Wisconsin Legislature: DHS 129.11(2)(b)2.

DHS 129.10 Nurse aide program appeals.

(1) Subject of appeal. Except for the denial of an approval of a nurse aide training or competency evaluation program under 42 CFR 483.151 (b) (2) or (3) or the withdrawal of approval of a nurse aide training or competency evaluation program under 42 CFR 483.15(e)(1) or (3), a health care provider may appeal to the department of administration’s division of hearings and appeals any of the following:

(a) A denial of a request for a waiver or variance under s. DHS 129.04 (2) or the revocation of a waiver or variance under s. DHS 129.04 (2) (c).

(b) A denial of an application for approval of training program under s. DHS 129.05 (1).

(d) A denial of an application under s. DHS 129.06 (3) for approval of a training course for primary instructors.

(e) A denial under s. DHS 129.09 (5) of an application to include a person in the registry.

(f) A suspension or revocation of approval or the imposition of a plan of correction under s. DHS 129.05 (2) (d) 2.

(2) Appeals of waiver or variance application denials. A health care provider may contest the department’s denial of a waiver or variance by requesting a hearing under s. 227.42, Stats. The request for a hearing shall be filed with the department of administration’s division of hearings and appeals within 10 working days after receipt of the notice of denial. The request for hearing is considered filed when the request is received by that division.

(3) All other program appeals. Except as provided under sub. (2), all appeals filed pursuant to sub. (1) shall be in writing and shall take the form of a request for a hearing. The request for a hearing shall be filed with the department of administration’s division of hearing and appeals no later than 30 calendar days after the date of the denial, suspension or revocation, and is considered filed when received by that division.

(4) Burden of proof. The program or person shall bear the burden of providing, by the preponderance of credible evidence, that the department’s denial of a requested waiver or variance was unreasonable.

Note: The address of the Department of Administration’s Division of Hearings and Appeals is P.O. Box 7875, Madison, Wisconsin 53707. Appeals may be delivered in person to that office at 5005 University Avenue, Room 201, Madison, Wisconsin, or faxed to that office at 608-264-9885.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

Subchapter III — Feeding Assistants

DHS 129.11 Feeding assistant training program requirements.

(1) Wisconsin’s feeding assistant training programs shall require enrolled persons to successfully complete an approved feeding assistant training program, which includes all of the following federally-mandated topics, to be covered during a minimum of 8 hours of instruction:

(a) Feeding techniques.

(b) Assistance with feeding and hydration.

(d) Appropriate responses to resident behavior.

(e) Safety and emergency procedures, including the Heimlich maneuver.

(f) Infection control.

(g) Resident rights.

(h) Recognizing changes in residents that are inconsistent with the norm and the importance of reporting changes to the nurse.

Note: Safety and emergency procedures may also include Choking: First Aid taught by the American Red Cross and the American Heart Association.

(2) The feeding assistant training program shall also provide instruction on to all students on all of the following topics:

(a) Wisconsin’s Caregiver Program under ss. 50.065 and 146.40, Stats., including background check requirements, the need to promptly report any misconduct allegations, the definitions of abuse or neglect of a client or misappropriation of a client’s property and the rehabilitation review requirements.

(b) The client population who will be served by the feeding assistant in a program based in a nursing home. The facility-based training program curriculum shall include training specific to the identified population types. This training shall include all of the following, but is not limited to:

1. Characteristics of the population, such as the client’s physical, social and mental health needs, and specific medications or treatments needed by the residents.

2. Program services needed by the clients.

3. Meeting the needs of clients with dual diagnoses, such as co-occurrence of mental health disorders and alcohol or drug dependence or abuse, and maintaining or increasing the client’s social participation.

4. Self direction, self care and vocational abilities.

5. Instruction of feeding assistants who have been trained by another facility’s training program, for the current entity’s specific selected population.

(3) Programs may choose to add increased training requirements.

(4) The program determines the number of extra hours required for the training topics listed under sub. (2). However, the training shall be in addition to the minimum 8 hours required for the federally mandated topics under s. DHS 129.11 (1) (a) to (h).

(5) Training programs shall stress that the only direct, hands-on duty a feeding assistant is permitted to perform is assisting residents who have no complicated feeding problems to eat or drink.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

DHS 129.12 Feeding assistant training program curriculum.

(1) Feeding assistant training programs shall use a training curriculum, which has been pre-approved by the department and determined to comply with the federally mandated topics under s. DHS 129.11 (1) (a) to (h).

(2) Feeding assistant training programs shall use the department of health services, division of quality assurance video, The Wisconsin Caregiver Program: A Blueprint for Excellence, to provide feeding assistant students instruction regarding the requirements of the caregiver program. A copy of the video is provided to the feeding assistant training program by the department.

Note: Link to the WI Caregiver program video and guide at https://www.dhs.wisconsin.gov/publications/p6/p63161.pdf and https://vimeo.com/546007413.

(3) Training programs that are conducted in nursing homes shall submit to the department proposed training materials to provide feeding assistants instruction regarding the facility’s selected resident population.

(4) Although the pre-approved standardized training curriculums include additional skill information, such as, intake and output and special care needs for residents with dysphasia, the instructor shall emphasize that the feeding assistant may not be permitted to perform any other hands-on duty, beyond assisting residents who have no complicated feeding problems to eat and drink.

Note: Trained feeding assistants may identify the amounts of food and fluid consumed according to facility policy and procedures.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

DHS 129.13 Feeding assistant training program completion.

(1) A person may not provide hands-on assistance with feeding or hydrating residents unless the person has successfully completed all of the following:

(a) A training program approved by the state for feeding assistants, including additional instruction on the selected resident population and the Wisconsin Caregiver Program requirements.

(b) After completing the training course, a state-approved standardized written quiz with a score of 75 percent or greater. Individuals may request the quiz to be administered orally. Instructors shall consider the needs of persons who have limited English proficiency or literacy difficulties.

(c) A state-approved standardized skill demonstration, determining hand washing and resident feeding competency with a score of 75 percent or greater.

(2) The instructor shall observe the trainee’s performance and initial and date each skill to verify the satisfactory or unsatisfactory performance.

(3) Students who do not successfully pass the initial competency evaluation will be allowed the opportunity to review the training materials and retake the test. Programs can establish the number of times a candidate may retake the test. However, the program shall document the failure, opportunity for review and subsequent retake testing date.

(5) The instructor shall issue a state-approved certificate to each participant who successfully completes the feeding assistant program, documenting the name of the participant, the training program and the date of successful completion.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

DHS 129.14 Standards for instructors of feeding assistant training programs.

(1) The feeding assistant training programs shall determine the appropriate qualifications for their instructors based on the needs of the selected clients and the nursing home.

(2) Training programs shall provide the name and qualifications of the proposed instructor to the department.

(3) The primary instructor may supplement the course by including other individuals for lecture or demonstration whose qualifications or experience add benefit to the training program.

(4) A paid feeding assistant is not permitted to lead the training of another paid feeding assistant student.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

DHS 129.15 Feeding assistant training program approval process.

(1) A nursing home wishing to operate a feeding assistant training program shall apply for approval from the department on a form provided by the department with the nursing home’s proposed selected resident population, curriculum, and proposed feeding assistant instructor information.

(2) The department shall review the application and supporting materials to determine whether to approve or deny the feeding assistant training program. The department will issue a written notice regarding the decision of whether to approve or deny the application within 45 calendar days of receiving a complete application.

(3) Upon approval, the department shall issue, to the feeding assistant program, the standardized training curriculum the program selects, a Wisconsin Caregiver Program video cassette, standardized competency evaluation materials, feeding assistant training program, certificate template, and a feeding assistant roster.

Note: Link to the WI Caregiver program video and guide at https://www.dhs.wisconsin.gov/publications/p6/p63161.pdf and https://vimeo.com/546007413.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

DHS 129.16 Feeding assistant employment requirements.

(1) A nursing home may not employ or use any person as a feeding assistant unless the person is at least 16 years of age and has:

(a) Successfully passed a caregiver background check, that includes no employment or licensure-prohibitive offenses in s. 146.40 (4r), Stats., or s. 48.685, Stats.

(b) Successfully completed a feeding assistant training and competency evaluation program and been determined competent to provide feeding and hydration services to residents.

(2) Nursing homes shall ensure feeding assistants only serve residents who have no complicated feeding problems with eating and hydration.

(3) Residents with complicated feeding problems, as defined in s. DHS 129.03 (10) shall be fed and hydrated by either a licensed health care professional or a nurse aide.

(4) The facility shall base their resident selection for feeding assistants based on the charge nurse’s assessment and each resident’s latest assessment and plan of care.

(5) Feeding assistants who are 16 or 17 years of age shall work under the direct supervision of an RN or LPN.

(6) Feeding assistants 18 years and older shall work under the general supervision of an RN, or an LPN. The feeding assistant is not permitted to perform other nursing or nursing-related duties including, but not limited to, measuring or recording intake or output, transferring, or toileting, etc.

(7) A nursing home may not employ or use any individual who has successfully completed a feeding assistant training and competency evaluation program as a feeding assistant unless that nursing home has a department-approved feeding assistant training program.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

DHS 129.17 Feeding assistant training program requirements. Approved feeding assistant training programs shall submit all of the following information to the department:

(1) The program designee shall submit for approval a substantial change in the program to the department in writing. A program may not implement the proposed change in the program without the department’s written approval. In this subdivision, “substantial change” means a change in the program designee, primary instructor under s. DHS 129.14 (2) and the curriculum under s. DHS 129.12.

(2) The program designee shall submit an annual report to the department on a form provided by the department, and shall indicate the number of feeding assistants who were trained and tested during the year, including the number of individuals who dropped out or who failed the program.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

DHS 129.18 Feeding assistant training program record retention requirements.

(1) Feeding assistant training programs shall maintain all of the following records for at least 3 years:

(a) All student skill checklists, written examinations, certificates and other relevant training records.

(b) Documentation of the training conducted and identification of the instructor who conducted the training.

(c) Records of all individuals who have successfully completed the feeding assistant training and competency testing program.

(2) Training programs shall maintain the security of the test materials and certificate templates, to ensure disclosure or forgery does not occur.

(3) Nursing homes employing feeding assistants shall maintain all of the following personnel and other records for at least 3 years after feeding assistant has competed training:

(a) A feeding assistant roster, recording all individuals employed by the facility as feeding assistants who successfully completed the feeding assistant training and competency evaluation, including a written or oral exam and a skill demonstration.