LRB-2968/1
TJD:cjs&wlj:rs
2011 - 2012 LEGISLATURE
October 5, 2011 - Introduced by Senators Galloway, Lazich, Holperin, Schultz,
Shilling, Vinehout and
Wirch, cosponsored by Representatives Knodl,
Wynn, Nygren, Ballweg, Bernier, Bewley, Brooks, Danou, Doyle, Kestell,
T. Larson, LeMahieu, Molepske Jr, Mursau, A. Ott, Petryk, Ripp, Spanbauer,
Strachota, Thiesfeldt, Tranel, Van Roy, Williams and Vos. Referred to
Committee on Public Health, Human Services, and Revenue.
SB212,1,8
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 bill 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.
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 bill 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 bill 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
bill 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 bill 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 bill also extends the deadline for requesting a hearing
on a forfeiture to 60 days after receipt of notice of the forfeiture. The bill 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 bill 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 bill 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 bill 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 bill, 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 bill 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 bill 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 bill 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 bill, DHS must establish and maintain a quality assurance
and improvement committee to review proposals and award moneys for those
innovative projects.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB212, s. 1
1Section
1. 20.435 (6) (g) of the statutes is amended to read:
SB212,4,82
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, s. 2
9Section
2. 50.01 (1ng) of the statutes is created to read:
SB212,5,4
150.01
(1ng) "Immediate jeopardy" means a situation in which a nursing home's
2noncompliance with one or more requirements under
42 CFR 483 related to the
3operation of a nursing home has caused, or is likely to cause, serious injury, harm,
4impairment, or death to a resident.
SB212, s. 3
5Section
3. 50.03 (4) (a) 1. a. of the statutes is amended to read:
SB212,5,136
50.03
(4) (a) 1. a. Except as provided in sub. (4m) (a), the department shall issue
7a license for a nursing home if it finds the applicant to be fit and qualified and if it
8finds that the nursing home meets the requirements established by this subchapter
9and, as applicable, requirements under 42 CFR 483 related to the operation of a
10nursing home. The department, or its designee, shall make such inspections and
11investigations as are necessary to determine the conditions existing in each case and
12shall file written reports. The department shall promulgate rules defining "fit and
13qualified" for the purposes of this subd. 1. a.
SB212, s. 4
14Section
4. 50.03 (4m) (a) of the statutes is amended to read:
SB212,6,215
50.03
(4m) (a) If the applicant for licensure as a nursing home has not been
16previously licensed under this subchapter or if the nursing home is not in operation
17at the time application is made, the department shall issue a probationary license.
18A probationary license shall be valid for 12 months from the date of issuance unless
19sooner suspended or revoked under sub. (5). Prior to the expiration of a probationary
20license, the department shall inspect the nursing home and, if the nursing home
21meets the applicable requirements for licensure
and, if applicable, substantially
22complies with requirements under 42 CFR 483 related to the operation of a nursing
23home, shall issue a regular license under sub. (4) (a) 1. a. If the department finds that
24the nursing home does not meet the requirements for licensure
or does not
25substantially comply with requirements under 42 CFR 483 related to the operation
1of a nursing home, the department may not issue a regular license under sub. (4) (a)
21. a.
SB212, s. 5
3Section
5. 50.03 (5) (a) of the statutes is amended to read:
SB212,6,114
50.03
(5) (a)
Power of department. The department, after notice to a nursing
5home applicant or licensee, may suspend or revoke a license in any case in which the
6department finds that the nursing home has substantially failed to comply with the
7applicable requirements of this subchapter and the rules promulgated under this
8subchapter
, with s. 49.498, or with requirements under 42 CFR 483 related to the
9operation of a nursing home. No state or federal funds passing through the state
10treasury may be paid to a nursing home that does not have a valid license issued
11under this section.
SB212, s. 6
12Section
6. 50.03 (5) (b) of the statutes is amended to read:
SB212,6,1613
50.03
(5) (b)
Form of notice. Notice under this subsection shall include a clear
14and concise statement of the violations on which the revocation is based, the statute
15or, rule
, or federal requirement violated and notice of the opportunity for an
16evidentiary hearing under par. (c).
SB212, s. 7
17Section
7. 50.03 (7) (a) of the statutes is amended to read:
SB212,6,2518
50.03
(7) (a)
Licensed facility. Notwithstanding the existence or pursuit of any
19other remedy, the department may, upon the advice of the attorney general, maintain
20an action in the name of the state in the circuit court for injunction or other process
21against any licensee, owner, operator, administrator or representative of any owner
22of a facility to restrain and enjoin the repeated violation of any of the provisions of
23this subchapter
or, rules promulgated by the department under this subchapter
, or
24requirements under 42 CFR 483 related to the operation of a nursing home where
25the violation affects the health, safety or welfare of the residents.
SB212, s. 8
1Section
8. 50.03 (13) (a) of the statutes is amended to read:
SB212,7,152
50.03
(13) (a)
New license. Whenever ownership of a facility is transferred from
3the person or persons named in the license to any other person or persons, the
4transferee must obtain a new license. The license may be a probationary license.
5Penalties under sub. (1) shall apply to violations of this subsection. The transferee
6shall notify the department of the transfer, file an application under sub. (3) (b), and
7apply for a new license at least 30 days prior to final transfer. Retention of any
8interest required to be disclosed under sub. (3) (b) after transfer by any person who
9held such an interest prior to transfer may constitute grounds for denial of a license
10where violations of this subchapter
, or of requirements of 42 CFR 483 related to the
11operation of a nursing home, for which notice had been given to the transferor are
12outstanding and uncorrected, if the department determines that effective control
13over operation of the facility has not been transferred. If the transferor was a
14provider under s. 49.43 (10), the transferee and transferor shall comply with s. 49.45
15(21).
SB212, s. 9
16Section
9. 50.04 (4) (a) 1. of the statutes is amended to read:
SB212,7,2517
50.04
(4) (a) 1.
If Except as provided in par. (am) 2., if upon inspection or
18investigation the department determines that a nursing home is in violation of this
19subchapter or the rules promulgated under it and the violation is a class "A" or "B"
20violation, it shall promptly serve a notice of violation upon the licensee. Each notice
21of violation shall be prepared in writing and shall specify the nature of the violation,
22and the statutory provision or rule alleged to have been violated. The notice shall
23inform the licensee of the right to a hearing under par. (e). The written notice of a
24class "A" violation may be written and served by an agent of the department at the
25time of the inspection.
SB212, s. 10
1Section
10. 50.04 (4) (a) 2. b. of the statutes is amended to read:
SB212,8,52
50.04
(4) (a) 2. b. The nursing home has made every reasonable effort to prevent
3and correct the violation, but the violation occurred and remains uncorrected due to
4circumstances beyond the nursing home's control
, or the nursing home has corrected
5the violation.
SB212, s. 11
6Section
11. 50.04 (4) (am) of the statutes is created to read:
SB212,8,97
50.04
(4) (am)
Dual federal and state violations. 1. Notwithstanding s. 50.01
8(3), in this paragraph, "nursing home" does not include a facility serving people with
9developmental disabilities.
SB212,8,1610
2. If an act or omission constitutes a violation of this subchapter or the rules
11promulgated under this subchapter, s. 49.498, or requirements under
42 CFR 483 12related to the operation of a nursing home, the department may not issue under s.
1350.04 (4) (a) a notice of violation of this subchapter, the rules promulgated under this
14subchapter, or s. 49.498 if the department has, in a statement of deficiency, cited the
15nursing home for the violation under requirements under
42 CFR 483 related to the
16operation of a nursing home.
SB212, s. 12
17Section
12. 50.04 (4) (c) 1. of the statutes is amended to read:
SB212,8,2518
50.04
(4) (c) 1. The situation, condition or practice constituting a class "A"
19violation
or immediate jeopardy shall be abated or eliminated immediately unless
20a fixed period of time, as determined by the department and specified in the notice
21of violation, is required for correction. If the class "A" violation
or immediate
22jeopardy is not abated or eliminated within the specified time period, the department
23shall maintain an action in circuit court for injunction or other process against the
24licensee, owner, operator, administrator or representative of the facility to restrain
25and enjoin violation of applicable rules, regulations and statutes.
SB212, s. 13
1Section
13. 50.04 (4) (d) 1. a. of the statutes is repealed and recreated to read:
SB212,9,62
50.04
(4) (d) 1. a. In the previous 15 months, the nursing home received written
3notice of a violation of a state statute or rule or a federal statute or regulation that
4involved immediate jeopardy to a resident; a class "A" violation; or 3 or more class
5"B" violations or violations that constituted actual harm not involving immediate
6jeopardy to a resident.
SB212, s. 14
7Section
14. 50.04 (4) (d) 1. b. of the statutes is repealed and recreated to read:
SB212,9,138
50.04
(4) (d) 1. b. In any 15-month period during the 36 months immediately
9preceding the period specified in subd. 1. a., the nursing home received written notice
10of a violation of a state statute or rule or a federal statute or regulation that involved
11immediate jeopardy to a resident; a class "A" violation; or 3 or more class "B"
12violations or violations that constituted actual harm not involving immediate
13jeopardy to a resident.
SB212, s. 15
14Section
15. 50.04 (4) (d) 2. of the statutes is amended to read:
SB212,9,2515
50.04
(4) (d) 2. A suspension of admissions under subd. 1. shall begin 90 days
16after a nursing home received its last notice of violation for a
class "A" or class "B" 17violation
specified in subd. 1. a. if the department determines that the violation
18remains uncorrected 90 days after the nursing home received the last notice of the
19violation.
If the nursing home indicates to the department that the violation has
20been corrected, but the department is unable to verify that the violation has been
21corrected, a suspension of admissions under subd. 1. shall begin on the day that the
22department makes a return visit to the nursing home and determines that the
23violation has not been corrected. A suspension of admissions under subd. 1. shall
24remain in effect until the department determines that
all class "A" and class "B"
25violations by the nursing home
have been has corrected
the violation. Admission of
1a new resident during the period for which admissions have been suspended
2constitutes a class "B" violation.
SB212, s. 16
3Section
16. 50.04 (4) (e) 1. of the statutes is amended to read:
SB212,10,234
50.04
(4) (e) 1. If a nursing home desires to contest any department action
5under this subsection, it shall send a written request for a hearing under s. 227.44
6to the division of hearings and appeals created under s. 15.103 (1) within
10 60 days
7of receipt of notice of the contested action. Department action that is subject to a
8hearing under this subsection includes service of a notice of a violation of this
9subchapter or rules promulgated under this subchapter, a notation in the report
10under sub. (3) (b), imposition of a plan of correction
, and rejection of a nursing home's
11plan of correction, but does not include a correction order. Upon the request of the
12nursing home, the division shall grant a stay of the hearing under this paragraph
13until the department assesses a forfeiture, so that its hearing under this paragraph
14is consolidated with the forfeiture appeal hearing held under sub. (5) (e). All agency
15action under this subsection arising out of a violation, deficiency
, or rejection and
16imposition of a plan of correction shall be the subject of a single hearing. Unless a
17stay is granted under this paragraph, the division shall commence the hearing
18within 30 days of the request for hearing, within 30 days of the department's
19acceptance of a nursing home's plan of correction
, or within 30 days of the
20department's imposition of a plan of correction, whichever is later. The division shall
21send notice to the nursing home in conformance with s. 227.44. Issues litigated at
22the hearing may not be relitigated at subsequent hearings under this paragraph
23arising out of the same violation or deficiency.
SB212, s. 17
24Section
17. 50.04 (5) (a) 5m. of the statutes is repealed.