DHS 129.03(54) (54) “Variance” means the department’s approval of an alternate requirement requested by a health care provider in place of a requirement of this chapter.

DHS 129.03(55) (55) “Waiver” means the department’s approval of an exemption requested by a health care provider from a requirement of this chapter.

DHS 129.03(56) (56) “Waiver of prohibition” means an authorization for a program to be taught in but not by the entity’s staff that has had its approval denied or withdrawn pursuant to Public Law 105-15, Section 1819 (f) (2) and Section 1919 (f) (2) of the Social Security Act, and 42 U.S.C. 1395i3 (f) (2) and 42 U.S.C. 1396r (f) (2).

DHS 129.03 History History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08; corrections in (1), (4), (21), (23), (27), (28) and (29) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; correction in (24) made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674; correction in (50) made under s. 13.92 (4) (b) 7., Stats., Register July 2015 No. 715; correction in (25) and (50) made under s. 13.92 (4) (b) 7., Stats., Register November 2015 No. 719; CR 16-088: cr. (30m) Register September 2017 No. 741, eff. 10-1-17; 2019 Wis. Act 1: am. (19) (c) Register May 2019 No. 761, eff. 6-1-19; CR 20-068: am. (18) Register December 2021 No. 792, eff. 1-1-22; CR 21-087: r. and recr. (30m), r. (31) Register June 2022 No. 798, eff. 7-1-22.

DHS 129.04 DHS 129.04 Waivers and variances.

DHS 129.04(1) (1) Requirements for waivers or variances. The department may grant a request for a waiver of or a variance from a requirement of this chapter if the department finds that the waiver or variance will not adversely affect the health, safety or welfare of any client; and that either:

DHS 129.04(1)(a) (a) The requirement that the health care provider or program seeks relief from would result in unreasonable hardship or is infeasible as applied to the training program or competency evaluation program.

DHS 129.04(1)(b) (b) If the request is for a variance, the proposed alternative to a rule, including new concepts, methods, procedures, practice, techniques, equipment, personnel qualifications, pilot project or other alternative is in the interest of client care and management or more effective training or testing programs or management.

DHS 129.04(2) (2) Procedures.

DHS 129.04(2)(a) (a) Requests. A request for a waiver or variance may be made at any time, shall be made in writing to the department and shall state all of the following:

DHS 129.04(2)(a)1. 1. The rule from which the waiver or variance is requested.

DHS 129.04(2)(a)2. 2. The time period for which the waiver or variance is requested.

DHS 129.04(2)(a)3. 3. The reason or reasons for which the waiver or variance is requested.

DHS 129.04(2)(a)4. 4. If the request is for a variance, the proposed alternative to the rule, including new concepts, methods, procedures, practice, techniques, equipment, personnel qualifications, pilot project or other alternative or alternatives the program proposes and a description of how the proposed alternative or alternatives serves the interests of training and competency evaluation in a manner that is as protective as the requirement from which the variance is sought; and

DHS 129.04(2)(a)5. 5. Assurances that sub. (1) will be satisfied.

DHS 129.04(2)(a)6. 6. The department may require additional information from the health care provider or program prior to acting on the request.

DHS 129.04 Note Note: A request for a waiver or variance should be addressed to the Division of Quality Assurance, P.O. Box 2969, Madison, WI 53701-2969 or faxed to 608-264-6340.

DHS 129.04(2)(b) (b) Grants and denials.

DHS 129.04(2)(b)1. 1. The department shall grant or deny in writing each request for a waiver or variance. The notice of denial shall contain reasons for the denial.

DHS 129.04(2)(b)2. 2. The terms of a waiver or variance shall be modified upon agreement between the department and the health care provider or program.

DHS 129.04(2)(b)3. 3. The department may impose additional conditions on a waiver or variance it considers necessary to protect the health, safety or welfare of clients.

DHS 129.04(2)(b)4. 4. The department may limit the duration of any waiver or variance.

DHS 129.04(2)(c) (c) Revocation. The department may revoke a waiver or variance, with written notice to the program, subject to the hearing requirements in par. (d), for any of the following reasons:

DHS 129.04(2)(c)1. 1. The department determines the waiver or variance is adversely affecting the effectiveness of the health care provider or program.

DHS 129.04(2)(c)2. 2. The health care provider or program failed to comply with the waiver or variance as granted or with a condition of the waiver or variance.

DHS 129.04(2)(c)3. 3. The health care provider or program notifies the department in writing that the program wishes to relinquish the waiver or variance and be subject to the rule previously waived or varied.

DHS 129.04(2)(c)4. 4. Revocation is required by a change in law.

DHS 129.04(2)(d) (d) Hearings. A health care provider or program may contest the denial of a requested waiver or variance by requesting a hearing under ch. 227, Stats., and s. DHS 129.10.

DHS 129.04(3) (3) Nurse aide training or competency evaluation program waiver of prohibition. Pursuant to amendments made to Public Law 105-15, Section 1819 (f) (2) and Section 1919 (f) (2) of the Social Security Act, and 42 U.S.C. 1395i3 (f) (2) and 42 U.S.C. 1396r (f) (2), the department may authorize a waiver of the 2-year prohibition for approval of training programs or the competency evaluation program offered in but not by a facility under the following circumstances: