1997 Wisconsin Act 237

1. The inherent complexity of a service prescribed for a resident is such that it can be safely and effectively performed only by or under the supervision of registered nurses or licensed practical nurses.

2. The full recovery or medical improvement of the resident is not possible, but the services are needed to prevent, to the extent possible, deterioration of the resident's condition or to sustain current capacities of the resident.

3. Because of special medical complications, performing or supervising a service that is generally unskilled or observing the resident necessitates the use of a person whose licensed, registered, certified or permitted scope of practice is at least equivalent to that of a licensed practical nurse.

237,225g Section 225g. 50.02 (2) (bm) of the statutes is created to read:

50.02 (2) (bm) The department shall, by rule, define “intermediate nursing care", “limited nursing care" and “skilled nursing services" for use in regulating minimum hours of service provided to residents of nursing homes.

237,225h Section 225h. 50.02 (2) (bn) of the statutes is created to read:

50.02 (2) (bn) The department may, by rule, increase the minimum hours of nursing home care per day that are specified in s. 50.04 (2) (d) 1. to 3.

237,226 Section 226 . 50.035 (10) of the statutes is created to read:

50.035 (10) Exceptions to care limitations. (a) Notwithstanding the limitations on the type of care that may be required by and provided to residents under s. 50.01 (1g) (intro.), the following care may be provided in a community-based residential facility under the following circumstances:

1. Subject to par. (b), a community-based residential facility may provide more than 3 hours of nursing care per week or care above intermediate level nursing care for not more than 30 days to a resident who does not have a terminal illness but who has a temporary condition that requires the care, if all of the following conditions apply:

a. The resident is otherwise appropriate for the level of care that is limited in a community-based residential facility under s. 50.01 (1g) (intro.).

b. The services necessary to treat the resident's condition are available in the community-based residential facility.

2. Subject to par. (b) and if a community-based residential facility has obtained a waiver from the department or has requested such a waiver from the department and the decision is pending, the community-based residential facility may provide more than 3 hours of nursing care per week or care above intermediate level nursing care for more than 30 days to a resident who does not have a terminal illness but who has a stable or long-term condition that requires the care, if all of the following conditions apply:

a. The resident is otherwise appropriate for the level of care that is limited in a community-based residential facility under s. 50.01 (1g) (intro.).

b. The services necessary to treat the resident's condition are available in the community-based residential facility.

c. The community-based residential facility has obtained a waiver from the department under this subdivision or has requested such a waiver from the department and the decision is pending.

3. A community-based residential facility may provide more than 3 hours of nursing care per week or care above intermediate level nursing care to a resident who has a terminal illness and requires the care, under the following conditions:

a. If the resident's primary care provider is a licensed hospice or a licensed home health agency.

b. If the resident's primary care provider is not a licensed hospice or a licensed home health agency, but the community-based residential facility has obtained a waiver of the requirement under subd. 3. a. from the department or has requested such a waiver and the department's decision is pending.

(b) A community-based residential facility may not have a total of more than 4 residents or 10% of the facility's licensed capacity, whichever is greater, who qualify for care under par. (a) 1. or 2. unless the facility has obtained a waiver from the department of the limitation of this paragraph or has requested such a waiver and the department's decision is pending.

(c) The department may grant a waiver of the limitation under par. (a) 2. or 3. a. or (b).

237,226bd Section 226bd. 50.04 (2) (d) of the statutes is created to read:

50.04 (2) (d) Each nursing home, other than nursing homes that primarily serve the developmentally disabled, shall provide at least the following hours of service by registered nurses, licensed practical nurses or nurse's assistants:

1. For each resident in need of intensive skilled nursing care, 3.25 hours per day, of which a minimum of 0.65 hour shall be provided by a registered nurse or licensed practical nurse.

2. For each resident in need of skilled nursing care, 2.5 hours per day, of which a minimum of 0.5 hour shall be provided by a registered nurse or licensed practical nurse.

3. For each resident in need of intermediate or limited nursing care, 2.0 hours per day, of which a minimum of 0.4 hour shall be provided by a registered nurse or licensed practical nurse.

237,226bm Section 226bm. 50.04 (2v) of the statutes, as affected by 1997 Wisconsin Act 114, is renumbered 50.04 (2v) (intro.) and amended to read:

50.04 (2v) Posting of notice required. (intro.) A nursing home shall post in a conspicuous location in the nursing home a all of the following:

(a) A notice, provided by the board on aging and long-term care, of the name, address and telephone number of the long-term care ombudsman program under s. 16.009 (2) (b).

237,226br Section 226br. 50.04 (2v) (b) of the statutes is created to read:

50.04 (2v) (b) The most recent copy of the report for the nursing home that is specified under s. 50.095 (3).

237,226c Section 226c. 50.04 (4) (d) of the statutes is created to read:

50.04 (4) (d) Suspension of admissions. 1. The department shall suspend new admissions to a nursing home if all of the following apply:

a. The nursing home received notices of violation for a class “A" violation or 3 or more class “B" violations in the previous 12 months.

b. The nursing home received notices of violation for a class “A" violation or 3 or more class “B" violations in any 12-month period during the 3 years immediately preceding the period specified in subd. 1. a.

2. A suspension of admissions under subd. 1. shall begin 90 days after a nursing home received its last notice of violation for a class “A" or class “B" violation if the department determines that the violation remains uncorrected 90 days after the nursing home received the last notice of the violation. If the nursing home indicates to the department that the violation has been corrected, but the department is unable to verify that the violation has been corrected, a suspension of admissions under subd. 1. shall begin on the day that the department makes a return visit to the nursing home and determines that the violation has not been corrected. A suspension of admissions under subd. 1. shall remain in effect until the department determines that all class “A" and class “B" violations by the nursing home have been corrected. Admission of a new resident during the period for which admissions have been suspended constitutes a class “B" violation.

3. In determining whether subd. 1. applies, the department may not consider a notice of violation found to be unjustified after hearing.

4. If the department suspends new admissions to a nursing home under this paragraph, the department shall publish a class 1 notice under ch. 985 in a newspaper likely to give notice in the area where the nursing home is located.

237,226d Section 226d. 50.04 (5) (a) 1., 2. and 3. (intro.) of the statutes are amended to read:

50.04 (5) (a) 1. A class “A" violation may be subject to a forfeiture of not more than $5,000 $10,000 for each violation.

2. A class “B" violation may be subject to a forfeiture of not more than $1,000 $5,000 for each violation.

3. (intro.) A class “C" violation may be subject to a forfeiture of not more than $100 $500. No forfeiture may be assessed for a class “C" violation unless at least one of the following applies:

237,226e Section 226e. 50.04 (5) (a) 5. of the statutes is repealed and recreated to read:

50.04 (5) (a) 5. a. A nursing home that violates a statute or rule resulting in a class “A" violation and that has received a notice of violation for a class “A" violation within the previous 3-year period shall be subject to a forfeiture 3 times the amount authorized for a class “A" violation.

b. Except as provided in subd. 5. a., a nursing home that violates a statute or rule resulting in a class “A" or class “B" violation and that has received a notice of violation of the same statute or rule within the previous 3-year period may be subject to a forfeiture 3 times the amount authorized for a class “B" violation.

c. A notice of violation found to be unjustified after hearing may not be considered in applying this subdivision.

d. The forfeiture amount that is tripled under this subdivision shall be the amount assessed after all appeals have been exhausted. If an assessment of forfeiture is not contested and the forfeiture is paid as provided in par. (fm), the forfeiture amount that is tripled is the amount assessed after the reduction specified in par. (fm).

237,226f Section 226f. 50.04 (5) (a) 6. of the statutes is amended to read:

50.04 (5) (a) 6. If a licensee fails to correct a violation within the time specified in the notice of violation or approved plan of correction, or within the extended correction time granted under sub. (4) (c) 4., or if a violation continues after a report of correction, a separate forfeiture may be assessed the department may assess upon the licensee in an amount not to exceed a separate forfeiture of not more than $10,000 for class “A" violations, and may assess a separate forfeiture of not more than $5,000 for class “B" violations, for each day of continuing violation, $5,000 for class “A" violations and $1,000 for class “B" violations.

237,226g Section 226g. 50.04 (5) (fm) of the statutes is created to read:

50.04 (5) (fm) Forfeiture reduction for timely payment. If a nursing home does not contest a notice of violation under sub. (4) (e) and does not contest an assessment of forfeiture under par. (e) for a class “A" or class “B" violation and pays the forfeiture to the department within 10 days after receipt of the notice of assessment, the department shall reduce the amount of the assessment by 35%.

237,226h Section 226h. 50.04 (5) (fr) of the statutes is created to read:

50.04 (5) (fr) Report to the legislature. Annually, the department shall submit a report to the legislature under s. 13.172 (2) that specifies for the previous year the number of class “A" violations, the amount of the forfeiture assessment for each of those violations and, if known, the amount of the forfeiture actually paid and collected with respect to those violations. The report shall also include an explanation for any assessment that was less than $2,500 for the violations specified in the report.

237,227 Section 227 . 50.065 (1) (am) of the statutes is created to read:

50.065 (1) (am) “Certificate of approval" means a certificate of approval issued under s. 50.35.

237,228 Section 228 . 50.065 (1) (b) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (1) (b) “Client" means a person who receives direct care or treatment services from an entity.

237,229 Section 229 . 50.065 (1) (c) (intro.) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (1) (c) (intro.) “Entity" means a facility, organization or service that is regulated, 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 and a supportive home care service agency. “Entity" does not include any of the following:

237,230 Section 230 . 50.065 (1) (c) 3. of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (1) (c) 3. A person certified as a medical assistance provider, as defined in s. 49.43 (10), who is not otherwise regulated approved under s. 50.065 (1) (cm), licensed or certified by or registered with the department.

237,231 Section 231 . 50.065 (1) (c) 5. of the statutes, as created by 1997 Wisconsin Act 27, is repealed.

237,232 Section 232 . 50.065 (1) (c) 6. of the statutes is created to read:

50.065 (1) (c) 6. A public health dispensary established under s. 252.10.

237,233 Section 233 . 50.065 (1) (cm) of the statutes is created to read:

50.065 (1) (cm) “Hospital" means a facility approved as a hospital under s. 50.35.

237,234 Section 234 . 50.065 (2) (a) (intro.) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (2) (a) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), the department may not license, certify, issue a certificate of approval to or register a person to operate an entity or continue the license, certification, certificate of approval or registration of a person to operate an entity if the department knows or should have known any of the following:

237,235 Section 235 . 50.065 (2) (am) (intro.) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (2) (am) (intro.) The Subject to subd. 5. and par. (bd), the department shall obtain all of the following with respect to a person specified under par. (a) (intro.) and a person specified under par. (ag) (intro.) who is a nonclient resident or prospective nonclient resident of an entity:

237,236 Section 236 . 50.065 (2) (am) 5. of the statutes is created to read:

50.065 (2) (am) 5. Information maintained by the department under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration to operate an entity for a reason specified in par. (a) 1. to 5. and regarding any denial to the person of employment at, a contract with or permission to reside at an entity for a reason specified in par. (ag) 1. to 5. If the information obtained under this subdivision indicates that the person has been denied a license, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subdivision, the department need not obtain the information specified in subds. 1. to 4.

237,237 Section 237 . 50.065 (2) (b) 1. (intro.) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (2) (b) 1. (intro.) Subject to subds. 1. e. and 2. and 3. par. (bd), every entity shall obtain all of the following with respect to a person specified under par. (ag) (intro.) who is an employe or contractor or a prospective employe or contractor of the entity:

237,238 Section 238 . 50.065 (2) (b) 1. e. of the statutes is created to read:

50.065 (2) (b) 1. e. Information maintained by the department under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration to operate an entity for a reason specified in par. (a) 1. to 5. and regarding any denial to the person of employment at, a contract with or permission to reside at an entity for a reason specified in par. (ag) 1. to 5. If the information obtained under this subd. 1. e. indicates that the person has been denied a license, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subd. 1. e., the entity need not obtain the information specified in subd. 1. a. to d.

237,239 Section 239 . 50.065 (2) (b) 3. of the statutes, as created by 1997 Wisconsin Act 27, is renumbered 50.065 (2) (bd) and amended to read:

50.065 (2) (bd) Subdivision 1. does not apply Notwithstanding pars. (am) and (b) 1., the department is not required to obtain the information specified in par. (am) 1. to 5., and an entity is not required to obtain the information specified in par. (b) 1. a. to e., with respect to a person under 18 years of age whose background information form under sub. (6) (am) indicates that the person is not ineligible to be employed, contracted with or permitted to reside at the an entity for a reason specified in par. (ag) 1. to 5. and with respect to whom the department or entity otherwise has no reason to believe that the person is ineligible to be employed, contracted with or permitted to reside at the an entity for any of those reasons. This paragraph does not preclude the department from obtaining, at its discretion, the information specified in par. (am) 1. to 5. with respect to a person described in this paragraph who is a nonclient resident or a prospective nonclient resident of an entity.

237,240 Section 240 . 50.065 (2) (bg) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (2) (bg) If an entity takes an action specified in par. (ag) (intro.) with respect to a person an employe, prospective employe, contractor or prospective contractor for whom, within the last 4 years, the information required under par. (b) 1. a. to c. and e. has already been obtained, either by another entity or by a temporary employment agency, the entity may obtain the information required under par. (b) 1. a. to c. and e. from that other entity or temporary employment agency, which shall provide the information, if possible, to the entity. If an entity cannot obtain the information required under par. (b) 1. a. to c. and e. from another entity or from a temporary employment agency or if an entity has reasonable grounds to believe that any information obtained from another entity or from a temporary employment agency is no longer accurate, the entity shall obtain that information from the sources specified in par. (b) 1. a. to c and e.

237,241 Section 241 . 50.065 (2) (c) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (2) (c) If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be employed, or contracted with or permitted to reside at an entity for a reason specified in par. (ag) 1. to 5., an entity may employ or contract with the person or permit the person to reside at the entity for not more than 60 days pending the receipt of the information sought under par. (b) 1. If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be permitted to reside at an entity for a reason specified in par. (ag) 1. to 5. and if an entity otherwise has no reason to believe that the person is ineligible to be permitted to reside at an entity for any of those reasons, the entity may permit the person to reside at the entity for not more than 60 days pending receipt of the information sought under par. (am). An entity shall provide supervision for a person who is employed or contracted with or permitted to reside as permitted under this paragraph.

237,242 Section 242 . 50.065 (3) (a) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (3) (a) Every 4 years or at any time within that period that the department considers appropriate, the department shall request the information specified in sub. (2) (am) 1. to 4. for all persons who are licensed to operate an entity and for all persons specified in par. (ag) (intro.) who are nonclient residents of an entity.

237,243 Section 243 . 50.065 (3) (b) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (3) (b) Every 4 years or at any other time within that period that an entity considers appropriate, the entity shall request the information specified in sub. (2) (b) 1. a. to d. for all persons specified in sub. (2) (ag) (intro.) who are employes or contractors of the entity.

237,244 Section 244 . 50.065 (3m) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read:

50.065 (3m) Notwithstanding subs. (2) (b) 1. and (3) (b), if the department obtains the information required under sub. (2) (am) or (3) (a) with respect to a person specified in sub. (2) (a) (intro.) and that person is also an employe, contractor or nonclient resident of the entity, the entity is not required to obtain the information specified in sub. (2) (b) 1. or (3) (b) with respect to that person.

237,245 Section 245 . 50.065 (5) (intro.) of the statutes, as created by 1997 Wisconsin Act 27, is amended to read: