2001 Wisconsin Act 16

16,1894r Section 1894r. 50.065 (1) (c) (intro.) of the statutes is amended to read:

50.065 (1) (c) (intro.) "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. "Entity" includes a hospital, a personal care worker agency, a supportive home care service agency, a temporary employment agency that provides caregivers to another entity, a respite facility, and the board on aging and long-term care. "Entity" does not include any of the following:

16,1897g Section 1897g. 50.50 (3) (a) 7. of the statutes is created to read:

50.50 (3) (a) 7. A respite facility.

16,1900b Section 1900b. Subchapter IV (title) of chapter 50 [precedes 50.85] of the statutes is amended to read:

CHAPTER 50

SUBCHAPTER IV

respite facilities and HOSPICES

16,1900c Section 1900c. 50.85 of the statutes is created to read:

50.85 Respite facilities for persons with like or similar disabilities. (1) Definitions. In this section:

(a) "Disability" has the meaning given in rules promulgated under sub. (8) (e).

(b) "Like or similar disabilities" has the meaning given in rules promulgated under sub. (8) (f).

(c) "Respite care" means care provided to a person with a disability in order to provide temporary relief to the primary caregiver.

(d) "Respite facility" means a facility in which overnight respite care is provided to up to 10 persons with like or similar disabilities who are at least 2 years of age and in which day respite care may be provided to up to 10 additional persons with like or similar disabilities who are at least 2 years of age.

(2) Departmental powers and duties. The department shall provide uniform, statewide licensure, inspection, and regulation of respite facilities as specified in this section.

(3) Licensure requirements. (a) No person may conduct, maintain, operate, or otherwise participate in conducting, maintaining, or operating a respite facility unless the respite facility is licensed by the department.

(b) The department shall issue a license if the department finds that the applicant is fit and qualified and that the respite facility meets the requirements of this section and the rules promulgated under this section.

(c) The department or the department's designated representative shall inspect or investigate a respite facility prior to issuance of a license for the respite facility and may inspect or investigate a respite facility as the department deems necessary, including a review of patient health care records of any individuals served by the respite facility, to determine if any person is in violation of this section.

(d) The past record of violations of applicable federal laws or regulations or of state statutes or rules of this or any other state, in the operation of any health-related organization, by an operator, managing employee, or direct or indirect owner of a respite facility or of an interest of a respite facility is relevant to the issue of the fitness of an applicant for a license. The department or the department's designated representative shall inspect and investigate as necessary to determine the conditions existing in each case under this paragraph and shall prepare and maintain a written report concerning the investigation and inspection.

(4) Use of name or advertising prohibited. No entity that is not a respite facility licensed under this section or an applicant for a license under this section may designate itself as a "respite facility" or use the word "respite facility" to represent or tend to represent the entity as a respite facility or services provided by the entity as services provided by a respite facility.

(5) Licensing procedure. (a) The application for a license shall:

1. Be in writing on a form provided by the department.

2. Contain such information as the department requires.

3. Include licensing fee payment, as specified in sub. (6).

(b) 1. A respite facility license is valid until suspended or revoked.

2. Each license shall be issued only for the applicant named in the application and may not be transferred or assigned.

3. Any license granted under special limitations prescribed by the department shall state the limitations.

(6) Licensure fee. The annual fee for a licensed respite facility is $18 per bed, based on the number of licensed beds of the respite facility.

(7) Suspension and revocation. (a) The department, after notice to the applicant or licensee, may suspend or revoke a license in any case in which the department finds that there has been a substantial failure to comply with the requirements of this section or the rules promulgated under this section. No state or federal funds passing through the state treasury may be paid to a respite facility that does not have a valid license issued under this section.

(b) Notice under this subsection shall include a clear and concise statement of the violations on which the revocation is based, the statute or rule violated and notice of the opportunity for an evidentiary hearing under par. (c).

(c) If a respite facility desires to contest the revocation of a license, the respite facility shall, within 10 days after receipt of notice under par. (b), notify the department in writing of its request for a hearing under s. 227.44.

(d) 1. Subject to s. 227.51 (3), revocation shall become effective on the date set by the department in the notice of revocation, or upon final action after a hearing under ch. 227, or after court action if a stay is granted under ch. 227, whichever is later.

3. The department may extend the effective date of license revocation in any case in order to permit orderly removal and relocation of individuals served by the respite facility.

(8) Rule-making authority. The department shall promulgate all of the following rules:

(a) Standards for the care, treatment, health, safety, rights, and welfare of persons with like or similar disabilities who receive respite care care from a respite facility and the maintenance, general hygiene and operation of a respite facility, which will permit the use of advancing knowledge to promote safe and adequate care and treatment for these individuals. These standards shall permit persons with like or similar disabilities who receive day care from a respite facility to share dining facilities and day trips with persons with with like or similar disabilities who receive overnight care from a respite facility. The standards shall also allow provision of fire safety training by a local fire inspector or a fire department.

(b) Inspection or investigation procedures that the department or the department's designated representative may use to assure the provision of care and treatment that is commensurate with the standards established under par. (a).

(c) Criteria for determining that the applicant for licensure is fit and qualified.

(d) A procedure for waiver of and variance from standards under par. (a) or criteria under par. (c). The department may limit the duration of the waiver or variance.

(e) A definition of "disability" for the purposes of this section.

(f) A definition of "like or similar disabilities" for the purposes of this section.

(9) Right of injunction. The department may, upon the advice of the attorney general, who shall represent the department in all proceedings under this section, institute an action in the name of the state in the circuit court for Dane County for injunctive relief or other process against any licensee, owner, operator, administrator or representative of any owner of a respite facility for the violation of any of the provisions of this section or rules promulgated under this section if the violation affects the health, safety, or welfare of persons with like or similar disabilities.

(10) Forfeitures. (a) Any person who violates this subchapter or rules promulgated under this subchapter may be required to forfeit not more than $100 for the first violation and may be required to forfeit not more than $200 for the 2nd or any subsequent violation within a year. The period shall be measured using the dates of issuance of citations of the violations. Each day of violation constitutes a separate violation.

(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, the following factors shall be considered:

1. The gravity of the violation, including the probability that death or serious physical or psychological harm to a person receiving respite care from a respite facility will result or has resulted; the severity of the actual or potential harm; and the extent to which the provisions of the applicable statutes or rules were violated.

2. Good faith exercised by the licensee. Indications of good faith include, but are not limited to, awareness of the applicable statutes and regulation and reasonable diligence in complying with such requirements, prior accomplishments manifesting the licensee's desire to comply with the requirements, efforts to correct and any other mitigating factors in favor of the licensee.

3. Any previous violations committed by the licensee.

4. The financial benefit to the respite facility of committing or continuing the violation.

(c) The department may directly assess forfeitures provided for under par. (a). If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct the violation, the department shall send a notice of assessment to the respite facility. The notice shall specify the amount of the forfeiture assessed, the violation, and the statute or rule alleged to have been violated, and shall inform the licensee of the right to a hearing under par. (d).

(d) A respite facility may contest an assessment of forfeiture, by sending, within 10 days after receipt of notice under par. (c), a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division 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 of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after 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 party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.

(e) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under par. (d), within 10 days after 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 the same terms and conditions as found in s. 50.03 (11). The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

(f) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this section if the forfeiture 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 has been paid.

16,1900d Section 1900d. 50.90 (intro.) of the statutes is amended to read:

50.90 Definitions. (intro.) In this subchapter section to s. 50.981:

16,1900e Section 1900e. 50.91 of the statutes is amended to read:

50.91 Departmental powers and duties. The department shall provide uniform, statewide licensing, inspection and regulation of hospices as specified in this subchapter ss. 50.90 to 50.981.

16,1900f Section 1900f. 50.92 (2) of the statutes is amended to read:

50.92 (2) The department shall issue a license if the department finds that the applicant is fit and qualified and that the hospice meets the requirements of this subchapter ss. 50.90 to 50.981 and the rules promulgated under this subchapter ss. 50.90 to 50.981.

16,1900g Section 1900g. 50.92 (3) of the statutes is amended to read:

50.92 (3) The department or the department's designated representative shall inspect or investigate a hospice prior to issuance of a license for the hospice except as provided in sub. (4) and may inspect or investigate a hospice as the department deems necessary, including conducting home visits or a review of health care records of any individuals with terminal illness served by the hospice, to determine if any person is in violation of this subchapter ss. 50.90 to 50.981.

16,1900h Section 1900h. 50.925 of the statutes is amended to read:

50.925 Use of name or advertising prohibited. No entity that is not a hospice licensed under this subchapter ss. 50.90 to 50.981 or an applicant for a license or a provisional license under this subchapter ss. 50.90 to 50.981 may designate itself as a "hospice" or use the word "hospice" to represent or tend to represent the entity as a hospice or services provided by the entity as services provided by a hospice.

16,1900i Section 1900i. 50.93 (3) of the statutes is amended to read:

50.93 (3) Provisional license. If the applicant has not been previously licensed under this subchapter s. 50.92 or if the hospice is not in operation at the time that application is made, the department may issue a provisional license. Unless sooner suspended or revoked under sub. (4), a provisional license shall be valid for 24 months from the date of issuance. Within 30 days prior to the termination of a provisional license, the department shall fully and completely inspect the hospice and, if the hospice meets the applicable requirements for licensure, shall issue a regular license under sub. (2). If the department finds that the hospice does not meet the requirements for licensure, the department may not issue a regular license under sub. (2).

16,1900j Section 1900j. 50.93 (4) (a) of the statutes is amended to read:

50.93 (4) (a) The department, after notice to the applicant or licensee, may suspend or revoke a license in any case in which the department finds that there has been a substantial failure to comply with the requirements of this subchapter ss. 50.90 to 50.981 or the rules promulgated under this subchapter ss. 50.90 to 50.981. No state or federal funds passing through the state treasury may be paid to a hospice not having a valid license issued under this section.

16,1900k Section 1900k. 50.97 of the statutes is amended to read:

50.97 Right of injunction. The department may, upon the advice of the attorney general, who shall represent the department in all proceedings under this section, institute an action in the name of the state in the circuit court for Dane County for injunctive relief or other process against any licensee, owner, operator, administrator or representative of any owner of a hospice for the violation of any of the provisions of this subchapter ss. 50.90 to 50.981 or rules promulgated under this subchapter ss. 50.90 to 50.981 if the violation affects the health, safety or welfare of individuals with terminal illness.

16,1900L Section 1900L. 50.98 (1) of the statutes is amended to read:

50.98 (1) Any person who violates this subchapter ss. 50.90 to 50.981 or rules promulgated under this subchapter ss. 50.90 to 50.981 may be required to forfeit not more than $100 for the first violation and may be required to forfeit not more than $200 for the 2nd or any later violation within a year. The period shall be measured using the dates of issuance of citations of the violations. Each day of violation constitutes a separate violation.

16,1900m Section 1900m. 50.981 of the statutes is amended to read:

50.981 Fees permitted for a workshop or seminar. If the department develops and provides a workshop or seminar relating to the provision of services by hospices under this subchapter ss. 50.90 to 50.981, the department may establish a fee for each workshop or seminar and impose the fee on registrants for the workshop or seminar. A fee so established and imposed shall be in an amount sufficient to reimburse the department for the costs directly associated with developing and providing the workshop or seminar.

16,1955b Section 1955b. 51.02 (1) (e) of the statutes is repealed.

16,1961 Section 1961. 51.06 (1) (intro.) of the statutes is renumbered 51.06 (1) and amended to read:

51.06 (1) Purpose. The purpose of the northern center for developmentally disabled, central center for developmentally disabled and southern center for developmentally disabled is to provide services needed by developmentally disabled citizens of this state which that are otherwise unavailable to them, and to return such those persons to the community when their needs can be met at the local level. Services to be provided by the department at such centers shall include:

16,1962 Section 1962. 51.06 (1) (a) to (d) of the statutes are renumbered 51.06 (1m) (a) to (d), and 51.06 (1m) (d), as renumbered, is amended to read:

51.06 (1m) (d) Services for up to 36 50 individuals with developmental disability who are also diagnosed as mentally ill or who exhibit extremely aggressive and challenging behaviors.

16,1963 Section 1963. 51.06 (1m) (intro.) of the statutes is created to read:

51.06 (1m) Services. (intro.) Services to be provided by the department at centers for the developmentally disabled shall include:

16,1964 Section 1964. 51.06 (1r) of the statutes is created to read:

51.06 (1r) Alternative services. (a) In addition to services provided under sub. (1m), the department may, when the department determines that community services need to be supplemented, authorize a center for the developmentally disabled to offer short-term residential services, dental and mental health services, therapy services, psychiatric and psychological services, general medical services, pharmacy services, and orthotics.

(b) Services under this subsection may be provided only under contract between the department and a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437, a school district, or another public or private entity within the state to persons referred from those entities, at the discretion of the department. The department shall charge the referring entity all costs associated with providing the services. Unless a referral is made, the department may not offer services under this subsection to the person who is to receive the services or to his or her family. The department may not impose a charge for services under this subsection upon the person receiving the services or upon his or her family. Any revenues received under this subsection shall be credited to the appropriation account under s. 20.435 (2) (g).

(c) 1. Services under this subsection are governed by subchapter XVI of ch. 48 and ss. 50.03, 50.032, 50.033, 50.034 (1) to (3), 50.035, 50.04, 50.09, 51.04, 51.42 (7) (b), and 51.61, for the application of which the services shall be considered to be provided by a private entity, by rules promulgated under those statutes, and by the terms of the contract between the department, except that, in the event of a conflict between the contractual terms and the statutes or rules, the services shall comply with the contractual, statutory, or rules provision that is most protective of the service recipient's health, safety, welfare, or rights.

2. Sections 46.03 (18), 46.10, 51.15 (2), 51.20 (13) (c) 1., and 51.42 (3) (as) and zoning or other ordinances or regulations of the county, city, town, or village in which the services are provided or the facility is located do not apply to the services under this subsection.

3. The department may not be required, by court order or otherwise, to offer services under this subsection.

(d) A residential facility operated by a center for the developmentally disabled that is authorized by the department under this subsection may not be considered to be a hospital, as defined in s. 50.33 (2), an inpatient facility, a state treatment facility, or a treatment facility.

16,1966cb Section 1966cb. 51.13 (1) (a) of the statutes is amended to read:

51.13 (1) (a) Except as provided in par. (c) and s. 51.45 (2m), the application for voluntary admission of a minor who is under 14 years of age or older to an approved inpatient treatment facility for the primary purpose of treatment for alcoholism or drug abuse and the application for voluntary admission of a minor who is under 14 years of age to an approved inpatient treatment facility for the primary purpose of treatment for mental illness, developmental disability, alcoholism, or drug abuse shall be executed by a parent who has legal custody of the minor or the minor's guardian. Any statement or conduct by a minor under the age of 14 who is the subject of an application for voluntary admission under this paragraph indicating that the minor does not agree to admission to the facility shall be noted on the face of the application and shall be noted in the petition required by sub. (4).

16,1966cc Section 1966cc. 51.13 (1) (b) of the statutes is amended to read:

51.13 (1) (b) The application for voluntary admission of a minor who is 14 years of age or over older to an approved inpatient treatment facility for the primary purpose of treatment for mental illness or developmental disability shall be executed by the minor and a parent who has legal custody of the minor or the minor's guardian, except as provided in par. (c) 1.