2007 WISCONSIN ACT
153
An Act
to repeal
49.45 (8) (a) 1., 49.498 (2) (e) 1., 146.40 (1) (bm), 146.40 (1) (bp), 146.40 (2) (am), 146.40 (2) (b), 146.40 (2) (bm), 146.40 (2) (f) and 146.40 (4r) (am) 2.;
to renumber and amend
146.40 (2) (c);
to amend
46.275 (5) (b) 4., 46.278 (1), 46.278 (1m) (am), 46.278 (2) (a), 46.278 (4) (a), 46.278 (5) (a), 46.278 (6) (e) 1. a., 46.278 (6) (e) 1. b., 46.278 (6) (e) 1. c., 46.279 (1) (b), 48.685 (8), 49.45 (6m) (am) 1. bm., 49.45 (30m) (a) 2., 49.45 (42) (b), 49.498 (1) (h), 49.498 (2) (e) 2., 49.498 (2) (e) 3., 50.01 (2), 50.04 (2) (c) 2. b., 50.04 (2) (d) (intro.), 50.04 (2r), 50.065 (8), 50.095 (3) (b), 50.097, 50.14 (1) (a), 50.14 (1) (b), 50.14 (2) (bm), 51.06 (8) (a) 1., 51.06 (8) (b) (intro.), 51.06 (8) (b) 4., 51.06 (8) (b) 7., 51.62 (4), 146.40 (title), 146.40 (1) (bo), 146.40 (1) (bt), 146.40 (1) (d), 146.40 (2) (intro.), 146.40 (2) (a), 146.40 (2) (d), 146.40 (2) (e), 146.40 (2) (em), 146.40 (2) (g), 146.40 (3), 146.40 (3m), 146.40 (4), 146.40 (4d) (a), 146.40 (4d) (c), 146.40 (4d) (d), 146.40 (4m), 146.40 (4r) (am) 1., 146.40 (4r) (b), 146.40 (4r) (c), 146.40 (4r) (e), 146.40 (4r) (em), 146.40 (5) (a), 146.40 (5) (b) (intro.), 146.40 (5) (b) 1., 146.40 (5) (b) 2. (intro.), 146.40 (5) (b) 2. a., 155.20 (2) (a) 2., 155.30 (3), 250.042 (4) (a) 3., 250.042 (4) (b), 250.042 (4) (c) 12., 440.03 (3q), 632.895 (1) (b) 2. and 632.895 (2) (d);
to repeal and recreate
49.45 (8) (a) 4. and 146.40 (4d) (am); and
to create
49.45 (8) (a) 2m., 146.40 (1) (aw), 146.40 (2) (c) 1., 146.40 (2) (c) 2. and 146.40 (2m) of the statutes;
relating to:
changing the terms home health aide, hospice aide, and nurse's assistant to the term nurse aide; changing requirements for instructional and competency evaluation programs for nurse aides; changing certain requirements for review and investigation of reports of client abuse or neglect; and requiring the exercise of rule-making authority (suggested as remedial legislation by the Department of Health and Family Services).
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Section
1
.
46.275 (5) (b) 4. of the statutes is amended to read:
46.275
(5)
(b) 4. Provide services, except respite care that is approved by the department, within a skilled nursing facility, intermediate care facility or intermediate care facility for
the mentally retarded
persons with mental retardation, as defined in s. 46.278 (1m) (am)
, including a state center for the developmentally disabled.
Section
2
.
46.278 (1) of the statutes is amended to read:
46.278
(1)
The intent of the programs under this section is to provide home or community-based care to serve in a noninstitutional community setting a person who meets eligibility requirements under
42 USC 1396n
(c) and who is diagnosed as developmentally disabled under the definition specified in s. 51.01 (5) and relocated from an institution other than a state center for the developmentally disabled or who meets the intermediate care facility for
the mentally retarded
persons with mental retardation
or
a
brain injury rehabilitation facility level of care requirements for medical assistance reimbursement in an intermediate care facility for
the mentally retarded
persons with mental retardation
or
a
brain injury rehabilitation facility and is ineligible for services under s. 46.275 or 46.277. The intent of the program is also that counties use all existing services for providing care under this section, including those services currently provided by counties.
Section
3
.
46.278 (1m) (am) of the statutes is amended to read:
46.278
(1m)
(am) "Intermediate care facility for
the mentally retarded
persons with mental retardation
" has the meaning
given for "intermediate care facility for the mentally retarded"
under
42 USC 1396d
(c) and
(d).
Section
4
.
46.278 (2) (a) of the statutes is amended to read:
46.278
(2)
(a) The department may request one or more waivers from the secretary of the federal department of health and human services, under
42 USC 1396n
(c), authorizing the department to serve medical assistance recipients, who meet the level of care requirements for medical assistance reimbursement in an intermediate care facility for
the mentally retarded
persons with mental retardation
or in a brain injury rehabilitation facility, in their communities by providing home or community-based services as part of medical assistance. If the department requests a waiver, it shall include all assurances required under
42 USC 1396n
(c) (2) in its request.
Section
5
.
46.278 (4) (a) of the statutes is amended to read:
46.278
(4)
(a) Sections 46.27 (3) (b) and 46.275 (3) (a) and (c) to (e) apply to county participation in a program, except that services provided in the program shall substitute for care provided a person in an intermediate care facility for
the mentally retarded
persons with mental retardation
or
in a
brain injury rehabilitation facility who meets the intermediate care facility for
the mentally retarded
persons with mental retardation
or brain injury rehabilitation facility level of care requirements for medical assistance reimbursement to that facility rather than for care provided at a state center for the developmentally disabled.
Section
6
.
46.278 (5) (a) of the statutes is amended to read:
46.278
(5)
(a) Any medical assistance recipient who meets the level of care requirements for medical assistance reimbursement in an intermediate care facility for
the mentally retarded
persons with mental retardation
or in a brain injury rehabilitation facility and is ineligible for service under s. 46.275 or 46.277 is eligible to participate in a program, except that persons eligible for the brain injury waiver program must meet the definition of brain injury under s. 51.01 (2g), and except that the number of participants may not exceed the number approved under the waiver received under sub. (3). Such a recipient may apply, or any person may apply on behalf of such a recipient, for participation in a program. Section 46.275 (4) (b) applies to participation in a program.
Section
7
.
46.278 (6) (e) 1. a. of the statutes is amended to read:
46.278
(6)
(e) 1. a. An intermediate care facility for
the mentally retarded
persons with mental retardation
that closes under s. 50.03 (14).
Section
8
.
46.278 (6) (e) 1. b. of the statutes is amended to read:
46.278
(6)
(e) 1. b. An intermediate care facility for
the mentally retarded
persons with mental retardation
or a distinct part thereof that has a plan of closure approved by the department and that intends to close within 12 months.
Section
9
.
46.278 (6) (e) 1. c. of the statutes is amended to read:
46.278
(6)
(e) 1. c. An intermediate care facility for
the mentally retarded
persons with mental retardation
that has a plan of closure or significant reduction in capacity approved by the department and that intends to close or significantly reduce its capacity within 60 months.
Section
10
.
46.279 (1) (b) of the statutes is amended to read:
46.279
(1)
(b) "Intermediate facility"
means
has the meaning given for
an intermediate care facility for the mentally retarded
, as defined in
under
42 USC 1396d
(d), other than a center for the developmentally disabled, as defined in s. 51.01 (3).
48.685
(8)
The department, the department of health services, a county department, a child welfare agency, or a school board may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a) or for providing information to an entity to enable the entity to comply with sub. (2) (b) 1. or (3) (b). The fee may not exceed the reasonable cost of obtaining the information. No fee may be charged to a
nurse's assistant
nurse aide
, as defined in s. 146.40 (1) (d), for obtaining or maintaining information if to do so would be inconsistent with federal law.
Section
12
.
49.45 (6m) (am) 1. bm. of the statutes is amended to read:
49.45
(6m)
(am) 1. bm. Nonbillable services of a registered nurse, licensed practical nurse
,
and
nurse's assistant
nurse aide
.
Section
13
.
49.45 (8) (a) 1. of the statutes is repealed.
Section
14
.
49.45 (8) (a) 2m. of the statutes is created to read:
49.45
(8)
(a) 2m. "Nurse aide" has the meaning given in s. 146.40 (1) (d).
Section
15
.
49.45 (8) (a) 4. of the statutes, as affected by
2007 Wisconsin Act 20
, is repealed and recreated to read:
49.45
(8)
(a) 4. "Patient care visit" means a personal contact with a patient in a patient's home that is made by a registered nurse, licensed practical nurse, nurse aide, physical therapist, occupational therapist, or speech-language pathologist who is on the staff of or under contract or arrangement with a home health agency, or by a registered nurse or licensed practical nurse practicing independently, to provide a service that is covered under s. 49.46, 49.47, or 49.471. "Patient care visit" does not include time spent by a nurse, therapist, or nurse aide on case management, care coordination, travel, record keeping, or supervision that is related to the patient care visit.
Section
16
.
49.45 (30m) (a) 2. of the statutes is amended to read:
49.45
(30m)
(a) 2. Services in an intermediate care facility for
the mentally retarded
persons with mental retardation
, as defined in s. 46.278 (1m) (am), other than a state center for the developmentally disabled.
Section
17
.
49.45 (42) (b) of the statutes is amended to read:
49.45
(42)
(b) The individual is not eligible to receive home health
aide
services under medicare, as defined in sub. (3) (L) 1. b.
Section
18
.
49.498 (1) (h) of the statutes is amended to read:
49.498
(1)
(h) "
Nurse's assistant
Nurse aide
" has the meaning given
for "nurse aide"
under
42 USC 1396r
(b) (5) (F).
Section
19
.
49.498 (2) (e) 1. of the statutes is repealed.
Section
20
.
49.498 (2) (e) 2. of the statutes is amended to read:
49.498
(2)
(e) 2. A nursing facility may not use the individual as a
nurse's assistant
nurse aide
unless the nursing facility has inquired of the department concerning information about the individual in the registry under s. 146.40 (4g).
Section
21
.
49.498 (2) (e) 3. of the statutes is amended to read:
49.498
(2)
(e) 3. A nursing facility shall provide the regular performance review and regular in-service education that assures that individuals used as
nurse's assistants
nurse aides
are competent to perform services as
nurse's assistants
nurse aides
, including training for individuals to provide nursing and nursing-related services to nursing facility residents with cognitive impairments.
Section
22
.
50.01 (2) of the statutes is amended to read:
50.01
(2)
"
Nurse's assistant
Nurse aide
" means a person who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the person, for the direct health care of a patient or resident. "
Nurse's assistant
Nurse aide
" does not mean a
feeding assistant, as defined in s. 146.40 (1) (aw); a
person who is licensed, permitted, certified, or registered under ch. 441, 448, 449, 450, 451, 455, 459, or 460
;
or a person whose duties primarily involve skills that are different than those taught in instructional programs for
nurse's assistants
nurse aides
.
Section
23
.
50.04 (2) (c) 2. b. of the statutes is amended to read:
50.04
(2)
(c) 2. b. A shortage of nurses or
nurse's assistants
nurse aides
available for employment by the nursing home exists.
Section
24
.
50.04 (2) (d) (intro.) of the statutes is amended to read:
50.04
(2)
(d) (intro.) Each nursing home, other than nursing homes that primarily serve the developmentally disabled, shall provide at least the following hours of service by registered nurses, licensed practical nurses
,
or
nurse's assistants
nurse aides and may not use hours of service by a feeding assistant, as defined in s. 146.40 (1) (aw), in fulfilling these requirements
:
Section
25
.
50.04 (2r) of the statutes is amended to read:
50.04
(2r)
Admissions requiring approval.
Except in an emergency, a nursing home that is not certified as a provider of medical assistance or that is an intermediate care facility for
the mentally retarded
persons with mental retardation
, as defined in s. 46.278 (1m) (am), or an institution for mental diseases, as defined under
42 CFR 435.1009
, may not admit as a resident an individual who has a developmental disability, as defined in s. 51.01 (5), or who is both under age 65 and has mental illness, as defined in s. 51.01 (13), unless the county department under s. 46.23, 51.42 or 51.437 of the individual's county of residence has recommended the admission.
Section
26
.
50.065 (8) of the statutes is amended to read:
50.065
(8)
The department may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a) or for providing information to an entity to enable the entity to comply with sub. (2) (b) or (3) (b). No fee may be charged to a
nurse's assistant
nurse aide
, as defined in s. 146.40 (1) (d), for obtaining or maintaining the information if to do so would be inconsistent with federal law.
Section
27
.
50.095 (3) (b) of the statutes is amended to read:
50.095
(3)
(b) The staff replacement rates for full-time and part-time nursing staff,
nurse's assistants
nurse aides,
and administrators for the previous year for the nursing home and for all similar nursing homes in the same geographical area, as determined by the department.
Section
28
.
50.097 of the statutes is amended to read:
50.097
Registry.
Any person may receive, upon specific written request to the department, requested information that is contained in the registry of
nurse's assistants and home health aides
individuals
under s. 146.40 (4g) (a)
or that is contained in the registry of hospice aides under s. 146.40 (4g) (a) 1
.
Section
29
.
50.14 (1) (a) of the statutes is amended to read:
50.14
(1)
(a) Notwithstanding s. 50.01 (1m), "facility" means a nursing home or an intermediate care facility for
the mentally retarded
persons with mental retardation
that is not located outside the state.
Section
30
.
50.14 (1) (b) of the statutes is amended to read:
50.14
(1)
(b) "Intermediate care facility for
the mentally retarded
persons with mental retardation
" has the meaning given
for "intermediate care facility for the mentally retarded"
under
42 USC 1396d
(c) and
(d).
50.14
(2)
(bm) For intermediate care facilities for
the mentally retarded
persons with mental retardation
, an amount calculated by multiplying the projected annual gross revenues of all intermediate care facilities for
the mentally retarded
persons with mental retardation
in this state by 0.055, dividing the product by the number of licensed beds of intermediate care facilities
for persons with mental retardation
in this state and dividing the quotient by 12.
Section
32
.
51.06 (8) (a) 1. of the statutes is amended to read:
51.06
(8)
(a) 1. "Intermediate care facility for
the mentally retarded
persons with mental retardation
" has the meaning given
in
for "intermediate care facility for the mentally retarded" under
42 USC 1396d
(d).
Section
33
.
51.06 (8) (b) (intro.) of the statutes is amended to read:
51.06
(8)
(b) (intro.) Annually by October 1, the department shall submit to the joint committee on finance and to the appropriate standing committees of the legislature under s. 13.172 (3) a report that includes information collected from the previous fiscal year on the relocation or diversion of individuals who are Medical Assistance eligibles or recipients from nursing homes, intermediate care facilities for
the mentally retarded
persons with mental retardation
, and centers for the developmentally disabled. The report shall include all of the following information:
Section
34
.
51.06 (8) (b) 4. of the statutes is amended to read:
51.06
(8)
(b) 4. An accounting of the costs and savings under the Medical Assistance program of relocations and diversions and the resulting reduction in capacity for services of nursing homes, intermediate care facilities for
the mentally retarded
persons with mental retardation
, and centers for the developmentally disabled. The accounting shall include the per individual savings as well as the collective savings of relocations and diversions.
Section
35
.
51.06 (8) (b) 7. of the statutes is amended to read:
51.06
(8)
(b) 7. Staff turnover rates for nursing homes, intermediate care facilities for
the mentally retarded
persons with mental retardation
, and centers for the developmentally disabled in communities in which an individual relocated or diverted from a nursing home, intermediate care facility for
the mentally retarded
persons with mental retardation
, or center for the developmentally disabled currently resides.
Section
36
.
51.62 (4) of the statutes is amended to read:
51.62
(4)
Departmental duties.
The department shall provide the protection and advocacy agency with copies of annual surveys and plans of correction for intermediate care facilities for
the mentally retarded
persons with mental retardation
on or before the first day of the 2nd month commencing after completion of the survey or plan.
Section
37
.
146.40 (title) of the statutes is amended to read:
146.40
(title)
Instructional programs for
nurse's
nurse
aides; reporting client abuse.
Section
38
.
146.40 (1) (aw) of the statutes is created to read:
146.40
(1)
(aw) "Feeding assistant" means an individual who has completed a state-approved training and testing program, as specified by the department by rule, to perform one nursing-related duty, as defined by the department by rule.
Section
39
.
146.40 (1) (bm) of the statutes is repealed.
Section
40
.
146.40 (1) (bo) of the statutes is amended to read:
146.40
(1)
(bo) "Hospice" means a hospice that is licensed under subch. IV of ch. 50
and that is certified as a provider of services under 42 USC 1395 to 1395ccc
.
Section
41
.
146.40 (1) (bp) of the statutes is repealed.
Section
42
.
146.40 (1) (bt) of the statutes is amended to read:
146.40
(1)
(bt) "Intermediate care facility for
the mentally retarded
persons with mental retardation
" has the meaning
given for "intermediate care facility for the mentally retarded"
under
42 USC 1396d
(c) and
(d).
Section
43
.
146.40 (1) (d) of the statutes is amended to read:
146.40
(1)
(d) "
Nurse's assistant
Nurse aide
" means an individual who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the individual, for the direct health care of a patient or resident. "
Nurse's assistant
Nurse aide
" does not mean
a feeding assistant,
an individual who is licensed, permitted, certified, or registered under ch. 441, 448, 449, 450, 451, 455, 459, or 460
,
or an individual whose duties primarily involve skills that are different than those taught in instructional
and competency evaluation
programs for
nurse's assistants certified
nurse aides approved
under sub. (3) or evaluated by competency evaluation programs for
nurse's assistants
nurse aides
approved under sub. (3m).
Section
44
.
146.40 (2) (intro.) of the statutes is amended to read:
146.40
(2)
(intro.) A hospital, nursing home
or
,
intermediate care facility for
the mentally retarded
persons with mental retardation, home health agency, or hospice
may not employ or contract for the services of an individual as a
nurse's assistant, a home health agency may not employ or contract for the services of an individual as a home health aide and a hospice may not employ or contract for the services of an individual as a hospice
nurse
aide, regardless of the title under which the individual is employed
or contracted for
, unless one of the following is true:
Section
45
.
146.40 (2) (a) of the statutes is amended to read:
146.40
(2)
(a)
For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, except as provided in par. (g), and intermediate care facilities for the mentally retarded that are certified providers of medical assistance, the
The
individual has successfully completed instruction in an instructional
and competency evaluation
program for
nurse's assistants, home health aides or hospice
nurse
aides that is
certified by the department
approved
under sub. (3)
and has successfully completed a competency evaluation program that is approved under sub. (3m)
.
Section
46
.
146.40 (2) (am) of the statutes is repealed.
Section
47
.
146.40 (2) (b) of the statutes is repealed.
Section
48
.
146.40 (2) (bm) of the statutes is repealed.
Section
49
.
146.40 (2) (c) of the statutes is renumbered 146.40 (2) (c) (intro.) and amended to read:
146.40
(2)
(c) (intro.) For hospitals, nursing homes, home health agencies or hospices, whether or not certified providers of medical assistance, and intermediate care facilities
for the mentally retarded
persons with mental retardation
that are certified providers of medical assistance, the individual is
enrolled in an instructional program for nurse aides that is approved under sub. (3) and is
employed or under contract as a nurse's assistant, home health aide or hospice aide fewer than 120 calendar days by the hospital, nursing home, home health agency, hospice or intermediate care facility for the mentally retarded.
All of the following applies to an individual specified under this paragraph:
Section
50
.
146.40 (2) (c) 1. of the statutes is created to read:
146.40
(2)
(c) 1. He or she may perform only services for which he or she has received training and has been found proficient by an instructor under the instructional program.
Section
51
.
146.40 (2) (c) 2. of the statutes is created to read:
146.40
(2)
(c) 2. The hospital, nursing home, home health agency, hospice, or intermediate care facility for persons with mental retardation may not include the individual in meeting or complying with a requirement for nursing care staff and functions, including a minimum nursing staff requirement.
Section
52
.
146.40 (2) (d) of the statutes is amended to read:
146.40
(2)
(d) For hospitals, nursing homes, home health agencies
,
or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for
the mentally retarded
persons with mental retardation
that are certified providers of medical assistance, the individual has successfully completed
instruction in
an instructional
and competency evaluation
program
or has successfully completed
and
a competency evaluation program for
nurse's assistants, for home health aides or for hospice
nurse
aides that is certified in another state that meets criteria for acceptance in this state as specified by the department by rule
, or the individual is certified as a nurse's assistant, home health aide or hospice aide in another state that meets criteria for acceptance in this state as specified by the department by rule, except that after December 31, 1991, par. (a) applies
.
Section
53
.
146.40 (2) (e) of the statutes is amended to read:
146.40
(2)
(e) For hospitals, home health agencies
,
or hospices, whether or not certified providers of medical assistance, nursing homes that are not certified providers of medical assistance and intermediate care facilities for
the mentally retarded
persons with mental retardation
that are certified providers of medical assistance, the individual is a student nurse who has successfully completed a basic nursing course from a school that is on the accredited list of schools specified under s. 441.01 (4) or who successfully completes a competency evaluation program for
nurse's assistants, home health aides or hospice
nurse
aides that is approved by the department under sub. (3m).
Section
54
.
146.40 (2) (em) of the statutes is amended to read:
146.40
(2)
(em) For nursing homes that are certified providers of medical assistance, the individual is a student nurse who successfully completes a competency evaluation program for
nurse's assistants
nurse aides
that is approved by the department under sub. (3m).
Section
55
.
146.40 (2) (f) of the statutes is repealed.
Section
56
.
146.40 (2) (g) of the statutes is amended to read:
146.40
(2)
(g) For
hospitals,
nursing homes
, home health agencies, or hospices, whether or not certified providers of medical assistance, and intermediate care facilities for persons with mental retardation
that are certified providers of medical assistance, the individual, if he or she has performed no nursing-related service for monetary compensation for 24 consecutive months after having satisfied the requirement under par. (a), again successfully completes
instruction in an instructional and
a
competency evaluation program for
nurse's assistants
nurse aides
that is
certified
approved
by the department
under sub. (3) or a competency evaluation program for nurse's assistants that is approved by the department
under sub. (3m).
Section
57
.
146.40 (2m) of the statutes is created to read:
146.40
(2m)
A nursing home or intermediate care facility for persons with mental retardation, whether or not the nursing home or intermediate care facility is a certified provider of medical assistance, may not employ or contract for the services of an individual as a feeding assistant, regardless of the title under which the individual is employed or contracted for, unless the individual has successfully completed a state-approved training and testing program, as specified by the department by rule.
Section
58
.
146.40 (3) of the statutes is amended to read:
146.40
(3)
Except as provided in sub. (4d), the department shall
certify
approve
instructional
and competency evaluation
programs for
nurse's assistants, for home health aides and for hospice
nurse
aides that apply for
certification
,
and satisfy standards for
certification
, approval that are
promulgated by rule by the department. The department shall review the curriculum of each
certified
approved
instructional
and competency evaluation
program at least once every
36
24
months following the date of
certification
approval
to determine whether the program
satisfies
continues to satisfy
the standards for
certification
approval
. Under this subsection, the department may, after providing notice, suspend or revoke the
certification
approval
of an instructional
and competency evaluation
program or impose a plan of correction on the program if the program
does not
fails to
satisfy the standards for
certification
approval
or operates under conditions that are other than those contained in the application approved by the department.
Section
59
.
146.40 (3m) of the statutes is amended to read:
146.40
(3m)
The department shall review competency evaluation programs for
nurse's assistants, for home health aides and for hospice
nurse
aides and, except as provided in sub. (4d), may approve those competency evaluation programs that satisfy standards for approval that are specified in rules
of
promulgated by
the department. Under this subsection, the department may, after providing notice, suspend or revoke approval of a competency evaluation program or impose a plan of correction
on the program
if the competency evaluation program fails to satisfy the standards
for approval
or operates under conditions that are other than those contained in the application approved by the department.
Section
60
.
146.40 (4) of the statutes is amended to read:
146.40
(4)
An instructional and
A
competency evaluation program
certified under sub. (3) or a competency evaluation program
approved under sub. (3m) shall notify the department
, on a form provided by the department, within 30 days
to include an individual on the registry under sub. (4g) (a) 1.
after
an
the
individual has successfully completed the
program
competency examination
.
Section
61
.
146.40 (4d) (a) of the statutes is amended to read:
146.40
(4d)
(a) Except as provided in par. (am), the department shall require each applicant to provide the department with his or her social security number, if the applicant is an individual, or the applicant's federal employer identification number, if the applicant is not an individual, as a condition of issuing
a certification
an approval
under sub. (3) or
an approval under sub.
(3m).
Section
62
.
146.40 (4d) (am) of the statutes, as affected by
2007 Wisconsin Act 20
, is repealed and recreated to read:
146.40
(4d)
(am) If an individual specified under par. (a) does not have a social security number, the individual, as a condition of obtaining approval, shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. An approval issued in reliance upon a false statement submitted under this paragraph is invalid.
Section
63
.
146.40 (4d) (c) of the statutes is amended to read:
146.40
(4d)
(c) Except as provided in par. (am), the department shall deny an application for the issuance of
a certification or
an
approval specified in par. (a) if the applicant does not provide the information specified in par. (a).
Section
64
.
146.40 (4d) (d) of the statutes is amended to read:
146.40
(4d)
(d) The department shall deny an application for the issuance of
a certification or
an
approval specified in par. (a) or shall revoke
a certification or
an
approval if the department of revenue certifies under s. 73.0301 that the applicant for or holder of
a certification or
an
approval is liable for delinquent taxes.
Section
65
.
146.40 (4m) of the statutes is amended to read:
146.40
(4m)
An instructional
and competency evaluation
program under sub. (3) for which the department has suspended or revoked
certification
approval
or imposed a plan of correction or a competency evaluation program under sub. (3m) for which the department has suspended or revoked approval or imposed a plan of correction may contest the department's action by sending, within 10 days after receipt of notice of the contested action, a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent. This subsection does not apply to a revocation of
certification
approval
under sub. (4d) (d).
Section
66
.
146.40 (4r) (am) 1. of the statutes is amended to read:
146.40
(4r)
(am) 1.
Except as provided in subd. 2., an
An
entity shall report to the department any allegation of misappropriation of the property of a client or of neglect or abuse of a client by any
person
individual
employed by or under contract with the entity if the
person
individual
is under the control of the entity.
Section
67
.
146.40 (4r) (am) 2. of the statutes is repealed.
Section
68
.
146.40 (4r) (b) of the statutes is amended to read:
146.40
(4r)
(b) Except as provided in pars. (em) and (er), the department shall review and investigate any report received under par. (a) or (am) and, if the allegation is substantiated, make specific, documented findings concerning the misappropriation of property or the neglect or abuse. The department shall
,
in writing
by certified mail
,
notify the
person
individual
specified in the report that the
person's
individual's
name and the department's findings about the
person
individual
shall be listed in the registry under sub. (4g) (a) 2. and 3. unless the
person
individual
contests the listings in a hearing before the division of hearings and appeals created under s. 15.103 (1). The written notification shall describe the investigation conducted by the department, enumerate the findings alleging misappropriation of property or neglect or abuse of a client and explain the consequence to the
person
individual
specified in the report of waiving a hearing to contest the findings. The
person
individual
specified in the report shall have 30
calendar
days after receipt of the notification to indicate to the department in writing whether he or she intends to contest the listing or to waive the hearing.
Section
69
.
146.40 (4r) (c) of the statutes is amended to read:
146.40
(4r)
(c) If
the nurse's assistant or home health aide
an individual
under par. (b) notifies the department that he or she waives a hearing to contest the listings in the registry under par. (b), or fails to notify the department within 30
calendar
days after receipt of a notice under par. (b), the department shall enter the name of the individual under sub. (4g) (a) 2. and the department's findings about the individual under sub. (4g) (a) 3.
Section
70
.
146.40 (4r) (e) of the statutes is amended to read:
146.40
(4r)
(e) The
nurse's assistant or home health aide
individual
may provide the department with a brief statement disputing the department's findings under par. (b) or the hearing officer's findings under par. (d) and, if so provided, the department shall enter the statement under sub. (4g) (a) 4.
Section
71
.
146.40 (4r) (em) of the statutes is amended to read:
146.40
(4r)
(em) If the department
of health and family services
receives a report under par. (a) or (am) and determines that
a person
an individual
who is the subject of the report holds a credential that is related to the
person's
individual's
employment at, or contract with, the entity, the department
of health and family services
shall refer the report to the department of regulation and licensing.
Section
72
.
146.40 (5) (a) of the statutes is amended to read:
146.40
(5)
(a) The department
, in consultation with the technical college system board,
shall promulgate rules specifying standards for
certification
approval
in this state of instructional
programs
and competency evaluation programs for
nurse's assistants, home health aides and hospice
nurse
aides. The standards shall include specialized training in providing care to individuals with special needs.
Section
73
.
146.40 (5) (b) (intro.) of the statutes is amended to read:
146.40
(5)
(b) (intro.) The department shall promulgate rules specifying criteria for acceptance by this state of an instructional program and
a
competency evaluation program
or a competency evaluation program
that is certified in another state, including whether the other state grants
nurse's assistant privileges, home health aide privileges or hospice
nurse
aide privileges to persons who have completed instruction in an instructional
and competency evaluation
program that is
certified
approved
under sub. (3) and whether one of the following is true:
Section
74
.
146.40 (5) (b) 1. of the statutes is amended to read:
146.40
(5)
(b) 1. If the other state certifies instructional
programs
and competency evaluation programs for
nurse's assistants, home health aides or hospice
nurse
aides, the state's requirements are substantially similar, as determined by the department, to certification requirements in this state.
Section
75
.
146.40 (5) (b) 2. (intro.) of the statutes is amended to read:
146.40
(5)
(b) 2. (intro.) If the other state certifies
nurse's assistants, home health aides or hospice
nurse
aides, that state's requirements are such that one of the following applies:
Section
76
.
146.40 (5) (b) 2. a. of the statutes is amended to read:
146.40
(5)
(b) 2. a. The instructional
and competency evaluation
programs required for attendance by persons receiving certificates are substantially similar, as determined by the department, to instructional
and competency evaluation
programs
certified
approved
under sub. (3).
Section
77
.
155.20 (2) (a) 2. of the statutes is amended to read:
155.20
(2)
(a) 2. An intermediate care facility for
the mentally retarded
persons with mental retardation
, as defined in s. 46.278 (1m) (am).
Section
78
.
155.30 (3) of the statutes is amended to read:
155.30
(3)
The department shall prepare and provide copies of a power of attorney for health care instrument and accompanying information for distribution in quantities to health care professionals, hospitals, nursing homes, multipurpose senior centers, county clerks
,
and local bar associations and individually to private persons. The department shall include, in information accompanying the copy of the instrument, at least the statutory definitions of terms used in the instrument, statutory restrictions on who may be witnesses to a valid instrument, a statement explaining that valid witnesses acting in good faith are statutorily immune from civil or criminal liability and a statement explaining that an instrument may, but need not, be filed with the register in probate of the principal's county of residence. The department may charge a reasonable fee for the cost of preparation and distribution. The power of attorney for health care instrument distributed by the department shall include the notice specified in sub. (1) and shall be in the following form:
POWER OF ATTORNEY
FOR HEALTH CARE
Document made this.... day of.... (month),.... (year).
CREATION OF POWER OF
ATTORNEY FOR HEALTH CARE
I,.... (print name, address and date of birth), being of sound mind, intend by this document to create a power of attorney for health care. My executing this power of attorney for health care is voluntary. Despite the creation of this power of attorney for health care, I expect to be fully informed about and allowed to participate in any health care decision for me, to the extent that I am able. For the purposes of this document, "health care decision" means an informed decision to accept, maintain, discontinue or refuse any care, treatment, service or procedure to maintain, diagnose or treat my physical or mental condition.
In addition, I may, by this document, specify my wishes with respect to making an anatomical gift upon my death.
DESIGNATION OF HEALTH CARE AGENT
If I am no longer able to make health care decisions for myself, due to my incapacity, I hereby designate.... (print name, address and telephone number) to be my health care agent for the purpose of making health care decisions on my behalf. If he or she is ever unable or unwilling to do so, I hereby designate.... (print name, address and telephone number) to be my alternate health care agent for the purpose of making health care decisions on my behalf. Neither my health care agent nor my alternate health care agent whom I have designated is my health care provider, an employee of my health care provider, an employee of a health care facility in which I am a patient or a spouse of any of those persons, unless he or she is also my relative. For purposes of this document, "incapacity" exists if 2 physicians or a physician and a psychologist who have personally examined me sign a statement that specifically expresses their opinion that I have a condition that means that I am unable to receive and evaluate information effectively or to communicate decisions to such an extent that I lack the capacity to manage my health care decisions. A copy of that statement must be attached to this document.
GENERAL STATEMENT OF
AUTHORITY GRANTED
Unless I have specified otherwise in this document, if I ever have incapacity I instruct my health care provider to obtain the health care decision of my health care agent, if I need treatment, for all of my health care and treatment. I have discussed my desires thoroughly with my health care agent and believe that he or she understands my philosophy regarding the health care decisions I would make if I were able. I desire that my wishes be carried out through the authority given to my health care agent under this document.
If I am unable, due to my incapacity, to make a health care decision, my health care agent is instructed to make the health care decision for me, but my health care agent should try to discuss with me any specific proposed health care if I am able to communicate in any manner, including by blinking my eyes. If this communication cannot be made, my health care agent shall base his or her decision on any health care choices that I have expressed prior to the time of the decision. If I have not expressed a health care choice about the health care in question and communication cannot be made, my health care agent shall base his or her health care decision on what he or she believes to be in my best interest.
LIMITATIONS ON
MENTAL HEALTH TREATMENT
My health care agent may not admit or commit me on an inpatient basis to an institution for mental diseases, an intermediate care facility for
the mentally retarded
persons with mental retardation
, a state treatment facility or a treatment facility. My health care agent may not consent to experimental mental health research or psychosurgery, electroconvulsive treatment or drastic mental health treatment procedures for me.
ADMISSION TO NURSING HOMES
OR COMMUNITY-BASED
RESIDENTIAL FACILITIES
My health care agent may admit me to a nursing home or community-based residential facility for short-term stays for recuperative care or respite care.
If I have checked "Yes" to the following, my health care agent may admit me for a purpose other than recuperative care or respite care, but if I have checked "No" to the following, my health care agent may not so admit me:
1. A nursing home — Yes.... No....
2. A community-based residential
facility — Yes.... No....
If I have not checked either "Yes" or "No" immediately above, my health care agent may admit me only for short-term stays for recuperative care or respite care.
PROVISION OF A FEEDING TUBE
If I have checked "Yes" to the following, my health care agent may have a feeding tube withheld or withdrawn from me, unless my physician has advised that, in his or her professional judgment, this will cause me pain or will reduce my comfort. If I have checked "No" to the following, my health care agent may not have a feeding tube withheld or withdrawn from me.
My health care agent may not have orally ingested nutrition or hydration withheld or withdrawn from me unless provision of the nutrition or hydration is medically contraindicated.
Withhold or withdraw a feeding tube — Yes.... No....
If I have not checked either "Yes" or "No" immediately above, my health care agent may not have a feeding tube withdrawn from me.
HEALTH CARE DECISIONS
FOR PREGNANT WOMEN
If I have checked "Yes" to the following, my health care agent may make health care decisions for me even if my agent knows I am pregnant. If I have checked "No" to the following, my health care agent may not make health care decisions for me if my health care agent knows I am pregnant.
Health care decision if I am pregnant — Yes.... No....
If I have not checked either "Yes" or "No" immediately above, my health care agent may not make health care decisions for me if my health care agent knows I am pregnant.
STATEMENT OF DESIRES, SPECIAL
PROVISIONS OR LIMITATIONS
In exercising authority under this document, my health care agent shall act consistently with my following stated desires, if any, and is subject to any special provisions or limitations that I specify. The following are specific desires, provisions or limitations that I wish to state (add more items if needed):
1) -
2) -
3) -
INSPECTION AND DISCLOSURE OF
INFORMATION RELATING TO MY
PHYSICAL OR MENTAL HEALTH
Subject to any limitations in this document, my health care agent has the authority to do all of the following:
(a) Request, review and receive any information, oral or written, regarding my physical or mental health, including medical and hospital records.
(b) Execute on my behalf any documents that may be required in order to obtain this information.
(c) Consent to the disclosure of this information.
(The principal and the witnesses all must sign the document at the same time.)
SIGNATURE OF PRINCIPAL
(person creating the power
of attorney for health care)
Signature....
Date....
(The signing of this document by the principal revokes all previous powers of attorney for health care documents.)
STATEMENT OF WITNESSES
I know the principal personally and I believe him or her to be of sound mind and at least 18 years of age. I believe that his or her execution of this power of attorney for health care is voluntary. I am at least 18 years of age, am not related to the principal by blood, marriage or adoption and am not directly financially responsible for the principal's health care. I am not a health care provider who is serving the principal at this time, an employee of the health care provider, other than a chaplain or a social worker, or an employee, other than a chaplain or a social worker, of an inpatient health care facility in which the declarant is a patient. I am not the principal's health care agent. To the best of my knowledge, I am not entitled to and do not have a claim on the principal's estate.
Witness No. 1:
(print) Name....
Date....
Address....
Signature....
Witness No. 2:
(print) Name....
Date....
Address....
Signature....
STATEMENT OF HEALTH CARE AGENT
AND ALTERNATE HEALTH CARE AGENT
I understand that.... (name of principal) has designated me to be his or her health care agent or alternate health care agent if he or she is ever found to have incapacity and unable to make health care decisions himself or herself. .... (name of principal) has discussed his or her desires regarding health care decisions with me.
Agent's signature....
Address....
Alternate's signature....
Address....
Failure to execute a power of attorney for health care document under chapter 155 of the Wisconsin Statutes creates no presumption about the intent of any individual with regard to his or her health care decisions.
This power of attorney for health care is executed as provided in chapter 155 of the Wisconsin Statutes.
ANATOMICAL GIFTS (optional)
Upon my death:
.... I wish to donate only the following organs or parts: .... (specify the organs or parts).
.... I wish to donate any needed organ or part.
.... I wish to donate my body for anatomical study if needed.
.... I refuse to make an anatomical gift. (If this revokes a prior commitment that I have made to make an anatomical gift to a designated donee, I will attempt to notify the donee to which or to whom I agreed to donate.)
Failing to check any of the lines immediately above creates no presumption about my desire to make or refuse to make an anatomical gift.
Signature....
Date....
Section
79
.
250.042 (4) (a) 3. of the statutes is amended to read:
250.042
(4)
(a) 3. "Health care provider" means an individual who, at any time within 10 years before a state of emergency is declared under s. 166.03 (1) (b) 1. or 166.23, has met requirements for a
nurse's assistant
nurse aide
under s. 146.40 (2) (a),
(b), (bm),
(c), (e), (em),
(f),
or (g), has been licensed as a physician, a physician assistant, or a podiatrist under ch. 448, licensed as a registered nurse, licensed practical nurse, or nurse-midwife under ch. 441, licensed as a dentist under ch. 447, licensed as a pharmacist under ch. 450, licensed as a veterinarian under ch. 453, or has been certified as a respiratory care practitioner under ch. 448.
Section
80
.
250.042 (4) (b) of the statutes is amended to read:
250.042
(4)
(b) A behavioral health provider, health care provider, pupil services provider, or substance abuse prevention provider who, during a state of emergency declared under s. 166.03 (1) (b) 1. or 166.23, provides behavioral health services, health care services, pupil services, or substance abuse prevention services for which the behavioral health provider, health care provider, pupil services provider, or substance abuse prevention provider has been licensed or certified or, as a
nurse's assistant
nurse aide
, has met requirements
under s. 146.40
, is, for the provision of these services a state agent of the department for purposes of ss. 165.25 (6), 893.82, and 895.46 and is an employee of the state for purposes of worker's compensation benefits. The behavioral health services, health care services, pupil services, or substance abuse prevention services shall be provided on behalf of a health care facility on a voluntary, unpaid basis, except that the behavioral health provider, health care provider, pupil services provider, or substance abuse prevention provider may accept reimbursement for travel, lodging, and meals.
Section
81
.
250.042 (4) (c) 12. of the statutes is amended to read:
250.042
(4)
(c) 12. A
nurse's assistant
nurse aide
whose name is listed under s. 146.40 (4g) (a) 2.
, 2005 stats., or a nurse aide whose name is listed under s. 146.40 (4g) (a) 2
.
Section
82
.
440.03 (3q) of the statutes is amended to read:
440.03
(3q)
Notwithstanding sub. (3m), the department of regulation and licensing shall investigate any report that it receives under s. 146.40 (4r)
(am) 2. or
(em).
Section
83
.
632.895 (1) (b) 2. of the statutes is amended to read:
632.895
(1)
(b) 2. Part-time or intermittent home health
aide
services
which
that
are medically necessary as part of the home care plan, under the supervision of a registered nurse or medical social worker, which consist solely of caring for the patient.
Section
84
.
632.895 (2) (d) of the statutes is amended to read:
632.895
(2)
(d) Each visit by a person providing services under a home care plan or evaluating the need for or developing a plan shall be considered as one home care visit. The policy may contain a limit on the number of home care visits, but not less than 40 visits in any 12-month period, for each person covered under the policy. Up to 4 consecutive hours in a 24-hour period of home health
aide
service shall be considered as one home care visit.
Section
85
.
Effective date.
(1)
This act takes effect on January 1, 2009.
