Wisconsin Legislature: DHS 134.31(3)(a)4.

Note: A request for a waiver or variance should be addressed to: Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969.

(b) Grants and denials.

1. The department shall grant or deny each request for waiver or variance in writing. Notice of denial shall contain the reasons for denial. If a notice of a denial is not issued within 60 days after the receipt of a complete request, the waiver or variance shall be automatically approved.

2. The department may impose whatever conditions on the granting of a waiver or variance that it deems necessary.

3. The department and a facility may agree to modify the terms of a requested variance.

4. The department may limit the duration of any waiver or variance.

1. A facility may ask the administrator of the department’s division of long term care to review the reasonableness of the denial of a request for a waiver or variance. The administrator shall make that review and notify the facility of his or her decision within 20 days following receipt of the appeal.

Note: To appeal the denial of a request for a waiver or variance, write: Administrator, Division of Long Term Care, P.O. Box 7851, Madison, Wisconsin 53707-7851.

a. A denial of 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.

(d) Revocation. The department may revoke a waiver or variance if:

1. The department determines that the waiver or variance is adversely affecting the health, safety or welfare of the residents;

2. The department determines that the facility has failed to comply with a variance as granted;

3. The licensee notifies the department in writing that he or she wishes to relinquish the waiver or variance and be subject to the rule previously waived or varied; or

4. Revocation is necessary because of a change in the law.

History: Cr. Register, June, 1988, No. 390, eff. 7-1-88; correction in (3) (c) 1. made under s. 13.93 (2m) (b) 6., Stats., Register December 2003 No. 576; correction in (3) (c) 1. made under s. 13.92 (4) (b) 6., Stats., Register January 2009 No. 637.

Subchapter II — Residents’ Rights and Protections

DHS 134.31 Rights of residents.

(1) Facility obligations. All facilities shall comply with the requirements governing residents’ rights enumerated in s. 50.09, Stats., and this chapter. Facilities shall have written policies and procedures to ensure that staff recognize that residents have these rights, and that staff respect and enforce these rights. The written policies and procedures shall encourage residents to exercise their rights on their own behalf whenever practicable.

(2) Delegation of rights and responsibilities. Each facility shall have written policies and procedures that provide that:

(a) If a resident is adjudicated incompetent under ch. 54, Stats., all rights and responsibilities of the resident which the resident is not competent to exercise pass to the resident’s guardian pursuant to s. 50.09 (3), Stats., except as otherwise provided by law; and

(b) If there has been no adjudication of incompetency but the resident requires assistance in understanding or exercising his or her rights, that assistance is provided to the resident to the extent necessary for the resident to receive the benefits of this section, including involvement of the next of kin or sponsoring agency and notification of the appropriate county agency if there is need for guardianship.

(3) Residents’ rights. Every resident, except as provided in sub. (4), has the right to:

(a) Communications. Have private and unrestricted communications, unless medically contraindicated as documented by the resident’s physician in the resident’s medical record, except that receipt of mail from any source and communication with public officials or with the resident’s attorney may not be restricted in any event. The right to private and unrestricted communications includes the right to:

1. Receive, send and mail sealed, unopened correspondence. No resident’s incoming or outgoing correspondence may be opened, delayed, held or censored, except that a resident or guardian may direct in writing that specified incoming correspondence be opened, delayed or held;

2. Use a telephone for private communications, unless medically contraindicated in which case the resident shall be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right;

3. Have private visits, pursuant to a reasonable written visitation policy, unless medically contraindicated in which case the resident shall be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right. The facility shall ensure that individuals allowed to visit under this paragraph do not infringe on the privacy and rights of the other residents;

4. Communicate with staff in regard to all aspects of the treatment program. To facilitate this communication, the facility shall:

a. Keep the resident’s legal guardian or, if there is no guardian, family or next of kin, informed of resident activities and significant changes in the resident’s condition;

b. Answer communications from resident’s relatives or guardian promptly and appropriately;

c. Allow close relatives and guardians to visit at any reasonable hour, without prior notice, unless an interdisciplinary team determines that this would not be appropriate; and

d. Allow parents and guardians to visit any part of the facility that provides services to residents.

(b) Grievances. Present grievances on the resident’s own behalf or through others to the facility’s staff or administrator, to public officials or to any other person without justifiable fear of reprisal and to join with other residents or individuals within or outside of the facility to work for improvements in resident care.

(c) Finances. Manage one’s own financial affairs, including any personal allowances under federal or state programs. No resident funds may be held or spent except in accordance with the following requirements:

1. A facility may not hold or spend a resident’s funds unless the resident or another person legally responsible for the resident’s funds authorizes this action in writing. The facility shall obtain separate authorizations for holding a resident’s funds and for spending a resident’s funds. The authorization for spending a resident’s funds may include a spending limit. Expenditures that exceed a designated spending limit require a separate authorization for each individual occurrence;

2. Any resident funds held or controlled by the facility and any earnings from them shall be credited to the resident and may not be commingled with other funds or property except that of other residents;

3. The facility shall furnish a resident, the resident’s guardian or a representative designated by the resident with at least an annual statement of all funds and properties held by the facility for the resident and all expenditures made from the resident’s account, and a similar statement at the time of the resident’s permanent discharge. If the resident has authorized discretionary expenditures by the facility and the facility has accepted responsibility for these expenditures, upon written request of the resident, the resident’s guardian or a designated representative of the resident, the facility shall issue this statement monthly;

4. The facility shall maintain a record of all expenditures, disbursements and deposits made on behalf of the resident; and

5. The facility shall provide training and counseling to residents in the management and use of money as necessary to meet each resident’s needs.

(d) Admission information. Be fully informed in writing, prior to or at the time of admission, of all services and the charges for these services, and be informed in writing, during the resident’s stay, of any changes in the services available or in charges for services, as follows:

1. No person may be admitted to a facility unless that person or that person’s guardian or designated representative has signed an acknowledgement of having received a statement of information before or on the day of admission which includes at least the following information or, in the case of a person to be admitted for short-term care, the information required under s. DHS 134.70 (3):

a. An accurate description of the basic services provided by the facility, the rates charged for those services and the method of payment for them;

b. Information about all additional services regularly offered but not included in the basic services. The facility shall provide information on where a statement of the fees charged for each of these services can be obtained. These additional services include pharmacy, x-ray, beautician and all other additional services regularly offered to residents or arranged for residents by the facility;

c. The method for notifying residents of a change in rates or fees;

d. Terms for refunding advance payments in the event of a resident’s transfer, death or voluntary or involuntary discharge;

e. Terms for holding and charging for a bed during a resident’s temporary absence;

f. Conditions for involuntary discharge or transfer, including transfer within the facility;

g. Information about the availability of storage space for personal effects; and

h. A summary of residents’ rights recognized and protected by this section and all facility policies and regulations governing resident conduct and responsibilities.

2. No statement of admission information may be in conflict with any part of this chapter.

(e) Courteous treatment. Be treated with courtesy, respect and full recognition of one’s dignity and individuality by all employees of the facility and by all licensed, certified and registered providers of health care and pharmacists with whom the resident comes in contact.

(f) Privacy. Have privacy in treatment, living arrangements and caring for personal needs, including:

1. If both spouses are residents of the same facility, they shall be permitted to share a room unless medically contraindicated as documented by either resident’s physician in the resident’s medical record;

2. Case discussion, consultation, examination and treatment shall be conducted discreetly. Persons not directly involved in the resident’s care shall require the resident’s permission to be present; and

3. Confidentiality of health and personal records, and the right to refuse their release to any individual outside the facility except in the case of the resident’s transfer to another facility or as required by ss. 146.81 to 146.83, Stats., s. 51.30, Stats., and ch. DHS 92 or other statutes or rules or third party payment contracts.

(g) Work. Not be required to perform work for the facility unless the work is included for therapeutic purposes in the resident’s plan of care.

Note: Requirements governing wages for patient labor are found in s. 51.61 (1) (b) and ch. 104, Stats., and ch. DWD 272.

(h) Outside activities. Meet with and participate in activities of social, religious and community groups at the resident’s discretion and with the permission of the resident’s parents, if the resident is under 18 years of age, or guardian, if any, unless contraindicated as documented by the QIDP in the resident’s record.

(i) Leaves. Take frequent and informal leaves from the facility for visits, trips or vacations. The facility shall encourage residents to take these leaves and shall assist the resident in making arrangements for the leaves.

(j) Personal possessions. Retain and use clothing and personal belongings and retain, as space permits, other personal possessions in a reasonably secure manner.

(k) Transfer or discharge. Be transferred or discharged, and be given reasonable advance notice of any planned transfer or discharge and an explanation of the need for and alternatives to the transfer or discharge except where there is a medical emergency. The facility, agency, program or person to which the resident is transferred shall have accepted the resident for transfer in advance of the transfer, except in a medical emergency.

Note: See s. DHS 134.53.

(L) Abuse and restraints. Be free from mental and physical abuse, and be free from physical restraints except as authorized in writing by a physician for a specified and limited period of time and documented in the resident’s medical record.

Note: See s. DHS 134.33 on use of locked units, s. DHS 134.46 which prohibits abuse of residents, and s. DHS 134.60 (5) on use of physical restraints.

(m) Care. Receive adequate and appropriate care and treatment that is within the capacity of the facility to provide as indicated under s. DHS 134.51.

(n) Choice of provider. Use the licensed, certified or registered provider of health care and pharmacist of the resident’s choice.

(o) Care planning. Be fully informed of one’s treatment and care and participate in the planning of that treatment and care, which includes the right to refuse medications, treatments and rehabilitative therapies.

(p) Religious activity. Engage in religious worship within the facility if the resident desires such an opportunity and a member of the clergy of the resident’s religious denomination or society is available to the facility. Provisions for worship shall be available to all residents on a nondiscriminatory basis. No resident may be forced to take part in any religious activity.

(q) Nondiscriminatory treatment. Be free from discrimination based on the source from which the facility’s charges for the resident’s care are paid, as follows:

1. No facility may assign a resident to a particular wing or other distinct area of the facility, whether for sleeping, dining or any other purpose, on the basis of the source or amount of payment for the resident’s care, except that a facility only part of which is certified for Medicare reimbursement under 42 USC 1395 is not prohibited from assigning a resident to the certified part of the facility because the source of payment for the resident’s care is Medicare.

2. Facilities shall offer and provide an identical package of basic services meeting the requirements of this chapter to all individuals regardless of the source of a resident’s payment or amount of payment. Facilities may offer enhancements of basic services, or enhancements of individual components of basic services, provided that these enhanced services are made available at an identical cost to all residents regardless of the source of a resident’s payment. A facility which elects to offer enhancements to basic services to its residents shall provide all residents with a detailed explanation of enhanced services and the additional charges for these services pursuant to par. (d) 1. b.

3. If a facility offers at extra charge additional services which are not covered by the medical assistance program under ss. 49.43 to 49.497, Stats., and chs. DHS 101 to 108, it shall provide them to any resident willing and able to pay for them, regardless of the source from which the resident pays the facility’s charges.

4. No facility may require, offer or provide an identification tag for a resident or any other item which discloses the source from which the facility’s charges for that resident’s care are paid.

(r) Least restrictive conditions. The least restrictive conditions necessary to achieve the purposes of admission, commitment or placement, except in the case of a resident who is admitted or transferred under s. 51.35 (3) or 51.37, Stats., or under ch. 971 or 975, Stats.

(s) Drastic treatment, experimental research and behavior modification using aversive stimuli. Not be subjected to drastic treatment, experimental research procedures or behavior modification using aversive stimuli without the expressed and informed consent of the resident and the resident’s legal guardian, if any, and after consultation with individual specialists and the patient’s legal counsel, if any.

(4) Corrections clients. Rights established under this section do not, except as determined by the department, apply to residents in a facility who are in the legal custody of the department for correctional purposes.

(5) Notification.

(a) Serving notice. Copies of the resident rights provided under this section and the facility’s policies and regulations governing resident conduct and responsibilities shall be made available to each prospective resident and his or her guardian, if any, and to each member of the facility’s staff. Facility staff shall verbally explain to each new resident and to that person’s guardian, if any, prior to or at the time of the person’s admission to the facility, these rights and the facility’s policies and regulations governing resident conduct and responsibilities.

(b) Amendments. Every amendment to the rights provided under this section and every amendment to the facility regulations and policies governing resident conduct and responsibilities requires notification of each resident and guardian, if any, at the time the amendment is put into effect. The facility shall provide the resident, guardian, if any, and each member of the facility’s staff with a copy of each amendment.

(c) Posting. Copies of the resident’s rights provided under this chapter and the facility’s policies and regulations governing resident conduct and responsibilities shall be posted in a prominent place in the facility and in each locked unit, as defined in s. DHS 134.33 (1) (b), within the facility.

(6) Encouragement and assistance. Each facility shall encourage and assist residents to exercise their rights as residents and citizens, and each facility shall provide appropriate training for staff so that staff are aware of the rights of residents established under this section and are encouraged to respect them.

(7) Complaints.

(a) Filing complaints. Any person may file a complaint with a licensee or the department regarding the operation of a facility. A complaint may be made orally or in writing. Any resident receiving services for a developmental disability or protectively placed under ch. 55, Stats., may seek advocacy assistance from the county department organized under s. 46.23, 51.42 or 51.437, Stats., or from the agency designated under s. 51.62 (2), Stats., to be the protection and advocacy agency for developmentally disabled persons.

(b) Investigating and reviewing complaints.

1. Each facility shall establish a system for investigating, reviewing and documenting complaints and allegations that resident rights established under s. 50.09, Stats., and this section have been violated.

2. The facility shall designate a specific individual or individuals to conduct the investigation and report to the administrator.

3. The results of the investigation shall be reported to the administrator no later than 5 calendar days after a complaint or allegation is received.