4. Statutory authority for the rule
a. Explanation of authority to promulgate the proposed rule
The Department is authorized to promulgate the rule based upon explicit statutory language.
b. Statute/s that authorize/s the promulgation of the proposed rule
The Department is authorized to promulgate the emergency rule based upon the following statutory sections:
(1) (aw) “Feeding assistant" means an individual who has completed a state-approved training and testing program, as specified by the department by rule, or training, as described in sub. (2m), that satisfies the state-approved training requirement, to perform one nursing-related duty, as defined by the department by rule.
. . .
(2m) A nursing home or intermediate care facility for persons with an intellectual disability, whether or not the nursing home or intermediate care facility is a certified provider of medical assistance, may not employ or contract for the services of an individual as a feeding assistant, regardless of the title under which the individual is employed or contracted for, unless the individual has successfully completed a state-approved training and testing program, as specified by the department by rule. Any relevant education, training, instruction, or other experience that an individual has obtained in connection with any military service, as defined in s. 111.32 (12g), counts toward satisfying the requirement to complete the state-approved training program under this subsection, if the individual or the nursing home or intermediate care facility demonstrates to the satisfaction of the department that the education, training, instruction, or other experience obtained by the individual is substantially equivalent to the state-approved training program. . . .
(3) Except as provided in sub. (4d), the department shall approve instructional programs for nurse aides that apply for, and satisfy standards for, approval that are promulgated by rule by the department. The department may not require an instructional program to exceed the federally required minimum total training hours or minimum hours of supervised practical training under 42 CFR 483.152 (a). The department shall review the curriculum of each approved instructional program at least once every 24 months following the date of approval to determine whether the program continues to satisfy the standards for approval. Under this subsection, the department may, after providing notice, suspend or revoke the approval of an instructional program or impose a plan of correction on the program if the program fails to satisfy the standards for approval or operates under conditions that are other than those contained in the application approved by the department. (3g) Except as provided in sub. (4d), the department shall approve instructional programs for nurse aides that apply for approval; that satisfy standards for approval that are promulgated by rule by the department; and that allow an individual who has successfully completed an instructional program for nurse aides in another state to receive instruction in this state that, when combined with the instructional program in the other state, will result in the individual having received substantially the same instruction as an individual who successfully completes an instructional program approved under sub. (3). Only an individual so described may complete an instructional program for nurse aides that is approved under this subsection. The department shall review the curriculum of each approved instructional program at least once every 24 months following the date of approval to determine whether the program continues to satisfy the requirements of this subsection. Under this subsection, the department may, after providing notice, suspend or revoke the approval of an instructional program or impose a plan of correction on the program if the program fails to satisfy the requirements of this subsection or operates under conditions that are other than those contained in the application approved by the department.
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(5)
(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.
Section 227.11 (2) (a), Stats.: Rule-making authority is expressly conferred on an agency as follows: (a) 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 rule-making 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.
Section 227.24 (1) (a), Stats.: An agency may, except as provided in s. 227.136 (1), promulgate rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures. (4) . . . [T]he department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control or suppression of communicable diseases, for the quarantine and disinfection of personals, localities and things infected or suspected of being infected by a communicable disease . . . .
(6) The department may authorize and implement all emergency measures necessary to control communicable diseases.
c. Statutes or rules that will affect the proposed rule or be affected by it
5. Estimates of the amount of time that state employees will spend to develop the rule and other necessary resources
The estimated time for state employees to develop the emergency rule is 40 hours.
6. Description of all of the entities that may be affected by the emergency rule, including any local governmental units, businesses, economic sectors, or public utility ratepayers who may reasonably be anticipated to be affected by the rule
This chapter applies to any facility, agency or other organization that proposes to (1) maintain a registry of nurse aides, (2) train or administer competency evaluation testing of nurse aides, feeding assistants, or medication aides under a program approved by or the department, and (3) all persons automatically included or eligible for inclusion and requesting inclusion in the department's registry of nurse aides.
7. Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule
Federal conditions of participation for the registry of nurse aides, nurse aide training and testing programs, and training of paid feeding assistants are contained in 42 CFR 483.150 to 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 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. 8. Anticipated economic impact, locally or statewide
The proposed rule will have minimal or no economic impact.
Agency contacts
Mark R. Thompson, Admin. Rules Attorney
Office of Legal Counsel
(608) 266-1279
Jackson Keuler, Admin. Rules Officer
Office of Legal Counsel
(608) 266-0387
