50.03(11)(a)(a) All administrative remedies shall be exhausted before an agency determination under this subchapter 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 chapter shall be filed within 15 days after receipt of notice of the final agency determination.
50.03(11)(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 facility will meet the requirements of this subchapter and the rules promulgated under this subchapter 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 facility with the requirements of this subchapter.
50.03(11)(d) (d) 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 department.
50.03(13) (13)Transfer of ownership.
50.03(13)(a)(a) New license. Whenever ownership of a facility is transferred from the person or persons named in the license to any other person or persons, the transferee must obtain a new license. The license may be a probationary license. Penalties under sub. (1) shall apply to violations of this subsection. The transferee shall notify the department of the transfer, file an application under sub. (3) (b), and apply for a new license at least 30 days prior to final transfer. Retention of any interest required to be disclosed under sub. (3) (b) after transfer by any person who held such an interest prior to transfer may constitute grounds for denial of a license where violations of this subchapter, or of requirements of 42 CFR 483 related to the operation of a nursing home, for which notice had been given to the transferor are outstanding and uncorrected, if the department determines that effective control over operation of the facility has not been transferred. If the transferor was a provider under s. 49.43 (10), the transferee and transferor shall comply with s. 49.45 (21).
50.03(13)(b) (b) Duty of transferor. The transferor shall notify the department at least 30 days prior to final transfer. The transferor shall remain responsible for the operation of the home until such time as a license is issued to the transferee, unless the facility is voluntarily closed as provided under sub. (14). The transferor shall also disclose to the transferee the existence of any outstanding waiver or variance and the conditions attached to such waiver or variance.
50.03(13)(c) (c) Outstanding violations. Violations reported in departmental inspection reports prior to the transfer of ownership shall be corrected, with corrections verified by departmental survey, prior to the issuance of a full license to the transferee. The license granted to the transferee shall be subject to the plan of correction submitted by the previous owner and approved by the department and any conditions contained in a conditional license issued to the previous owner. In the case of a nursing home, if there are outstanding violations and no approved plan of correction has been implemented, the department may issue a conditional license and plan of correction as provided in s. 50.04 (6).
50.03(13)(d) (d) Forfeitures. The transferor shall remain liable for all forfeitures assessed against the facility which are imposed for violations occurring prior to transfer of ownership.
50.03(14) (14)Closing of a facility. If any facility acts as specified under sub. (5m) (a) 5.:
50.03(14)(a) (a) The department may provide, direct or arrange for relocation planning, placement and implementation services in order to minimize the trauma associated with the relocation of residents and to ensure the orderly relocation of residents.
50.03(14)(b) (b) The county departments of the county in which the facility is located that are responsible for providing services under s. 46.215 (1) (L), 46.22 (1) (b) 1. c., 51.42 or 51.437 shall participate in the development and implementation of individual relocation plans. Any county department of another county shall participate in the development and implementation of individual relocation plans in place of the county departments of the county in which the facility is located, if the county department accepts responsibility for the resident or is delegated responsibility for the resident by the department or by a court.
50.03(14)(c) (c) The facility shall:
50.03(14)(c)1. 1. Provide at least 30 days' written notice prior to relocation to each resident who is to be relocated, to the resident's guardian, if any, and to a member of the resident's family, if practicable, unless the resident requests that notice to the family be withheld.
50.03(14)(c)2. 2. Attempt to resolve complaints from residents under this section.
50.03(14)(c)3. 3. Identify and, to the greatest extent practicable, attempt to secure an appropriate alternate placement for each resident to be relocated.
50.03(14)(c)4. 4. Consult the resident's physician on the proposed relocation's effect on the resident's health.
50.03(14)(c)5. 5. Hold a planning conference at which an individual relocation plan will be developed with the resident, with the resident's guardian, if any, and with a member of the resident's family, if practicable, unless the resident requests that a family member not be present.
50.03(14)(c)6. 6. Implement the individual relocation plan developed under subd. 5.
50.03(14)(c)7. 7. Notify the department of its intention to relocate residents. The notice shall state the facts requiring the proposed relocation of residents and the proposed date of closing or changing of the type or level of services or means of reimbursement.
50.03(14)(c)8. 8. At the time the facility notifies the department under subd. 7., submit to the department a preliminary plan that includes:
50.03(14)(c)8.a. a. The proposed timetable for planning and implementation of relocations and the resources, policies and procedures that the facility will provide or arrange in order to plan and implement the relocations.
50.03(14)(c)8.b. b. A list of the residents to be relocated and their current levels of care and a brief description of any special needs or conditions.
50.03(14)(c)8.c. c. An indication of which residents have guardians and the names and addresses of the guardians.
50.03(14)(c)8.d. d. A list of which residents have been protectively placed under ch. 55.
50.03(14)(c)8.e. e. A list of the residents whom the facility believes to meet the requirements of s. 54.10 (3).
50.03(14)(d) (d) The department shall notify the facility within 10 days after receiving the preliminary plan under par. (c) 8., if it disapproves the plan. If the department does not notify the facility of disapproval, the plan is deemed approved. If the department disapproves the preliminary plan it shall, within 10 days of notifying the facility, begin working with the facility to modify the disapproved plan. No residents may be relocated until the department approves the preliminary plan or until a modified plan is agreed upon. If a plan is not approved or agreed upon within 30 days of receipt of the notice of relocation, the department may impose a plan that the facility shall carry out. Failure to submit, gain approval for or implement a plan in a timely fashion is not a basis for a facility to declare an emergency under sub. (5m) (a) 6. or to relocate any resident under sub. (5m) (g).
50.03(14)(e) (e) Upon approval of, agreement to or imposition of a plan for relocation, the facility shall establish a date of closing or changing of the type or level of services or means of reimbursement and shall notify the department of the date. The date may not be earlier than 90 days from the date of approval, agreement or imposition if 5 to 50 residents will be relocated, or 120 days from the date of approval, agreement or imposition if more than 50 residents will be relocated.
50.03 Annotation The department can constitutionally license and regulate community-based residential facilities that are operated by religious organizations and that are not exempt convents or similar facilities under s. 50.01 (1) [now 50.01 (1g)] or s. 50.03 (9). 71 Atty. Gen. 112.
50.032 50.032 Certification of certain adult family homes.
50.032(1g)(1g) Definition. In this section, "adult family home" has the meaning given in s. 50.01 (1) (a).
50.032(1m) (1m)Certification.
50.032(1m)(a)(a) No person may operate an adult family home unless the adult family home is certified under this section.
50.032(1m)(b) (b) A county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437 may certify an adult family home that is located in the county. The department shall certify an adult family home in a county that elects not to certify adult family homes.
50.032(2) (2)Regulation. Except as provided in sub. (2d), standards for operation of certified adult family homes and procedures for application for certification, monitoring, inspection, decertification and appeal of decertification under this section shall be under rules promulgated by the department under s. 50.02 (2) (am) 1. An adult family home certification is valid until decertified under this section. Certification is not transferable.
50.032(2d) (2d)Accompaniment or visitation. If an adult family home has a policy on who may accompany or visit a patient, the adult family home shall extend the same right of accompaniment or visitation to a patient's domestic partner under ch.770 as is accorded the spouse of a patient under the policy.
50.032(2m) (2m)Exception. Notwithstanding s. 50.01 (1g) (b), if an individual served in an adult family home attains 18 years of age and leaves the adult family home on a permanent basis, as defined in rules promulgated by the department, he or she may be replaced for receipt of service by an individual who has a developmental disability, as defined in s. 51.01 (5).
50.032(2r) (2r)Reporting. Every 12 months, on a schedule determined by the department, a certified adult family home shall submit an annual report in the form and containing the information that the department requires, including payment of a fee, if any is required under rules promulgated under s. 50.02 (2) (am) 1. If a complete annual report is not timely filed, the department shall issue a warning to the operator of the certified adult family home. The department may decertify a certified adult family home for failure to timely and completely report within 60 days after the report date established under the schedule determined by the department.
50.032(3) (3)Investigation of alleged violations. If the department or a certifying county department under sub. (1m) (b) is advised or has reason to believe that any person is violating this section or the rules promulgated under s. 50.02 (2) (am) 1., the department or the certifying county department shall make an investigation to determine the facts. For the purposes of this investigation, the department or the certifying county department may inspect the premises where the violation is alleged to occur. If the department or the certifying county department finds that the requirements of this section and of rules under s. 50.02 (2) (am) 1. are met, the department or the certifying county department may certify the premises under this section. If the department or the certifying county department finds that a person is violating this section or the rules under s. 50.02 (2) (am) 1., the department or the certifying county department may institute an action under sub. (5) or (6).
50.032(4) (4)Decertification. A certified adult family home may be decertified because of the substantial and intentional violation of this section or of rules promulgated by the department under s. 50.02 (2) (am) 1. or because of failure to meet the minimum requirements for certification. The operator of the certified adult family home shall be given written notice of any decertification and the grounds for the decertification. Any adult family home certification applicant or operator of a certified adult family home may, if aggrieved by the failure to issue the certification or by decertification, appeal under the procedures specified by the department by rule under s. 50.02 (2) (am) 1.
50.032(5) (5)Injunction. The department or a certifying county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437 may commence an action in circuit court to enjoin the operation of an adult family home that is not certified under sub. (1m) or that is certified and has repeatedly used methods of operation in substantial violation of the rules promulgated under s. 50.02 (2) (am) 1. or that endanger the health, safety or welfare of any disabled adult receiving care and maintenance in an adult family home.
50.032(6) (6)Penalties. Any person who violates this section or rules promulgated under s. 50.02 (2) (am) 1. may be fined not more than $500 or imprisoned for not more than one year in the county jail or both.
50.032 History History: 1987 a. 161, 403; 1993 a. 327; 1997 a. 27; 2009 a. 28.
50.032 Cross-reference Cross-reference: See also ch. DHS 82, Wis. adm. code.
50.033 50.033 Licensure of certain adult family homes.
50.033(1)(1) Definition. In this section, "adult family home" has the meaning given in s. 50.01 (1) (b).
50.033(1m) (1m)Licensure.
50.033(1m)(a)(a) No person may operate an adult family home unless the adult family home is licensed under this section.
50.033(1m)(b) (b) A county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437 may license an adult family home that is located in the county. The department shall license an adult family home in a county that elects not to license adult family homes.
50.033(2) (2)Regulation. Except as provided in sub. (2d), standards for operation of licensed adult family homes and procedures for application for licensure, monitoring, inspection, revocation and appeal of revocation under this section shall be under rules promulgated by the department under s. 50.02 (2) (am) 2. An adult family home licensure is valid until revoked under this section. Licensure is not transferable. The biennial licensure fee for a licensed adult family home is $171, except that the department may, by rule, increase the amount of the fee. The fee is payable to the county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437, if the county department licenses the adult family home under sub. (1m) (b), and is payable to the department, on a schedule determined by the department if the department licenses the adult family home under sub. (1m) (b).
50.033(2d) (2d)Accompaniment or visitation. If an adult family home has a policy on who may accompany or visit a patient, the adult family home shall extend the same right of accompaniment or visitation to a patient's domestic partner under ch. 770 as is accorded the spouse of a patient under the policy.
50.033(2m) (2m)Reporting. Every 24 months, on a schedule determined by the department, a licensed adult family home shall submit a biennial report 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. The department may revoke the license for failure to timely and completely report within 60 days after the report date established under the schedule determined by the department.
50.033(3) (3)Investigation of alleged violations. If the department or a licensing county department under sub. (1m) (b) is advised or has reason to believe that any person is violating this section or the rules promulgated under s. 50.02 (2) (am) 2., the department or the licensing county department shall make an investigation to determine the facts. For the purposes of this investigation, the department or the licensing county department may inspect the premises where the violation is alleged to occur. If the department or the licensing county department finds that the requirements of this section and of rules under s. 50.02 (2) (am) 2. are met, the department or the licensing county department may, if the premises are not licensed, license the premises under this section. If the department or the licensing county department finds that a person is violating this section or the rules under s. 50.02 (2) (am) 2., the department or the licensing county department may institute an action under sub. (5). If the department takes enforcement action against an adult family home for violating this section or rules promulgated under s. 50.02 (2) (am) 2., and the department subsequently conducts an on-site inspection of the adult family home to review the adult family home's action to correct the violation, the department may impose a $200 inspection fee on the adult family home.
50.033(4) (4)License revocation. The license of a licensed adult family home may be revoked because of the substantial and intentional violation of this section or of rules promulgated by the department under s. 50.02 (2) (am) 2. or because of failure to meet the minimum requirements for licensure. The operator of the licensed adult family home shall be given written notice of any revocation and the grounds for the revocation. Any adult family home licensure applicant or operator of a licensed adult family home may, if aggrieved by the failure to issue the license or by revocation, appeal under the procedures specified by the department by rule under s. 50.02 (2) (am) 2.
50.033(5) (5)Injunction. The department or a licensing county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437 may commence an action in circuit court to enjoin the operation of an adult family home that is not licensed under sub. (1m) or that is licensed and has repeatedly used methods of operation in substantial violation of the rules promulgated under s. 50.02 (2) (am) 2. or that endanger the health, safety or welfare of any adult receiving care and maintenance in an adult family home.
50.033(6) (6)Penalties. Any person who violates this section or rules promulgated under s. 50.02 (2) (am) 2. may be fined not more than $500 or imprisoned for not more than one year in the county jail or both.
50.033 Cross-reference Cross-reference: See also ch. DHS 88, Wis. adm. code.
50.034 50.034 Residential care apartment complexes.
50.034(1)(1) Certification or registration required.
50.034(1)(a)(a) No person may operate a residential care apartment complex that provides living space for residents who are clients under s. 46.27 (11) or 46.277 and publicly funded services as a home health agency or under contract with a county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437 that is a home health agency unless the residential care apartment complex is certified by the department under this section. The department may charge a fee, in an amount determined by the department, for certification under this paragraph. The amount of any fee charged by the department for certification of a residential care apartment complex need not be promulgated as a rule under ch. 227.
50.034(1)(b) (b) No person may operate a residential care apartment complex that is not certified as required under par. (a) unless the residential care apartment complex is registered by the department.
50.034(2) (2)Rules. The department shall promulgate all of the following rules for the regulation of certified residential care apartment complexes and for the registration of residential care apartment complexes under this section:
50.034(2)(b) (b) Establishing standards for operation of certified residential care apartment complexes.
50.034(2)(c) (c) Establishing minimum information requirements for registration and registration application procedures and forms for residential care apartment complexes that are not certified.
50.034(2)(d) (d) Establishing procedures for monitoring certified residential care apartment complexes.
50.034(2)(e) (e) Establishing intermediate sanctions and penalties for and standards and procedures for imposing intermediate sanctions or penalties on certified residential care apartment complexes and for appeals of intermediate sanctions or penalties.
50.034(2)(f) (f) Establishing standards and procedures for appeals of revocations of certification or refusal to issue or renew certification.
50.034(3) (3)Requirements for operation. A certified or registered residential care apartment complex shall do all of the following:
50.034(3)(a) (a) Establish, with each resident of the residential care apartment complex, a mutually agreed-upon written service agreement that identifies the services to be provided to the resident, based on a comprehensive assessment of the resident's needs and preferences that is conducted by one of the following:
50.034(3)(a)1. 1. For residents for whom services are reimbursable under s. 46.27 (11), by the county department or aging unit designated under s. 46.27 (3) (b) in the county.
50.034(3)(a)2. 2. For residents for whom services are reimbursable under s. 46.277, by the county department under s. 46.277 (4) (a) in the county.
50.034(3)(a)3. 3. For residents who have private or 3rd-party funding, by the residential care apartment complex.
50.034(3)(b) (b) Establish a schedule of fees for services to residents of the residential care apartment complex.
50.034(3)(c) (c) Provide or ensure the provision of services that are sufficient and qualified to meet the needs identified in a resident's service agreement under par. (a), to meet unscheduled care needs and to provide emergency assistance 24 hours a day.
50.034(3)(d) (d) Establish, with each resident of the residential care apartment complex, a signed, negotiated risk agreement that identifies situations that could put the resident at risk and for which the resident understands and accepts responsibility.
50.034(3)(e) (e) If a residential care apartment complex has a policy on who may accompany or visit a patient, the residential care apartment complex shall extend the same right of accompaniment or visitation to a patient's domestic partner under ch. 770 as is accorded the spouse of a patient under the policy.
50.034(4) (4)Limitation. A nursing home or a community-based residential facility may not convert a separate area of its total area to a residential care apartment complex unless the department first approves the conversion. A nursing home, other than a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50, that intends to convert a separate area of its total area to a residential care apartment complex shall also agree to reduce its licensed nursing home beds by the corresponding number of residential care apartment complex residential units proposed for the conversion.
50.034(5) (5)Use of name prohibited. An entity that does not meet the definition under s. 50.01 (6d) may not designate itself as a "residential care apartment complex" or use the words "residential care apartment complex" to represent or tend to represent the entity as a residential care apartment complex or services provided by the entity as services provided by a residential care apartment complex.
50.034(5m) (5m)Provision of information required. Subject to sub. (5p), when a residential care apartment complex first provides written material regarding the residential care apartment complex to a prospective resident, the residential care apartment complex shall also provide the prospective resident information specified by the department concerning the services of a resource center under s. 46.283, the family care benefit under s. 46.286, and the availability of a functional screening and a financial and cost-sharing screening to determine the prospective resident's eligibility for the family care benefit under s. 46.286 (1).
50.034(5n) (5n)Required referral. Subject to sub. (5p), when a residential care apartment complex first provides written material regarding the residential care apartment complex to a prospective resident who is at least 65 years of age or has developmental disability or a physical disability and whose disability or condition is expected to last at least 90 days, the residential care apartment complex shall refer the prospective resident to a resource center under s. 46.283, unless any of the following applies:
50.034(5n)(a) (a) For a person for whom a screening for functional eligibility under s. 46.286 (1) (a) has been performed within the previous 6 months, the referral under this subsection need not include performance of an additional functional screening under s. 46.283 (4) (g).
50.034(5n)(b) (b) The person is entering the residential care apartment complex only for respite care.
50.034(5n)(c) (c) The person is an enrollee of a care management organization.
50.034(5n)(d) (d) For a person who seeks admission or is about to be admitted on a private pay basis and who waives the requirement for a financial and cost-sharing screening under s. 46.283 (4) (g), the referral under this subsection may not include performance of a financial and cost-sharing screening under s. 46.283 (4) (g), unless the person is expected to become eligible for medical assistance within 6 months.
50.034(5p) (5p)Applicability. Subsections (5m) and (5n) apply only if the secretary has certified under s. 46.281 (3) that a resource center is available for the residential care apartment complex and for specified groups of eligible individuals that include those persons seeking admission to or the residents of the residential care apartment complex.
50.034(5t) (5t)Notice of Long-Term Care Ombudsman Program. A residential care complex shall post in a conspicuous location in the residential care apartment complex a notice, provided by the board on aging and long-term care, of the name, address, and telephone number of the Long-Term Care Ombudsman Program under s. 16.009 (2) (b).
50.034(6) (6)Funding. Funding for supportive, personal or nursing services that a person who resides in a residential care apartment complex receives, other than private or 3rd-party funding, may be provided only under s. 46.27 (11) (c) 7. or 46.277 (5) (e), except if the provider of the services is a certified medical assistance provider under s. 49.45 or if the funding is provided as a family care benefit under ss. 46.2805 to 46.2895.
50.034(7) (7)Revocation of certification. Certification for a residential care apartment complex may be revoked because of the substantial and intentional violation of this section or of rules promulgated by the department under sub. (2) or because of failure to meet the minimum requirements for certification. The operator of the certified residential care apartment complex shall be given written notice of any revocation of certification and the grounds for the revocation. Any residential care apartment complex certification applicant or operator of a certified residential care apartment complex may, if aggrieved by the failure to issue or renew the certification or by revocation of certification, appeal under the procedures specified by the department by rule under sub. (2).
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 380 and all Supreme Court Orders entered before June 30, 2014. Published and certified under s. 35.18. Changes effective after July 1, 2014 are designated by NOTES. (Published 7-1-14)