LRBs0249/1
TJD:cjs&wlj:rs
2011 - 2012 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2011 SENATE BILL 212
November 1, 2011 - Offered by Representatives Barca, Mason, Turner and
Steinbrink.
SB212-ASA1,1,8
1An Act to repeal 50.04 (5) (a) 5m.;
to amend 20.435 (6) (g), 50.03 (4) (a) 1. a.,
250.03 (4m) (a), 50.03 (5) (a), 50.03 (5) (b), 50.03 (7) (a), 50.03 (13) (a), 50.04 (4)
3(a) 1., 50.04 (4) (a) 2. b., 50.04 (4) (c) 1., 50.04 (4) (d) 2., 50.04 (4) (e) 1., 50.04 (5)
4(c), 50.04 (5) (e), 50.04 (5) (f), 50.04 (5) (fm), 50.05 (2) (f) (intro.) and 50.05 (2) (f)
52.;
to repeal and recreate 50.04 (4) (d) 1. a., 50.04 (4) (d) 1. b. and 50.04 (6)
6(a); and
to create 50.01 (1ng), 50.04 (4) (am) and 50.04 (8) of the statutes;
7relating to: regulation of nursing homes, requiring the exercise of
8rule-making authority, and making an appropriation.
Analysis by the Legislative Reference Bureau
Federal and state requirements for nursing homes
Under current law, a nursing home that receives Medicaid or Medicare funding
for the care of a resident is subject to both federal and state requirements. The
Department of Health Services (DHS) enforces both federal and state requirements
for nursing homes. Currently, for nursing homes that are Medicaid and Medicare
providers, DHS may issue both federal and state citations for the same practice and
may recommend federal remedies and impose state sanctions. This substitute
amendment prohibits DHS from issuing a notice of violation of a state requirement
to a nursing home that is a Medical Assistance or Medicare provider if DHS has, in
a statement of deficiency, cited the nursing home for a violation of a federal
requirement that is based on the same facts and if the violation is the nursing home's
first violation of a particular statute, rule, or requirement.
Under current law, DHS may seek an injunction in court to enjoin the repeated
violation of the state's nursing home statutes or a rule promulgated under the
authority of the state's nursing home statutes. The substitute amendment allows
DHS to seek an injunction to enjoin repeated violation of certain federal
requirements related to the operation of a nursing home.
Monetary penalties
Under current law, DHS may assess a forfeiture against a nursing home for a
violation of a state requirement. There is no time limit for DHS to assess a forfeiture
for a violation. Nursing homes must pay forfeitures to DHS within ten days after
receipt of notice of imposition of the forfeiture or after receipt of the final decision
after exhaustion of administrative review. If a nursing home does not contest a notice
of violation and a forfeiture and pays the forfeiture within ten days after receipt of
the notice, DHS must reduce the forfeiture amount by 35 percent.
The substitute amendment requires DHS to impose a forfeiture within 120
days of notifying a nursing home of a violation or DHS loses the authority to impose
a forfeiture. The substitute amendment changes to 60 days the time period by which
a nursing home must pay forfeitures to DHS after receipt of the notice of imposition
or the final decision after exhaustion of administrative review, and also changes to
60 days the time period within which a nursing home may pay a forfeiture and have
the forfeiture amounts reduced by 35 percent.
Appeals
Currently, in order to appeal a DHS finding that the nursing home violated a
state requirement, a nursing home must request a hearing on the finding within ten
days of receiving notice of the violation. If DHS assesses a forfeiture for the violation
and the nursing home wishes to appeal the forfeiture, the nursing home must request
a separate hearing on the forfeiture within ten days of receiving notice of a contested
action. Upon request of the nursing home, the hearing on the finding of violation may
be stayed until DHS assesses a forfeiture so that the hearing on the finding of
violation and the hearing on the forfeiture may be consolidated.
The substitute amendment extends the deadline for a nursing home to request
a hearing on a finding that the nursing home violated a state requirement to 60 days
after receipt of the notice of violation. The substitute amendment also extends the
deadline for requesting a hearing on a forfeiture to 60 days after receipt of notice of
the forfeiture. The substitute amendment further provides that, if a nursing home
timely appeals both a finding of violation and a forfeiture, the hearings on the
violation and the forfeiture will be consolidated.
Conditional and probationary licenses
Currently, in addition to the right to impose a forfeiture on a nursing home for
violations, DHS may issue a conditional license to a nursing home in which DHS
finds that a class "A" or a class "B" violation continues to exist. (A class "A" violation
creates a condition or occurrence relating to the operation and maintenance of a
nursing home that presents a substantial probability that death or serious mental
or physical harm to a nursing home resident will result. A class "B" violation creates
a condition or occurrence relating to the operation and maintenance of a nursing
home that directly threatens the health, safety, or welfare of a nursing home
resident.) Issuing a conditional license revokes any outstanding license held by the
nursing home.
This substitute amendment expands the standard for issuance by DHS of a
conditional license for a nursing home to also include a continuing violation of federal
law that constitutes immediate jeopardy or actual harm not involving immediate
jeopardy to a nursing home resident.
Under current law, an applicant for a nursing home license that has not been
previously licensed to operate a nursing home or whose nursing home is not
operating at the time of application is issued a probationary license. To obtain a
regular license, DHS inspects the nursing home to determine whether the nursing
home meets the requirements for licensure. The substitute amendment specifies
that a nursing home operating under a probationary license must also substantially
comply with requirements under certain federal regulations related to the operation
of a nursing home, if applicable, in order to obtain a regular license.
Suspension of admissions
Under current law, DHS must suspend new admissions to a nursing home if the
nursing home received notices of a class "A" violation or three or more class "B"
violations in the previous 12 months; and if the nursing home received notices of a
class "A" violation or three or more class "B" violations in any 12-month period
during the three years immediately preceding the previous 12 months. Suspension
of admissions begins 90 days after a nursing home receives its last notice of a class
"A" or class "B" violation if DHS determines that the violation is uncorrected 90 days
after the last notice or on the day that DHS makes a return visit to the nursing home
and determines that the violation has not been corrected. A suspension must remain
in effect until DHS determines that the nursing home has corrected all class "A" and
class "B" violations.
This substitute amendment expands the standard for suspension of new
admissions to a nursing home to include circumstances under which a nursing home
received written notice of a violation that involved immediate jeopardy to a resident;
a class "A" violation; or three or more class "B" violations or violations that
constituted actual harm not involving immediate jeopardy to a resident. These
circumstances must have occurred both in the previous 15 months and in any
15-month period during the 36 months immediately preceding the previous 15
months. Under the substitute amendment, a suspension of admissions may begin
only 90 days after a nursing home receives its last notice of a violation if DHS
determines that the violation in uncorrected 90 days after the last notice.
Suspension of admissions must remain in effect until DHS determines that the
nursing home has corrected the violation in question.
Suspension or revocation of licensure
Currently, DHS may, after providing notice to a nursing home applicant or
licensee, suspend or revoke the license if DHS finds that the nursing home
substantially failed to comply with applicable state statutes or rules. No state or
federal funds passing through the state treasury may be paid to a nursing home that
does not have a valid license. This substitute amendment also permits DHS to
suspend or revoke a nursing home license if the nursing home has substantially
failed to comply with specified state law or with federal requirements related to the
operation of a nursing home.
Notices of violation
In certain circumstances under current law, DHS must provide a notice of
violation to a nursing home, such as the presence in a nursing home of a class "A" or
"B" violation. The department currently is not required to serve a notice of violation
if the nursing home reports the violation to DHS and the violation occurs and
remains uncorrected despite the nursing home's every reasonable effort to prevent
and correct the violation. This substitute amendment expands the circumstances
under which DHS is not required to serve a notice of violation to include situations
in which a nursing home reports the violation to DHS and has corrected the violation.
Quality improvements
This substitute amendment allows DHS to distribute moneys, including civil
money penalties collected under a certain federal regulation, for innovative projects
designed to protect the property and the health, safety, and welfare of nursing home
residents and to improve the efficiency and cost effectiveness of the operation of
nursing home facilities. Also, under the substitute amendment, DHS must establish
and maintain a quality assurance and improvement committee to review proposals
and award moneys for those innovative projects.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB212-ASA1,4,82
20.435
(6) (g)
Nursing facility resident protection. All moneys received from the
3penalty assessment surcharges on forfeitures that are levied by the department
4under s. 49.498 (16) (c) 1., 2. and 3. and the interest under s. 49.498 (16) (d)
and from
5civil money penalties collected under 42 CFR 488.442 to finance nursing facility
6resident protection under s. 49.499
and any projects under s. 50.04 (8) to protect the
7property and the health, safety, and welfare of nursing home residents and to
8improve the efficiency and cost effectiveness of the operation of nursing homes.
SB212-ASA1,5,52
50.01
(1ng) "Immediate jeopardy" means a situation in which a nursing home's
3noncompliance with one or more requirements under
42 CFR 483 related to the
4operation of a nursing home has caused, or is likely to cause, serious injury, harm,
5impairment, or death to a resident.
SB212-ASA1, s. 3
6Section
3. 50.03 (4) (a) 1. a. of the statutes is amended to read:
SB212-ASA1,5,147
50.03
(4) (a) 1. a. Except as provided in sub. (4m) (a), the department shall issue
8a license for a nursing home if it finds the applicant to be fit and qualified and if it
9finds that the nursing home meets the requirements established by this subchapter
10and, as applicable, requirements under 42 CFR 483 related to the operation of a
11nursing home. The department, or its designee, shall make such inspections and
12investigations as are necessary to determine the conditions existing in each case and
13shall file written reports. The department shall promulgate rules defining "fit and
14qualified" for the purposes of this subd. 1. a.
SB212-ASA1, s. 4
15Section
4. 50.03 (4m) (a) of the statutes is amended to read:
SB212-ASA1,6,316
50.03
(4m) (a) If the applicant for licensure as a nursing home has not been
17previously licensed under this subchapter or if the nursing home is not in operation
18at the time application is made, the department shall issue a probationary license.
19A probationary license shall be valid for 12 months from the date of issuance unless
20sooner suspended or revoked under sub. (5). Prior to the expiration of a probationary
21license, the department shall inspect the nursing home and, if the nursing home
22meets the applicable requirements for licensure
and, if applicable, substantially
23complies with requirements under 42 CFR 483 related to the operation of a nursing
24home, shall issue a regular license under sub. (4) (a) 1. a. If the department finds that
25the nursing home does not meet the requirements for licensure
or does not
1substantially comply with requirements under 42 CFR 483 related to the operation
2of a nursing home, the department may not issue a regular license under sub. (4) (a)
31. a.
SB212-ASA1,6,125
50.03
(5) (a)
Power of department. The department, after notice to a nursing
6home applicant or licensee, may suspend or revoke a license in any case in which the
7department finds that the nursing home has substantially failed to comply with the
8applicable requirements of this subchapter and the rules promulgated under this
9subchapter
, with s. 49.498, or with requirements under 42 CFR 483 related to the
10operation of a nursing home. No state or federal funds passing through the state
11treasury may be paid to a nursing home that does not have a valid license issued
12under this section.
SB212-ASA1,6,1714
50.03
(5) (b)
Form of notice. Notice under this subsection shall include a clear
15and concise statement of the violations on which the revocation is based, the statute
16or, rule
, or federal requirement violated and notice of the opportunity for an
17evidentiary hearing under par. (c).
SB212-ASA1,7,219
50.03
(7) (a)
Licensed facility. Notwithstanding the existence or pursuit of any
20other remedy, the department may, upon the advice of the attorney general, maintain
21an action in the name of the state in the circuit court for injunction or other process
22against any licensee, owner, operator, administrator or representative of any owner
23of a facility to restrain and enjoin the repeated violation of any of the provisions of
24this subchapter
or, rules promulgated by the department under this subchapter
, or
1requirements under 42 CFR 483 related to the operation of a nursing home where
2the violation affects the health, safety or welfare of the residents.
SB212-ASA1,7,174
50.03
(13) (a)
New license. Whenever ownership of a facility is transferred from
5the person or persons named in the license to any other person or persons, the
6transferee must obtain a new license. The license may be a probationary license.
7Penalties under sub. (1) shall apply to violations of this subsection. The transferee
8shall notify the department of the transfer, file an application under sub. (3) (b), and
9apply for a new license at least 30 days prior to final transfer. Retention of any
10interest required to be disclosed under sub. (3) (b) after transfer by any person who
11held such an interest prior to transfer may constitute grounds for denial of a license
12where violations of this subchapter
, or of requirements of 42 CFR 483 related to the
13operation of a nursing home, for which notice had been given to the transferor are
14outstanding and uncorrected, if the department determines that effective control
15over operation of the facility has not been transferred. If the transferor was a
16provider under s. 49.43 (10), the transferee and transferor shall comply with s. 49.45
17(21).
SB212-ASA1, s. 9
18Section
9. 50.04 (4) (a) 1. of the statutes is amended to read:
SB212-ASA1,8,219
50.04
(4) (a) 1.
If Except as provided in par. (am) 2., if upon inspection or
20investigation the department determines that a nursing home is in violation of this
21subchapter or the rules promulgated under it and the violation is a class "A" or "B"
22violation, it shall promptly serve a notice of violation upon the licensee. Each notice
23of violation shall be prepared in writing and shall specify the nature of the violation,
24and the statutory provision or rule alleged to have been violated. The notice shall
25inform the licensee of the right to a hearing under par. (e). The written notice of a
1class "A" violation may be written and served by an agent of the department at the
2time of the inspection.
SB212-ASA1, s. 10
3Section
10. 50.04 (4) (a) 2. b. of the statutes is amended to read:
