Local government fiscal effect
Indeterminate. Increase costs.
Local government units affected
Counties.
Private sector fiscal effect
Indeterminate. Increase revenues and Increase costs. Costs will not have significant economic impact on a substantial number of small businesses.
Long-range fiscal implications
None anticipated.
Text of Proposed Rule
SECTION 1. Chapter DHS 85 is repealed and recreated to read:
Chapter DHS 85
Private Non-profit Corporations and Unincorporated Associations as Guardians
Subchapter I — General Provisions
DHS 85.01 Purpose and authority. This chapter is promulgated under the authority of s.
54.15 (7), Stats., and ch.
227.11 (2) (a), Stats., to establish the criteria by which the department determines whether a private nonprofit corporation organized under ch.
181,
187, or
188, Stats., or an unincorporated association is suitable to perform the duties of a guardian of the person, or of the estate, or both, of a proposed ward.
DHS 85.02 Applicability. This rule applies to private non-profit corporations or unincorporated associations applying to the department for consideration of suitability to perform the duties of guardian of a person or of an estate, or both, of a proposed ward.
DHS 85.03 Definitions. As used in this chapter:
(1) “Applicant" means a private nonprofit corporation or an unincorporated association that applies to the department for a finding of suitability to perform the duties of a corporate guardian.
(2) “Corporate guardian" or “guardian" means a private nonprofit corporation or an unincorporated association appointed by a court to serve as guardian of the person, or of the estate, or both, of an individual who is found by a court to be in need of a guardian.
(3) “Department" means the Wisconsin department of health services.
(4) “Guardian of the estate" has the meaning given under s.
54.01 (11), Stats.,
(5) “Guardian of the person" has the meaning given under s.
54.01 (12), Stats.
(6) “Guardianship program" means a system that is established by a corporate guardian to manage the income and assets and provide for the essential requirements for health and safety and the personal needs of its wards under ch.
54, Stats.
(7) “Guardianship program manager" means an employee designated by a corporate guardian, who is responsible for the management and day–to-day operation of the guardianship program.
(8) “Guardian representative" means an individual assigned by a guardian to perform the functions of the guardian of the person under s.
54.25 (1) and
(2), Stats., or of the estate under s.
54.19 and
54.20, Stats., or both, of a ward.
(9) “Successor guardian" has the meaning given in s.
54.01 (35), Stats.
(10) “Unincorporated association" is an organization organized under ch.
184, Stats.
(11) “Ward" has the meaning given under s.
54.01(37), Stats.
DHS 85.04 Waivers and variances. (1) DEFINITIONS. In this section:
(a) “Variance" means the granting of an alternate requirement in place of a requirement of this chapter.
(b) “Waiver" means the granting of an exemption from a requirement of this chapter.
(2) REQUIREMENTS FOR WAIVERS AND VARIANCES. The department may grant a waiver or variance of a requirement of this chapter to the corporate guardian if the department finds that the waiver or variance will not adversely affect the health, safety, or welfare of any ward and that:
(a) Strict enforcement of a requirement would result in unreasonable hardship on the ward.
(b) An alternative to a requirement, including a new concept, method, procedure or technique, other equipment, other personnel qualifications, or the conducting of a pilot project, is in the interests of better care or management.
(3) APPLYING FOR A WAIVER OR VARIANCE. A corporate guardian may apply for a waiver or variance at any time. Each request shall be made in writing to the department and include all of the following:
(a) The rule provision from which the waiver or variance is requested.
(b) The time period for which the waiver or variance is requested.
(c) If the request is for a variance, the specific proposed alternative action.
(d) The reasons for the request.
(e) Justification that a requirement under sub. (2) would be satisfied.
(f) Any other information requested by the department.
(4) DEPARTMENT DECISION. (a) The department shall grant or deny each request for waiver or variance in writing. A notice of denial shall contain the reasons for denial. If a notice of denial is not issued within 60 days after the receipt of a complete request, the waiver or variance shall be automatically approved.
(b) The terms of a requested variance may be modified upon agreement between the department and the corporate guardian.
(c) The department may impose conditions on the waiver or variance which it deems necessary.
(d) The department may limit the duration of a waiver or variance.
(5) HEARINGS.
(a) Denial of a request for a waiver or variance may be contested by requesting a hearing as provided by ch.
227, Stats.
(b) The licensee shall sustain the burden of proving that the denial of a waiver or variance was unreasonable.
(6) REVOCATION. The department may revoke a waiver or variance for any of the following reasons:
(a) The department determines that the waiver or variance is adversely affecting the health, safety or welfare of the wards.
(b) The guardian has failed to comply with the waiver or variance as granted.
(c) The licensee notifies the department in writing of the desire to relinquish the waiver or variance and be subject to the requirement previously waived or varied.
(d) Revocation is required by a change in law.
Subchapter II — Approvals
DHS 85.05 Application. (1) APPLICATION. Only a private nonprofit corporation or an unincorporated association may apply to the department for a determination that the corporation or association is suitable to perform the duties of a guardian. A corporation or association applying for such a determination shall apply to the department on an application form provided by the department. The applicant shall submit the completed application and all of the following to the department:
(a) The filed endorsement of the Articles of Incorporation submitted to the Wisconsin department of financial institutions, if applicable.
(b) A copy of the applicant's written grievance procedure for use by wards and interested parties.
(c) A business plan that includes staffing projections.
(d) Any additional information requested by the department.
DHS 85.06 Criteria for approval. The department may not approve an applicant until the department determines the applicant is fit and qualified to receive a determination of suitability to perform the duties of a corporate guardian. In determining whether an applicant is fit and qualified, the department may consider all of the following:
(1) Compliance history with Wisconsin's or any other state's licensing requirements and with any federal certification requirements, including any license revocation or denial.
(2) Arrest history and criminal record, including any of the following:
(a) Crimes or acts involving abuse, neglect or mistreatment of a person or misappropriation of property of the person.
(b) Crimes or acts related to the manufacture, distribution, prescription, use, or dispensing of a controlled substance.
(c) Fraud or substantial or repeated violations of applicable laws and rules in the operation of any health care facility or in the care of dependent persons.
(d) A conviction or pending criminal charge which substantially relates to the care of adults or minors, to the funds or property of adults or minors, or to the operation of a residential or health care facility or agency.
(3) Financial stability, including all of the following:
(a) Financial history and financial viability of the owner or related organization.
(b) Outstanding debts or amounts due to the department or other government agencies, including unpaid forfeitures and fines.
DHS 85.07 Change of ownership. (1) If a corporate guardian sells or otherwise transfers ownership of the corporation or the association, the guardian shall notify each of its wards, the department, the court, designated counties, and all agencies or persons serving the ward in writing at least 30 days before the final transfer of ownership. This notice shall include the name and contact information of the new corporation.
(2) The corporate guardian shall remain responsible for each ward until a successor guardian is appointed by the court.
(3) The corporate guardian shall transfer the original records of its wards to the successor guardian appointed by the court.
DHS 85.08 Corporate guardian closing. (1) If a guardian is a corporation and the corporation's corporate status is revoked by the department of financial institutions or is voluntarily or involuntarily dissolved, or if the guardian is an unincorporated association and the association's status is voluntarily or involuntarily dissolved by the members or a court, or becomes inactive, the guardian shall notify each of its wards, the department, the court, designated counties, and all agencies or persons serving the ward in writing at least 30 days before the corporation closes.
(2) The corporate guardian shall remain responsible for each ward until a successor guardian is appointed by the court.
(3) The corporate guardian shall transfer the original records of its wards to the successor guardian appointed by the court.
Subchapter III — Personnel
DHS 85.09 Staff. (1) GUARDIANSHIP PROGRAM MANAGER (a) The guardian shall designate an employee who is 21 years or older and is fit and qualified under s.
50.03 (4), Stats., to manage its guardianship program.
(b) The guardianship program manager shall have a high school diploma or equivalency and have at least 3 years of relevant experience.
(c) The guardianship program manager shall be responsible for the ongoing training and competency of all employees.
(d) Any change of guardianship program manager shall be communicated to the department and the county department designated under s.
55.02, Stats., within 14 days following the effective date of the change.
(2) OTHER EMPLOYEES. (a) Except at provided in sub. (1) (a) each employee shall have the skills, education and ability to fulfill the employee's job requirements.
(b) An employee that has direct contact with a ward shall be at least 18 years old.
(3) BACKGROUND CHECK. At the time of hire, employment or contract and every four years after, the corporate guardian shall conduct and document a caregiver background check on each employee following the procedures in s.
50.065, Stats., and ch.
DHS 12. A guardian may not employ or contract with a person who has been convicted of the crimes or offenses, or has a governmental finding of misconduct found in s.
50.065, Stats., and ch.
DHS 12, Appendix
A, unless the person has been approved under the department's rehabilitation review process as defined in ch.
DHS 12.
(4) EMPLOYEE RECORDS. A separate record for each employee shall be maintained, kept current, and include all of the following:
(a) A written job description including duties, responsibilities and qualifications required for the employee.
(b) Beginning date of employment.
(c) Educational qualifications, relevant experience.
(d) The results of the background checks required under sub. (3).
(e) Documentation of training.
(5) VOLUNTEERS. The guardian may use volunteers if the volunteer receives the orientation and training necessary to assure the health, safety and welfare of wards.
DHS 85.10 Training. (1) INITIAL TRAINING. Before performing the duties of a guardian, each guardian representative shall receive training that includes all of the following:
