DHS 13.04 HistoryHistory: Cr. Register, June, 1999, No. 522, eff. 7-1-99. DHS 13.05DHS 13.05 Allegations of caregiver misconduct. 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(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 NoteNote: This report may be mailed to the Department of Safety and Professional Services, Division of Enforcement, P.O. Box 8935, Madison, Wisconsin 53708-8935 or emailed to DHSCaregiverIntake@dhs.wisconsin.gov for referral. 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(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 NoteNote: 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(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)(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 degenerative brain disorder 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 NoteNote: 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)(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)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)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.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)(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 NoteNote: Send requests for a hearing to Division of Hearings and Appeals, P.O. Box 7875, Madison, Wisconsin 53707.
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). DHS 13.05(7)(c)2.2. If the subject of a report waives the right to a hearing or does not file a timely appeal pursuant to this paragraph, the department shall enter, as applicable, a substantiated finding of misconduct on the caregiver misconduct registry within 10 business days after the last day of the period during which the subject may appeal the department’s decision. The department shall maintain the person’s name, documentation of the department investigation, including the nature of the allegation and evidence that led the department to conclude the misconduct took place and the person’s rebuttal statement, if provided, on the caregiver misconduct registry. The department shall include on the registry the information that the person did not appeal the decision. DHS 13.05(7)(d)1.1. Where the acts involved in the department’s investigation are the same as those involved in a judgment of conviction of a state court, the judgment of conviction is admissible in evidence and constitutes substantial evidence adverse to the subject of the report. DHS 13.05(7)(d)3.3. If a subject of the report files a timely appeal, the department of administration’s division of hearings and appeals shall hold a hearing within 90 days in accordance with s. 227.42, Stats., and issue a written decision within 30 calendar days after the conclusion of the hearing. DHS 13.05(7)(d)4.4. The division of hearings and appeals shall provide copies of the written decision to the subject, the department’s bureau of quality assurance and, if known, to the reporter and the entity involved in the alleged incident or the staffing agency. DHS 13.05(7)(d)5.5. If the division of hearings and appeals finds that there is no reasonable cause to believe that the subject of the report performed the alleged abuse or neglect of a client or misappropriation of a client’s property, a finding substantiating the allegation shall not be entered on the caregiver misconduct registry. DHS 13.05(7)(d)6.6. If the division of hearings and appeals finds that there is reasonable cause to believe that the subject of the report performed the alleged abuse or neglect of a client or misappropriation of a client’s property, the department shall enter the subject’s name and the division of hearings and appeals’ decision on the caregiver misconduct registry within 10 business days after the date on which the decision was received by the department’s bureau of quality assurance. DHS 13.05(7)(d)7.7. The division of hearings and appeals’ written decision shall include: DHS 13.05(7)(d)7.a.a. Notice that the subject of the report may submit a brief written rebuttal statement to the department to dispute the hearing examiner’s decision and that, if submitted, the caregiver misconduct registry will indicate that the department has a rebuttal statement available upon request. DHS 13.05(7)(d)7.b.b. Notice that the subject of the report has the right to petition for further review pursuant to s. 227.53, Stats. DHS 13.05(8)(a)1.1. The department, in response to an inquiry made to the caregiver misconduct registry, shall indicate whether the person’s name is listed on the registry as having a finding of misconduct and, if listed, whether a rebuttal statement exists. DHS 13.05(8)(a)2.2. The department’s decision pertaining to a listed finding and any related rebuttal statement may be obtained only by sending a written request to the department pursuant to s. DHS 13.04 (3). DHS 13.05(8)(b)1.1. Except as provided in subd. 2., the department in response to an inquiry made to the caregiver misconduct registry may not release information from a report under any of the following circumstances: DHS 13.05(8)(b)1.b.b. When the department’s investigation and review does not lead to a substantiation of the allegation of misconduct. DHS 13.05(8)(b)1.c.c. When the department of administration’s division of hearings and appeals does not find reasonable cause that the subject of the report performed the alleged acts of misconduct. DHS 13.05(8)(b)2.2. Information pertaining to unsubstantiated allegations of misconduct may be disclosed only to any of the following: DHS 13.05(8)(b)2.a.a. Authorized staff of the department and of the federal department of health and human services for purposes related to performance of their departmental duties. DHS 13.05(8)(b)2.b.b. A law enforcement officer or agency for purposes of related investigations or prosecutions. DHS 13.05(8)(b)2.c.c. A court or administrative agency for use in related investigations or proceedings regarding licensing or regulation of an entity, licensing or regulation of a licensed health professional or regulation of a person about whom notification is made under s. 146.40 (4), Stats., except that information that is part of a child abuse or neglect record subject to s. 48.981, Stats., may be released only as allowed by s. 48.981 (7), Stats. DHS 13.05(8)(b)2.d.d. A person engaged in bona fide research who, at the department’s discretion, has been granted access but only if information that identifies the person, client, complainant and entity involved is not disclosed to the researcher. DHS 13.05(8)(c)(c) Duration of placement on the caregiver misconduct registry. The information placed on the caregiver misconduct registry relating to findings of client abuse or neglect or misappropriation of client property shall remain on that registry permanently unless any of the following occurs: DHS 13.05(8)(c)1.1. The division of hearings and appeals’ decision is reversed by a court of law.
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