Payment under the lease, mortgage, secured transaction or other wholly or partially executory contract has been modified by the parties' subsequent oral or written agreement or constructive waiver.
If the receiver is in possession of real estate or goods subject to a lease, mortgage or security interest which the receiver is permitted to avoid under par. (a)
, and if the real estate or goods are necessary for the continued operation of the facility under this section, the receiver may apply to the court to set a reasonable rental, price or rate of interest to be paid by the receiver during the duration of the receivership. The court shall hold a hearing on the application within 15 days. The receiver shall send notice of the application to any known owners of the property involved at least 10 days prior to the hearing. Payment by the receiver of the amount determined by the court to be reasonable is a defense to any action against the receiver for payment or for possession of the goods or real estate subject to the lease or mortgage involved by any person who received such notice, but the payment does not relieve the owner or operator of the facility of any liability for the difference between the amount paid by the receiver and the amount due under the original lease or mortgage involved.
During the period of appointment of a receiver, there may be no foreclosure of a mortgage entered into by the owner or operator of the facility or eviction of facility residents if the foreclosure or eviction serves to defeat the purpose of the appointment.
(9m) Impeding receivership prohibited; automatic stay.
No person may impede the operation of a receivership established under this section. After the appointment of a receiver, any action that interferes with the functioning of the facility, including cancellation of an insurance policy executed on behalf of the facility, repossession of equipment used in the facility or termination of utility services or other services or goods that are necessary to protect the health, safety or welfare of the nursing home residents, is automatically stayed for a period of not more than 60 days.
(10) Contingency fund.
If funds collected under subs. (3)
are insufficient to meet the expenses of performing the powers and duties conferred on the receiver by this section, or if there are insufficient funds on hand to meet those expenses, the department may draw from the supplemental fund created under s. 20.435 (6) (dm)
to pay the expenses associated with the placement of a monitor, if any, in a nursing home and the receivership of a nursing home. Operating funds collected under this section and not applied to the expenses of the placement of a monitor, if any, and the receivership, except for the amount of a security, if any is required under sub. (14m)
, shall be used to reimburse the fund for advances made under this section.
(11) Compensation of monitor or receiver.
The court shall set the compensation of a person placed as a monitor, if any, and of the receiver, which will be considered necessary expenses of a receivership.
(12) Liability of receiver; status as public employee. 50.05(12)(a)(a)
In any action or special proceeding brought against a receiver in the receiver's official capacity for acts committed while carrying out the powers and duties created under this section, the receiver shall be considered a public employee for purposes of s. 895.46
A receiver may be held liable in a personal capacity only for the receiver's own gross negligence, intentional acts or breach of fiduciary duty.
A receiver may not be required to post any bond.
(13) Licensing of facility under receivership.
Other provisions of this chapter notwithstanding, the department may issue a license to a facility placed in receivership under this section. The duration of a license issued under this section is limited to the duration of the receivership.
Except as provided under par. (b)
, the court may not terminate a receivership for any reason other than as specified under subds. 1.
and shall, after the department determines and notifies the court that the facility is able to ensure continued compliance with federal and state laws, terminate the receivership:
If the time period specified in the order appointing the receiver elapses and the department has not petitioned for an extension;
If the department grants the facility a new license, whether the structure of the facility, the right to operate the facility, or the land on which it is located is under the same or different ownership; or
If all of the residents in the facility have been provided alternative modes of health care, either in another facility or otherwise.
The court may terminate a receivership of a nursing facility imposed because of a violation of s. 49.498
or a rule promulgated under s. 49.498
if the department submits testimony to the satisfaction of the court that the nursing facility has the management capability to ensure continued compliance with the requirements of s. 49.498
or a rule promulgated under s. 49.498
(14m) Bond upon termination; reappointment.
If the court terminates a receivership under sub. (14)
and the department grants a license for the facility to the same applicant under which the facility was licensed immediately prior to appointment of a receiver under sub. (4)
, the court may require that person to post a bond for a period of not less than 120 days in an amount fixed by the court as security for maintaining compliance with this subchapter and the rules promulgated under this subchapter. If the court, after notice to the parties in the receivership proceeding and after a hearing, finds that the standards for appointment under sub. (4)
are met, the court may reappoint the receiver. If the court reappoints the receiver, the receiver may use the security, if any has been required under this subsection, in addition to funds under subs. (7)
, for purposes of payment of the placement of a monitor, if any, and for the receivership.
(15) Accounting; lien for expenses. 50.05(15)(a)
Within 30 days after termination, the receiver shall give the court a complete accounting of all property of which the receiver has taken possession, of all funds collected under this section and of the expenses of the monitor, if any is placed in a nursing home, and the receivership.
If the operating funds collected by the receiver under subs. (7)
exceed the reasonable expenses of the placement of a monitor in a nursing home, if any, and of the receivership, the court shall order payment of the surplus to the operator or controlling person, after reimbursement of funds drawn from the contingency fund under sub. (10)
. If the operating funds are insufficient to cover the reasonable expenses of the placement of a monitor in a nursing home, if any, and of the receivership, the operator or controlling person shall be liable for the deficiency. The operator or controlling person may apply to the court to determine the reasonableness of any expense of the placement of a monitor in a nursing home, if any, and of the receivership. The operator or controlling person shall not be responsible for expenses in excess of what the court finds to be reasonable. Payment recovered from the operator or controlling person shall be used to reimburse the contingency fund for amounts drawn by the receiver under sub. (10)
The department has a lien for any deficiency under par. (b)
upon any beneficial interest, direct or indirect, of any operator or controlling person in the following property:
Any fixtures, equipment or goods used in the operation of the facility.
The proceeds from any conveyance of property described in subd. 1.
, made by the operator or controlling person within one year prior to the filing of the petition for receivership.
Any other property or assets of the operator or controlling person if no property or proceeds exist under subds. 1.
The lien provided by this subsection is prior to any lien or other interest which originates subsequent to the filing of a petition for receivership under this section, except for a construction or mechanic's lien arising out of work performed with the express consent of the receiver or a lien under s. 292.31 (8) (i)
The clerk of circuit court for the county in which the facility is located shall record the filing of the petition for receivership in the judgment and lien docket kept under s. 779.07
opposite the names of the operators and controlling persons named in the petition.
The receiver shall, within 60 days after termination of the receivership, file a notice of any lien created under this subsection. No action on a lien created under this subsection may be brought more than 2 years after the date of filing. If the lien is on real property, the notice shall be filed with the clerk of circuit court of the county in which the facility is located and entered on the judgment and lien docket kept under s. 779.07
. If the lien is on personal property, notice of the lien shall be filed in the same manner, form, and place as financing statements are filed under subch. V of ch. 409
regarding debtors who are located in this state. The department of financial institutions shall file the notice of the lien in the same file as financing statements are filed under subch. V of ch. 409
. The notice shall specify the name of the person against whom the lien is claimed, the name of the receiver, the dates of the petition for receivership and the termination of receivership, a description of the property involved and the amount claimed. No lien shall exist under this section against any person, on any property, or for any amount not specified in the notice filed under this paragraph. To the extent applicable, ch. 846
controls the foreclosure of liens under this subsection that attach to real property.
(16) Obligations of owners.
Nothing in this section shall be deemed to relieve any owner, operator or controlling person of a facility placed in receivership of any civil or criminal liability incurred, or any duty imposed by law, by reason of acts or omissions of the owner, operator or controlling person prior to the appointment of a receiver under this section, nor shall anything contained in this section be construed to suspend during the receivership any obligation of the owner, operator or controlling person for payment of taxes or other operating and maintenance expenses of the facility nor of the owner, operator or controlling person or any other person for the payment of mortgages or liens. No owner may be held professionally liable for acts or omissions of the receiver or the receiver's employees during the term of the receivership.
The department may hold a case conference with the parties to any contested action under this subchapter to resolve any or all issues prior to formal hearing. Unless any party to the contested case objects, the department may delay the commencement of the formal hearing in order to hold the case conference.
History: 1977 c. 170
; 1999 a. 103
Certain admissions to facilities. 50.06(1)(1)
In this section, “incapacitated" means unable to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions, including decisions about his or her post-hospital care.
An individual under sub. (3)
may consent to admission, directly from a hospital to a facility, of an incapacitated individual who does not have a valid power of attorney for health care and who has not been adjudicated incompetent in this state, if all of the following apply:
No person who is listed under sub. (3)
in the same order of priority as, or higher in priority than, the individual who is consenting to the proposed admission disagrees with the proposed admission.
Except as provided in subd. 2.
, no person who is listed under sub. (3)
and who resides with the incapacitated individual disagrees with the proposed admission.
does not apply if any of the following applies:
The individual who is consenting to the proposed admission resides with the incapacitated individual.
The individual who is consenting to the proposed admission is the spouse or domestic partner under ch. 770
of the incapacitated person.
The individual for whom admission is sought is not diagnosed as developmentally disabled or as having a mental illness at the time of the proposed admission.
A petition for guardianship for the individual under s. 54.34
and a petition under s. 55.075
for protective placement of the individual are filed prior to the proposed admission.
The incapacitated individual does not verbally object to or otherwise actively protest the admission. If he or she makes such an objection or protest, he or she may be admitted to the facility, but the person in charge of the facility shall immediately notify the county department under s. 55.02 (2)
for the county in which the individual is living or the agency with which the county department contracts. Representatives of the county department or agency shall visit the individual as soon as possible, but not later than 72 hours after notification, and do all of the following:
Determine whether the protest persists or has been voluntarily withdrawn and consult with the person who consented to the admission regarding the reasons for the admission.
Attempt to have the incapacitated individual released within 72 hours if the protest is not withdrawn and the individual does not satisfy all of the criteria under s. 55.08 (1)
or 55.135 (1)
, and provide assistance in identifying appropriate alternative living arrangements.
Comply with s. 55.135
if the requirements of s. 55.135 (1)
are met and emergency protective placement in that facility or another facility is necessary. The court, with the permission of the facility, may order the incapacitated individual to remain in the facility pending the outcome of the protective placement proceedings.
The following individuals, in the following order of priority, may consent to an admission under sub. (2)
The spouse or domestic partner under ch. 770
of the incapacitated individual.
An adult son or daughter of the incapacitated individual.
A parent of the incapacitated individual.
An adult brother or sister of the incapacitated individual.
A grandparent of the incapacitated individual.
An adult grandchild of the incapacitated individual.
An adult close friend of the incapacitated individual.
A determination that an individual is incapacitated for purposes of sub. (2)
shall be made by 2 physicians, as defined in s. 448.01 (5)
, or by one physician and one licensed psychologist, as defined in s. 455.01 (4)
, who personally examine the individual and sign a statement specifying that the individual is incapacitated. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to make a finding that an individual is incapacitated. Neither of the individuals who make a finding that an individual is incapacitated may be a relative, as defined in s. 242.01 (11)
, of the individual or have knowledge that he or she is entitled to or has a claim on any portion of the individual's estate. A copy of the statement shall be included in the individual's records in the facility to which he or she is admitted.
Except as provided in par. (b)
, an individual who consents to an admission under this section may, for the incapacitated individual, make health care decisions to the same extent as a guardian of the person may and authorize expenditures related to health care to the same extent as a guardian of the estate may, until the earliest of the following:
Sixty days after the admission to the facility of the incapacitated individual.
Discharge of the incapacitated individual from the facility.
Appointment of a guardian for the incapacitated individual.
An individual who consents to an admission under this section may not authorize expenditures related to health care if the incapacitated individual has an agent under a durable power of attorney, as defined in s. 244.02 (3)
, who may authorize expenditures related to health care.
If the incapacitated individual is in the facility after 60 days after admission and a guardian has not been appointed, the authority of the person who consented to the admission to make decisions and, if sub. (5) (a)
applies, to authorize expenditures is extended for 30 days for the purpose of allowing the facility to initiate discharge planning for the incapacitated individual.
An individual who consents to an admission under this section may request that an assessment be conducted for the incapacitated individual under the long-term support community options program under s. 46.27 (6)
or, if the secretary has certified under s. 46.281 (3)
that a resource center is available for the individual, a functional screening and a financial and cost-sharing screening to determine eligibility for the family care benefit under s. 46.286 (1)
. If admission is sought on behalf of the incapacitated individual or if the incapacitated individual is about to be admitted on a private pay basis, the individual who consents to the admission may waive the requirement for a financial and cost-sharing screening under s. 46.283 (4) (g)
, unless the incapacitated individual is expected to become eligible for medical assistance within 6 months.
Criminal history and patient abuse record search. 50.065(1)(ag)1.a.
A person who is, or is expected to be, an employee or contractor of an entity, who is or is expected to be under the control of an entity, as defined by the department by rule, and who has, or is expected to have, regular, direct contact with clients of the entity.
A person who has, or is seeking, a license, certification, registration, or certificate of approval issued or granted by the department to operate an entity.
A person who is, or is expected to be, an employee of the board on aging and long-term care and who has, or is expected to have, regular, direct contact with clients.
“Caregiver" does not include a person who is certified as an emergency medical services practitioner under s. 256.15
if the person is employed, or seeking employment, as an emergency medical services practitioner and does not include a person who is certified as an emergency medical responder under s. 256.15
if the person is employed, or seeking employment, as an emergency medical responder.
“Certificate of approval" means a certificate of approval issued under s. 50.35
“Client" means a person who receives direct care or treatment services from an entity.
“Contractor" means, with respect to an entity, a person, or that person's agent, who provides services to the entity under an express or implied contract or subcontract, including a person who has staff privileges at the entity.
“Direct contact" means face-to-face physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or to misappropriate the property of a client.
“Entity" means a facility, organization or service that is licensed or certified by or registered with the department to provide direct care or treatment services to clients; or an agency that employs or contracts with an individual to provide personal care services. “Entity" includes a hospital, a home health agency licensed under s. 50.49
, a temporary employment agency that provides caregivers to another entity, and the board on aging and long-term care. “Entity" does not include any of the following:
A person certified as a medical assistance provider, as defined in s. 49.43 (10)
, who is not otherwise approved under s. 50.065 (1) (cm)
, licensed or certified by or registered with the department.
“Nonclient resident" means a person who resides, or is expected to reside, at an entity, who is not a client of the entity and who has, or is expected to have, regular, direct contact with clients of the entity.
“Personal care services" means any of the following:
Assistance with any of the following activities of daily living: