DHS 88.03(3)(a)(a) Action by licensing agency.
The licensing agency shall review the application form and program statement and any supporting documents, including criminal records checks, and shall interview the applicant and conduct an on-site visit of the home to determine if the requirements for a license set out in this chapter are met. If the requirements for a license are met and the applicant has paid the applicable fees, a license shall be issued. If requirements for a license are not met, the licensing agency shall send a written notice to the applicant stating the reasons for not approving the application and shall inform the applicant of the opportunity for a hearing under sub. (7)
. The licensing agency shall issue the license or the notice of denial within 70 days after receiving a complete application and the program statement and any supporting documents and following the on-site visit.
(b) Criminal records check.
Prior to issuing an initial license the licensing agency shall ask the Wisconsin department of justice to conduct a criminal records check on the license applicant and on any other adult household member. The licensee shall arrange for a criminal records check of all service providers. At least every second year following the issuance of an initial license the licensing agency shall request a criminal records check on the licensee and all other adult household members and the licensee shall arrange for a criminal records check on any service provider. In addition, during the period of licensure, the licensee shall arrange for a criminal records check on any new service provider. If any of these persons has a conviction record or a pending criminal charge which substantially relates to the care of a dependent population, the funds or property of adults or minors or activities of the adult family home, the licensing agency may deny, revoke, refuse to renew or suspend a license, initiate other enforcement action provided in this chapter or in ch. 50, Stats.
, or place conditions on the license.
DHS 88.03 Note
Note: Examples of actions the Department will consider in making a determination that an act substantially relates to the care of adults or minors, the funds or property of adults or minors or activities of the adult family home are: abuse, neglect, sexual assault, indecent exposure, lewd and lascivious behavior, or any crime involving non-consensual sexual conduct; child abuse, sexual exploitation of children, child abduction, child neglect, contributing to the delinquency or neglect of a child, enticing a child, enticing a child for immoral purposes, exposing a minor to pornography or other harmful materials, incest, or any crime involving children as victims or participants; armed robbery, aggravated battery, false imprisonment, kidnaping, homicide, any crimes involving bodily harm or threat of bodily harm, any crime involving the use of a dangerous weapon or any crime evidencing disregard to health and safety; cruelty, neglect or abandonment of animals and instigating fights between animals; burglary, extortion, forgery, concealing identity, embezzlement and arson; crimes involving a substantial misrepresentation of any material fact to the public including bribery, fraud, racketeering or allowing an establishment to be used for illegal purposes; offenses involving narcotics, alcohol or controlled substances that result in a felony conviction, operating a motor vehicle while under the influence of an intoxicant or other drug, operating after revocation and leaving the scene of an accident after injury or death to a person or damage to a vehicle driven or attended by any person.
DHS 88.03 Note
Wisconsin's Fair Employment Act, ss. 111.31
, Stats., prohibits discrimination because of a criminal record or a pending charge, unless the record or charge substantially relates to the circumstances of the particular job or licensed activity.
(c) Nurse aide registry check.
If the applicant, licensee or any non-resident adult living in the home of the applicant or licensee or any other occupant of the home has experience as a nurse assistant, home health aide or hospice aide, as defined under ch. DHS 129
, the licensing agency shall check the department's registry for nurse assistants, home health aides and hospice aides under s. DHS 129.10
to determine if there is on the registry a substantiated finding that the person abused or neglected a client or misappropriated the funds or property of a client. If there is a substantiated finding of one or more of these offenses, the licensing agency may deny, revoke, refuse to renew or suspend a license, initiate other enforcement action provided for in this chapter or in ch. 50, Stats.
, or place conditions on the license.
DHS 88.03 Note
Note: The department's registry for nurse assistants, home health aides and hospice aides can be reached by calling (608) 266-5545 to receive the information you need from an automated voice response unit, or you may call (608) 267-2374.
DHS 88.03 Note
Refer to the note under s. DHS 88.03 (3) (b)
for examples of actions to be considered in making a determination that an act substantially relates to the care of adults or minors, the funds or property of adults or minors or activities of the adult family home.
(d) Health check.
If the licensing agency suspects or has reason to believe that a license applicant, licensee, service provider or household member may pose a threat to the health, safety or welfare of residents, the licensing agency may require a physical examination, an alcohol or drug abuse assessment or a mental health evaluation of the person as a condition for issuance of a license.
An adult family home license is valid indefinitely unless suspended or revoked.
Every 24 months, on a schedule determined by the department, a licensed adult family home shall submit a biennial report to the licensing agency in the form and containing the information that the department requires, including payment of the fee required under sub. (2)
. If a complete biennial report is not timely filed, the department shall issue a warning to the licensee. If a licensed adult family home that has not filed a timely report fails to submit a complete report to the licensing agency within 60 days after the date established under the schedule determined by the department, the licensing agency may revoke the license.
The licensee shall provide, in a format approved by the department, information required by the department to assess the facility's compliance with s. 55.14
, Stats., relating to involuntary administration of psychotropic medication to a resident.
(5) Changes to be reported to licensing agency.
A licensee shall report to the licensing agency within 7 days, unless otherwise specified, the following changes:
A significant and ongoing change in the type or amount of services the licensee offers to provide if the change adversely affects any resident who needs the service.
Within 48 hours, that the licensee or service provider has pending or has been charged with or convicted of any crime which is substantially related to caring for dependent persons.
A change in the home's structure or damages to the home that may present a hazard to the residents.
Within 24 hours, a significant change in a resident's status, such as but not limited to an accident requiring hospitalization, missing from the home or a reportable death. A death shall be reported if there is reasonable cause to believe the death was related to use of a physical restraint or psychotropic medication, was a suicide or was accidental.
A death due to incident or accident not related to use of a restraint, psychotropic medications or suicide shall be reported to the licensing agency within 3 days. In addition the home shall;
Record the date, time and circumstance of the resident's death in the resident: record, including the name of the person to whom the body is released.
DHS 88.03 Note
Note: Deaths not to be reported to the licensing agency are those resulting from natural causes such as heart attach, a stroke or an illness when none of the circumstances in par. (e) 1. and 2. exist.
DHS 88.03 Note
Note: Providing notice under this subsection does not relieve the licensee or other persons of any obligation to report an incident to any other agency including law enforcement.
(6) Action by licensing agency to enforce this chapter. DHS 88.03(6)(a)1.1.
A licensing agency when it issues a notice of violation may require the licensee to submit a plan of correction for approval of the licensing agency. The licensee shall submit the plan of correction to the licensing agency not more than 30 days after the date of the notice or within a shorter period of time, as specified by the licensing agency, if the licensing agency determines that continuation of the violation may be harmful to the health, safety, welfare or rights of residents.
The licensing agency may require modifications in a proposed plan of correction before approving it or may substitute its own plan of correction.
(b) Placing limits on type of individuals.
A licensing agency may, at any time, following notice to the licensee and by modifying a license, limit the types of individuals served by an adult family home or the number of residents served by an adult family home for any of the following reasons:
The licensee and service providers do not have the appropriate training to serve the residents.
The licensee is unable to demonstrate that the needs of residents as identified in their individual service plans under s. DHS 88.06 (3)
are being met.
(c) Placing conditions on license.
A licensing agency may place a condition on a license if the licensing agency finds that a condition or occurrence relating to the operation and maintenance of the adult family home directly threatens the health, safety or welfare of a resident.
A licensing agency may revoke an adult family home's license if the licensing agency determines that the home has intentionally and substantially violated a requirement of this chapter or fails to meet the minimum requirements for licensure. The licensing agency shall give the licensee written notice of revocation and the grounds for the revocation and shall inform the licensee of the right to appeal that decision under sub. (7)
A licensing agency may summarily suspend a license when it finds that there is imminent danger to the health, safety or welfare of the residents in care. A finding of imminent danger may be based on but is not limited to any of the following:
Failure of the licensee to provide environmental protections such as heat, water, electricity or telephone service.
The licensee, a service provider or any other person affiliated with or living in the adult family home or who has contact with residents has been convicted of or has a pending charge for a crime against life or for causing bodily harm.
The licensee, a service provider or any other person living in the adult family home or who has contact with residents has been convicted of a felony, misdemeanor or other offense or has a pending criminal charge which is substantially related to the care of the residents or activities of the home.
The licensee, a service provider or any other person living in the adult family home or who has contact with residents is the subject of a current investigation of alleged abuse or neglect of a resident.
Pursuant to s. 50.033 (5)
, Stats., a licensing agency may commence an action in circuit court to enjoin the operation of an adult family home that is not licensed under this chapter or that is licensed and has repeatedly used methods of operation in substantial violation of this chapter, or that endangers the health, safety or welfare of any adult receiving care and maintenance in the home.
A licensing agency shall provide an adult family home with written notice of any sanction to be imposed on the adult family home. The notice shall include:
The grounds for a sanction based on an investigation made by the licensing agency.
An explanation of the types of sanctions that the licensing agency is imposing under this section.
That a person stop conducting, maintaining or operating an adult family home if the adult family home is without a valid license.
That a licensee stop violating any provision of its license or of this chapter.
That a licensee submit a plan of correction under par. (a)
for violation of any provision of its license or of this chapter.
That a licensee implement and comply with a plan of correction previously submitted by the licensee and approved by the licensing agency.
That a licensee implement and comply with a plan of correction developed by the licensing agency.
That a licensee accept no additional residents until all violations are corrected.
That a licensee provide or secure training in one or more specific areas for the licensee or service provider.
Pursuant to s. 50.033 (6)
, Stats., any person who violates s. 50.033
, Stats., or this chapter may be fined not more than $500 or imprisoned for not more than one year in the county jail or both.
Any person whose application for a license is denied under sub. (3)
or revoked under sub. (6) (d)
or suspended under sub. (6) (e)
may request a hearing on that decision under s. 227.42
A request for a hearing shall be in writing, shall be filed with the department of administration's division of hearings and appeals and shall be sent to that office so that it is received there within 10 days after the date of the notice under sub. (3)
or (6) (d)
DHS 88.03 Note
Note: A request for a hearing should be submitted to the Division of Hearings and Appeals, P.O. Box 7875, Madison, Wisconsin 53707.
The licensee shall comply with all department and licensing agency requests for information about the residents, services or operation of the home.
A licensing agency and service coordinator may, without notice, visit a home at any time to evaluate the status of resident health, safety or welfare or to determine if the home continues to comply with this chapter. The licensee shall permit the licensing agency and service coordinator to enter the home.
A licensing agency may require a licensee to request fire, health, sanitation or safety officials to inspect the home and premises to assist in evaluating the safety of the home. Any inspection shall be at the licensee's expense.
DHS 88.03 History
Cr. Register, January, 1996, No. 482
, eff. 2-1-96; am. (2) (a), (b) 1., (c), (3) (d), (7) (a), r. and recr. (4), Register, August, 2000, No. 536
, eff. 9-1-00; CR 07-042
: cr. (4) (c) Register October 2007 No. 622
, eff. 11-1-07; corrections in (2) (d) and (3) (c) made under s. 13.92 (4) (b) 7.
, Stats., Register November 2008 No. 635
Licensee and service provider. DHS 88.04(1)(a)(a)
A licensee shall be at least 21 years of age and shall be physically, emotionally and mentally capable of providing care for residents of the adult family home.
The licensee and service provider shall be persons who are responsible, mature and of reputable character and who exercise and display the capacity to successfully provide care for 3 or 4 unrelated adult residents as identified in the home's program statement.
The licensee shall ensure that the home and its operation comply with this chapter and with all other laws governing the home and its operation.
The licensee shall ensure that he or she or a service provider is present and awake at all times if any resident is in need of continuous care.
The licensee shall report in writing to the licensing agency any change in the type of individual served at least 30 days before the change. A 30 day written notice of any change in type of individual served shall also be provided to each resident and each resident's guardian, designated representative, service coordinator, placing agency and third party payee.
The licensee shall ensure that at least one copy of ch. DHS 88
is in the home at all times and is available for review by any resident, any resident's guardian or designated representative or any service provider.
The licensee shall refer a resident to the county protective services agency designated under s. 55.02
, Stats., if the licensee believes the resident is incompetent as defined in s. 54.10 (3)
, Stats., for an evaluation to determine if a competency proceeding under ch. 54, Stats.
, is needed.
If a guardian of a person who has been found incompetent under ch. 54, Stats.
, places a person in the home and the resident objects to the placement, the licensee shall notify the agency designated under ch. 55, Stats.
, for the county in which the person is living.
The licensee may not permit the existence or continuation of a condition in the home which places the health, safety or welfare of a resident at substantial risk of harm.
The licensee shall obtain documentation from a physician, a registered nurse or a physician's assistant indicating that the licensee and any service provider has been screened for illness detrimental to residents, including for tuberculosis. The documentation is to be completed within 90 days before the start of providing service. The documentation shall be kept confidential except that the licensing agency shall have access to the documentation for verification.
The licensee shall ensure that no one who has a communicable disease reportable under ch. DHS 145
may work in a position in the adult family home where the disease would present a significant risk to the health or safety of residents.
DHS 88.04 Note
For information on diseases reportable under ch. DHS 145
, contact your city or county health department.
The licensee and all service providers involved in the operation of the adult family home shall comply with the universal precautions contained in the U.S. Occupational Safety and Health Administration Standard 29 CFR 1910.1030
for the control of blood-borne pathogens.
DHS 88.04 Note
Note: Information about universal precautions may be obtained from a county or city health department or from the Department's Bureau of Occupational Health, telephone (608) 266-9383.
Neither the licensee nor a service provider may sell real or personal property to a resident or prospective resident, or purchase, borrow or accept money for real or personal property from a resident or prospective resident. Gifts offered by a resident on a festive occasion are allowable if permitted by the resident's finances.
(3) Financial security.
A licensee or license applicant, on request of the licensing agency, shall produce evidence of financial stability to permit operation of the home for at least 60 days.
DHS 88.04 Note
Note: Program contracts or agency agreements would meet the intent of this requirement.
DHS 88.04(4)(a)(a) Vehicle.
An applicant for a license who plans to transport residents in his or her vehicle shall provide the licensing agency with a certificate of insurance documenting liability coverage. If a service provider transports residents under direction of the licensee, the service provider shall have vehicle insurance and a valid driver's license and, if requested by the licensing agency, shall provide evidence to the licensing agency at 12 month intervals, on a form provided by the licensing agency that the vehicle is in safe operating condition.