1999 Wisconsin Act 9

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. sub. (4m) (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) sub. (4m) (b) 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.

9,1521v Section 1521v. 50.065 (2) (b) 1. of the statutes is renumbered 50.065 (2) (b), and 50.065 (2) (b) (intro.) and 5., as renumbered, are amended to read:

50.065 (2) (b) (intro.) Subject to subds. 1. e. and 2. and par. (bd), every 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 caregiver of the entity:

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. sub. (4m) (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) sub. (4m) (b) 1. to 5. If the information obtained under this subd. 1. e. 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 subd. 1. e. subdivision, the entity need not obtain the information specified in subd. subds. 1. a. to d. to 4.

9,1521w Section 1521w. 50.065 (2) (b) 2. of the statutes is repealed.

9,1521xd Section 1521xd. 50.065 (2) (bb) of the statutes is created to read:

50.065 (2) (bb) If information obtained under par. (am) or (b) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department or entity shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If a background information form under sub. (6) (a) or (am) indicates a charge or a conviction of a serious crime, but information obtained under par. (am) or (b) does not indicate such a charge or conviction, the department or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and the final disposition of the complaint. If information obtained under par. (am) or (b), a background information form under sub. (6) (a) or (am) or any other information indicates a conviction of a violation of s. 940.19 (1), 940.195, 940.20, 941.30, 942.08, 947.01 or 947.013 obtained not more than 5 years before the date on which that information was obtained, the department or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and judgment of conviction relating to that violation.

9,1521y Section 1521y. 50.065 (2) (bd) of the statutes is amended to read:

50.065 (2) (bd) 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. to 5., 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 an entity for a reason specified in par. (ag) sub. (4m) (b) 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 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.

9,1521z Section 1521z. 50.065 (2) (bg) of the statutes is amended to read:

50.065 (2) (bg) If an entity takes an action specified in par. (ag) (intro.) with respect to an employe, prospective employe, contractor or prospective contractor hires or contracts with a caregiver for whom, within the last 4 years, the information required under par. (b) 1. a. to c. 3. and e. 5. has already been obtained , either by another entity or by a temporary employment agency, the entity may obtain the that 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 requesting entity. If an entity cannot obtain the information required under par. (b) 1. a. to c. 3. and e. 5. 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 3. and e. 5.

9,1521zb Section 1521zb. 50.065 (2) (bm) of the statutes is amended to read:

50.065 (2) (bm) If the person who is the subject of the search under par. (am) or (b) 1. is not a resident of this state, or if at any time within the 3 years preceding the date of the search that person has not been a resident of this state, or if the department or entity determines that the person's employment, licensing or state court records provide a reasonable basis for further investigation, the department or entity shall make a good faith effort to obtain from any state or other United States jurisdiction in which the person is a resident or was a resident within the 3 years preceding the date of the search information that is equivalent to the information specified in par. (am) 1. or (b) 1. a. The department or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions.

9,1521zc Section 1521zc. 50.065 (2) (c) of the statutes is renumbered 50.065 (4m) (c) and amended to read:

50.065 (4m) (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 for a reason specified in par. (ag) (b) 1. to 5., an entity may employ or contract with the person for not more than 60 days pending the receipt of the information sought under par. sub. (2) (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) (b) 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. sub. (2) (am). An entity shall provide supervision for a person who is employed or contracted with or permitted to reside as permitted under this paragraph.

9,1521zd Section 1521zd. 50.065 (2) (d) of the statutes is created to read:

50.065 (2) (d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver under par. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.

9,1521ze Section 1521ze. 50.065 (3) (a) of the statutes 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. 5. 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.

9,1521zf Section 1521zf. 50.065 (3) (b) of the statutes 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. 5. for all persons specified in sub. (2) (ag) (intro.) who are employes or contractors caregivers of the entity.

9,1521zg Section 1521zg. 50.065 (3m) of the statutes 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.) who is a caregiver specified under sub. (1) (ag) 1. b. 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.

9,1521zh Section 1521zh. 50.065 (4) of the statutes is amended to read:

50.065 (4) An entity that violates sub. (2) or, (3) or (4m) (b) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

9,1521zi Section 1521zi. 50.065 (4m) (b) (intro.) of the statutes, as affected by 1999 Wisconsin Act .... (this act), is amended to read:

50.065 (4m) (b) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), an entity may not hire employ or contract with a caregiver or permit to reside at the entity a nonclient resident, if the entity knows or should have known any of the following:

9,1521zj Section 1521zj. 50.065 (5) (intro.) of the statutes is renumbered 50.065 (5) and amended to read:

50.065 (5) The department may license, certify, issue a certificate of approval to or register to operate an entity a person who otherwise may not be licensed, certified, issued a certificate of approval or registered for a reason specified in sub. (2) (4m) (a) 1. to 5., and an entity may employ, contract with or permit to reside at the entity a person who otherwise may not be employed, contracted with or permitted to reside at the entity for a reason specified in sub. (2) (ag) (4m) (b) 1. to 5., if the person demonstrates to the department, or, in the case of an entity that is located within the boundaries of a reservation, to the person or body designated by the tribe under sub. (5d) (a) 3., by clear and convincing evidence and in accordance with procedures established by the department by rule, or by the tribe, that he or she has been rehabilitated. No person who has been convicted of any of the following offenses may be permitted to demonstrate that he or she has been rehabilitated:

9,1521zk Section 1521zk. 50.065 (5) (a) to (e) of the statutes are repealed.

9,1521zL Section 1521zL. 50.065 (5d) of the statutes is created to read:

50.065 (5d) (a) Any tribe that chooses to conduct rehabilitation reviews under sub. (5) shall submit to the department a rehabilitation review plan that includes all of the following:

1. The criteria to be used to determine if a person has been rehabilitated.

2. The title of the person or body designated by the tribe to whom a request for review must be made.

3. The title of the person or body designated by the tribe to determine whether a person has been rehabilitated.

3m. The title of the person or body designated by the tribe to whom a person may appeal an adverse decision made by the person specified under subd. 3. and whether the tribe provides any further rights of appeal.

4. The manner in which the tribe will submit information relating to a rehabilitation review to the department so that the department may include that information in its report to the legislature required under sub. (5g).

5. A copy of the form to be used to request a review and a copy of the form on which a written decision is to be made regarding whether a person has demonstrated rehabilitation.

(b) If, within 90 days after receiving the plan, the department does not disapprove the plan, the plan shall be considered approved. If, within 90 days after receiving the plan, the department disapproves the plan, the department shall provide notice of that disapproval to the tribe in writing, together with the reasons for the disapproval. The department may not disapprove a plan unless the department finds that the plan is not rationally related to the protection of clients. If the department disapproves the plan, the tribe may, within 30 days after receiving notice of the disapproval, request that the secretary review the department's decision. A final decision under this paragraph is not subject to further review under ch. 227.

9,1521zm Section 1521zm. 50.065 (5m) of the statutes is amended to read:

50.065 (5m) Notwithstanding s. 111.335, the department may refuse to license, certify or register, or issue a certificate of approval to, a person to operate an entity, caregiver and an entity may refuse to employ, or contract with a caregiver or to permit a nonclient resident to reside at the entity a person specified in sub. (2) (ag) (intro.), if the person caregiver or nonclient resident has been convicted of an offense that the department has not defined as a "serious crime" by rule promulgated under sub. (7) (a), or specified in the list established by rule under sub. (7) (b) is not a serious crime, but that is, in the estimation of the department or entity, substantially related to the care of a client.

9,1521zn Section 1521zn. 50.065 (6) (am) (intro.) of the statutes is renumbered 50.065 (6) (am) and amended to read:

50.065 (6) (am) Every 4 years an entity shall require all of the following persons its caregivers and nonclient residents to complete a background information form that is provided to the entity by the department:.

9,1521zp Section 1521zp. 50.065 (6) (am) 1. and 2. of the statutes are repealed.

9,1521zq Section 1521zq. 50.065 (6) (b) of the statutes is amended to read:

50.065 (6) (b) For persons specified under par. (a) caregivers who are licensed, issued a certificate of approval or certified by, or registered with, the department, for person specified in par. (am) 2. nonclient residents, and for other persons specified by the department by rule, the entity shall send the background information form to the department. For persons specified under par. (am) 1., the entity shall maintain the background information form on file for inspection by the department.

9,1521zr Section 1521zr. 50.065 (7) (a) and (b) of the statutes are repealed.

9,1522 Section 1522. 50.065 (8) of the statutes is amended to read:

50.065 (8) The department may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a) or for providing information to an entity to enable the entity to comply with sub. (2) (b) or (3) (b). The fee may not exceed the reasonable cost of obtaining the information. No fee may be charged to a nurse's assistant, as defined in s. 146.40 (1) (d), for obtaining or maintaining the information if to do so would be inconsistent with federal law.

9,1522w Section 1522w. 50.135 (1) of the statutes is amended to read:

50.135 (1) Definition. In this section, "inpatient health care facility" means any hospital, nursing home, county home, county mental hospital, tuberculosis sanatorium or other place licensed or approved by the department under ss. 49.70, 49.71, 49.72, 50.02, 50.03, 50.35, 51.08, and 51.09, 58.06, 252.073 and 252.076, but does not include community-based residential facilities.

9,1524 Section 1524. 50.135 (2) (c) of the statutes is amended to read:

50.135 (2) (c) The fees collected under par. (a) shall be credited to the appropriations under s. 20.435 (1) (4) (gm) and (6) (jm) as specified in those appropriations for licensing, review and certifying activities.

9,1525 Section 1525. 50.36 (2) (c) of the statutes is created to read:

50.36 (2) (c) The department shall promulgate rules that require that a hospital, before discharging a patient who is aged 65 or older or who has developmental disability or physical disability and whose disability or condition requires long-term care that is expected to last at least 90 days, refer the patient to the resource center under s. 46.283. The rules shall specify that this requirement applies only if the secretary has certified under s. 46.281 (3) that a resource center is available for the hospital and for specified groups of eligible individuals that include persons seeking admission to or patients of the hospital.

9,1526 Section 1526. 50.38 of the statutes is created to read:

50.38 Forfeitures. (1) Whoever violates rules promulgated under s. 50.36 (2) (c) may be required to forfeit not more than $500 for each violation.

(2) The department may directly assess forfeitures provided for under sub. (1). If the department determines that a forfeiture should be assessed for a particular violation, the department shall send a notice of assessment to the hospital. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated, and shall inform the hospital of the right to a hearing under sub. (3).

(3) A hospital may contest an assessment of a forfeiture by sending, within 10 days after receipt of notice under sub. (2), a written request for a hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for a hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.

(4) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under sub. (3), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order. The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

(5) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this section if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.

9,1526g Section 1526g. 50.39 (2) of the statutes is amended to read:

50.39 (2) The use of the title "hospital" to represent or identify any facility which does not meet the definition of a "hospital" as provided herein or is not subject to approval under ss. 50.32 to 50.39 is prohibited, except that institutions governed by ss. s. 51.09 and 252.073 are exempt.

9,1526h Section 1526h. 50.39 (3) of the statutes is amended to read:

50.39 (3) Facilities governed by ss. 45.365, 48.62, 49.70, 49.72, 50.02, 51.09, 58.06, 252.073, 252.076 and 252.10, secured correctional facilities as defined in s. 938.02 (15m), correctional institutions governed by the department of corrections under s. 301.02 and the offices and clinics of persons licensed to treat the sick under chs. 446, 447 and 448 are exempt from ss. 50.32 to 50.39. Sections 50.32 to 50.39 do not abridge the rights of the medical examining board, physical therapists affiliated credentialing board, podiatrists affiliated credentialing board, dentistry examining board, pharmacy examining board, chiropractic examining board and board of nursing in carrying out their statutory duties and responsibilities.

9,1529 Section 1529. 50.49 (2) (b) of the statutes is amended to read:

50.49 (2) (b) The department shall, by rule, set a license fee to be paid by home health agencies. The fee shall be based on the annual net income, as determined by the department, of a home health agency.

9,1530 Section 1530. 50.49 (4) of the statutes is amended to read:

50.49 (4) Licensing, inspection and regulation. The Except as provided in sub. (6m), the department may register, license, inspect and regulate home health agencies as provided in this section. The department shall ensure, in its inspections of home health agencies, that a sampling of records from private pay patients are reviewed. The department shall select the patients who shall receive home visits as a part of the inspection. Results of the inspections shall be made available to the public at each of the regional offices of the department.

9,1531 Section 1531. 50.49 (6m) of the statutes is created to read:

50.49 (6m) Exceptions. None of the following is required to be licensed as a home health agency under sub. (4), regardless of whether any of the following provides services that are similar to services provided by a home health agency:

(a) A care management organization, as defined in s. 46.2805 (1).

(b) A program specified in s. 46.2805 (1) (a).

(c) A demonstration program specified in s. 46.2805 (1) (b).

9,1531g Section 1531g. 50.498 (1) (intro.) of the statutes is amended to read:

50.498 (1) (intro.) The Except as provided in sub. (1m), the department shall require each applicant to provide the department with his or her social security number, if the applicant is an individual, or the applicant's federal employer identification number, if the applicant is not an individual, as a condition of issuing any of the following:

9,1531h Section 1531h. 50.498 (1m) of the statutes is created to read:

50.498 (1m) If an individual who applies for a certificate of approval, license or provisional license under sub. (1) does not have a social security number, the individual, as a condition of obtaining the certificate of approval, license or provisional license, shall submit a statement made or subscribed under oath or affirmation to the department that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of workforce development. A certificate of approval, license or provisional license issued in reliance upon a false statement submitted under this subsection is invalid.

9,1531i Section 1531i. 50.498 (3) of the statutes is amended to read:

50.498 (3) The Except as provided in sub. (1m), the department shall deny an application for the issuance of a certificate of approval, license or provisional license specified in sub. (1) if the applicant does not provide the information specified in sub. (1).

9,1531r Section 1531r. 50.94 of the statutes is created to read:

50.94 Admission to and care in a hospice for certain incapacitated persons. (1) In this section:

(a) "Hospice care" means palliative care, respite care, short-term care or supportive care.

(b) "Incapacitated" means unable to receive and evaluate information effectively or to communicate decisions to such an extent that a person lacks the capacity to manage his or her health care decisions.

(c) "Physician" means a person licensed to practice medicine and surgery under ch. 448.

(d) "Terminal condition" means an incurable condition caused by injury, disease or illness that according to reasonable medical judgment will produce death within 6 months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.

(2) A person who is determined to be incapacitated under the requirements of sub. (8), does not have a valid living will or valid power of attorney for health care and has not been adjudicated incompetent under ch. 880 may be admitted to a hospice under this section only if all of the following requirements are met:

(a) An individual who is specified in sub. (3) signs all of the following:

1. On behalf of the person who is incapacitated, an informed consent for the receipt of hospice care by the person who is incapacitated.