Wisconsin Legislature: DHS 129.09(1)(k)

c. Right to maintain personal property.

6. A minimum of 5 questions in the area of dementias.

(g) To successfully complete the written or oral portion of the competency evaluation program, the student shall obtain satisfactory scores as identified in par. (f).

(3) Demonstration component.

(a) The competency evaluation program shall develop a pool of skill demonstration scenarios. There shall be a sufficient number of skill demonstration scenarios to measure the individual’s ability to perform the required job tasks. Skills demonstration scenarios shall be randomly selected from the pool of skills to be demonstrated. The care areas of interpersonal communication and social interaction shall be integrated throughout the skills demonstration scenarios.

(b) The skills demonstration shall consist of a demonstration of at least 5 randomly selected items drawn from a pool consisting of the tasks generally performed by nurse aides. This pool of skills shall include all skills listed in s. DHS 129.07.

(c) The criteria for successful completion of a competency evaluation program shall include the passing scores in all required skills.

(4) Examinations. To be included on the registry under s. DHS 129.09, a student shall successfully pass a Wisconsin-approved nurse aide competency evaluation examination within one year of completing an approved nurse aide training program. If a person fails to pass any component of the competency evaluation examination, the individual need only retake the failed component. The person may retake the component failed as many times as needed within the one-year time period. The competency evaluation program shall ensure that each repeat examination shall differ in content from any examination previously taken by the individual.

(5) Program operation. The competency evaluation program shall maintain all of the following standards in operating the program:

(a) Reasonable accommodations for students with disabilities.

(b) An adequate number of examiners to provide safe and effective supervision and assistance.

(d) Skills demonstration exercise portions of the examination are conducted at a ratio of one examiner to one student.

(e) Competency evaluation facilities that are adequate to meet the needs of the testing program.

(f) Retention of all records required under this section for a period of at least 3 years.

(g) A system to prevent unauthorized disclosure of the pool of test questions and the results of the individual competency evaluations.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08; correction in (2) (g) made under s. 13.92 (4) (b) 7., Stats., Register May 2011 No. 665; CR 20-068: am. (5) (a) Register December 2021 No. 792, eff. 1-1-22.

DHS 129.09 Registry.

(1) Content of the registry. The department shall maintain information about a person on the registry, including:

(a) The person’s eligibility for employment in a department-approved or licensed health care provider.

(b) The person’s social security number.

(d) The person’s current mailing address.

(e) The person’s date of birth.

(f) The date the aide completed a training program approved under s. DHS 129.07, if applicable.

(g) The date the aide completed a competency evaluation program, if applicable.

(h) The competency evaluation program number, if applicable.

(i) The dates, if any, that indicate the aide’s employment status.

(j) The date the aide was included on the registry.

(k) The 2 character alphabetic postal code of any state other than Wisconsin in which a finding of abuse, neglect, or misappropriation has been placed on the registry against the aide.

(L) Any finding of abuse or neglect of a client or misappropriation of a client’s property made by the department under s. 146.40 (4r) (b), Stats., or, if appealed, by a hearing officer under s. 146.40 (4r) (d), Stats., and a brief rebuttal statement provided by the affected nurse aide under s. 146.40 (4r) (e), Stats., if the nurse aide disputes the finding.

(2) Notification of completion.

(a) The department or the department’s contractor shall place an individual’s name on the registry within 30 days after an individual has satisfactorily completed the competency evaluation program.

(b) An individual who is eligible for inclusion in sub. (5) in the registry, but for whom notification is not required under par. (a), or a hospital, nursing home, facility for the developmentally disabled, home health agency or hospice on behalf of that individual, may apply to the department to include that individual in the registry.

(3) Application for inclusion on the registry.

(a) Upon receiving an application under sub. (2) (b), the department or its agent shall review the application and make any inquiries necessary to determine if the individual is eligible to be included in the registry. False eligibility information submitted to the department or its contractor shall result in denial of the application or, if the application had already been processed, shall result in the individual’s removal from the registry.

(b) Within 30 days after receiving an application, the department or its contractor shall approve the application and include the person in the registry, or deny the application. If the application for inclusion is denied, the department or its contractor shall give the individual, or the facility or agency that submitted the application on behalf of the individual, reasons, in writing, for the denial.

(4) Release of registry information. The registry shall serve as an official record of persons who are qualified by training and testing, or experience, to work as a nurse aide or a medication aide. The department may use registry information in its surveys of facilities and agencies. With the exception of sub. (1) (b), the information included in the registry about nurse aides is public information. A written request for registry information shall be accompanied by a self-addressed, stamped envelope.

Note: Written requests for registry information may be sent to the Office of Caregiver Quality, P.O. Box 2969, Madison, WI 53701-2969.

(5) Eligibility for inclusion on the registry. An individual is eligible to be included in the registry only if at least one of the following is true:

(a) The individual has, within 120 days of beginning employment as a nurse aide, successfully completed a training program and a competency evaluation program for nurse aides that are approved by the department under s. 146.40, Stats.

(b) The individual has successfully completed an approved training program and a competency evaluation program in another state that meet criteria for acceptance in this state.

(c) The individual has completed a basic nursing course from a board-approved school for nursing under s. 441.01 (4), Stats., or has completed a basic nursing course approved in another state by that state’s board of nursing and the student nurse has successfully completed a competency evaluation program.

(6) Eligibility to work as a nurse aide.

(a) State-licensed-only settings. Except as provided under sub. (7), a person included on the registry under any of the paragraphs in sub. (5), regardless of the title under which the person is employed, is eligible to be employed as a nurse aide by a health care provider.

(b) Federally-certified settings. Except as provided under sub. (7), regardless of the title under which a person is employed, a person is eligible to be employed by a health care provider if the person is included on the registry under sub. (5) (a), (b) or (c), and if the person has performed nursing or nursing-related services for monetary compensation at any time during the 24 consecutive months immediately before the individual’s employment in a health care provider’s setting would begin. If a person has not performed nursing or nursing-related services for monetary compensation at any time during the 24 consecutive months immediately before the person’s employment would begin, in order to be eligible to be employed by a health care provider, the person shall successfully complete a department-approved training and competency evaluation program, or a department-approved competency evaluation program for nurse aides.

(c) Student nurses. A person currently enrolled as a student nurse who has completed a basic nursing course at a school approved by the Wisconsin Board of Nursing under s. 441.01 (4), Stats., is eligible to be employed as a nurse aide in a hospital, facility for the developmentally disabled, or federally-certified intermediate care facility for individuals with intellectual disabilities even if that person is not included on the registry and even if that person has not successfully completed a competency evaluation program under sub. (5) (c).

(7) Employment prohibitions. A federally-certified nursing home may not hire or continue to employ a nurse aide who has a finding of abuse, neglect or misappropriation entered on the registry as a result of an incident that occurred in a federally-certified nursing home. A federally-certified intermediate care facility for individuals with intellectual disabilities may not hire or continue to employ a nurse aide who has a finding of abuse, neglect or misappropriation entered on the registry.

(8) Removing nurse aides from the registry. The name of a nurse aide who has not updated the nurse aide’s employment history on the registry in the previous five-year time period will be removed from the registry, except that the names of nurse aides with substantiated findings of caregiver misconduct as defined in s. DHS 13.03 (13) will remain on the registry. For any person whose name is removed from the registry, In order to be placed on the registry again, the person shall successfully complete another nurse aide training program and competency evaluation.

History: CR 08-042: cr. register November 2008 No. 635, eff. 12-1-08; renumbering in (6) (c) and correction in (8) made under s. 13.92 (4) (b) 1. and 7., Stats., Register November 2008 No. 635; 2019 Wis. Act 1: am. (6) (c), (7) Register May 2019 No. 761, eff. 6-1-19.

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).