STATE OF WISCONSIN
BOARD OF NURSING
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IN THE MATTER OF RULE-MAKING : PROPOSED ORDER OF THE
PROCEEDINGS BEFORE THE : BOARD OF NURSING
BOARD OF NURSING : ADOPTING RULES
: (CLEARINGHOUSE RULE )
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PROPOSED 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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ANALYSIS
Statutes interpreted: Subchapter I of ch. 441, 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:
Plain language analysis:
The proposed 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:
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.
The requirement under s. N 2.31 (3) that an application for a temporary permit include an official transcript of nursing education.
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.
The requirement under s. N 2.34 that practice under temporary permits, including renewals, may not exceed 6 months total duration.
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. A waiver must be for a stated term not to exceed 90 days; however, the board may extend the waiver if it determines an extension is necessary to protect the public health, safety, or 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:
the provision from which the variance is granted is not statutorily mandated;
no party will be injured by the granting of the variance; and
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:
The application of the rule would impose an undue hardship on the person for whom the waiver is requested.
The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person.
The provisions of the rule subject to the petition for waiver are not specifically mandated by statute or another provision of law.
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).Michigan:
Rules of the Michigan Department of Licensing and Regulatory Affairs regulate the profession of nursing in Michigan (Mich Admin Code, R 338.10101 to R 338.10705). The Michigan Board of Nursing may waive the requirement to provide evidence of attendance at educational programs as a condition to license renewal if, upon written application, the Board finds the failure of the licensee to attend was due to the licensee's disability, military service, absence from the continental United States, or a circumstance beyond the control of the licensee which the Board considers good and sufficient (Mich Admin Code, R 338.10601).
Minnesota:
Rules of the Minnesota Board of Nursing regulate the profession of nursing in Minnesota (Minnesota Rules, chs. 6301 to 6321). The Board must waive the requirement for licensure of graduation from an approved nursing program if:
an applicant has been licensed by another jurisdiction based on requirements equivalent to the qualifications required in Minnesota at the time of the applicant’s original licensure; or
an applicant for licensed practical nurse licensure has been licensed by another jurisdiction and passed an acceptable examination as specified in subpart 12 and has had at least 4,000 clock hours of employment as a licensed practical nurse in the five years prior to application for licensure in Minnesota (Minnesota Rules, part 6305.0500, subpart 6).In addition, on presentation of convincing evidence by a registration or reregistration applicant, the Board must grant a variance from the following requirements:
For a receipt deadline, on presentation of convincing evidence of mail delay.
