AB1146: Bill Text

AB1146,2,2 An Act to repeal 50.04 (2) (d); to renumber and amend 50.09 (1); to amend 50.02 (2) (bn), 50.09 (title), 50.09 (2), (4) and (5) and 50.09 (6) (a), (b) and (d); and to create 13.94 (12), 16.009 (1) (em) 7., 20.432 (1) (gt), 48.685 (2) (am) 2g., 48.685 (2) (am) 2r., 48.685 (2) (b) 1. bg., 48.685 (2) (b) 1. br., 49.45 (6m) (a) 3m., 49.45 (6m) (a) 4m., 49.45 (6m) (a) 5m., 49.45 (6m) (m), 50.034 (3) (e), 50.034 (9), 50.04 (2) (e), 50.065 (2) (am) 2g., 50.065 (2) (am) 2r., 50.065 (2) (b) 1g., 50.065 (2) (b) 2r. and 50.09 (1g) of the statutes; relating to: authorizing access by the long-term care ombudsman or his or her representative to a client or resident in a residential care apartment complex, imposing an annual assessment on occupied apartments of residential care apartment complexes, expanding rights of residents of facilities; minimum staffing requirements for certain nursing homes; requiring audits by the Legislative Audit Bureau; requiring reports; caregiver background checks; quality of nursing home care; requiring the exercise of rule-making authority; and making an appropriation.

Analysis by the Legislative Reference Bureau

Residential care apartment complexes

Under current law, under the Long-Term Care Ombudsman Program, the long-term care ombudsman or his or her designated representative may enter a long-term care facility at any time, without notice, and have access to clients and residents of the facility. "Long-term care facility" is defined as a nursing home, a community-based residential facility (C-BRF), a place in which care is provided under a continuing care contract, a swing bed in an acute care or extended care facility, or an adult family home. The ombudsman or representative may communicate in private with a client or resident, review records with consent of the client or resident or his or her legal counsel, and have access to records of the long-term care facility or of the the Department of Health and Family Services (DHFS) concerning regulation of the long-term care facility.

Also under current law, residential care apartment complexes are certified or registered and otherwise regulated by DHFS. A "residential care apartment complex" is defined as a place where five or more adults reside that consists of independent apartments, each of which has an individual lockable entrance and exit, a kitchen with a stove, and individual bathroom, sleeping, and living areas, and that provides to a resident not more than 28 hours per week of supportive, personal, and nursing services.

Current law specifies rights of residents of nursing homes and community-based residential facilities, including the rights to have private and unrestricted communication with others, to present grievances without justifiable fear of reprisal, and to be fully informed of all services, charges for services, and changes in service.

This bill expands the definition of a long-term care facility, for purposes of activities by the long-term care ombudsman or his or her designated representative, to include residential care apartment complexes.

The bill imposes an assessment on each residential care apartment complex of $12 per year per occupied apartment, which, beginning on July 1, 2006, the complex must pay annually to DHFS. The assessment is based on occupied apartments for the complex for the preceding June. DHFS must enforce and collect the assessment, which must be credited to an appropriation of program revenues for expenditure by the Board on Aging and Long-Term Care for activities under the Long-Term Care Ombudsman Program in residential care apartment complexes.

The bill includes residents of residential care apartment complexes as persons entitled to the rights that are specified under current law for residents of nursing homes and community-based residential facilities.

The bill requires a residential care apartment complex to post in a conspicuous location a notice of the name, address, and telephone number of the Long-Term Care Ombudsman Program.

Nursing home minimum staffing requirements

Current law requires a nursing home that does not primarily serve the developmentally disabled to provide each resident of the nursing home a minimum number of hours of nursing care per day according to the level of nursing care that the resident requires. A registered nurse, licensed practical nurse, or nurse's assistant must provide these minimum hours.

This bill requires DHFS to promulgate rules to specify minimum staffing standards that instead are based on ratios between the number of residents of a nursing home and the number of registered nurses, licensed practical nurses, and certified nurse's assistants (as defined in the bill) on duty in the nursing home during morning, afternoon, and evening shifts. By July 1, 2007, minimum nursing home staffing requirements under current law are eliminated, and DHFS must convert those minimum staffing requirements to the minimum staffing standards specified in DHFS rules, provide training to DHFS staff on enforcement of the standards, and assist nursing homes in implementing the standards. DHFS must, by January 1, 2007, report to the governor and to the legislature concerning the status of DHFS compliance with these requirements. By July 1, 2007, nursing homes must have on duty the number of registered nurses, licensed practical nurses, and certified nurse's assistants necessary to satisfy the minimum staffing standards specified in DHFS rules. Support personnel and certain other nursing home staff may not be used for purposes of calculating the minimum staffing ratios.

Under the bill, DHFS must, by January 1, 2009, submit a report to the governor and to the legislature with recommendations as to methods by which nursing homes would be able more effectively to recruit and retain caregivers; proposed revised minimum nursing home staffing ratios that minimize additional state costs, maximize access to care, facilitate care of the highest quality, and take into account the levels of care for physical or mental conditions that nursing home residents require; and a proposed revised nursing home Medical Assistance (MA) Program reimbursement methodology. DHFS must develop the report after first referring to the most recent national research on nursing home staffing and consulting with specified persons and entities.

Also, under the bill, by July 1, 2008, and by July 1 every 48 months thereafter, the Legislative Audit Bureau must conduct a performance evaluation audit of the nursing home staffing requirements, investigate whether the staffing requirements should be based in part on the level of care for physical or mental conditions that a nursing home resident requires, and file a report of the audit with the governor and the legislature.

Under the bill, DHFS must submit to the legislature by each January 1 from 2006 to 2009 a report that includes information from the preceding year for each nursing home on average wage and fringe benefit costs, costs of nonemployee purchased nursing services, staff turnover, total revenue and expenses, staff training and continuing education costs, and law violations and related information. Each report must also include recommendations by DHFS for ways by which nursing homes may reduce their reliance on nonemployee purchased nursing services.

Criminal background checks

Under current law relating to criminal histories and child abuse record searches, DHFS, a county department, a child welfare agency, or a school board must conduct background checks by obtaining certain information with respect to persons who have or are seeking licenses, certifications, or contracts to operate entities, and an entity must obtain the same information with respect to a caregiver of the entity. ("Entity" is defined as a child welfare agency, a licensed foster home or treatment foster home, a group home, a shelter care facility, a day care center, a day care provider, or a temporary employment agency that provides caregivers to another entity.) The information that must be obtained is a criminal history search from records maintained by the Department of Justice; any information in a registry kept by DHFS of persons against whom DHFS has made findings of misappropriation of property, neglect, or abuse; any applicable information maintained by the Department of Regulation and Licensing about the status of the person's credentials; information maintained by DHFS about substantiated reports of the person's child abuse or neglect; and information maintained by DHFS about denial to the person of a license, certification, or certain contracts, employment, or permission to reside at an entity, for specific reasons including conviction for a serious crime. Very similar laws relating to criminal histories and patient abuse record searches apply to persons who have or are seeking a license, certificate, registration, or certificate of approval issued by DHFS to operate a facility, organization, or service (such as a hospital or a personal care worker agency) that is licensed, certified, or registered with DHFS to provide direct care or services to patients.

This bill creates two additional sources of information that must be checked with respect to persons who have or are seeking licenses, certifications, or contracts to operate entities, facilities, organizations, or services: (1) information maintained by the Department of Corrections in the registry of sex offenders; and (2) information on persons convicted of crimes as specified under the circuit court automation information system maintained by the Wisconsin court system on its Internet site.

Quality of nursing home care

This bill requires DHFS to submit to the legislature a proposal for legislation to create a program to provide grants to nursing homes for quality-of-care improvement projects.

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:

AB1146, s. 1 Section 1. 13.94 (12) of the statutes is created to read:

AB1146,5,13 13.94 (12) Nursing home staffing. By July 1, 2008, and by July 1 every 48 months thereafter, the legislative audit bureau shall conduct a performance evaluation audit of the nursing home staffing requirements under s. 50.04 (2) and investigate whether the staffing requirements should be based in part on the level of care for physical or mental conditions that a nursing home resident requires. The legislative audit bureau shall consult advocates for nursing home residents, physicians, nurses, nursing home employees or their representatives, nursing home administrators, and other experts in the field of long-term care and shall consider current research and case data, as well as any other relevant resources, in assessing whether the staffing ratios are sufficient to meet the needs of nursing home residents. The legislative audit bureau shall file a report of each audit with the legislature under s. 13.172 (3) and with the governor no later than 30 days after completion of the audit.

AB1146, s. 2 Section 2. 16.009 (1) (em) 7. of the statutes is created to read:

AB1146,5,16 16.009 (1) (em) 7. A residential care apartment complex, as defined in s. 50.01 (1d).

AB1146, s. 3 Section 3. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB1146, s. 4 Section 4. 20.432 (1) (gt) of the statutes is created to read:

AB1146,6,5 20.432 (1) (gt) Activities in residential care apartment complexes. The amounts in the schedule for Long-Term Care Ombudsman Program activities in residential care apartment complexes. All moneys received under s. 50.034 (9) shall be credited to this appropriation account.

AB1146, s. 5 Section 5. 48.685 (2) (am) 2g. of the statutes is created to read:

AB1146,6,8 48.685 (2) (am) 2g. Information maintained by the department of corrections in the registry of sex offenders under s. 301.45 (2).

AB1146, s. 6 Section 6. 48.685 (2) (am) 2r. of the statutes is created to read:

AB1146,6,12 48.685 (2) (am) 2r. Information on persons convicted of crimes as specified under the circuit court automation information system maintained by the Wisconsin court system on its Internet site.

AB1146, s. 7 Section 7. 48.685 (2) (b) 1. bg. of the statutes is created to read:

AB1146,6,15 48.685 (2) (b) 1. bg. Information maintained by the department of corrections in the registry of sex offenders under s. 301.45 (2).

AB1146, s. 8 Section 8. 48.685 (2) (b) 1. br. of the statutes is created to read:

AB1146,6,19 48.685 (2) (b) 1. br. Information on persons convicted of crimes as specified under the circuit court automation information system maintained by the Wisconsin court system on its Internet site.

AB1146, s. 9 Section 9. 49.45 (6m) (a) 3m. of the statutes is created to read:

AB1146,6,22 49.45 (6m) (a) 3m. "Licensed practical nurse" means a nurse who is licensed or has a temporary permit under s. 441.10.

AB1146, s. 10 Section 10. 49.45 (6m) (a) 4m. of the statutes is created to read:

AB1146,6,25 49.45 (6m) (a) 4m. "Nurse's assistant" has the meaning given in s. 146.40 (1) (d).

AB1146, s. 11 Section 11. 49.45 (6m) (a) 5m. of the statutes is created to read:

AB1146,7,3 49.45 (6m) (a) 5m. "Registered nurse" means a nurse who has a certificate of registration under s. 441.06 or a temporary permit order under s. 441.08.

AB1146, s. 12 Section 12. 49.45 (6m) (m) of the statutes is created to read:

AB1146,7,7 49.45 (6m) (m) By January 1, 2006, 2007, 2008, and 2009, the department shall submit a report to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2), that shall include all of the following:

AB1146,7,8 1. For the preceding calendar year for each facility:

AB1146,7,10 a. The staff turnover rate for registered nurses, licensed practical nurses, and nurse's assistants employed by the facility.

AB1146,7,16 b. The average hourly wage and fringe benefit costs, including specific unemployment compensation and worker's compensation costs, for registered nurses, licensed practical nurses, nurse's assistants, dietary staff, housekeeping staff, and laundry staff employed by the facility and the average hourly cost for nonemployee purchased services, if any, of registered nurses, licensed practical nurses, and nurse's assistants.

AB1146,7,20 c. Total revenues and expenses, total net income after taxes, expenses for each of the facility's cost centers under par. (am), the medical assistance reimbursement rate and method of calculation, the number of patient beds, and the number of patient days.

AB1146,7,22 d. Total cost of recruiting, screening, educating, and training the nursing staff of the facility.

AB1146,8,2 e. Any correlation that may be shown between the number of notices of violations for class "A," "B," or "C" violations a facility received under s. 50.04, if any, and the frequency with which the facility used nonemployee purchased services of registered nurses, licensed practical nurses, or nurse's assistants.

AB1146,8,5 2. Recommendations of the department for incentives for facilities to reduce reliance on nonemployee purchased services of registered nurses, licensed practical nurses, or nurse's assistants.

AB1146, s. 13 Section 13. 50.02 (2) (bn) of the statutes is amended to read:

AB1146,8,9 50.02 (2) (bn) The department may, by rule, increase the minimum hours of nursing home care per day staffing standards that are specified in s. 50.04 (2) (d) 1. to 3. (e).

AB1146, s. 14 Section 14. 50.034 (3) (e) of the statutes is created to read:

AB1146,8,14 50.034 (3) (e) Post in a conspicuous location in the residential care apartment complex a notice, provided by the board on aging and long-term care, of the name, address, and telephone number of the Long-Term Care Ombudsman Program under s. 16.009 (2) (b).

AB1146, s. 15 Section 15. 50.034 (9) of the statutes is created to read:

AB1146,8,17 50.034 (9) Assessment on occupied apartments. (a) In this subsection, "complex" means a certified or registered residential care apartment complex.

AB1146,8,20 (b) For the privilege of doing business in this state, there is imposed on all occupied apartments of a complex an annual assessment that shall be credited to the appropriation account under s. 20.432 (1) (gt) and that is $12 per apartment.

AB1146,9,2 (c) By July 1 annually, a complex shall submit to the department the amount due under par. (b) for each occupied apartment of the complex for the preceding June. The department shall verify the number of apartments of a complex and, if necessary, make adjustments to the payment, notify the complex of changes in the payment owing, and send the complex an invoice for the additional amount due or send the complex a refund.

AB1146,9,5 (d) Sections 77.59 (1) to (5), (6) (intro.), (a), and (c), and (7) to (10), 77.60 (1) to (7), (9), and (10), 77.61 (9) and (12) to (14), and 77.62, as they apply to the taxes under subch. III of ch. 77, apply to the assessment under this subsection.

AB1146,9,8 (e) 1. The department shall enforce and collect the assessment under this subsection and shall develop and distribute forms necessary for levying and collection.

AB1146,9,10 2. The department shall promulgate rules that establish procedures and requirements for levying the assessment under this subsection.

AB1146,9,13 (f) 1. An affected complex may contest an action by the department under this subsection by submitting a written request for a hearing to the department within 30 days after the date of the department's action.

AB1146,9,15 2. An order or determination made by the department under a hearing as specified in subd. 1. is subject to judicial review as prescribed under ch. 227.

AB1146, s. 16 Section 16. 50.04 (2) (d) of the statutes is repealed.

AB1146, s. 17 Section 17. 50.04 (2) (e) of the statutes is created to read:

AB1146,9,18 50.04 (2) (e) 1. In this paragraph:

AB1146,9,20 a. "Afternoon work shift" means the 8-hour work shift that begins immediately after the morning shift.

AB1146,9,22 b. "Certified nurse's assistant" means a nurse's assistant who meets the requirements specified under 42 USC 1296r (b) (5) (A) to (E).

AB1146,9,24 c. "Evening work shift" means the 8-hour work shift that begins immediately after the afternoon work shift.

AB1146,10,2 d. "Morning work shift" means the first 8-hour work shift that begins after midnight.

AB1146,10,11 2. The department shall promulgate rules that specify minimum staffing standards that are based on ratios between the number of registered nurses on duty in a nursing home per morning work shift, afternoon work shift, or evening work shift and the number of residents of the nursing home, between the number of licensed practical nurses on duty in a nursing home per morning work shift, afternoon work shift, or evening work shift and the number of residents of the nursing home, and between the number of certified nurse's assistants on duty in a nursing home per morning work shift, afternoon work shift, or evening work shift and the number of residents of the nursing home.

AB1146,10,15 3. By July 1, 2007, the department shall convert the minimum staffing requirements specified in s. 50.04 (2) (d), 2005 stats., to the minimum staffing standards specified in subd. 2., shall provide training to staff on enforcement of the standards, and shall assist nursing homes in implementing the standards.

AB1146,10,19 4. By July 1, 2007, a nursing home, other than a nursing home that primarily serves the developmentally disabled, shall have on duty the number of registered nurses, licensed practical nurses, and certified nurse's assistants necessary to satisfy the minimum staffing standards developed by the department under subd. 2.

AB1146,11,2 5. A registered nurse, licensed practical nurse, or certified nurse's assistant who while on duty provides primarily support services, including food preparation, housekeeping, laundry, or maintenance services, may not be counted for purposes of calculating the minimum staffing ratios under subd. 2. A registered nurse who is employed as a director of nursing, as an assistant director of nursing, or as the charge nurse required under par. (b), may not be counted for purposes of calculating the minimum staffing requirements under subd. 2. while he or she is performing the duties of a director of nursing, assistant director of nursing, or charge nurse.

AB1146,11,11 6. By January 1, 2009, after first referring to the most recent national research on nursing home staffing and consulting with representatives of the nursing home industry, labor unions that represent nursing home employees, advocates for elderly and disabled persons, recognized experts with experience in long-term care reimbursement, economists, the attorney general, the federal centers for medicare and medicaid services, and other interested parties, the department shall submit a report to the governor, and to the chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2). The report shall contain all of the following recommendations:

AB1146,11,13 a. Proposed methods by which nursing homes are able more effectively to recruit and retain caregivers.

AB1146,11,17 b. Proposed revised minimum nursing home staffing ratios that minimize additional state costs, maximize access to care, facilitate care of the highest quality, and take into account the levels of care for physical or mental conditions that nursing home residents require.

AB1146,11,22 c. A proposed revised nursing home medical assistance reimbursement methodology that more effectively promotes resident care of high quality, advances wages and benefits for nursing home workers, supports nursing home provider compliance with applicable state statutes and rules and federal statutes and regulations, and encourages administrative efficiency.

AB1146, s. 18 Section 18. 50.065 (2) (am) 2g. of the statutes is created to read:

AB1146,11,25 50.065 (2) (am) 2g. Information maintained by the department of corrections in the registry of sex offenders under s. 301.45 (2).

AB1146, s. 19 Section 19. 50.065 (2) (am) 2r. of the statutes is created to read:

AB1146,12,4 50.065 (2) (am) 2r. Information on persons convicted of crimes as specified under the circuit court automation information system maintained by the Wisconsin court system on its Internet site.