50.065(5m)
(5m) Notwithstanding
s. 111.335, the department may refuse to license, certify or register, or issue a certificate of approval to, a person to operate an entity, and an entity may refuse to employ, contract with or permit to reside at the entity a person specified in
sub. (2) (ag) (intro.), if the person has been convicted of an offense that the department has not defined as a "serious crime" by rule promulgated under
sub. (7) (a), or specified in the list established by rule under
sub. (7) (b), but that is, in the estimation of the department or entity, substantially related to the care of a client.
50.065(6)(a)(a) The department shall require any person who applies for issuance or continuation of a license, certification, certificate of approval or registration to operate an entity to complete a background information form that is provided by the department.
50.065(6)(am)
(am) Every 4 years an entity shall require all of the following persons to complete a background information form that is provided to the entity by the department:
50.065(6)(am)1.
1. A person who is an employe, prospective employe, contractor or prospective contractor of the entity, who will be under the entity's control and who has, or is expected to have, access to its clients, other than a person specified in
sub. (2) (b) 2.
50.065(6)(am)2.
2. A person who is a resident or prospective resident at the entity and who is not a client or prospective client of the entity, if the person has, or is expected to have, access to any client of the entity.
50.065(6)(b)
(b) For persons specified under
par. (a) who are licensed, issued a certificate of approval or certified by, or registered with, the department, for person specified in
par. (am) 2., and for other persons specified by the department by rule, the entity shall send the background information form to the department. For persons specified under
par. (am) 1., the entity shall maintain the background information form on file for inspection by the department.
50.065(6)(c)
(c) A person who provides false information on a background information form required under this subsection may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.
50.065(7)
(7) The department shall do all of the following:
50.065(7)(a)
(a) Establish by rule a definition of "serious crime" for the purpose of this section. The definition shall include only crimes or acts that are substantially related to the care of a client. The definition shall also include those offenses specified in
sub. (5) (a) to
(e) and classes of crimes or acts involving abuse or neglect of a client or misappropriation of the property of a client for which no person who has committed any of those crimes or acts may be permitted to demonstrate under
sub. (5) that he or she has been rehabilitated.
50.065(7)(b)
(b) Establish by rule a list of crimes or acts that are not included in the definition established under
par. (a), that are substantially related to the care of clients and the commission of which warrants a less stringent measure than a bar on employment, residence or similar type of association with an entity. The rule shall be consistent with federal law and regulations and shall include a description of the measures to be taken for the crimes or acts that the department lists under this paragraph.
50.065(7)(c)
(c) Conduct throughout the state periodic training sessions that cover criminal background investigations; reporting and investigating misappropriation of property or abuse or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.
50.065(7)(d)
(d) Provide a background information form that requires the person completing the form to include his or her date of birth on the form.
50.065(8)
(8) The department may charge a fee for obtaining the information required under
sub. (2) (am) or
(3) (a). The fee may not exceed the reasonable cost of obtaining the information. No fee may be charged to a nurse's assistant, as defined in
s. 146.40 (1) (d), for obtaining or maintaining the information if to do so would be inconsistent with federal law.
50.065 History
History: 1997 a. 27,
105,
237.
50.07
50.07
Prohibited acts. 50.07(1)(a)
(a) Intentionally fail to correct or interfere with the correction of a class "A" or class "B" violation within the time specified on the notice of violation or approved plan of correction under
s. 50.04 as the maximum period given for correction, unless an extension is granted and the corrections are made before expiration of extension.
50.07(1)(b)
(b) Intentionally prevent, interfere with, or attempt to impede in any way the work of any duly authorized representative of the department in the investigation and enforcement of any provision of this subchapter.
50.07(1)(c)
(c) Intentionally prevent or attempt to prevent any such representative from examining any relevant books or records in the conduct of official duties under this subchapter.
50.07(1)(d)
(d) Intentionally prevent or interfere with any such representative in the preserving of evidence of any violation of any of the provisions of this subchapter or the rules promulgated under this subchapter.
50.07(1)(e)
(e) Intentionally retaliate or discriminate against any resident or employe for contacting or providing information to any state official, including any representative of the office of the long-term care ombudsman under
s. 16.009 (4), or for initiating, participating in, or testifying in an action for any remedy authorized under this subchapter.
50.07(1)(em)
(em) Intentionally retaliate or discriminate against any resident or employe on whose behalf another person contacted or provided information to any state official, including any representative of the office of the long-term care ombudsman under
s. 16.009 (4), or initiated, participated in or testified in an action for any remedy authorized under this subchapter.
50.07(1)(f)
(f) Intentionally destroy, change or otherwise modify an inspector's original report.
50.07(2)
(2) Violators of this section may be imprisoned up to 6 months or fined not more than $1,000 or both for each violation.
50.07(3)(a)2.
2. Any employe of a state agency who is discharged or otherwise retaliated or discriminated against in violation of
sub. (1) (e) or
(em) may file a complaint with the personnel commission under
s. 230.45 (1) (j).
50.07(3)(b)
(b) Any employe of an employer not described in
par. (a) who is discharged or otherwise retaliated or discriminated against in violation of
sub. (1) (e) or
(em) may file a complaint with the department of workforce development under
s. 106.06 (5).
50.07(3)(c)
(c) Any person not described in
par. (a) or
(b) who is retaliated or discriminated against in violation of
sub. (1) (e) or
(em) may commence an action in circuit court for damages incurred as a result of the violation.
50.07 History
History: 1977 c. 170;
1997 a. 131.
50.07 Annotation
Sub. (1) (e) does not provide a remedy to a terminated employe and does not prevent a private action for wrongful termination to an employe who reports abuse. There is a public policy exception to the employment-at-will doctrine in this case. Hausman v. St. Croix Care Center, Inc. 214 W (2d) 654, 571 NW (2d) 393 (1997).
50.09
50.09
Rights of residents in certain facilities. 50.09(1)
(1)
Residents' rights. Every resident in a nursing home or community-based residential facility shall, except as provided in
sub. (5), have the right to:
50.09(1)(a)
(a) Private and unrestricted communications with the resident's family, physician, attorney and any other person, unless medically contraindicated as documented by the resident's physician in the resident's medical record, except that communications with public officials or with the resident's attorney shall not be restricted in any event. The right to private and unrestricted communications shall include, but is not limited to, the right to:
50.09(1)(a)1.
1. Receive, send and mail sealed, unopened correspondence, and no resident's incoming or outgoing correspondence shall be opened, delayed, held or censored.
50.09(1)(a)2.
2. Reasonable access to a telephone for private communications.
50.09(1)(b)
(b) Present grievances on the resident's own behalf or others to the facility's staff or administrator, to public officials or to any other person without justifiable fear of reprisal, and to join with other residents or individuals within or outside of the facility to work for improvements in resident care.
50.09(1)(c)
(c) Manage the resident's own financial affairs, including any personal allowances under federal or state programs, unless the resident delegates, in writing, such responsibility to the facility and the facility accepts the responsibility or unless the resident delegates to someone else of the resident's choosing and that person accepts the responsibility. The resident shall receive, upon written request by the resident or guardian, a written monthly account of any financial transactions made by the facility under such a delegation of responsibility.
50.09(1)(d)
(d) Be fully informed, in writing, prior to or at the time of admission of all services included in the per diem rate, other services available, the charges for such services, and be informed, in writing, during the resident's stay of any changes in services available or in charges for services.
50.09(1)(e)
(e) Be treated with courtesy, respect and full recognition of the resident's dignity and individuality, by all employes of the facility and licensed, certified or registered providers of health care and pharmacists with whom the resident comes in contact.
50.09(1)(f)
(f) Physical and emotional privacy in treatment, living arrangements and in caring for personal needs, including, but not limited to:
50.09(1)(f)1.
1. Privacy for visits by spouse. If both spouses are residents of the same facility, they shall be permitted to share a room unless medically contraindicated as documented by the resident's physician in the resident's medical record.
50.09(1)(f)2.
2. Privacy concerning health care. Case discussion, consultation, examination and treatment are confidential and shall be conducted discreetly. Persons not directly involved in the resident's care shall require the resident's permission to authorize their presence.
50.09(1)(f)3.
3. Confidentiality of health and personal records, and the right to approve or refuse their release to any individual outside the facility, except in the case of the resident's transfer to another facility or as required by law or 3rd-party payment contracts and except as provided in
s. 146.82 (2) and
(3).
50.09(1)(g)
(g) Not to be required to perform services for the facility that are not included for therapeutic purposes in the resident's plan of care.
50.09(1)(h)
(h) Meet with, and participate in activities of social, religious and community groups at the resident's discretion, unless medically contraindicated as documented by the resident's physician in the resident's medical record.
50.09(1)(i)
(i) Retain and use personal clothing and effects and to retain, as space permits, other personal possessions in a reasonably secure manner.
50.09(1)(j)
(j) Be transferred or discharged, and be given reasonable advance notice of any planned transfer or discharge, and an explanation of the need for and alternatives to the transfer or discharge. The facility to which the resident is to be transferred must have accepted the resident for transfer, except in a medical emergency or if the transfer or discharge is for nonpayment of charges following a reasonable opportunity to pay a deficiency. No person may be involuntarily discharged for nonpayment under this paragraph if the person meets all of the following conditions:
50.09(1)(j)1.
1. He or she is in need of ongoing care and treatment and has not been accepted for ongoing care and treatment by another facility or through community support services.
50.09(1)(j)2.
2. The funding of his or her care in the nursing home or community-based residential facility under
s. 49.45 (6m) is reduced or terminated because of one of the following:
50.09(1)(j)2.a.
a. He or she requires a level or type of care which is not provided by the nursing home or community-based residential facility.
50.09(1)(k)
(k) Be free from mental and physical abuse, and be free from chemical and physical restraints except as authorized in writing by a physician for a specified and limited period of time and documented in the resident's medical record. Physical restraints may be used in an emergency when necessary to protect the resident from injury to himself or herself or others or to property. However, authorization for continuing use of the physical restraints shall be secured from a physician within 12 hours. Any use of physical restraints shall be noted in the resident's medical records. "Physical restraints" includes, but is not limited to, any article, device or garment which interferes with the free movement of the resident and which the resident is unable to remove easily, and confinement in a locked room.
50.09(1)(L)
(L) Receive adequate and appropriate care within the capacity of the facility.
50.09(1)(m)
(m) Use the licensed, certified or registered provider of health care and pharmacist of the resident's choice.
50.09(1)(n)
(n) Be fully informed of the resident's treatment and care and participate in the planning of the resident's treatment and care.
50.09(2)
(2) The department, in establishing standards for nursing homes and community-based residential facilities may establish, by rule, rights in addition to those specified in
sub. (1) for residents in such facilities.
50.09(3)
(3) If the resident is adjudged to be incompetent under
ch. 51 or
880 and not restored to legal capacity, the rights and responsibilities established under this section which the resident is not competent to exercise shall devolve upon the resident's guardian.
50.09(4)
(4) Each facility shall make available a copy of the rights and responsibilities established under this section and the facility's rules to each resident and each resident's legal representative, if any, at or prior to the time of admission to the facility, to each person who is a resident of the facility and to each member of the facility's staff. The rights, responsibilities and rules shall be posted in a prominent place in each facility. Each facility shall prepare a written plan and provide appropriate staff training to implement each resident's rights established under this section.
50.09(5)
(5) Rights established under this section shall not, except as determined by the department of corrections, be applicable to residents in such facilities, if the resident is in the legal custody of the department of corrections and is a correctional client in such a facility.
50.09(6)(a)(a) Each facility shall establish a system of reviewing complaints and allegations of violations of residents' rights established under this section. The facility shall designate a specific individual who, for the purposes of effectuating this section, shall report to the administrator.
50.09(6)(b)
(b) Allegations of violations of such rights by persons licensed, certified or registered under
chs. 441,
446 to
450,
455 and
456 shall be promptly reported by the facility to the appropriate licensing, examining or affiliated credentialing board and to the person against whom the allegation has been made. Any employe of the facility and any person licensed, certified or registered under
chs. 441,
446 to
450,
455 and
456 may also report such allegations to the board. Such board may make further investigation and take such disciplinary action, within the board's statutory authority, as the case requires.
50.09(6)(c)
(c) No person who files a report as required in
par. (b) or who participates, in good faith, in the review system established under
par. (a) shall be liable for civil damages for such acts.
50.09(6)(d)
(d) The facility shall attach a statement, which summarizes complaints or allegations of violations of rights established under this section, to the report required under
s. 50.03 (4) (c) 1. or
2. The statement shall contain the date of the complaint or allegation, the name of the persons involved, the disposition of the matter and the date of disposition. The department shall consider the statement in reviewing the report.
50.09 Annotation
A resident's right be treated with respect under sub. (1) (e) is not waived by misbehavior. Hacker v. DHSS, 189 W (2d) 328, 525 NW (2d) 364 (Ct. App. 1994).
50.095
50.095
Resident's right to know; nursing home reports. 50.095(1)(1) Every resident in or prospective resident of a nursing home has the right to know certain information from the nursing home which would aid an individual in assessing the quality of care provided by a nursing home.
50.095(2)
(2) The department may request from a nursing home information necessary for preparation of a report under
sub. (3), and the nursing home, if so requested, shall provide the information.
50.095(3)
(3) By July 1, 1998, and annually thereafter, the department shall provide each nursing home and the office of the long-term care ombudsman with a report that includes the following information for the nursing home:
50.095(3)(am)
(am) The ratio of nursing staff available to residents per shift at each skill level for the previous year for the nursing home, under criteria that the department shall promulgate as rules.
50.095(3)(b)
(b) The staff replacement rates for full-time and part-time nursing staff, nurse's assistants 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.
50.095(3)(c)
(c) Violations of statutes or rules by the nursing home during the previous year for the nursing home and for all similar nursing homes in the same geographical area, as determined by the department.
50.095(3m)
(3m) The department shall prepare a simplified summary of the information required under
sub. (3) (am) to
(c), as specified by rule by the department. The summary shall be on one sheet of paper and shall be in language that is easily understood by laypersons. The summary shall state that a complete copy of the most recent report of inspection of the nursing home is available from the department, upon request, for a minimal fee.
50.095(4)
(4) Upon receipt of a report under
sub. (3), the nursing home shall make the report available to any person requesting the report. Upon receipt of a summary under
sub. (3m), the nursing home shall provide a copy of the summary to every resident of the nursing home and his or her guardian, if any, to every prospective resident of the nursing home, if any, and to every person who accompanies a prospective resident or acts as the prospective resident's representative, as defined in
s. 655.001 (12), if any.
50.095 History
History: 1987 a. 27,
127;
1997 a. 114 ss.
20 to
25;
1997 a. 237.
50.097
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 under
s. 146.40 (4g) (a) or that is contained in the registry of hospice aides under
s. 146.40 (4g) (a) 1.
50.097 History
History: 1989 a. 31;
1991 a. 39.
50.098
50.098
Appeals of transfers or discharges. The department shall promulgate rules establishing a fair mechanism for hearing appeals on transfers and discharges of residents from nursing homes.
50.098 History
History: 1989 a. 31.
50.10
50.10
Private cause of action. 50.10(1)
(1) Any person residing in a nursing home has an independent cause of action to correct conditions in the nursing home or acts or omissions by the nursing home or by the department, that:
50.10(1)(a)
(a) The person alleges violate this subchapter or rules promulgated under this subchapter; and
50.10(1)(b)
(b) The person alleges are foreseeably related to impairing the person's health, safety, personal care, rights or welfare.
50.10(2)
(2) Actions under this section are for mandamus against the department or for injunctive relief against either the nursing home or the department.
