Chapter DHS 129

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:

DHS 129.04(3)(a) (a) No other department-approved program is offered within a reasonable distance of the facility. A reasonable distance means any of the following:

DHS 129.04(3)(a)1. 1. There is no department-approved program within 45 miles or 60 minutes away, one-way, from the facility requesting a waiver.

DHS 129.04(3)(a)2. 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.

DHS 129.04(3)(a)3. 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.

DHS 129.04(3)(b) (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.

DHS 129.04(3)(c) (c) If the citations leading to the prohibition were resident or nursing care related:

DHS 129.04(3)(c)1. 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

DHS 129.04(3)(c)2. 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

DHS 129.04(3)(c)3. 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

DHS 129.04(3)(c)4. 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.

DHS 129.04(3)(d) (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.

DHS 129.04(3)(e) (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.

DHS 129.04(3)(f) (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.

DHS 129.04 History History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08.

subch. II of ch. DHS 129 Subchapter II — Nurse Aide Training and Testing

DHS 129.05 DHS 129.05 Nurse aide training program approval process.

DHS 129.05(1) (1) Application.

DHS 129.05(1)(a) (a) An applicant for nurse aide training program approval shall apply for approval of their program on a form provided by the department.

DHS 129.05 Note Note: To obtain a copy of the application, email the Division of Quality Assurance at: [e-mail].

DHS 129.05(1)(b) (b) The program shall provide any additional information requested by the department during the department’s review of the application.

DHS 129.05(1)(c) (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.

DHS 129.05(1)(d) (d) All aspects of the program shall be in compliance with all applicable federal, state and local laws.

DHS 129.05(2) (2) Action by the department.

DHS 129.05(2)(a) (a) Initial review of a training program.

DHS 129.05(2)(a)1. 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:

DHS 129.05(2)(a)1.a. a. Program content, length and ratio of classroom instruction to skills training.

DHS 129.05(2)(a)1.b. b. Qualifications of instructors.

DHS 129.05(2)(a)1.c. c. Clinical setting and type of clinical supervision.

DHS 129.05(2)(a)1.d. d. Provision for written evaluation of the program.

DHS 129.05(2)(a)1.e. e. Reasonable accommodations for prospective students with disabilities.

DHS 129.05(2)(a)1.f. f. Criteria for successful completion.

DHS 129.05(2)(a)1.g. g. Appropriate furnishing of physical facilities to meet classroom instruction and skills training needs.

DHS 129.05(2)(a)2. 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.

DHS 129.05(2)(a)3. 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.

DHS 129.05(2)(b) (b) Pre-approval and monitoring.

DHS 129.05(2)(b)1. 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.

DHS 129.05(2)(b)2. 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.

DHS 129.05(2)(b)3. 3. If preliminary approval for a training program is denied or revoked, the program may not resubmit a request for approval to train nurse aides for 6 months from the date the preliminary approval for the training program was denied or revoked.

DHS 129.05(2)(c) (c) Post-approval review and monitoring.

DHS 129.05(2)(c)1. 1. The department shall conduct a post-approval review of a program every 2 years after the date on which the department formally approves the program. The department may conduct an announced or an unannounced on-site review of the program at any time to verify that the program remains in compliance with this chapter.

DHS 129.05(2)(c)2. 2. The program designee shall submit an annual report to the department on a form provided by the department and shall provide any additional information requested by the department during the department’s review of the program. The program designee shall provide reasonable means for the department to examine records and gather requested information.

DHS 129.05(2)(c)3. 3. The program designee shall submit for approval any 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 under s. DHS 129.05 (1) (c), primary instructor under s. DHS 129.06 (1), training course for primary instructors under s. DHS 129.06 (3), curriculum under s. DHS 129.07 (1), or program site under s. DHS 129.07 (2) (a) or (c).

DHS 129.05(2)(c)4. 4. An approved training program may be granted inactive status if no training was conducted in the previous 24 consecutive months. The training program will be required to submit a new application in its entirety if the period of inactivity is 36 consecutive months or longer.

DHS 129.05(2)(c)5. 5. If at any time the department determines that a program has failed to comply with a requirement of this chapter, the department may, after providing written notice, impose a plan of correction on the program, or suspend or revoke approval of the program.

DHS 129.05(2)(d) (d) Enforcement.

DHS 129.05(2)(d)1. 1. The department may deny or withdraw approval of a new or existing program for any of the following reasons:

DHS 129.05(2)(d)1.a. a. The program cannot provide satisfactory evidence that the program meets the standards for program approval.

DHS 129.05(2)(d)1.b. b. The program did not conduct any training classes within the previous 24 consecutive months.

DHS 129.05(2)(d)1.c. c. The program fails to allow the department to conduct an on-site visit of the training program.

DHS 129.05(2)(d)2. 2. The department may withdraw program approval immediately or prescribe the time within which the deficiencies identified during an onsite review shall be corrected. All notices of deficiency shall be given in writing to the program contact, identified in s. DHS 129.05 (1) (c). The program contact may submit a plan of correction to the department. If the program fails to correct the deficiency within the specified time, the approval may be withdrawn.

DHS 129.05(2)(d)3. 3. When program approval is withdrawn, the program shall do all of the following:

DHS 129.05(2)(d)3.a. a. Submit a plan to the department within 10 business days after the withdrawal of the program’s approval for the completion of the program of the enrolled students with another program in good standing with the department.

DHS 129.05(2)(d)3.b. b. Allow students who have started that program to complete the course with another program that is in good standing with the department.

DHS 129.05(2)(d)3.c. c. Provide for custody of the training records for a 3 year time period as required in s. DHS 129.07 (2) (f).

DHS 129.05(2)(d)4. 4. Denial or withdrawal of facility-based training is subject to the requirements of applicable federal law.

DHS 129.05(2)(d)5. 5. If the approval is withdrawn, the program may request a hearing under in s. DHS 129.10.

DHS 129.05(2)(d)6. 6. If approval of the program is denied or withdrawn under subd. 1., the program may not reapply for program approval for 6 months from the date of the denial or withdrawal of the program approval.

DHS 129.05 History History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08; correction in (2) (d) 6. made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; CR 20-068: am. (2) (a) 1. e. Register December 2021 No. 792, eff. 1-1-22.

DHS 129.06 DHS 129.06 Standards for instructors of nurse aide training programs.

DHS 129.06(1) (1) Primary instructor.

DHS 129.06(1)(a) (a) The primary instructor for a training program shall be a registered nurse licensed to practice in Wisconsin, who has at least 2 years of experience working as a registered nurse, of which at least one year of experience shall be actual work experience in providing care in a nursing home that meets the requirements of sections 1919(a), (b), (c) and (d) of the Social Security Act.

DHS 129.06(1)(b) (b) Notwithstanding par. (a), the primary instructor for a training program conducted by a hospital shall have at least one of the 2 years experience working as a registered nurse in a hospital.

DHS 129.06(1)(c) (c) Notwithstanding par. (a), for a primary instructor in a training program in a home health agency-based program, shall have at least one of the 2 years experience working as a registered nurse in the provision of home health care.

DHS 129.06(1)(d) (d) A primary instructor shall provide to the program a resume documenting the instructor’s education and clinical experience in meeting clients’ psychosocial, behavioral, cognitive and physical needs, and the program shall maintain the instructor’s resume on file and shall include a copy of the instructor’s resume with the program’s application for program approval.

DHS 129.06(1)(e) (e) The primary instructor shall attend a training course for instructors approved by the department under sub. (3). The department may waive this requirement for an instructor who has taken a substantially equivalent course or who has substantially equivalent training or clinical experience.