LRB-2032/7
DAK:kmg:rs
2003 - 2004 LEGISLATURE
February 16, 2004 - Introduced by Representatives Pettis, Rhoades, M. Williams,
Gronemus, Hines, Johnsrud, Musser, Albers, Grothman, Hahn, LeMahieu,
Hundertmark, Krawczyk, Olsen, Petrowski, Ott, Van Roy, Jeskewitz,
Nischke, Seratti, Stone, Suder, J. Wood
and D. Meyer, cosponsored by
Senators Harsdorf and Reynolds. Referred to Committee on Aging and
Long-Term Care.
AB842,1,10 1An Act to repeal 50.04 (5) (a) 5m.; to renumber and amend 50.04 (5) (a) 6.;
2to amend 50.03 (5) (a), 50.04 (4) (b) 4., 50.04 (4) (d) 2., 50.04 (4) (e) 1., 50.04 (5)
3(title), 50.04 (5) (a) (intro.), 50.04 (5) (a) 1., 2. and 3. (intro.), 50.04 (5) (a) 4., 50.04
4(5) (a) 5. a., b. and d., 50.04 (5) (b) (intro.), 50.04 (5) (c), 50.04 (5) (d) (title), 50.04
5(5) (d) 1., 50.04 (5) (d) 2. (intro.), 50.04 (5) (dm) (intro.), 50.04 (5) (e), 50.04 (5)
6(f), 50.04 (5) (fm), 50.04 (5) (fr) and 50.04 (5) (g); to repeal and recreate 50.04
7(4) (d) 1. a., 50.04 (4) (d) 1. b. and 50.04 (6) (a); and to create 20.435 (6) (ge),
850.01 (1k), 50.01 (1nd), 50.01 (1ng), 50.04 (4) (am) and 50.15 of the statutes;
9relating to: regulation of nursing homes, requiring the exercise of
10rule-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 and Family Services (DHFS) enforces both federal and state
requirements for nursing homes. Currently, for nursing homes that are Medicaid

and Medicare providers, DHFS may issue both federal and state citations for the
same practice and may recommend federal remedies and impose state sanctions.
This bill prohibits DHFS from issuing a notice of violation of a state requirement to
a nursing home that is a Medical Assistance or Medicare provider if DHFS has, in
a statement of deficiency, cited the nursing home for a violation of a federal
requirement that is based on the same facts.
Appeals
Currently, in order to appeal a DHFS 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 DHFS 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 DHFS assesses a forfeiture so that the hearing on
the finding of violation and the hearing on the forfeiture may be consolidated.
The bill 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 bill also extends the deadline for requesting a hearing
on a forfeiture to 60 days after receipt of notice of the forfeiture. The bill 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.
Monetary penalties
Under current law, DHFS may assess a forfeiture against a nursing home for
a violation of a state requirement. The maximum amount of the forfeiture varies
according to the classification of the violation and ranges from $500 to $10,000.
There is no time limit for DHFS to assess a forfeiture for a violation. Nursing homes
must pay forfeitures to DHFS 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, DHFS must reduce the
forfeiture amount by 35 percent. Forfeitures collected for violations of state
requirements are deposited in the school fund.
The bill reduces the maximum forfeiture amounts permitted for violations of
state requirements and requires that DHFS impose a penalty assessment on a
nursing home whenever DHFS assesses a forfeiture for a violation of a state
requirement. The bill further requires DHFS to impose a forfeiture and penalty
assessment within 120 days of notifying a nursing home of a violation or lose the
authority to impose a forfeiture and penalty assessment. The bill changes to 60 days
the time period by which nursing home must pay forfeitures and penalty
assessments to DHFS 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 penalty assessment
and have the forfeiture and penalty assessment amounts reduced by 35 percent. The
bill allocates moneys collected from the penalty assessments for nursing home
quality-of-care improvement grants.

Conditional licenses
Currently, in addition to the right to impose a forfeiture on a nursing home for
violations, DHFS may issue a conditional license to a nursing home in which DHFS
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 bill expands the standard for issuance by DHFS of a conditional license for
a nursing home to also include a continuing violation of federal law that constitutes
immediate jeopardy, high risk of death, substantial harm, or actual harm not
involving immediate jeopardy to a nursing home resident or that directly threatens,
as defined in the bill, such a resident.
Suspension of admissions
Under current law, DHFS 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 DHFS determines that the violation is uncorrected or on
the day that DHFS makes a return visit to the nursing home and determines that
the violation has not been corrected. A suspension must remain in effect until DHFS
determines that the nursing home has corrected all class "A" and class "B" violations.
This bill 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 or high risk of death or substantial
harm to a resident; a class "A" violation; or three or more class "B" violations or
situations that either constituted actual harm not involving immediate jeopardy to
a resident or directly threatened, as defined in the bill, 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 bill, suspension of admissions must remain in effect until DHFS
determines that the nursing home has corrected the violation in question.
Suspension or revocation of licensure
Currently, DHFS may, after providing notice to a nursing home applicant or
licensee, suspend or revoke the license if DHFS 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 bill also permits DHFS 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.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB842, s. 1 1Section 1. 20.435 (6) (ge) of the statutes is created to read:
AB842,4,42 20.435 (6) (ge) Nursing home improvement grants. All moneys received from
3penalty assessments imposed by the department under s. 50.04 (5), for nursing home
4improvement grants under s. 50.15.
AB842, s. 2 5Section 2. 50.01 (1k) of the statutes is created to read:
AB842,4,96 50.01 (1k) "Directly threatened" means created a condition or occurrence
7relating to nursing home operation and maintenance that could reasonably be
8expected to lead to injury or impairment of a resident or to harm to the health, safety,
9or welfare of a resident.
AB842, s. 3 10Section 3. 50.01 (1nd) of the statutes is created to read:
AB842,4,1411 50.01 (1nd) "High risk of death or substantial harm" means a condition or
12occurrence relating to nursing home operation and maintenance that presents a
13substantial probability of the death or serious mental or physical injury, harm, or
14impairment of a resident.
AB842, s. 4 15Section 4. 50.01 (1ng) of the statutes is created to read:
AB842,4,1916 50.01 (1ng) "Immediate jeopardy" means a situation in which a nursing home's
17noncompliance with one or more federal requirements related to the operation of a
18nursing home has caused, or is likely to cause, death or serious injury, harm, or
19impairment to a resident.
AB842, s. 5 20Section 5. 50.03 (5) (a) of the statutes is amended to read:
AB842,5,7
150.03 (5) (a) Power of department. The department, after notice to a nursing
2home applicant or licensee, may suspend or revoke a license in any case in which the
3department finds that the nursing home has substantially failed to comply with the
4applicable requirements of this subchapter and the rules promulgated under this
5subchapter, with s. 49.498, or with federal requirements related to the operation of
6a nursing home
. No state or federal funds passing through the state treasury may
7be paid to a nursing home that does not have a valid license issued under this section.
AB842, s. 6 8Section 6. 50.04 (4) (am) of the statutes is created to read:
AB842,5,159 50.04 (4) (am) Dual federal and state violations. If an act or omission
10constitutes a violation of this subchapter or the rules promulgated under this
11subchapter, s. 49.498, or federal requirements related to the operation of a nursing
12home, the department may not issue under s. 50.04 (4) (a) a notice of violation of this
13subchapter, the rules promulgated under this subchapter, or s. 49.498 if the
14department has, in a statement of deficiency, cited the nursing home for the violation
15under federal requirements related to the operation of a nursing home.
AB842, s. 7 16Section 7. 50.04 (4) (b) 4. of the statutes is amended to read:
AB842,5,2217 50.04 (4) (b) 4. Each day of violation constitutes a separate violation. Except
18as provided in sub. (5) (a) 4., the department shall have the burden of showing that
19a violation existed on each day for which a forfeiture and penalty assessment is
20assessed imposed. No forfeiture or penalty assessment may be assessed imposed for
21a condition for which the nursing home has received a variance or waiver of a
22standard.
AB842, s. 8 23Section 8. 50.04 (4) (d) 1. a. of the statutes is repealed and recreated to read:
AB842,6,424 50.04 (4) (d) 1. a. In the previous 15 months, the nursing home received written
25notice of a violation of a state statute or rule or a federal statute or regulation that

1involved either immediate jeopardy or a high risk of death or substantial harm to a
2resident; a class "A" violation; or 3 or more class "B" violations or situations that
3either constituted actual harm not involving immediate jeopardy to a resident or
4directly threatened a resident.
AB842, s. 9 5Section 9. 50.04 (4) (d) 1. b. of the statutes is repealed and recreated to read:
AB842,6,126 50.04 (4) (d) 1. b. In any 15-month period during the 36 months immediately
7preceding the period specified in subd. 1. a., the nursing home received written notice
8of a violation of a state statute or rule or a federal statute or regulation that involved
9either immediate jeopardy or a high risk of death or substantial harm to a resident;
10a class "A" violation; or 3 or more class "B" violations or situations that either
11constituted actual harm not involving immediate jeopardy to a resident or directly
12threatened a resident.
AB842, s. 10 13Section 10. 50.04 (4) (d) 2. of the statutes is amended to read:
AB842,7,214 50.04 (4) (d) 2. A suspension of admissions under subd. 1. shall begin 90 days
15after a nursing home received its last notice of violation for a class "A" or class "B"
16violation or situation specified in subd. 1. a. if the department determines that the
17violation or situation remains uncorrected 90 days after the nursing home received
18the last notice of the violation or situation. If the nursing home earlier indicates to
19the department that the violation or situation has been corrected, but the
20department is unable to verify that the violation has been corrected,
a suspension of
21admissions under subd. 1. shall begin on the day that the department makes a return
22visit to the nursing home and determines that the violation or situation has not been
23corrected. A suspension of admissions under subd. 1. shall remain in effect until the
24department determines that all class "A" and class " B" violations by the nursing
25home have been has corrected the violation or situation. Admission of a new resident

1during the period for which admissions have been suspended constitutes a class "B"
2violation.
AB842, s. 11 3Section 11. 50.04 (4) (e) 1. of the statutes is amended to read:
AB842,7,244 50.04 (4) (e) 1. If a nursing home desires to contest any department action
5under this subsection, it shall send a written request for a hearing under s. 227.44
6to the division of hearings and appeals created under s. 15.103 (1) within 10 60 days
7of receipt of notice of the contested action. Department action that is subject to a
8hearing under this subsection includes service of a notice of a violation of this
9subchapter or rules promulgated under this subchapter, a notation in the report
10under sub. (3) (b), imposition of a plan of correction, and rejection of a nursing home's
11plan of correction, but does not include a correction order. Upon the request of the
12nursing home, the division shall grant a stay of the hearing under this paragraph
13until the department assesses a forfeiture and penalty assessment, so that its
14hearing under this paragraph is consolidated with the forfeiture and penalty
15assessment
appeal hearing held under sub. (5) (e). All agency action under this
16subsection arising out of a violation, deficiency, or rejection and imposition of a plan
17of correction shall be the subject of a single hearing. Unless a stay is granted under
18this paragraph, the division shall commence the hearing within 30 days of the
19request for hearing, within 30 days of the department's acceptance of a nursing
20home's plan of correction, or within 30 days of the department's imposition of a plan
21of correction, whichever is later. The division shall send notice to the nursing home
22in conformance with s. 227.44. Issues litigated at the hearing may not be relitigated
23at subsequent hearings under this paragraph arising out of the same violation or
24deficiency.
AB842, s. 12 25Section 12. 50.04 (5) (title) of the statutes is amended to read:
AB842,8,1
150.04 (5) (title) Forfeitures and penalty assessments.
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