 (8) The department 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) or (3) (b). No fee may be charged to a nurse's assistant nurse aide, as defined in s. 146.40 (1) (d), for obtaining or maintaining the information if to do so would be inconsistent with federal law.
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Section
27. 50.095 (3) (b) of the statutes is amended to read:
50.095 (3) (b) The staff replacement rates for full-time and part-time nursing staff, nurse's assistants
nurse aides, and administrators for the previous year for the nursing home and for all similar nursing homes in the same geographical area, as determined by the department.
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Section
28. 50.097 of the statutes is amended to read:
50.097 Registry. Any person may receive, upon specific written request to the department, requested information that is contained in the registry of nurse's assistants and home health aides individuals under s. 146.40 (4g) (a) or that is contained in the registry of hospice aides under s. 146.40 (4g) (a) 1.
153,29
Section
29. 50.14 (1) (a) of the statutes is amended to read:
50.14 (1) (a) Notwithstanding s. 50.01 (1m), "facility" means a nursing home or an intermediate care facility for the mentally retarded persons with mental retardation that is not located outside the state.
153,30
Section
30. 50.14 (1) (b) of the statutes is amended to read:
50.14
(1) (b) "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).
50.14 (2) (bm) For intermediate care facilities for
the mentally retarded persons with mental retardation, an amount calculated by multiplying the projected annual gross revenues of all intermediate care facilities for the mentally retarded persons with mental retardation in this state by 0.055, dividing the product by the number of licensed beds of intermediate care facilities for persons with mental retardation in this state and dividing the quotient by 12.
153,32
Section
32. 51.06 (8) (a) 1. of the statutes is amended to read:
51.06
(8) (a) 1. "Intermediate care facility for
the mentally retarded persons with mental retardation" has the meaning given
in for "intermediate care facility for the mentally retarded" under 42 USC 1396d (d).
153,33
Section
33. 51.06 (8) (b) (intro.) of the statutes is amended to read:
51.06 (8) (b) (intro.) Annually by October 1, the department shall submit to the joint committee on finance and to the appropriate standing committees of the legislature under s. 13.172 (3) a report that includes information collected from the previous fiscal year on the relocation or diversion of individuals who are Medical Assistance eligibles or recipients from nursing homes, intermediate care facilities for the mentally retarded persons with mental retardation, and centers for the developmentally disabled. The report shall include all of the following information:
153,34
Section
34. 51.06 (8) (b) 4. of the statutes is amended to read:
51.06 (8) (b) 4. An accounting of the costs and savings under the Medical Assistance program of relocations and diversions and the resulting reduction in capacity for services of nursing homes, intermediate care facilities for the mentally retarded persons with mental retardation, and centers for the developmentally disabled. The accounting shall include the per individual savings as well as the collective savings of relocations and diversions.
153,35
Section
35. 51.06 (8) (b) 7. of the statutes is amended to read:
51.06 (8) (b) 7. Staff turnover rates for nursing homes, intermediate care facilities for the mentally retarded persons with mental retardation, and centers for the developmentally disabled in communities in which an individual relocated or diverted from a nursing home, intermediate care facility for the mentally retarded
persons with mental retardation, or center for the developmentally disabled currently resides.
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Section
36. 51.62 (4) of the statutes is amended to read:
51.62 (4) Departmental duties. The department shall provide the protection and advocacy agency with copies of annual surveys and plans of correction for intermediate care facilities for the mentally retarded
persons with mental retardation on or before the first day of the 2nd month commencing after completion of the survey or plan.
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Section
37. 146.40 (title) of the statutes is amended to read:
146.40 (title) Instructional programs for
nurse's nurse aides; reporting client abuse.
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Section
38. 146.40 (1) (aw) of the statutes is created to read:
146.40 (1) (aw) "Feeding assistant" means an individual who has completed a state-approved training and testing program, as specified by the department by rule, to perform one nursing-related duty, as defined by the department by rule.
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Section
39. 146.40 (1) (bm) of the statutes is repealed.
153,40
Section
40. 146.40 (1) (bo) of the statutes is amended to read:
146.40 (1) (bo) "Hospice" means a hospice that is licensed under subch. IV of ch. 50 and that is certified as a provider of services under 42 USC 1395 to 1395ccc.
153,41
Section
41. 146.40 (1) (bp) of the statutes is repealed.
153,42
Section
42. 146.40 (1) (bt) of the statutes is amended to read:
146.40
(1) (bt) "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).
