DHS 13.03 Note Note: Chapter DHS 129 was repealed and recreated effective 12-1-08. “Nurse aide" is now defined at s. DHS 129.03 (30). “Nurse's assistant", “ home health aide" and “hospice aide" are not defined.
DHS 13.03(17) (17) “Reasonable cause" means that the greater weight of evidence provides a reasonable ground for belief that the individual committed the act as alleged.
DHS 13.03(18) (18) “Under the entity's control" means a person employed by or under contract with the entity for whom the entity does 2 or more of the following:
DHS 13.03(18)(a) (a) Determines whether the person may provide care, treatment, support or similar services to clients served by the entity.
DHS 13.03(18)(b) (b) Directs the policies or procedures the person must follow in performing his or her duties as a caregiver.
DHS 13.03(18)(c) (c) Directs the conditions under which the person performs his or her duties as a caregiver.
DHS 13.03(18)(d) (d) Directs the work assignments of or tasks performed by the caregiver.
DHS 13.03(18)(e) (e) Determines the person's work schedule.
DHS 13.03(18)(f) (f) Supervises or evaluates the person's work or job performance, including imposing discipline or awarding performance awards.
DHS 13.03(18)(g) (g) Determines the compensation the person received for performing his or her duties as a caregiver.
DHS 13.03(19) (19) “Without consent" has the meaning given in s. 939.22 (48), Stats.
DHS 13.03 History History: Cr. Register, June, 1999, No. 522, eff. 7-1-99; reprinted to correct error in (1) (a) 1. (intro.), Register, August, 1999, No. 524; corrections in (5) and (16) made under s. 13.93 (2m) (b) 7., Stats., Register December 2003 No. 576; CR 04-040: am. (15) Register November 2004 No. 587, eff. 12-1-04; corrections in (5), (9) and (16) made under s. 13.92 (4) (b) 6. and 7., Stats., Register November 2008 No. 635.
DHS 13.04 DHS 13.04Caregiver misconduct registry.
DHS 13.04(1)(1)Establishment and maintenance. The department shall establish and maintain a database of caregivers as an official record of persons found to have abused or neglected a client or misappropriated a client's property under the requirements of this chapter. The database shall contain the following lists:
DHS 13.04(1)(a) (a) Nurse aides. A list of all nurse aides who have been found under s. DHS 13.05 (6) or (7) to have abused or neglected a client or misappropriated a client's property and to whom any of the following applies:
DHS 13.04(1)(a)1. 1. The nurse aide waives a hearing to contest the listing of the finding in the registry or fails to file a timely request for a hearing under s. DHS 13.05 (7) (b) after receipt of the department's notice of the department's intent to enter its findings about the nurse aide in the registry.
DHS 13.04(1)(a)2. 2. The hearing officer under s. DHS 13.05 (7) (d) 6. finds reasonable cause to believe that the nurse aide abused or neglected a client or misappropriated a client's property.
DHS 13.04(1)(b) (b) All other caregivers. A list of all persons other than nurse aides who have been found under s. DHS 13.05 (6) or (7) to have abused or neglected a client or misappropriated a client's property and to whom any of the following applies:
DHS 13.04(1)(b)1. 1. The person waives a hearing to contest the listing of the finding in the registry or fails to file a timely request for a hearing under s. DHS 13.05 (7) (b) after receipt of the department's notice of the department's intent to enter its findings about the person in the registry.
DHS 13.04(1)(b)2. 2. The hearing officer under s. DHS 13.05 (7) (d) 6. finds reasonable cause to believe that the person abused or neglected a client or misappropriated a client's property.
DHS 13.04(2) (2)Content. Information about a person in the caregiver misconduct registry shall include all of the following:
DHS 13.04(2)(a) (a) The person's social security number, if available.
DHS 13.04(2)(b) (b) The person's full name, including middle initial.
DHS 13.04(2)(c) (c) The person's mailing address.
DHS 13.04(2)(d) (d) The person's date of birth.
DHS 13.04(2)(e) (e) Any finding made by the department under s. DHS 13.05 (6), or, if appealed, by a hearing officer under s. DHS 13.05 (7), that the person abused or neglected a client or misappropriated the property of a client, and whether the person filed a rebuttal statement with the department under s. DHS 13.05 (6) (c) 2. e. disputing that finding.
DHS 13.04(3) (3)Release of caregiver misconduct registry information. With the exception of the person's social security number and to the extent permitted by state and federal law, the information included in the registry about individuals is public information. The department shall respond promptly to inquiries concerning registry information. A request for registry information shall be in writing and accompanied by a self-addressed stamped envelope.
DHS 13.04 Note Note: Send a request for registry information to: Bureau of Quality Assurance, Caregiver Registry and Investigation Section, 2917 International Lane, Suite 300, Madison, Wisconsin 53704. If the information is part of a child abuse or neglect record subject to s. 48.981, Stats., it may be released only as allowed by s. 48.981 (7), Stats.
DHS 13.04 History History: Cr. Register, June, 1999, No. 522, eff. 7-1-99.
DHS 13.05 DHS 13.05Allegations of caregiver misconduct.
DHS 13.05(1)(1)Definitions. In this section:
DHS 13.05(1)(a) (a) “Community-based residential facility" has the meaning given in s. 50.01 (1g), Stats.
DHS 13.05(1)(b) (b) “Home health agency" has the meaning given in s. 50.49 (1) (a), Stats.
DHS 13.05(1)(c) (c) “Nursing home" has the meaning given in s. 50.01 (3), Stats.
DHS 13.05(1)(d) (d) “Report" means any allegation of misconduct that has been filed, either orally or in writing, and includes any similar additional allegations that are discovered during the course of an investigation.
DHS 13.05(1)(e) (e) “Reporter" means the person or entity who files a report with the department.
DHS 13.05(1)(f) (f) “Subject of the report" means the person against whom an allegation of misconduct is made or, when an attorney files a written notice of appearance in the matter, the attorney representing the person.
DHS 13.05(2) (2)Entity's responsibility to protect clients. Upon learning of an incident of alleged misconduct, an entity shall take whatever steps are necessary to ensure that clients are protected from subsequent episodes of misconduct while a determination on the matter is pending.
DHS 13.05(3) (3)Entity's responsibility to report allegations.
DHS 13.05(3)(a)(a) Entity's duty to report to the department. Except as provided under pars. (b) and (c), an entity shall report to the department any allegation of an act, omission or course of conduct described in this chapter as client abuse or neglect or misappropriation of client property committed by any person employed by or under contract with the entity if the person is under the control of the entity. The entity shall submit its report on a form provided by the department within 7 calendar days from the date the entity knew or should have known about the misconduct. The report shall contain whatever information the department requires.
DHS 13.05 Note Note: For copies of the report form, write or phone the Caregiver Registry and Investigation Section, Bureau of Quality Assurance, 2917 International Lane, Suite 300, Madison, Wisconsin 53704; 608-243-2019. Return completed reports to the same address.
DHS 13.05(3)(b) (b) Entity's duty to report to the department of safety and professional services. In addition to the reporting requirement under par. (c), an entity shall report to the department of safety and professional services any allegation of misconduct committed by any person employed by or under contract with the entity, if the person holds a credential from the department of safety and professional services that is related to the person's employment at, or contract with, the entity. The entity's report shall be made within 7 calendar days from the date the entity knew or should have known about the misconduct.
DHS 13.05 Note Note: Send this report to the Department of Safety and Professional Services, Division of Enforcement, P.O. Box 8935, Madison, Wisconsin 53708-8935.
DHS 13.05(3)(c) (c) Entity's duty to report child abuse or neglect to county authorities. In accordance with s. 48.981, Stats., an entity shall immediately report, by telephone or personally, to the county department of social services or human services or the sheriff or city, village or town police department the facts and circumstances contributing to a suspicion that child abuse or neglect has occurred or to a belief that it will occur. In addition, the entity shall notify the department in writing or by phone within 7 calendar days that the report has been made.
DHS 13.05 Note Note: For notification to the Department that the report has been made, write Caregiver Registry and Investigation Section, Bureau of Quality Assurance, 2917 International Lane, Suite 300, Madison, Wisconsin 53704; or phone 608-243-2019.
DHS 13.05(3)(d) (d) Entity's duty to notify subject of the report. An entity shall notify the subject of a report under par. (a), (b) or (c) that an allegation of abuse or neglect of a client or misappropriation of a client's property has been made and that the report is being forwarded to the appropriate authority. Notice to the subject of the report shall be given as soon as practicable, but within 7 calendar days of the entity's reporting to the appropriate authority.
DHS 13.05(3)(e) (e) Penalty for failure to report incidents of caregiver misconduct. An entity that intentionally fails to report an allegation of misconduct under this subsection by any person employed by or under contract with the entity may be required to forfeit not more than $1,000 and may be subject to any of the following sanctions:
DHS 13.05(3)(e)1. 1. Submission by the entity of a plan of correction for approval by the department, and implementation of the plan of correction.
DHS 13.05(3)(e)2. 2. Implementation by the entity of a department-imposed plan of correction.
DHS 13.05(3)(e)3. 3. Any regulatory limitations or conditions, as appropriate, imposed by the department on the entity.
DHS 13.05(3)(e)4. 4. Suspension or revocation of licensure, certification or other approval for a period of not more than 5 years.
DHS 13.05(3)(e)5. 5. Notification in a local newspaper of the act and, if applicable, any forfeiture imposed.
DHS 13.05 Note Note: When allegations that are the subject of a report involve the possible commission of a crime, reporters should also separately notify law enforcement authorities having jurisdiction in the case.
DHS 13.05(4) (4)Reports submitted to the department by other persons.
DHS 13.05(4)(a)(a) If any individual believes that a person employed by or under contract with an entity has abused or neglected a client or misappropriated a client's property, the individual may report this to the department. The report may be made by phone or in writing on a form provided by the department.
DHS 13.05 Note Note: To make an oral report, phone 608-243-2019. For a copy of the report form, write or phone the Caregiver Registry and Investigation Section, Bureau of Quality Assurance, 2917 International Lane, Suite 300, Madison, Wisconsin 53704; 608-243-2019. Return a completed report to the same address.
DHS 13.05(4)(b) (b) Upon receiving a report under par. (a), the department shall do all of the following, as appropriate:
DHS 13.05(4)(b)1. 1. In accordance with s. 48.981, Stats., immediately notify county authorities with reasonable particularity if the action that forms the basis for the allegation of abuse or neglect involves a victim who is a minor.
DHS 13.05(4)(b)2. 2. Immediately notify the department of safety and professional services if the subject of the report holds a credential from the department of safety and professional services.
DHS 13.05(4)(b)3. 3. In accordance with s. 46.90, Stats., notify the lead elder abuse agency designated under s. 46.90 (2), Stats.
DHS 13.05(4)(c) (c) If an individual believes that a person employed by or under contract with an entity has abused or neglected or misappropriated the property of a client who is aged 60 or older or subject to the infirmities of aging and who either does not reside in a nursing home or community-based residential facility licensed under ch. 50, Stats., or receive services from a home health agency licensed under ch. 50, Stats., the individual or entity may file a report with the agency designated by the county board to serve as the lead agency for elder abuse in accordance with s. 46.90, Stats. The lead elder abuse agency designated under s. 46.90 (2), Stats., shall notify the department that it has received the report.
DHS 13.05 Note Note: When allegations that are the subject of a report involve the possible commission of a crime, reporters should also separately notify law enforcement authorities having jurisdiction in the case.
DHS 13.05(5) (5)Forwarding findings from other investigations to the department. Upon conclusion of an investigation conducted pursuant to a report made under sub. (3) (b) or (c) or (4) to county authorities in accordance with s. 48.981, Stats., or s. 46.90, Stats., or to the department of safety and professional services, the county authorities or the department of safety and professional services shall forward the findings to the department.
DHS 13.05(6) (6)Review by the department.
DHS 13.05(6)(a)(a) Responsibility. The department shall review and, if necessary, conduct further investigation in regard to each report it receives under sub. (3) or (4). The department shall coordinate its investigatory efforts with other investigatory authorities or agencies where appropriate and, if necessary, conduct further investigation when notified of allegations under subs. (3) (c) and (4) (c).
DHS 13.05(6)(b) (b) Investigation procedures.
DHS 13.05(6)(b)1.1. After receiving a report of alleged misconduct, the department shall review the report and shall make a determination as to whether further investigation is necessary. In reviewing reports it receives, the department shall consider at least all of the following:
DHS 13.05(6)(b)1.a. a. Whether the allegation of misconduct is a violation of any statute, rule or standard of practice.
DHS 13.05(6)(b)1.b. b. Whether the allegation of misconduct, if taken as a whole, has merit.
DHS 13.05(6)(b)2. 2. If the department determines that an allegation lacks merit, the department shall notify in writing the reporter, the subject of the report and the involved entity or staffing agency, if known, of the department's determination.
DHS 13.05(6)(b)3. 3. If the department determines further investigation of a report is necessary, the department shall provide the subject of the report, the reporter and the involved entity or the staffing agency, if known, with written notice of the department's decision to conduct further investigation. The notice shall contain all of the following:
DHS 13.05(6)(b)3.a. a. A brief statement regarding the nature and purpose of the investigation.
DHS 13.05(6)(b)3.b. b. The sanctions that will result if the allegation of misconduct is substantiated.
DHS 13.05(6)(b)3.c. c. A statement that if additional allegations are discovered during the course of the investigation, the additional allegations will be investigated as part of the report that is the subject of the notice.
DHS 13.05(6)(b)3.d. d. A statement that the subject of the report may have a representative of his or her choice present when there is any contact with the department's investigators during the course of the investigation.
DHS 13.05(6)(c) (c) Decision. After completing its investigation, the department shall prepare a written decision and provide it to the subject of the report. If the decision is mailed, it shall be mailed to the subject's last known address. Distribution and content of the written decision shall be as follows:
DHS 13.05(6)(c)1. 1. `No reasonable cause to substantiate the allegation.' If the department determines that there is no reasonable cause to substantiate the allegation, the department's written decision shall be provided to the subject of the report, the involved entity or staffing agency, if known, the reporter and to other agencies as appropriate. The decision shall contain a brief description of the allegation and the investigation conducted by the department, with enumeration of the findings and conclusions. If an additional allegation was discovered during the investigation, the department's decision may include information about the additional allegation and of the department's decision regarding the additional allegation, or the department may separately inform the subject of the report of the additional allegation and of the department's decision regarding the additional allegation.
DHS 13.05(6)(c)2. 2. `Reasonable cause to substantiate the allegation.' If the department determines there is reasonable cause to substantiate the allegation, the department's written decision shall be provided to the subject of the report, the involved entity or staffing agency, if known, the reporter and to other agencies as appropriate. The decision shall contain all of the following:
DHS 13.05(6)(c)2.a. a. A description of the allegation, a summary of the investigation conducted by the department and a statement of the findings and conclusions. If an additional allegation was discovered during the investigation related to the report, the department's decision may include information about the additional allegation and of the department's decision regarding the additional allegation, or the department may separately inform the subject of the report of the additional allegation and of the department's decision regarding the additional allegation.
DHS 13.05(6)(c)2.b. b. Notice that the subject of the report may contest the department's decision by timely requesting a hearing before the department of administration's division of hearings and appeals. The notice shall describe the appeal process under sub. (7).
DHS 13.05(6)(c)2.c. c. Notice that the subject of the report may waive the right to a hearing, but, that if the subject waives the right to a hearing, the finding will be entered on the caregiver misconduct registry.
DHS 13.05(6)(c)2.d. d. Notice that if the subject of the report does not contest the department's decision by timely requesting a hearing, the department will find that the subject committed the alleged act of misconduct and that the finding will be entered on the caregiver misconduct registry. The notice shall also describe the consequences of entering the finding on the registry.
DHS 13.05(6)(c)2.e. e. Notice that the subject of the report, whether or not the subject appeals the department's decision, may submit a short written rebuttal statement to dispute the finding, and that the statement's existence will be included in the caregiver misconduct registry but will not, by itself, have any effect on the consequences of having the finding entered on the registry.
DHS 13.05(7) (7)Appeal.
DHS 13.05(7)(a)(a) Right to a hearing. The subject of a report may appeal the department's decision that the misconduct took place.
DHS 13.05(7)(b) (b) Request for a hearing. An appeal shall be in writing and shall take the form of a request for a hearing. The request for a hearing shall be filed with the department of administration's division of hearings and appeals within 30 calendar days after the date of the decision. A request for hearing is considered filed on the date the request is received by the division of hearings and appeals.
DHS 13.05 Note Note: Send requests for a hearing to Division of Hearings and Appeals, P.O. Box 7875, Madison, Wisconsin 53707. An appeal may be delivered to the Division at 5005 University Avenue, Room 201, Madison, Wisconsin.
DHS 13.05(7)(c) (c) Department action.
DHS 13.05(7)(c)1.1. If the subject of a report files a timely appeal, the department may not enter the subject's name and a summary of the department's decision on the caregiver misconduct registry until the hearing examiner's decision is mailed and then only in accordance with par. (d).
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.