49.498(13)
(13) Annual standard survey. A nursing facility is subject to a standard survey under
42 USC 1396r (g) (2) (A) (i). No person may notify a nursing facility or cause a nursing facility to be notified of the time or date on which the survey is scheduled to be conducted.
49.498(14)
(14) Rule making. The department shall promulgate all of the following rules:
49.498(14)(a)
(a) Establishing a fair mechanism meeting the requirements of
42 USC 1396r (e) (3) and (f) (3) for hearing appeals on transfers and discharges of residents from nursing facilities.
49.498(14)(c)
(c) Establishing criteria for the denial of payment under
s. 49.45 (6m) (d) 5., for the imposition of forfeitures under
sub. (16) (b), for the placement of a monitor or appointment of a receiver for a facility under
sub. (17) and for closure of a facility under
sub. (18) that do all of the following:
49.498(14)(c)2.
2. Are designed so as to minimize the time between the identification of violations and final imposition of the penalties.
49.498(14)(c)3.
3. Provide incrementally more severe penalties for repeated or uncorrected deficiencies.
49.498(15)(a)(a) A class "1" violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom.
49.498(15)(b)
(b) A class "2" violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility directly threatening to the health, safety or welfare of a resident.
49.498(15)(c)
(c) A class "3" violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility which does not directly threaten the health, safety or welfare of a resident.
49.498(15)(d)
(d) Each day of violation constitutes a separate violation. The department shall have the burden of showing that a violation existed on each day for which a forfeiture is assessed. No forfeiture may be assessed for a condition for which the nursing facility has received a variance or waiver of a standard.
49.498(16)
(16) Forfeitures, penalty assessments and interest. 49.498(16)(a)(a) Any operator or owner of a nursing facility which is in violation of this section or any rule promulgated under this section may be subject to the following forfeitures:
49.498(16)(a)1.
1. A class "1" violation may be subject to a forfeiture of not more than $250 for each violation.
49.498(16)(a)2.
2. A class "2" violation may be subject to a forfeiture of not more than $125 for each violation.
49.498(16)(a)3.
3. A class "3" violation may be subject to a forfeiture of not more than $60 for each violation.
49.498(16)(b)
(b) In determining whether a forfeiture is to be imposed and in fixing the amount of the forfeiture to be imposed, if any, for a violation, factors shall be considered that are established in rules that shall be promulgated by the department consistent with federal regulations promulgated to interpret
42 USC 1396r.
49.498(16)(c)1.1. Whenever the department imposes a forfeiture under
par. (a) for a violation of this section or the rules promulgated under this section, the department shall in addition levy a penalty assessment in the following amounts:
49.498(16)(c)1.a.
a. For a class "1" violation, not less than $5,100 nor more than $10,000.
49.498(16)(c)1.b.
b. For a class "2" violation, not less than $2,600 nor more than $5,000.
49.498(16)(c)1.c.
c. For a class "3" violation, not less than $100 nor more than $2,500.
49.498(16)(c)2.
2. Notwithstanding
subd. 1., whenever the department imposes a forfeiture under
par. (a) for the violation of the following, the department shall levy a penalty assessment in the following amounts:
49.498(16)(c)3.
3. If multiple violations are involved, the penalty assessment levied under
subd. 1. or
2. shall be based on the total forfeitures for all violations.
49.498(16)(d)
(d) If the period of the violation under
par. (a) is longer than one day, the penalty assessment shall additionally include interest for each day of the period at a rate established in rules that the department shall promulgate, except that no interest shall be computed for a day in the period between the date on which a request for a hearing, if any, is filed under
par. (f) and the date of the conclusion of all administrative and judicial proceedings arising out of the imposition of a forfeiture under
par. (a).
49.498(16)(dm)
(dm) In determining whether a forfeiture is to be imposed and in fixing the amount of the forfeiture to be imposed, if any, for a violation, factors shall be considered that are established in rules that shall be promulgated by the department consistent with federal regulations promulgated to interpret
42 USC 1396r.
49.498(16)(e)
(e) The department may directly assess forfeitures provided for under
par. (a), penalty assessments provided for under
par. (c) and interest provided for under
par. (d). If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct it, it shall send a notice of assessment to the nursing facility. The notice shall specify the amount of the forfeiture assessed, the amount of the penalty assessment, the violation, the statute or rule alleged to have been violated, and shall inform the licensee of the right to hearing under
par. (f).
49.498(16)(f)
(f) A nursing facility may contest an assessment of forfeiture, penalty assessment or interest, if any, by sending a written request for hearing under
s. 227.44 to the division of hearings and appeals created under
s. 15.103 (1). The administrator 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 shall be the final administrative decision. The division shall commence the hearing within 30 days of 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 department, if not the petitioner who was in the proceeding before the division, shall be the named respondent.
49.498(16)(g)
(g) All forfeitures, penalty assessments and interest, if any, shall be paid to the department within 10 days of receipt of notice of assessment or, if the forfeiture, penalty assessment and interest, if any, are contested under
par. (f), within 10 days of receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order under
sub. (19) (b). The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund. The department shall deposit all penalty assessments and interest in the appropriation under
s. 20.435 (1) (g).
49.498(16)(h)
(h) The attorney general may bring an action in the name of the state to collect any forfeiture, penalty assessment or interest, if any, imposed under
par. (e) or
(f) if the forfeiture, penalty assessment or interest, if any, has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture, penalty assessment or interest has been paid.
49.498(16m)
(16m) Appeals procedures. Appeals procedures under this section shall be consistent with the requirements specified in
42 CFR 431.151 (a) and (b). Any appeals under this section shall be filed with the division of hearings and appeals created under
s. 15.103 (1).
49.498(17)
(17) Temporary management. Any nursing facility that is in violation of this section or any rule promulgated under this section may be subject to placement of a monitor or appointment of a receiver, under the procedures and criteria specified in
s. 50.05 and under criteria promulgated as rules by the department under
sub. (14) (c).
49.498(18)
(18) Nursing facility closure and resident transfer. 49.498(18)(a)(a) Any nursing facility that is in violation of this section or any rule promulgated under this section may, in an emergency as determined by the department, be subject to closure by the department or to the transfer of residents of the nursing facility to another nursing facility, or both, under criteria promulgated as rules by the department under
sub. (14) (c).
49.498(18)(b)
(b) A nursing facility may contest closure of the nursing facility or transfer of residents of the nursing facility, if any, by sending a written request for hearing under
s. 227.44 to the division of hearings and appeals created under
s. 15.103 (1). The administrator 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 shall be the final administrative decision. The division shall commence the hearing within 30 days of 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 department, if not the petitioner who was in the proceeding before the division, shall be the named respondent.
49.498(19)(a)(a) All administrative remedies shall be exhausted before an agency determination under this section shall be subject to judicial review. Final decisions after hearing shall be subject to judicial review exclusively as provided in
s. 227.52, except that any petition for review of department action under this section shall be filed within 15 days after receipt of notice of the final agency determination.
49.498(19)(b)
(b) The court may stay enforcement under
s. 227.54 of the department's final decision if a showing is made that there is a substantial probability that the party seeking review will prevail on the merits and will suffer irreparable harm if a stay is not granted, and that the nursing facility will meet the requirements of this section and the rules promulgated under this section during such stay. Where a stay is granted the court may impose such conditions on the granting of the stay as may be necessary to safeguard the lives, health, rights, safety and welfare of residents, and to assure compliance by the nursing facility with the requirements of this section.
49.498(19)(c)
(c) The attorney general may delegate to the department the authority to represent the state in any action brought to challenge department decisions prior to exhaustion of administrative remedies and final disposition by the division of hearings and appeals created under
s. 15.103 (1).
49.498(20)
(20) Violations. If an act forms the basis for a violation of this section and
s. 50.04, the department or the attorney general may impose sanctions in conformity with this section or under
s. 50.04, but not both.
49.499
49.499
Nursing facility resident protection. From the appropriation under
s. 20.435 (1) (g), the department shall contribute to the payment of all of the following, as needed by a resident in a nursing facility, as defined in
s. 49.498 (1) (i), that is in violation of
s. 49.498 or of a rule promulgated under
s. 49.498:
49.499(1)
(1) The cost of relocating the resident from the nursing facility to another nursing facility.
49.499(2)
(2) Maintenance of operation of a nursing facility pending correction of deficiencies or closure of the nursing facility.
49.499(3)
(3) Reimbursement of the resident for any personal funds of the resident that were misappropriated by the nursing facility staff or other persons holding an interest in the nursing facility.
49.499 History
History: 1989 a. 31.
OTHER MEDICALLY RELATED SERVICES AND SUPPORT PROGRAMS
49.66
49.66
Definitions. In this subchapter:
49.66(1)
(1) "Department" means the department of health and family services.
49.66(2)
(2) "Secretary" means the secretary of health and family services.
49.66 History
History: 1995 a. 27 ss.
3179,
9126 (19).
49.68
49.68
Aid for treatment of kidney disease. 49.68(1)
(1)
Declaration of policy. The legislature finds that effective means of treating kidney failure are available, including dialysis or artificial kidney treatment or transplants. It further finds that kidney disease treatment is prohibitively expensive for the overwhelming portion of the state's citizens. It further finds that public and private insurance coverage is inadequate in many cases to cover the cost of adequate treatment at the proper time in modern facilities. The legislature finds, in addition, that the incidence of the disease in the state is not so great that public aid may not be provided to alleviate this serious problem for a relatively modest investment. Therefore, it is declared to be the policy of this state to assure that all persons are protected from the destructive cost of kidney disease treatment by one means or another.
49.68(1m)
(1m) In this section, "recombinant human erythropoietin" means a bioengineered glycoprotein that has the same biological effects in stimulating red blood cell production as does the glycoprotein erythropoietin that is produced by the human body.
49.68(2)
(2) Duties of department. The department shall:
49.68(2)(a)
(a) Promulgate rules setting standards for operation and certification of dialysis and renal transplantation centers and home dialysis equipment and suppliers.
49.68(2)(b)
(b) Promulgate rules setting standards for acceptance and certification of patients into the treatment phase of the program.
49.68(2)(c)
(c) Promulgate rules concerning reasonable cost and length of treatment programs.
49.68(2)(d)
(d) Aid in preparing educational programs and materials informing the public as to chronic renal disease and the prevention and treatment thereof.
49.68(3)
(3) Aid to kidney disease patients. 49.68(3)(a)(a) Any permanent resident of this state who suffers from chronic renal disease may be accepted into the dialysis treatment phase of the renal disease control program if the resident meets standards set by rule under
sub. (2) and
s. 49.687.
49.68(3)(b)
(b) The state shall pay the cost of medical treatment required as a direct result of chronic renal disease of certified patients from the date of certification, including the cost of administering recombinant human erythropoietin to appropriate patients, whether the treatment is rendered in an approved facility in the state or in a dialysis or transplantation center which is approved as such by a contiguous state, subject to the conditions specified under
par. (d). Approved facilities may include a hospital in-center dialysis unit or a nonhospital dialysis center which is closely affiliated with a home dialysis program supervised by an approved facility. Aid shall also be provided for all reasonable expenses incurred by a potential living-related donor, including evaluation, hospitalization, surgical costs and postoperative follow-up to the extent that these costs are not reimbursable under the federal medicare program or other insurance. In addition, all expenses incurred in the procurement, transportation and preservation of cadaveric donor kidneys shall be covered to the extent that these costs are not otherwise reimbursable. All donor-related costs are chargeable to the recipient and reimbursable under this subsection.
49.68(3)(c)
(c) Disbursement and collection of all funds under this subsection shall be by the department or by a fiscal intermediary, in accordance with a contract with a fiscal intermediary. The costs of the fiscal intermediary under this paragraph shall be paid from the appropriation under
s. 20.435 (1) (a).
49.68(3)(d)1.1. No aid may be granted under this subsection unless the recipient has no other form of aid available from the federal medicare program or from private health, accident, sickness, medical and hospital insurance coverage. If insufficient aid is available from other sources and if the recipient has paid an amount equal to the annual medicare deductible amount specified in
subd. 2., the state shall pay the difference in cost to a qualified recipient. If at any time sufficient federal or private insurance aid becomes available during the treatment period, state aid shall be terminated or appropriately reduced. Any patient who is eligible for the federal medicare program shall register and pay the premium for medicare medical insurance coverage where permitted, and shall pay an amount equal to the annual medicare deductible amounts required under
42 USC 1395e and
1395L (b), prior to becoming eligible for state aid.
49.68(3)(d)2.
2. Aid under this subsection is only available after the patient pays an annual amount equal to the annual deductible amount required under the federal medicare program. This subdivision requires an inpatient who seeks aid first to pay an annual deductible amount equal to the annual medicare deductible amount specified under
42 USC 1395e and requires an outpatient who seeks aid first to pay an annual deductible amount equal to the annual medicare deductible amount specified under
42 USC 1395L (b).
49.68(3)(e)
(e) State aids for services provided under this section shall be equal to the allowable charges under the federal medicare program. In no case shall state rates for individual service elements exceed the federally defined allowable costs. The rate of charges for services not covered by public and private insurance shall not exceed the reasonable charges as established by medicare fee determination procedures. The state may not pay for the cost of travel, lodging or meals for persons who must travel to receive inpatient and outpatient dialysis treatment for kidney disease. This paragraph shall not apply to donor related costs as defined in
par. (b).
49.682
49.682
Recovery from estates. 49.682(1)(c)
(c) "Home" means property in which a person has an ownership interest consisting of the person's dwelling and the land used and operated in connection with the dwelling.
49.682(2)(a)(a) Except as provided in
par. (d), the department shall file a claim against the estate of a client or against the estate of the surviving spouse of a client for the amount of aid under
s. 49.68,
49.683 or
49.685 paid to or on behalf of the client.
49.682(2)(b)
(b) The affidavit of a person designated by the secretary to administer this subsection is evidence of the amount of the claim.
49.682(2)(c)
(c) The court shall reduce the amount of a claim under
par. (a) by up to $3,000 if necessary to allow the client's heirs or the beneficiaries of the client's will to retain the following personal property:
49.682(2)(c)1.
1. The decedent's wearing apparel and jewelry held for personal use.
49.682(2)(c)3.
3. Other tangible personal property not used in trade, agriculture or other business, not to exceed $1,000 in value.
49.682(2)(d)
(d) A claim under
par. (a) is not allowable if the decedent has a surviving child who is under age 21 or disabled or a surviving spouse.
49.682(2)(e)
(e) If the department's claim is not allowable because of
par. (d) and the estate includes an interest in a home, the court exercising probate jurisdiction shall, in the final judgment, assign the interest in the home subject to a lien in favor of the department for the amount described in
par. (a). The personal representative shall record the final judgment as provided in
s. 863.29.
