DHS 13.03(1)(a)3. 3. The forcible administration of medication to or the performance of psychosurgery, electroconvulsive therapy or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.
DHS 13.03(1)(a)4. 4. A course of conduct or repeated acts by a caregiver which serve no legitimate purpose and which, when done with intent to harass, intimidate, humiliate, threaten or frighten a client, causes or could reasonably be expected to cause the client to be harassed, intimidated, humiliated, threatened or frightened.
DHS 13.03(1)(b) (b) "Abuse" does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.
DHS 13.03(2) (2) "Access," when used in reference to a person's access to clients, means that in the course of performing the person's expected duties for or functions with the entity, or as a nonclient resident of the entity, the person has or may have direct, regular contact with clients served by the entity.
DHS 13.03(3)(a)(a) "Caregiver" means a person who is all of the following:
DHS 13.03(3)(a)1. 1. A person who has received regulatory approval from an agency or is employed by or under contract with an entity.
DHS 13.03(3)(a)2. 2. A person who has access to the entity's clients.
DHS 13.03(3)(a)3. 3. A person who is under the entity's control.
DHS 13.03(3)(b) (b) "Caregiver" does not include any of the following:
DHS 13.03(3)(b)1. 1. A person who performs solely clerical, administrative, maintenance or other support functions for the entity and is not expected to have regular, direct contact with clients or the personal property of clients.
DHS 13.03(3)(b)2. 2. A person who is employed by or under contract with an entity to provide infrequent or occasional services, such as delivering items to the facility, equipment maintenance, groundskeeping, construction or other similar services that are not directly related to the care of a client.
DHS 13.03(4) (4) "Caregiver misconduct registry" means information collected and preserved in a database by the department on all caregivers who have been found to have abused or neglected a client or misappropriated a client's property, except for persons licensed, permitted, certified or registered under ch. 441, 448, 449, 450, 451, 455 or 459, Stats.
DHS 13.03(5) (5) "Caregiver registry" means the registry required under s. 146.40 (4g), Stats., which consists of 2 lists, the list under s. DHS 129.10 of nurse aides qualified by training and testing to work in a hospital or nursing home or for a home health agency or hospice program, and the caregiver misconduct registry, which includes nurse aides, under this chapter.
DHS 13.03(6) (6) "Client" means a person who receives care or treatment from an entity.
DHS 13.03(7) (7) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.
DHS 13.03(8) (8) "Credential" means a license, permit or certificate of certification or registration issued under chs. 440 to 480, Stats.
DHS 13.03(9) (9) "Department" means the Wisconsin department of health services.
DHS 13.03(10) (10) "Employed by" means working for another for compensation on a full-time, part-time, temporary or per diem basis.
DHS 13.03(11) (11) "Entity" has the meaning given in s. 50.065 (1) (c), Stats.
DHS 13.03 Note Note: Entities include those facilities, organizations or services that are licensed or certified by, approved by or registered with the department under the following chapters of the department's administrative rules:
  DHS 34   Emergency mental health service programs
  DHS 40   Mental health day treatment services for children
  DHS 61   Community mental health, alcoholism and other drug abuse
    (AODA) program
  DHS 63   Community support programs for chronically mentally ill persons
  DHS 75   Community Substance Abuse Standards
  DHS 82   Certified adult family homes
  DHS 83   Community-based residential facilities
  DHS 88   Licensed adult family homes
  DHS 89   Residential care apartment complexes
    (formerly, assisted living facilities)
  DHS 110   Ambulance service providers
  DHS 124   Hospitals
  DHS 127   Rural medical centers
  DHS 131   Hospices
  DHS 132   Nursing homes
  DHS 133   Home health agencies
  DHS 134   Facilities for the developmentally disabled
DHS 13.03(12) (12) "Misappropriation of property" means any of the following:
DHS 13.03(12)(a) (a) The intentional taking, carrying away, using, transferring, concealing or retaining possession of a client's movable property without the client's consent and with the intent to deprive the client of possession of the property.
DHS 13.03(12)(b) (b) Obtaining property of a client by intentionally deceiving the client with a false representation which is known to be false, made with the intent to defraud, and which does defraud the person to whom it is made. In this paragraph, "false representation" includes a promise made with the intent not to perform it if it is a part of a false and fraudulent scheme.
DHS 13.03(12)(c) (c) By virtue of his or her office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally using, transferring, concealing, or retaining possession of the money, security, instrument, paper or writing without the owner's consent, contrary to his or her authority, and with the intent to convert it to his or her own use or to the use of any other person except the owner.
DHS 13.03(12)(d) (d) Intentionally using or attempting to use personal identifying information as defined in s. 943.201 (1) (b), Stats., or an individual's birth certificate or financial transaction card as defined in s. 943.41 (1) (em), Stats., to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual.
DHS 13.03(12)(e) (e) Violating s. 943.38, Stats., involving the property of a client, or s. 943.41, Stats., involving fraudulent use of a client's financial transaction card.
DHS 13.03(13) (13) "Misconduct" means abuse or neglect of a client or misappropriation of a client's property.
DHS 13.03(14)(a)(a) "Neglect" means an intentional omission or intentional course of conduct by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that is contrary to the entity's policies and procedures, is not part of the client's treatment plan and, through substantial carelessness or negligence, does any of the following:
DHS 13.03(14)(a)1. 1. Causes or could reasonably be expected to cause pain or injury to a client or the death of a client.
DHS 13.03(14)(a)2. 2. Substantially disregards a client's rights under either ch. 50 or 51, Stats., or a caregiver's duties and obligations to a client.
DHS 13.03(14)(a)3. 3. Causes or could reasonably be expected to cause mental or emotional damage to a client, including harm to the client's psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward behavior, agitation, fear of harm or death, or a combination of these behaviors. This paragraph does not apply to permissible restraint, isolation or confinement implemented by order of a court or as permitted by statute.
DHS 13.03(14)(b) (b) "Neglect" does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.
DHS 13.03(15) (15) "Nonclient resident" has the meaning specified in ss. 48.685 (1) (bm) and 50.065 (1) (cn), Stats.
DHS 13.03(16) (16) "Nurse aide" means a nurse's assistant as defined in s. DHS 129.03 (14), a home health aide, as defined in s. DHS 129.03 (11) or a hospice aide, as defined in s. DHS 129.03 (11r).
DHS 13.03 Note Note: Chapter DHS 129 was repealed and recreated effective 12-1-08. "Nurse aide" is now defined at s. DHS 129.03 (30). "Nurse's assistant", "home health aide" and "hospice aide" are not defined.
DHS 13.03(17) (17) "Reasonable cause" means that the greater weight of evidence provides a reasonable ground for belief that the individual committed the act as alleged.
DHS 13.03(18) (18) "Under the entity's control" means a person employed by or under contract with the entity for whom the entity does 2 or more of the following:
DHS 13.03(18)(a) (a) Determines whether the person may provide care, treatment, support or similar services to clients served by the entity.
DHS 13.03(18)(b) (b) Directs the policies or procedures the person must follow in performing his or her duties as a caregiver.
DHS 13.03(18)(c) (c) Directs the conditions under which the person performs his or her duties as a caregiver.
DHS 13.03(18)(d) (d) Directs the work assignments of or tasks performed by the caregiver.
DHS 13.03(18)(e) (e) Determines the person's work schedule.
DHS 13.03(18)(f) (f) Supervises or evaluates the person's work or job performance, including imposing discipline or awarding performance awards.
DHS 13.03(18)(g) (g) Determines the compensation the person received for performing his or her duties as a caregiver.
DHS 13.03(19) (19) "Without consent" has the meaning given in s. 939.22 (48), Stats.
DHS 13.03 History History: Cr. Register, June, 1999, No. 522, eff. 7-1-99; reprinted to correct error in (1) (a) 1. (intro.), Register, August, 1999, No. 524; corrections in (5) and (16) made under s. 13.93 (2m) (b) 7., Stats., Register December 2003 No. 576; CR 04-040: am. (15) Register November 2004 No. 587, eff. 12-1-04; corrections in (5), (9) and (16) made under s. 13.92 (4) (b) 6. and 7., Stats., Register November 2008 No. 635.
DHS 13.04 DHS 13.04 Caregiver misconduct registry.
DHS 13.04(1)(1) Establishment and maintenance. The department shall establish and maintain a database of caregivers as an official record of persons found to have abused or neglected a client or misappropriated a client's property under the requirements of this chapter. The database shall contain the following lists:
DHS 13.04(1)(a) (a) Nurse aides. A list of all nurse aides who have been found under s. DHS 13.05 (6) or (7) to have abused or neglected a client or misappropriated a client's property and to whom any of the following applies:
DHS 13.04(1)(a)1. 1. The nurse aide waives a hearing to contest the listing of the finding in the registry or fails to file a timely request for a hearing under s. DHS 13.05 (7) (b) after receipt of the department's notice of the department's intent to enter its findings about the nurse aide in the registry.
DHS 13.04(1)(a)2. 2. The hearing officer under s. DHS 13.05 (7) (d) 6. finds reasonable cause to believe that the nurse aide abused or neglected a client or misappropriated a client's property.
DHS 13.04(1)(b) (b) All other caregivers. A list of all persons other than nurse aides who have been found under s. DHS 13.05 (6) or (7) to have abused or neglected a client or misappropriated a client's property and to whom any of the following applies:
DHS 13.04(1)(b)1. 1. The person waives a hearing to contest the listing of the finding in the registry or fails to file a timely request for a hearing under s. DHS 13.05 (7) (b) after receipt of the department's notice of the department's intent to enter its findings about the person in the registry.
DHS 13.04(1)(b)2. 2. The hearing officer under s. DHS 13.05 (7) (d) 6. finds reasonable cause to believe that the person abused or neglected a client or misappropriated a client's property.
DHS 13.04(2) (2)Content. Information about a person in the caregiver misconduct registry shall include all of the following:
DHS 13.04(2)(a) (a) The person's social security number, if available.
DHS 13.04(2)(b) (b) The person's full name, including middle initial.
DHS 13.04(2)(c) (c) The person's mailing address.
DHS 13.04(2)(d) (d) The person's date of birth.
DHS 13.04(2)(e) (e) Any finding made by the department under s. DHS 13.05 (6), or, if appealed, by a hearing officer under s. DHS 13.05 (7), that the person abused or neglected a client or misappropriated the property of a client, and whether the person filed a rebuttal statement with the department under s. DHS 13.05 (6) (c) 2. e. disputing that finding.
DHS 13.04(3) (3)Release of caregiver misconduct registry information. With the exception of the person's social security number and to the extent permitted by state and federal law, the information included in the registry about individuals is public information. The department shall respond promptly to inquiries concerning registry information. A request for registry information shall be in writing and accompanied by a self-addressed stamped envelope.
DHS 13.04 Note Note: Send a request for registry information to: Bureau of Quality Assurance, Caregiver Registry and Investigation Section, 2917 International Lane, Suite 300, Madison, Wisconsin 53704. If the information is part of a child abuse or neglect record subject to s. 48.981, Stats., it may be released only as allowed by s. 48.981 (7), Stats.
DHS 13.04 History History: Cr. Register, June, 1999, No. 522, eff. 7-1-99.
DHS 13.05 DHS 13.05 Allegations of caregiver misconduct.
DHS 13.05(1)(1) Definitions. In this section:
DHS 13.05(1)(a) (a) "Community-based residential facility" has the meaning given in s. 50.01 (1g), Stats.
DHS 13.05(1)(b) (b) "Home health agency" has the meaning given in s. 50.49 (1) (a), Stats.
DHS 13.05(1)(c) (c) "Nursing home" has the meaning given in s. 50.01 (3), Stats.
DHS 13.05(1)(d) (d) "Report" means any allegation of misconduct that has been filed, either orally or in writing, and includes any similar additional allegations that are discovered during the course of an investigation.
DHS 13.05(1)(e) (e) "Reporter" means the person or entity who files a report with the department.
DHS 13.05(1)(f) (f) "Subject of the report" means the person against whom an allegation of misconduct is made or, when an attorney files a written notice of appearance in the matter, the attorney representing the person.
DHS 13.05(2) (2)Entity's responsibility to protect clients. Upon learning of an incident of alleged misconduct, an entity shall take whatever steps are necessary to ensure that clients are protected from subsequent episodes of misconduct while a determination on the matter is pending.
DHS 13.05(3) (3)Entity's responsibility to report allegations.
DHS 13.05(3)(a)(a) Entity's duty to report to the department. Except as provided under pars. (b) and (c), an entity shall report to the department any allegation of an act, omission or course of conduct described in this chapter as client abuse or neglect or misappropriation of client property committed by any person employed by or under contract with the entity if the person is under the control of the entity. The entity shall submit its report on a form provided by the department within 7 calendar days from the date the entity knew or should have known about the misconduct. The report shall contain whatever information the department requires.
DHS 13.05 Note Note: For copies of the report form, write or phone the Caregiver Registry and Investigation Section, Bureau of Quality Assurance, 2917 International Lane, Suite 300, Madison, Wisconsin 53704; 608-243-2019. Return completed reports to the same address.
DHS 13.05(3)(b) (b) Entity's duty to report to the department of safety and professional services. In addition to the reporting requirement under par. (c), an entity shall report to the department of safety and professional services any allegation of misconduct committed by any person employed by or under contract with the entity, if the person holds a credential from the department of safety and professional services that is related to the person's employment at, or contract with, the entity. The entity's report shall be made within 7 calendar days from the date the entity knew or should have known about the misconduct.
DHS 13.05 Note Note: Send this report to the Department of Safety and Professional Services, Division of Enforcement, P.O. Box 8935, Madison, Wisconsin 53708-8935.
DHS 13.05(3)(c) (c) Entity's duty to report child abuse or neglect to county authorities. In accordance with s. 48.981, Stats., an entity shall immediately report, by telephone or personally, to the county department of social services or human services or the sheriff or city, village or town police department the facts and circumstances contributing to a suspicion that child abuse or neglect has occurred or to a belief that it will occur. In addition, the entity shall notify the department in writing or by phone within 7 calendar days that the report has been made.
DHS 13.05 Note Note: For notification to the Department that the report has been made, write Caregiver Registry and Investigation Section, Bureau of Quality Assurance, 2917 International Lane, Suite 300, Madison, Wisconsin 53704; or phone 608-243-2019.
DHS 13.05(3)(d) (d) Entity's duty to notify subject of the report. An entity shall notify the subject of a report under par. (a), (b) or (c) that an allegation of abuse or neglect of a client or misappropriation of a client's property has been made and that the report is being forwarded to the appropriate authority. Notice to the subject of the report shall be given as soon as practicable, but within 7 calendar days of the entity's reporting to the appropriate authority.
DHS 13.05(3)(e) (e) Penalty for failure to report incidents of caregiver misconduct. An entity that intentionally fails to report an allegation of misconduct under this subsection by any person employed by or under contract with the entity may be required to forfeit not more than $1,000 and may be subject to any of the following sanctions:
DHS 13.05(3)(e)1. 1. Submission by the entity of a plan of correction for approval by the department, and implementation of the plan of correction.
DHS 13.05(3)(e)2. 2. Implementation by the entity of a department-imposed plan of correction.
DHS 13.05(3)(e)3. 3. Any regulatory limitations or conditions, as appropriate, imposed by the department on the entity.
DHS 13.05(3)(e)4. 4. Suspension or revocation of licensure, certification or other approval for a period of not more than 5 years.
DHS 13.05(3)(e)5. 5. Notification in a local newspaper of the act and, if applicable, any forfeiture imposed.
DHS 13.05 Note Note: When allegations that are the subject of a report involve the possible commission of a crime, reporters should also separately notify law enforcement authorities having jurisdiction in the case.
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