Wisconsin Legislature: EmR2107 Rule Text

The statement of scope for this rule, SS 014-20, was approved by the Governor on March 27, 2020, published in Register 771B on March 30, 2020, and approved by the Board of Nursing on April 9, 2020.

This emergency rule was approved by the Governor on January 14, 2021.

ORDER

An order of the Board of Nursing to renumber and amend N 2.34; to amend N 1.08 (5m) (b), 2.31 (3), 2.33 (1), 2.35 (2), and 2.40 (3) (d) (intro.); and to create N 1.08 (5m) (c), 2.33 (3), 2.34 (2), 2.40 (3) (e), and 8.10 (8), relating to requirements in emergency situations.

Analysis prepared by the Department of Safety and Professional Services.

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FINDING OF EMERGENCY

The continued spread of COVID-19 and its potential for an emergency surge of cases in the near future necessitates having the help of as many skilled nurses and other health care providers as possible. There are, however, requirements in current rules that would make response to an emergency surge of COVID-19 more difficult. An expeditious promulgation of the rule is in the best interest of public welfare, as it will help ensure Wisconsin’s nursing workforce is in the best possible position to respond to COVID-19.

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ANALYSIS

Statutes interpreted: Subchapter I of ch. 441, Stats.

Statutory authority: Sections 15.08 (5) (b), 441.01 (3), 441.16 (3), and 441.08, Stats.

Explanation of agency authority:

Section 15.08 (5) (b), Stats., provides an examining board “[s]hall promulgate rules for its own guidance and for the guidance of the trade or profession to which it pertains. . .”

Section 441.01 (3), Stats., provides “[t]he board may establish minimum standards for schools for professional nurses and schools for licensed practical nurses, including all related clinical units and facilities, and make and provide periodic surveys and consultations to such schools. It may also establish rules to prevent unauthorized persons from practicing professional nursing. It shall approve all rules for the administration of this chapter in accordance with ch. 227.”

Section 441.16 (3), Stats., requires the Board to promulgate rules necessary to administer the prescription privileges of nurses, including defining the scope of practice within which an advanced practice nurse may issue prescription orders.

Section 441.08, Stats., provides “[t]he board may promulgate rules limiting the use and duration of temporary permits and providing for revocation of temporary permits.”

Related statute or rule:

Subchapter I of ch. 441, Stats.

Plain language analysis:

The emergency rule will allow the Board to grant a waiver from or variance to the following requirements on a case-by-case basis, if a request for a waiver or variance is made due to a public health crisis, natural disaster, critical nursing workforce shortage, or similar emergency circumstances:

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The requirement under s. N 1.08 (5m) (b) that simulation be utilized for no more than 50% of the time designated for meeting clinical learning requirements.

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The requirement under s. N 2.31 (3) that an application for a temporary permit include an official transcript of nursing education.

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The requirement under s. N 2.33 (1) that the holder of a temporary permit practice only under the direct supervision of a registered nurse.

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The requirement under s. N 2.34 that practice under temporary permits, including renewals, may not exceed 6 months total duration.

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The requirement under s. N 2.40 (3) (d) that a person renewing a nursing credential after 5 years provide documentation of employment requiring a nursing license within the last 5 years or evidence of completion of a board approved nursing refresher course or education equivalent to a nursing refresher course.

The rule will also allow the Board to grant a temporary waiver of the requirement under s. N 8.10 (2) and (7) that an advanced practice nurse prescriber work in a collaborative relationship with at least one physician or dentist and document that relationship. The board may grant a waiver if a public health crisis, natural disaster, critical nursing workforce shortage, or similar emergency circumstances exist or have occurred that are federally declared or declared by the governor of Wisconsin or the governor’s designee, and granting a waiver is necessary to protect the public health, safety, and welfare.

Summary of, and comparison with, existing or proposed federal regulation:

None.

Summary of public comments and feedback on the statement of scope and the Board’s responses:

The Board held a public comment period and conducted a public hearing on April 9, 2020. The Board received testimony in support of the statement of scope from Gina Dennik-Champion on behalf of the Wisconsin Nurses Association. The Board also received written comments in support of the statement of scope from the Wisconsin Association of Nurse Anesthetists.

Comparison with rules in adjacent states:

Illinois:

Rules of the Illinois Department of Financial and Professional Regulation regulate the profession of nursing in Illinois (68 Ill. Adm. Code Part 1300). The Secretary of the Department may grant variances from the rules in individual cases when it is determined that:

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the provision from which the variance is granted is not statutorily mandated;

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no party will be injured by the granting of the variance; and

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the rule from which the variance is granted would, in the particular case, be unreasonable or unnecessarily burdensome.

The Secretary is required to notify the Illinois Board of Nursing of the granting of the variance, and the reason for granting the variance, at the next meeting of the Board (68 Ill. Adm. Code s. 1300.60).

Iowa:

Rules of the Iowa Board of Nursing regulate the profession of nursing in Illinois (655 IAC chs. 1 to 20). In response to a petition for waiver, the Board may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the Board finds, based on clear and convincing evidence, all of the following:

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The application of the rule would impose an undue hardship on the person for whom the waiver is requested.

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The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person.

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The provisions of the rule subject to the petition for waiver are not specifically mandated by statute or another provision of law.

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Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested (655 IAC 15.4).