Wisconsin Legislature: DHS 129.04(1)(a)

(36) “Preliminary approval” means the initial 3 month approval issued by the department following the completed review and verification of all aspects of the application.

(37) “Primary instructor” means a registered nurse licensed to practice in Wisconsin who has a minimum of 2 years of nursing experience working as a registered nurse, at least one year of which must be in the provision of long-term care facility services, and who has completed a course in adult education or supervising nurse aides.

(38) “PRN medications” means medications administered as necessary based on the resident’s or patient’s condition.

(39) “Program” means the facility, agency or other entity or individual who operates an approved training program.

(40) “Program trainer” means an individual from a health related field who provides specialized training about that field to nurse aides under the general supervision of the primary instructor.

(41) “Qualified clinical setting” means a clinical setting unencumbered by restrictions imposed under 42 CFR 483.151.

(42) “Qualified medication consultant” means one of the following:

(a) A pharmacist licensed in Wisconsin.

(b) An advanced practice nurse prescriber as defined in s. N 8.02 (2).

(43) “Registered nurse (RN)” means an individual who is licensed as a registered nurse under s. 441.06, Stats., or who has a temporary permit under s. 441.08, Stats., to practice as a registered nurse.

(44) “Registry” means the department’s record of all persons who are eligible to be employed by a health care provider, and who have either:

(a) Successfully completed a training and competency evaluation program.

(b) Met the eligibility requirements under s. DHS 129.09 (5) to be included in the registry.

(45) “Restorative services” means the therapeutic practice, education and training to restore, promote, and maintain the client’s fullest possible level of functioning.

(46) “Restraint” means any garment, device, or medication used primarily to modify client behavior by interfering with the free movement of the client or normal functioning of a portion of the body, and which the client is unable to remove easily, or confinement in a locked room, but does not include mechanical support.

(47) “Revocation” means withdrawal of a nurse aide training program’s or competency evaluation program’s approval for failing to comply with applicable state requirements specified in s. 146.40, Stats.

(48) “Rural medical center” has the meaning specified in s. 50.50 (11), Stats.

(49) “Statement of deficiencies” means the official document on which the Department records citations.

(50) “Student nurse” means an individual who is enrolled in a school for professional nurses or a school for licensed practical nurses that meets standards established by the Board of Nursing under s. 441.01 (4), Stats., and ch. N 1, or who has successfully completed the course work of a basic nursing course in any school that is approved by the Board of Nursing under s. 441.06 (1) (a), Stats., but has not successfully completed the examination under s. 441.06 (1) (e) or 441.10 (1) (e), Stats.

(51) “Substantial change” means a change to the facility, agency, organization or person that administers the training; program designee; program site; the curriculum; the classroom; the clinical site; primary instructor; and program trainer.

(52) “Suspension” means a temporary withdrawal of the department’s approval for a facility, agency or other organization to provide a training or competency evaluation program if the entity providing the program is not in compliance with an approval previously issued by the department.

(53) “Training program” means a program approved under this chapter to train nurse aides, feeding assistants or medication aides.

(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.

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

(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. 1395i 3 (f) (2) and 42 U.S.C. 1396r (f) (2).

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 Waivers and variances.

(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:

(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.

(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.

(2) Procedures.

(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:

1. The rule from which the waiver or variance is requested.

2. The time period for which the waiver or variance is requested.

3. The reason or reasons for which the waiver or variance is requested.

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

5. Assurances that sub. (1) will be satisfied.

6. The department may require additional information from the health care provider or program prior to acting on the request.

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.

(b) Grants and denials.

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.

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

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

4. The department may limit the duration of any waiver or variance.

(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:

1. The department determines the waiver or variance is adversely affecting the effectiveness of the health care provider or program.

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.

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.

4. Revocation is required by a change in law.

(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.

(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. 1395i 3 (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:

(a) No other department-approved program is offered within a reasonable distance of the facility. A reasonable distance means any of the following:

1. There is no department-approved program within 45 miles or 60 minutes away, one-way, from the facility requesting a waiver.

2. The only program within 45 miles or 60 minutes away, one-way, from the facility is out-of-state and would require the person to first qualify on another state’s registry and then apply to be added to the registry as an out-of-state transfer applicant.

3. There is a documented lack of qualified instructors to fulfill the program requirements at other sites within the 45 miles or 60 minutes, away, one-way radius.

(b) The facility shall have an adequate environment for operating the program. An adequate environment means the citations leading to the prohibition were non-resident and non-nursing care related.

1. The citations were corrected at revisit and there were no cites at or since the previous standard survey that were resident or nursing care related; or

2. The program termination resulted from a new citation at a standard survey revisit and the facility had no other citations at or since the previous standard survey that were resident or nursing care related; or

3. The facility had an immediate jeopardy situation in a resident or nursing care related area that was corrected at the time of survey and had no other citations at or since the previous standard survey that were resident or nursing care related; or

4. The facility had a history of resident or nursing care related citations, but has demonstrated efforts beyond normal means to attain and maintain substantial compliance. History means since the most recent training program approval.

(d) The facility’s physical environment is adequate in that the physical or structural requirements are in substantial compliance or there is a waiver request pending.

(e) The program provided in the facility shall be by another entity unrelated to the facility that has agreed to provide the training. Competency testing shall also be done by an entity unrelated to the facility or the training program.

(f) The facility requesting the waiver shall notify the State long term care ombudsman of the request for waiver. The ombudsman may comment to the department identifying any concerns about whether the facility may serve as a training site.

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

Subchapter II — Nurse Aide Training and Testing

DHS 129.05 Nurse aide training program approval process.

(1) Application.

(a) An applicant for nurse aide training program approval shall apply for approval of their program on a form provided by the department.

Note: To obtain a copy of the application, email the Division of Quality Assurance at: DHSWIDQA_NATCEP@dhs.wisconsin.gov.

(b) The program shall provide any additional information requested by the department during the department’s review of the application.

(c) The program shall designate an individual who is responsible for the operation and compliance of the program with all applicable provisions of this chapter. The program shall note the designee on the application for approval.

(d) All aspects of the program shall be in compliance with all applicable federal, state and local laws.

(2) Action by the department.

(a) Initial review of a training program.

1. Upon receiving an application for approval of a training program, the department shall review the program to determine the program’s compliance with ss. DHS 129.06 and 129.07. The department shall review the program for all of the following:

a. Program content, length and ratio of classroom instruction to skills training.

b. Qualifications of instructors.

c. Clinical setting and type of clinical supervision.

d. Provision for written evaluation of the program.

e. Reasonable accommodations for prospective students with disabilities.

f. Criteria for successful completion.

g. Appropriate furnishing of physical facilities to meet classroom instruction and skills training needs.

2. Within 90 days after receiving a training program application, the department shall either issue a preliminary approval or deny the application. Preliminary approval may be granted for a period of 3 months. If the application is denied, the department shall give the program reasons, in writing, for the denial and describe the process to appeal the denial.

3. If an application for approval of a training program is denied, the program may not resubmit an application for approval to train nurse aides for 6 months from the date of the denial of the application.

(b) Pre-approval and monitoring.

1. The department shall conduct a preliminary approval onsite review before issuing a preliminary approval, to verify that the classroom and equipment are adequate for the training program.

2. Following the 3 month preliminary approval period, the department shall conduct an onsite review to verify compliance with the requirements of this chapter. The department shall either issue a formal approval or revoke the preliminary approval.