LRBs0249/1
TJD:cjs&wlj:rs
2011 - 2012 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2011 SENATE BILL 212
November 1, 2011 - Offered by Representatives Barca, Mason, Turner and
Steinbrink.
SB212-ASA1,1,8
1An Act to repeal 50.04 (5) (a) 5m.;
to amend 20.435 (6) (g), 50.03 (4) (a) 1. a.,
250.03 (4m) (a), 50.03 (5) (a), 50.03 (5) (b), 50.03 (7) (a), 50.03 (13) (a), 50.04 (4)
3(a) 1., 50.04 (4) (a) 2. b., 50.04 (4) (c) 1., 50.04 (4) (d) 2., 50.04 (4) (e) 1., 50.04 (5)
4(c), 50.04 (5) (e), 50.04 (5) (f), 50.04 (5) (fm), 50.05 (2) (f) (intro.) and 50.05 (2) (f)
52.;
to repeal and recreate 50.04 (4) (d) 1. a., 50.04 (4) (d) 1. b. and 50.04 (6)
6(a); and
to create 50.01 (1ng), 50.04 (4) (am) and 50.04 (8) of the statutes;
7relating to: regulation of nursing homes, requiring the exercise of
8rule-making authority, and making an appropriation.
Analysis by the Legislative Reference Bureau
Federal and state requirements for nursing homes
Under current law, a nursing home that receives Medicaid or Medicare funding
for the care of a resident is subject to both federal and state requirements. The
Department of Health Services (DHS) enforces both federal and state requirements
for nursing homes. Currently, for nursing homes that are Medicaid and Medicare
providers, DHS may issue both federal and state citations for the same practice and
may recommend federal remedies and impose state sanctions. This substitute
amendment prohibits DHS from issuing a notice of violation of a state requirement
to a nursing home that is a Medical Assistance or Medicare provider if DHS has, in
a statement of deficiency, cited the nursing home for a violation of a federal
requirement that is based on the same facts and if the violation is the nursing home's
first violation of a particular statute, rule, or requirement.
Under current law, DHS may seek an injunction in court to enjoin the repeated
violation of the state's nursing home statutes or a rule promulgated under the
authority of the state's nursing home statutes. The substitute amendment allows
DHS to seek an injunction to enjoin repeated violation of certain federal
requirements related to the operation of a nursing home.
Monetary penalties
Under current law, DHS may assess a forfeiture against a nursing home for a
violation of a state requirement. There is no time limit for DHS to assess a forfeiture
for a violation. Nursing homes must pay forfeitures to DHS within ten days after
receipt of notice of imposition of the forfeiture or after receipt of the final decision
after exhaustion of administrative review. If a nursing home does not contest a notice
of violation and a forfeiture and pays the forfeiture within ten days after receipt of
the notice, DHS must reduce the forfeiture amount by 35 percent.
The substitute amendment requires DHS to impose a forfeiture within 120
days of notifying a nursing home of a violation or DHS loses the authority to impose
a forfeiture. The substitute amendment changes to 60 days the time period by which
a nursing home must pay forfeitures to DHS after receipt of the notice of imposition
or the final decision after exhaustion of administrative review, and also changes to
60 days the time period within which a nursing home may pay a forfeiture and have
the forfeiture amounts reduced by 35 percent.
Appeals
Currently, in order to appeal a DHS finding that the nursing home violated a
state requirement, a nursing home must request a hearing on the finding within ten
days of receiving notice of the violation. If DHS assesses a forfeiture for the violation
and the nursing home wishes to appeal the forfeiture, the nursing home must request
a separate hearing on the forfeiture within ten days of receiving notice of a contested
action. Upon request of the nursing home, the hearing on the finding of violation may
be stayed until DHS assesses a forfeiture so that the hearing on the finding of
violation and the hearing on the forfeiture may be consolidated.
The substitute amendment extends the deadline for a nursing home to request
a hearing on a finding that the nursing home violated a state requirement to 60 days
after receipt of the notice of violation. The substitute amendment also extends the
deadline for requesting a hearing on a forfeiture to 60 days after receipt of notice of
the forfeiture. The substitute amendment further provides that, if a nursing home
timely appeals both a finding of violation and a forfeiture, the hearings on the
violation and the forfeiture will be consolidated.
Conditional and probationary licenses
Currently, in addition to the right to impose a forfeiture on a nursing home for
violations, DHS may issue a conditional license to a nursing home in which DHS
finds that a class "A" or a class "B" violation continues to exist. (A class "A" violation
creates a condition or occurrence relating to the operation and maintenance of a
nursing home that presents a substantial probability that death or serious mental
or physical harm to a nursing home resident will result. A class "B" violation creates
a condition or occurrence relating to the operation and maintenance of a nursing
home that directly threatens the health, safety, or welfare of a nursing home
resident.) Issuing a conditional license revokes any outstanding license held by the
nursing home.
This substitute amendment expands the standard for issuance by DHS of a
conditional license for a nursing home to also include a continuing violation of federal
law that constitutes immediate jeopardy or actual harm not involving immediate
jeopardy to a nursing home resident.
Under current law, an applicant for a nursing home license that has not been
previously licensed to operate a nursing home or whose nursing home is not
operating at the time of application is issued a probationary license. To obtain a
regular license, DHS inspects the nursing home to determine whether the nursing
home meets the requirements for licensure. The substitute amendment specifies
that a nursing home operating under a probationary license must also substantially
comply with requirements under certain federal regulations related to the operation
of a nursing home, if applicable, in order to obtain a regular license.
Suspension of admissions
Under current law, DHS must suspend new admissions to a nursing home if the
nursing home received notices of a class "A" violation or three or more class "B"
violations in the previous 12 months; and if the nursing home received notices of a
class "A" violation or three or more class "B" violations in any 12-month period
during the three years immediately preceding the previous 12 months. Suspension
of admissions begins 90 days after a nursing home receives its last notice of a class
"A" or class "B" violation if DHS determines that the violation is uncorrected 90 days
after the last notice or on the day that DHS makes a return visit to the nursing home
and determines that the violation has not been corrected. A suspension must remain
in effect until DHS determines that the nursing home has corrected all class "A" and
class "B" violations.
This substitute amendment expands the standard for suspension of new
admissions to a nursing home to include circumstances under which a nursing home
received written notice of a violation that involved immediate jeopardy to a resident;
a class "A" violation; or three or more class "B" violations or violations that
constituted actual harm not involving immediate jeopardy to a resident. These
circumstances must have occurred both in the previous 15 months and in any
15-month period during the 36 months immediately preceding the previous 15
months. Under the substitute amendment, a suspension of admissions may begin
only 90 days after a nursing home receives its last notice of a violation if DHS
determines that the violation in uncorrected 90 days after the last notice.
Suspension of admissions must remain in effect until DHS determines that the
nursing home has corrected the violation in question.
Suspension or revocation of licensure
Currently, DHS may, after providing notice to a nursing home applicant or
licensee, suspend or revoke the license if DHS finds that the nursing home
substantially failed to comply with applicable state statutes or rules. No state or
federal funds passing through the state treasury may be paid to a nursing home that
does not have a valid license. This substitute amendment also permits DHS to
suspend or revoke a nursing home license if the nursing home has substantially
failed to comply with specified state law or with federal requirements related to the
operation of a nursing home.
Notices of violation
In certain circumstances under current law, DHS must provide a notice of
violation to a nursing home, such as the presence in a nursing home of a class "A" or
"B" violation. The department currently is not required to serve a notice of violation
if the nursing home reports the violation to DHS and the violation occurs and
remains uncorrected despite the nursing home's every reasonable effort to prevent
and correct the violation. This substitute amendment expands the circumstances
under which DHS is not required to serve a notice of violation to include situations
in which a nursing home reports the violation to DHS and has corrected the violation.
Quality improvements
This substitute amendment allows DHS to distribute moneys, including civil
money penalties collected under a certain federal regulation, for innovative projects
designed to protect the property and the health, safety, and welfare of nursing home
residents and to improve the efficiency and cost effectiveness of the operation of
nursing home facilities. Also, under the substitute amendment, DHS must establish
and maintain a quality assurance and improvement committee to review proposals
and award moneys for those innovative projects.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB212-ASA1,4,82
20.435
(6) (g)
Nursing facility resident protection. All moneys received from the
3penalty assessment surcharges on forfeitures that are levied by the department
4under s. 49.498 (16) (c) 1., 2. and 3. and the interest under s. 49.498 (16) (d)
and from
5civil money penalties collected under 42 CFR 488.442 to finance nursing facility
6resident protection under s. 49.499
and any projects under s. 50.04 (8) to protect the
7property and the health, safety, and welfare of nursing home residents and to
8improve the efficiency and cost effectiveness of the operation of nursing homes.
SB212-ASA1,5,52
50.01
(1ng) "Immediate jeopardy" means a situation in which a nursing home's
3noncompliance with one or more requirements under
42 CFR 483 related to the
4operation of a nursing home has caused, or is likely to cause, serious injury, harm,
5impairment, or death to a resident.
SB212-ASA1, s. 3
6Section
3. 50.03 (4) (a) 1. a. of the statutes is amended to read:
SB212-ASA1,5,147
50.03
(4) (a) 1. a. Except as provided in sub. (4m) (a), the department shall issue
8a license for a nursing home if it finds the applicant to be fit and qualified and if it
9finds that the nursing home meets the requirements established by this subchapter
10and, as applicable, requirements under 42 CFR 483 related to the operation of a
11nursing home. The department, or its designee, shall make such inspections and
12investigations as are necessary to determine the conditions existing in each case and
13shall file written reports. The department shall promulgate rules defining "fit and
14qualified" for the purposes of this subd. 1. a.
SB212-ASA1, s. 4
15Section
4. 50.03 (4m) (a) of the statutes is amended to read:
SB212-ASA1,6,316
50.03
(4m) (a) If the applicant for licensure as a nursing home has not been
17previously licensed under this subchapter or if the nursing home is not in operation
18at the time application is made, the department shall issue a probationary license.
19A probationary license shall be valid for 12 months from the date of issuance unless
20sooner suspended or revoked under sub. (5). Prior to the expiration of a probationary
21license, the department shall inspect the nursing home and, if the nursing home
22meets the applicable requirements for licensure
and, if applicable, substantially
23complies with requirements under 42 CFR 483 related to the operation of a nursing
24home, shall issue a regular license under sub. (4) (a) 1. a. If the department finds that
25the nursing home does not meet the requirements for licensure
or does not
1substantially comply with requirements under 42 CFR 483 related to the operation
2of a nursing home, the department may not issue a regular license under sub. (4) (a)
31. a.
SB212-ASA1,6,125
50.03
(5) (a)
Power of department. The department, after notice to a nursing
6home applicant or licensee, may suspend or revoke a license in any case in which the
7department finds that the nursing home has substantially failed to comply with the
8applicable requirements of this subchapter and the rules promulgated under this
9subchapter
, with s. 49.498, or with requirements under 42 CFR 483 related to the
10operation of a nursing home. No state or federal funds passing through the state
11treasury may be paid to a nursing home that does not have a valid license issued
12under this section.
SB212-ASA1,6,1714
50.03
(5) (b)
Form of notice. Notice under this subsection shall include a clear
15and concise statement of the violations on which the revocation is based, the statute
16or, rule
, or federal requirement violated and notice of the opportunity for an
17evidentiary hearing under par. (c).
SB212-ASA1,7,219
50.03
(7) (a)
Licensed facility. Notwithstanding the existence or pursuit of any
20other remedy, the department may, upon the advice of the attorney general, maintain
21an action in the name of the state in the circuit court for injunction or other process
22against any licensee, owner, operator, administrator or representative of any owner
23of a facility to restrain and enjoin the repeated violation of any of the provisions of
24this subchapter
or, rules promulgated by the department under this subchapter
, or
1requirements under 42 CFR 483 related to the operation of a nursing home where
2the violation affects the health, safety or welfare of the residents.
SB212-ASA1,7,174
50.03
(13) (a)
New license. Whenever ownership of a facility is transferred from
5the person or persons named in the license to any other person or persons, the
6transferee must obtain a new license. The license may be a probationary license.
7Penalties under sub. (1) shall apply to violations of this subsection. The transferee
8shall notify the department of the transfer, file an application under sub. (3) (b), and
9apply for a new license at least 30 days prior to final transfer. Retention of any
10interest required to be disclosed under sub. (3) (b) after transfer by any person who
11held such an interest prior to transfer may constitute grounds for denial of a license
12where violations of this subchapter
, or of requirements of 42 CFR 483 related to the
13operation of a nursing home, for which notice had been given to the transferor are
14outstanding and uncorrected, if the department determines that effective control
15over operation of the facility has not been transferred. If the transferor was a
16provider under s. 49.43 (10), the transferee and transferor shall comply with s. 49.45
17(21).
SB212-ASA1, s. 9
18Section
9. 50.04 (4) (a) 1. of the statutes is amended to read:
SB212-ASA1,8,219
50.04
(4) (a) 1.
If Except as provided in par. (am) 2., if upon inspection or
20investigation the department determines that a nursing home is in violation of this
21subchapter or the rules promulgated under it and the violation is a class "A" or "B"
22violation, it shall promptly serve a notice of violation upon the licensee. Each notice
23of violation shall be prepared in writing and shall specify the nature of the violation,
24and the statutory provision or rule alleged to have been violated. The notice shall
25inform the licensee of the right to a hearing under par. (e). The written notice of a
1class "A" violation may be written and served by an agent of the department at the
2time of the inspection.
SB212-ASA1, s. 10
3Section
10. 50.04 (4) (a) 2. b. of the statutes is amended to read:
SB212-ASA1,8,74
50.04
(4) (a) 2. b. The nursing home has made every reasonable effort to prevent
5and correct the violation, but the violation occurred and remains uncorrected due to
6circumstances beyond the nursing home's control
, or the nursing home has corrected
7the violation.
SB212-ASA1,8,119
50.04
(4) (am)
Dual federal and state violations. 1. Notwithstanding s. 50.01
10(3), in this paragraph, "nursing home" does not include a facility serving people with
11developmental disabilities.
SB212-ASA1,8,1912
2. If an act or omission constitutes a violation of this subchapter or the rules
13promulgated under this subchapter, s. 49.498, or requirements under
42 CFR 483 14related to the operation of a nursing home, the department may not issue under s.
1550.04 (4) (a) a notice of violation of this subchapter, the rules promulgated under this
16subchapter, or s. 49.498 if the department has, in a statement of deficiency, cited the
17nursing home for the violation under requirements under
42 CFR 483 related to the
18operation of a nursing home and if the violation is the first violation of a particular
19statute, rule, or requirement by the nursing home.
SB212-ASA1,9,321
50.04
(4) (c) 1. The situation, condition or practice constituting a class "A"
22violation
or immediate jeopardy shall be abated or eliminated immediately unless
23a fixed period of time, as determined by the department and specified in the notice
24of violation, is required for correction. If the class "A" violation
or immediate
25jeopardy is not abated or eliminated within the specified time period, the department
1shall maintain an action in circuit court for injunction or other process against the
2licensee, owner, operator, administrator or representative of the facility to restrain
3and enjoin violation of applicable rules, regulations and statutes.
SB212-ASA1, s. 13
4Section
13. 50.04 (4) (d) 1. a. of the statutes is repealed and recreated to read:
SB212-ASA1,9,95
50.04
(4) (d) 1. a. In the previous 15 months, the nursing home received written
6notice of a violation of a state statute or rule or a federal statute or regulation that
7involved immediate jeopardy to a resident; a class "A" violation; or 3 or more class
8"B" violations or violations that constituted actual harm not involving immediate
9jeopardy to a resident.
SB212-ASA1, s. 14
10Section
14. 50.04 (4) (d) 1. b. of the statutes is repealed and recreated to read:
SB212-ASA1,9,1611
50.04
(4) (d) 1. b. In any 15-month period during the 36 months immediately
12preceding the period specified in subd. 1. a., the nursing home received written notice
13of a violation of a state statute or rule or a federal statute or regulation that involved
14immediate jeopardy to a resident; a class "A" violation; or 3 or more class "B"
15violations or violations that constituted actual harm not involving immediate
16jeopardy to a resident.
SB212-ASA1,9,2518
50.04
(4) (d) 2. A suspension of admissions under subd. 1. shall begin 90 days
19after a nursing home received its last notice of violation for a
class "A" or class "B" 20violation
specified in subd. 1. a. if the department determines that the violation
21remains uncorrected 90 days after the nursing home received the last notice of the
22violation.
If the nursing home indicates to the department that the violation has
23been corrected, but the department is unable to verify that the violation has been
24corrected, a suspension of admissions under subd. 1. shall begin on the day that the
25department makes a return visit to the nursing home and determines that the
1violation has not been corrected. A suspension of admissions under subd. 1. shall
2remain in effect until the department determines that
all class "A" and class "B"
3violations by the nursing home
have been has corrected
the violation. Admission of
4a new resident during the period for which admissions have been suspended
5constitutes a class "B" violation.
SB212-ASA1,11,27
50.04
(4) (e) 1. If a nursing home desires to contest any department action
8under this subsection, it shall send a written request for a hearing under s. 227.44
9to the division of hearings and appeals created under s. 15.103 (1) within
10 60 days
10of receipt of notice of the contested action. Department action that is subject to a
11hearing under this subsection includes service of a notice of a violation of this
12subchapter or rules promulgated under this subchapter, a notation in the report
13under sub. (3) (b), imposition of a plan of correction
, and rejection of a nursing home's
14plan of correction, but does not include a correction order. Upon the request of the
15nursing home, the division shall grant a stay of the hearing under this paragraph
16until the department assesses a forfeiture, so that its hearing under this paragraph
17is consolidated with the forfeiture appeal hearing held under sub. (5) (e). All agency
18action under this subsection arising out of a violation, deficiency
, or rejection and
19imposition of a plan of correction shall be the subject of a single hearing. Unless a
20stay is granted under this paragraph, the division shall commence the hearing
21within 30 days of the request for hearing, within 30 days of the department's
22acceptance of a nursing home's plan of correction
, or within 30 days of the
23department's imposition of a plan of correction, whichever is later. The division shall
24send notice to the nursing home in conformance with s. 227.44. Issues litigated at
1the hearing may not be relitigated at subsequent hearings under this paragraph
2arising out of the same violation or deficiency.
SB212-ASA1,11,145
50.04
(5) (c)
Assessment of forfeitures; powers and duties of department. The
6department may directly assess forfeitures provided for under par. (a). If the
7department determines that a forfeiture should be assessed for a particular violation
8or for failure to correct it,
it the department shall send a notice of assessment
of
9forfeiture to the nursing home. The notice shall specify the amount of the forfeiture
10assessed, the violation,
and the statute or rule alleged to have been violated
, and
11shall inform the licensee of the right to hearing under par. (e).
If the department does
12not issue a notice of forfeiture within 120 days after the date on which a nursing home
13receives the notice of a violation, the department may not assess a forfeiture for the
14violation.
SB212-ASA1,12,716
50.04
(5) (e)
Forfeiture appeal hearing. A nursing home may contest an
17assessment of
a forfeiture by sending, within
10 60 days after receipt of notice of
a
18contested action the assessment of the forfeiture, a written request for hearing under
19s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The
20administrator of the division may designate a hearing examiner to preside over the
21case and recommend a decision to the administrator under s. 227.46. The decision
22of the administrator of the division shall be the final administrative decision. The
23division shall commence the hearing within 30 days of receipt of the request for
24hearing and shall issue a final decision within 15 days after the close of the hearing.
25Proceedings before the division are governed by ch. 227. In any petition for judicial
1review of a decision by the division, the party, other than the petitioner, who was in
2the proceeding before the division shall be the named respondent.
If, after receipt
3of notice of assessment of a forfeiture, a nursing home that has timely requested a
4hearing under sub. (4) (e) on the notice of violation under sub. (4) for which the
5forfeiture was assessed requests a hearing under this paragraph on the assessment
6of the forfeiture, the hearing on the notice of violation under sub. (4) and the hearing
7on the assessment of the forfeiture shall be consolidated.
SB212-ASA1,12,159
50.04
(5) (f)
Forfeitures paid within
10 60 days. All forfeitures shall be paid to
10the department within
10 60 days of receipt of notice of assessment
of the forfeiture 11or, if the forfeiture is contested under par. (e), within
10 60 days of receipt of the final
12decision after exhaustion of administrative review, unless the final decision is
13appealed and the order is stayed by court order under s. 50.03 (11). The department
14shall remit all forfeitures paid to the secretary of administration for deposit in the
15school fund.
SB212-ASA1,12,2217
50.04
(5) (fm)
Forfeiture reduction for timely payment. If a nursing home does
18not contest a notice of violation under sub. (4) (e) and does not contest an assessment
19of
a forfeiture under par. (e) for a class "A" or class "B" violation and pays the
20forfeiture to the department within
10 60 days after receipt of the notice of
21assessment
of the forfeiture, the department shall reduce the amount of the
22assessment forfeiture by
35% 35 percent.
SB212-ASA1, s. 22
23Section
22. 50.04 (6) (a) of the statutes is repealed and recreated to read:
SB212-ASA1,13,3
150.04
(6) (a)
Power of department. 1. In addition to the right to impose
2forfeitures under sub. (5), the department may issue a conditional license to any
3nursing home if the department finds that any of the following is true:
SB212-ASA1,13,54
a. A class "A" or class "B" violation, as defined in sub. (4), continues to exist in
5the nursing home.
SB212-ASA1,13,76
b. A federal violation continues to exist that constitutes immediate jeopardy or
7actual harm not involving immediate jeopardy to a resident.
SB212-ASA1,13,98
2. The issuance of a conditional license shall revoke any outstanding license
9held by the nursing home.