49.498(2)(d)4.
4. Subject to
subd. 5., the department may waive the requirement under
subd. 3. a. or
b. if all of the following apply:
49.498(2)(d)4.a.
a. The nursing facility demonstrates to the satisfaction of the department that the nursing facility has been unable, despite diligent efforts including offering wages at the community prevailing rate for nursing facilities, to recruit appropriate personnel.
49.498(2)(d)4.b.
b. The department determines that a waiver of the requirement will not endanger the health or safety of nursing facility residents.
49.498(2)(d)4.c.
c. The department finds that a registered professional nurse or a physician is obligated to respond immediately to telephone calls from the nursing facility for any periods in which licensed nursing services are not available.
49.498(2)(d)5.
5. A waiver under
subd. 4. is subject to annual review by the department and to review by the secretary of the federal department of health and human services. The department may, in granting or reviewing a waiver, require the nursing facility to employ other qualified, licensed personnel.
49.498(2)(e)1.
1. A nursing facility shall provide, for individuals used as nurse's assistants by the facility as of July 1, 1989, for a competency evaluation program that is approved by the department under
s. 146.40 (3m) and for the preparation necessary for the individual to complete the program by January 1, 1990.
49.498(2)(e)2.
2. A nursing facility may not use the individual as a nurse's assistant unless the nursing facility has inquired of the department concerning information about the individual in the registry under
s. 146.40 (4g).
49.498(2)(e)3.
3. A nursing facility shall provide the regular performance review and regular in-service education that assures that individuals used as nurse's assistants are competent to perform services as nurse's assistants, including training for individuals to provide nursing and nursing-related services to nursing facility residents with cognitive impairments.
49.498(2)(f)
(f) A nursing facility shall do all of the following:
49.498(2)(f)1.
1. Require that the health care of every nursing facility resident be provided under the supervision of a physician.
49.498(2)(f)2.
2. Provide for the availability of a physician to furnish necessary medical care in case of emergency.
49.498(2)(f)3.
3. Maintain clinical records on all nursing facility residents which include all of the following:
49.498(2)(g)
(g) A nursing facility with more than 120 beds shall employ full-time at least one social worker with at least a bachelor's degree in social work or similar professional qualifications to provide or assure the provision of social services.
49.498(3)
(3) Resident's rights; general rights. 49.498(3)(a)(a) A nursing facility shall protect and promote the rights of each resident, including each of the following rights:
49.498(3)(a)1.
1. The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident's well-being, and, except with respect to a resident found incompetent under
s. 880.33, to participate in planning care and treatment or changes in care and treatment.
49.498(3)(a)2.
2. The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purpose of discipline or convenience and not required to treat the resident's medical symptoms. Restraints may only be imposed:
49.498(3)(a)2.a.
a. To ensure the physical safety of the resident or other residents; and
49.498(3)(a)2.b.
b. Upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used, except in emergency circumstances until the order could reasonably be obtained.
49.498(3)(a)3.
3. The right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups, except that this subdivision may not be construed to require provision of a private room.
49.498(3)(a)4.
4. The right to confidentiality of personal and clinical records.
49.498(3)(a)5.a.
a. To reside and receive services with reasonable accommodations of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered; and
49.498(3)(a)5.b.
b. To receive notice before the room or roommate of the resident in the nursing facility is changed.
49.498(3)(a)6.
6. The right to voice grievances with respect to treatment or care that is or is not furnished, without discrimination or reprisal for voicing the grievances, and the right to prompt efforts by the nursing facility to resolve grievances that the resident may have, including those with respect to the behavior of other residents.
49.498(3)(a)7.
7. The right of the resident to organize and participate in resident groups in the nursing facility and the right of the resident's family to meet in the nursing facility with the families of other residents in the nursing facility.
49.498(3)(a)8.
8. The right of the resident to participate in social, religious and community activities that do not interfere with the rights of other residents in the nursing facility.
49.498(3)(a)9.
9. The right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the federal department of health and human services or the department with respect to the nursing facility and any plan of correction in effect with respect to the nursing facility.
49.498(3)(a)10.
10. Any other right specified in rules that the department shall promulgate in conformity with federal regulations.
49.498(3)(b)
(b) Except as provided in
par. (c), a nursing facility shall do all of the following:
49.498(3)(b)1.
1. Inform each resident, orally and in writing at the time of admission to the nursing facility, of the resident's legal rights during the stay at the nursing facility, including a description of the protection of personal funds under
sub. (8) and a statement that a resident may file a complaint with the department under
s. 146.40 (4r) (a) concerning neglect, abuse or misappropriation of property of a resident.
49.498(3)(b)2.
2. Make available to each resident, upon reasonable request, a written statement of the rights specified in
subd. 1. which is updated upon changes in nursing rights.
49.498(3)(b)3.
3. Inform each resident who is entitled to medical assistance:
49.498(3)(b)3.a.
a. At the time of admission to the nursing facility or, if later, at the time the resident becomes eligible for medical assistance, of the items and services that are included in nursing facility services under the approved state medicaid plan and for which the resident may not be charged, except as permitted, and of other items and services that the nursing facility offers and for which the resident may be charged and the amount of the charges for the items and services; and
49.498(3)(b)3.b.
b. Of changes in the items and services described in
subd. 3. a. and of changes in the charges imposed for items and services described in
subd. 3. a.
49.498(3)(b)4.
4. Inform each other resident, in writing before or at the time of admission and periodically during the resident's stay, of services available in the nursing facility and of related charges for the services, including any charges for services not covered under medicare or by the nursing facility's basic per diem charge.
49.498(3)(c)
(c) For a resident who is found incompetent under
s. 880.33, the rights of a resident under this subsection devolve upon and, to the extent determined necessary by a court of competent jurisdiction, are exercised by the resident's guardian appointed under
s. 880.33.
49.498(3)(d)
(d) Psychopharmacologic drugs may be administered to a resident only on the orders of a physician and only as part of a plan included in the written plan of care under
par. (b) designed to eliminate or modify the symptoms for which the drugs are prescribed and only if, at least annually, an independent, external consultant reviews the appropriateness of the drug plan of each resident receiving the pharmacologic drugs.
49.498(4)
(4) Resident's rights; transfer and discharge rights. 49.498(4)(a)(a) A nursing facility shall permit a resident to remain in the nursing facility and may not transfer or discharge the resident from the nursing facility unless one of the following applies:
49.498(4)(a)1.
1. The transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the nursing facility, as documented by the resident's physician in the resident's clinical record.
49.498(4)(a)2.
2. The transfer or discharge is appropriate because the resident's health has improved sufficiently so that the resident no longer needs the services provided by the nursing facility, as documented by the resident's physician in the resident's clinical record.
49.498(4)(a)3.
3. The safety of individuals in the nursing facility is endangered, as documented in the resident's clinical record.
49.498(4)(a)4.
4. The health of individuals in the nursing facility would otherwise be endangered, as documented by a physician in the resident's clinical record.
49.498(4)(a)5.
5. The resident has failed, after reasonable and appropriate notice, to pay or have paid on his or her behalf under medical assistance or under medicare for a stay at the nursing facility. If a resident becomes eligible for medical assistance after admission to the nursing facility, only charges that may be imposed under medical assistance may be allowed in enforcement of this subdivision.
49.498(4)(b)1.1. Before effecting a transfer or discharge of a resident a nursing facility shall note in the resident's record and notify the resident and, if known, an immediate family member of the resident or the resident's legal counsel concerning the transfer or discharge and the reasons for it, at least 30 days in advance of the resident's transfer or discharge, except that the nursing facility shall notify as soon as practicable in the circumstances specified in
par. (a) 3. or
4.; in the circumstance specified in
par. (a) 2. in which the resident's health improves sufficiently to permit a more immediate transfer or discharge; in the circumstances specified in
par. (a) 1. in which a more immediate transfer or discharge is necessitated by the resident's urgent medical needs; or in the instance in which a resident has resided in the nursing facility fewer than 30 days.
49.498(4)(b)2.
2. Each notice under
subd. 1. shall include all of the following:
49.498(4)(b)2.a.
a. For transfers or discharges effected after September 30, 1990, notice of the resident's right to appeal the transfer or discharge under a mechanism for hearing the appeals that is established by the department by rule.
49.498(4)(b)2.c.
c. For a resident with developmental disability or mental illness, the mailing address and telephone number of the protection and advocacy agency designated under
s. 51.62 (2) (a).
49.498(4)(c)
(c) A nursing facility shall provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the nursing facility.
49.498(4)(d)1.1. Before a resident of a nursing facility is transferred for hospitalization or therapeutic leave, a nursing facility shall provide written information to the resident and an immediate family member or legal counsel concerning all of the following:
49.498(4)(d)1.a.
a. The provisions of the approved state medicaid plan concerning the period, if any, during which the resident is permitted to return and resume residence in the nursing facility.
49.498(4)(d)2.
2. At the time of a resident's transfer to a hospital for therapeutic leave, a nursing facility shall provide written notice to the resident and an immediate family member or legal counsel of the duration of the period, if any, specified in
subd. 1. a.
49.498(4)(d)3.
3. A nursing facility shall establish and follow a written policy under which a resident, who is eligible for medical assistance for nursing facility services, who is transferred from the nursing facility for hospitalization or therapeutic leave and whose hospitalization or therapeutic leave exceeds a period paid for by medical assistance for the resident, shall be permitted to be readmitted to the nursing facility immediately upon the first availability of a bed in a semiprivate room in the nursing facility, if at the time of readmission the resident requires the services provided by the nursing facility.
49.498(5)
(5) Resident's rights; access and visitation rights. A nursing facility shall do all of the following:
49.498(5)(a)
(a) Permit immediate access to a resident by the department, by any representative of the secretary of the federal department of health and human services, by a representative of the board on aging and long-term care, by a representative of the protection and advocacy agency designated under
s. 51.62 (2) (a) or by the resident's attending physician.
49.498(5)(b)
(b) Permit immediate access to a resident by immediate family or other relatives of the resident, subject to the resident's right to deny or withdraw consent at any time.
49.498(5)(c)
(c) Permit immediate access to a resident by others who are visiting with the consent of the resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time.
49.498(5)(d)
(d) Permit reasonable access to a resident by any entity or individual that provides health, social, legal or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.
49.498(5)(e)
(e) Permit a designated representative of the long-term care ombudsman under
s. 16.009 (4), with the permission of the resident or the resident's legal counsel, and in accordance with
s. 16.009 (4) (b) 1. d., to examine a resident's clinical records.
49.498(6)(a)(a) A nursing facility shall establish and maintain identical policies and practices regarding transfer, discharge and the provision of services required under the approved state medicaid plan for all individuals regardless of payment.
49.498(6)(b)
(b) Paragraph (a) may not be construed to prohibit a nursing facility from charging any amount for services furnished, consistent with the notice required under
sub. (3) (b) 3.
49.498(6)(c)
(c) Paragraph (a) may not be construed to require the department to provide additional services on behalf of a resident than are otherwise provided under the approved state medicaid plan.
49.498(7)(a)(a) Except as provided in
par. (b), with respect to admissions practices of a nursing facility:
49.498(7)(a)1.
1. A nursing facility may not require individuals applying to reside or residing in the facility to waive their rights to benefits under medical assistance or under medicare.
49.498(7)(a)2.
2. A nursing facility may not require oral or written assurance that individuals applying to reside or residing in the nursing facility are ineligible for or will not apply for medical assistance or medicare.
49.498(7)(a)3.
3. A nursing facility shall prominently display written information in the nursing facility and provide oral and written information to individuals applying to reside or residing in the nursing facility concerning how to apply for and use benefits under medical assistance and how to receive refunds for previous payments covered by these benefits.
49.498(7)(a)4.
4. A nursing facility may not require a 3rd-party guarantee of payment to the nursing facility as a condition of admission or expedited admission to or continued stay in the nursing facility.
49.498(7)(a)5.
5. With respect to an individual who is entitled to medical assistance for nursing facility services, a nursing facility may not charge, solicit, accept or receive, in addition to any amount otherwise required to be paid under the approved state medicaid plan, a gift, money, donation or other consideration as a precondition of admitting or expediting the admission of an individual to the nursing facility or as a requirement for the individual's continued stay in the facility.
49.498(7)(b)
(b) Paragraph (a) may not be construed to do any of the following:
49.498(7)(b)1.
1. Prevent the department from prohibiting discrimination against individuals who are entitled to medical assistance under the approved state medicaid plan with respect to admissions practices of nursing facilities.
49.498(7)(b)1m.
1m. Permit a county, city, town or village to implement nursing facility admissions policies that conflict with state law.
49.498(7)(b)2.
2. Prevent a nursing facility from requiring an individual who has legal access to a resident's income or resources available to pay for care in the nursing facility, to sign a contract, without incurring personal financial liability, to provide payment from the resident's income or resources for care in the nursing facility.
49.498(7)(b)3.
3. Prevent a nursing facility from charging a resident who is eligible for medical assistance for items or services that the resident has requested and received and that are not included in the approved state medicaid plan.
49.498(7)(b)4.
4. Prohibit a nursing facility from soliciting, accepting or receiving a charitable, religious or philanthropic contribution from an organization or from a person who is unrelated to the resident or potential resident, but only to the extent that the contribution is not a condition of admission, expediting admission or continued stay in the nursing facility.
49.498(8)(a)1.
1. May not require a resident to deposit his or her personal funds with the nursing facility.
