AB302: Bill Text

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 bill 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 bill 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 bill 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 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.

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 bill 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 bill 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 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 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 bill, 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 bill 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 bill 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 bill 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 bill, DHS must establish and maintain a quality assurance and improvement committee to review proposals and award moneys for those innovative 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:

AB302, s. 1 Section 1. 20.435 (6) (g) of the statutes is amended to read:

AB302,4,8 20.435 (6) (g) Nursing facility resident protection. All moneys received from the penalty assessment surcharges on forfeitures that are levied by the department under s. 49.498 (16) (c) 1., 2. and 3. and the interest under s. 49.498 (16) (d) and from civil money penalties collected under 42 CFR 488.442 to finance nursing facility resident protection under s. 49.499 and any projects under s. 50.04 (8) 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 homes.

AB302, s. 2 Section 2. 50.01 (1ng) of the statutes is created to read:

AB302,5,4 50.01 (1ng) "Immediate jeopardy" means a situation in which a nursing home's noncompliance with one or more requirements under 42 CFR 483 related to the operation of a nursing home has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

AB302, s. 3 Section 3. 50.03 (4) (a) 1. a. of the statutes is amended to read:

AB302,5,13 50.03 (4) (a) 1. a. Except as provided in sub. (4m) (a), the department shall issue a license for a nursing home if it finds the applicant to be fit and qualified and if it finds that the nursing home meets the requirements established by this subchapter and, as applicable, requirements under 42 CFR 483 related to the operation of a nursing home. The department, or its designee, shall make such inspections and investigations as are necessary to determine the conditions existing in each case and shall file written reports. The department shall promulgate rules defining "fit and qualified" for the purposes of this subd. 1. a.

AB302, s. 4 Section 4. 50.03 (4m) (a) of the statutes is amended to read:

AB302,6,2 50.03 (4m) (a) If the applicant for licensure as a nursing home has not been previously licensed under this subchapter or if the nursing home is not in operation at the time application is made, the department shall issue a probationary license. A probationary license shall be valid for 12 months from the date of issuance unless sooner suspended or revoked under sub. (5). Prior to the expiration of a probationary license, the department shall inspect the nursing home and, if the nursing home meets the applicable requirements for licensure and, if applicable, substantially complies with requirements under 42 CFR 483 related to the operation of a nursing home, shall issue a regular license under sub. (4) (a) 1. a. If the department finds that the nursing home does not meet the requirements for licensure or does not substantially comply with requirements under 42 CFR 483 related to the operation of a nursing home, the department may not issue a regular license under sub. (4) (a) 1. a.

AB302, s. 5 Section 5. 50.03 (5) (a) of the statutes is amended to read:

AB302,6,11 50.03 (5) (a) Power of department. The department, after notice to a nursing home applicant or licensee, may suspend or revoke a license in any case in which the department finds that the nursing home has substantially failed to comply with the applicable requirements of this subchapter and the rules promulgated under this subchapter, with s. 49.498, or with requirements under 42 CFR 483 related to the operation of a nursing home. No state or federal funds passing through the state treasury may be paid to a nursing home that does not have a valid license issued under this section.

AB302, s. 6 Section 6. 50.03 (5) (b) of the statutes is amended to read:

AB302,6,16 50.03 (5) (b) Form of notice. Notice under this subsection shall include a clear and concise statement of the violations on which the revocation is based, the statute or, rule, or federal requirement violated and notice of the opportunity for an evidentiary hearing under par. (c).

AB302, s. 7 Section 7. 50.03 (7) (a) of the statutes is amended to read:

AB302,6,25 50.03 (7) (a) Licensed facility. Notwithstanding the existence or pursuit of any other remedy, the department may, upon the advice of the attorney general, maintain an action in the name of the state in the circuit court for injunction or other process against any licensee, owner, operator, administrator or representative of any owner of a facility to restrain and enjoin the repeated violation of any of the provisions of this subchapter or, rules promulgated by the department under this subchapter, or requirements under 42 CFR 483 related to the operation of a nursing home where the violation affects the health, safety or welfare of the residents.

AB302, s. 8 Section 8. 50.03 (13) (a) of the statutes is amended to read:

AB302,7,15 50.03 (13) (a) New license. Whenever ownership of a facility is transferred from the person or persons named in the license to any other person or persons, the transferee must obtain a new license. The license may be a probationary license. Penalties under sub. (1) shall apply to violations of this subsection. The transferee shall notify the department of the transfer, file an application under sub. (3) (b), and apply for a new license at least 30 days prior to final transfer. Retention of any interest required to be disclosed under sub. (3) (b) after transfer by any person who held such an interest prior to transfer may constitute grounds for denial of a license where violations of this subchapter, or of requirements of 42 CFR 483 related to the operation of a nursing home, for which notice had been given to the transferor are outstanding and uncorrected, if the department determines that effective control over operation of the facility has not been transferred. If the transferor was a provider under s. 49.43 (10), the transferee and transferor shall comply with s. 49.45 (21).

AB302, s. 9 Section 9. 50.04 (4) (a) 1. of the statutes is amended to read:

AB302,7,25 50.04 (4) (a) 1. If Except as provided in par. (am) 2., if upon inspection or investigation the department determines that a nursing home is in violation of this subchapter or the rules promulgated under it and the violation is a class "A" or "B" violation, it shall promptly serve a notice of violation upon the licensee. Each notice of violation shall be prepared in writing and shall specify the nature of the violation, and the statutory provision or rule alleged to have been violated. The notice shall inform the licensee of the right to a hearing under par. (e). The written notice of a class "A" violation may be written and served by an agent of the department at the time of the inspection.

AB302, s. 10 Section 10. 50.04 (4) (a) 2. b. of the statutes is amended to read:

AB302,8,5 50.04 (4) (a) 2. b. The nursing home has made every reasonable effort to prevent and correct the violation, but the violation occurred and remains uncorrected due to circumstances beyond the nursing home's control, or the nursing home has corrected the violation.

AB302, s. 11 Section 11. 50.04 (4) (am) of the statutes is created to read:

AB302,8,9 50.04 (4) (am) Dual federal and state violations. 1. Notwithstanding s. 50.01 (3), in this paragraph, "nursing home" does not include a facility serving people with developmental disabilities.

AB302,8,16 2. If an act or omission constitutes a violation of this subchapter or the rules promulgated under this subchapter, s. 49.498, or requirements under 42 CFR 483 related to the operation of a nursing home, the department may not issue under s. 50.04 (4) (a) a notice of violation of this subchapter, the rules promulgated under this subchapter, or s. 49.498 if the department has, in a statement of deficiency, cited the nursing home for the violation under requirements under 42 CFR 483 related to the operation of a nursing home.

AB302, s. 12 Section 12. 50.04 (4) (c) 1. of the statutes is amended to read:

AB302,8,25 50.04 (4) (c) 1. The situation, condition or practice constituting a class "A" violation or immediate jeopardy shall be abated or eliminated immediately unless a fixed period of time, as determined by the department and specified in the notice of violation, is required for correction. If the class "A" violation or immediate jeopardy is not abated or eliminated within the specified time period, the department shall maintain an action in circuit court for injunction or other process against the licensee, owner, operator, administrator or representative of the facility to restrain and enjoin violation of applicable rules, regulations and statutes.

AB302, s. 13 Section 13. 50.04 (4) (d) 1. a. of the statutes is repealed and recreated to read:

AB302,9,6 50.04 (4) (d) 1. a. In the previous 15 months, the nursing home received written notice of a violation of a state statute or rule or a federal statute or regulation that involved immediate jeopardy to a resident; a class "A" violation; or 3 or more class "B" violations or violations that constituted actual harm not involving immediate jeopardy to a resident.

AB302, s. 14 Section 14. 50.04 (4) (d) 1. b. of the statutes is repealed and recreated to read:

AB302,9,13 50.04 (4) (d) 1. b. In any 15-month period during the 36 months immediately preceding the period specified in subd. 1. a., the nursing home received written notice of a violation of a state statute or rule or a federal statute or regulation that involved immediate jeopardy to a resident; a class "A" violation; or 3 or more class "B" violations or violations that constituted actual harm not involving immediate jeopardy to a resident.

AB302, s. 15 Section 15. 50.04 (4) (d) 2. of the statutes is amended to read:

AB302,9,25 50.04 (4) (d) 2. A suspension of admissions under subd. 1. shall begin 90 days after a nursing home received its last notice of violation for a class "A" or class "B" violation specified in subd. 1. a. if the department determines that the violation remains uncorrected 90 days after the nursing home received the last notice of the violation. If the nursing home indicates to the department that the violation has been corrected, but the department is unable to verify that the violation has been corrected, a suspension of admissions under subd. 1. shall begin on the day that the department makes a return visit to the nursing home and determines that the violation has not been corrected. A suspension of admissions under subd. 1. shall remain in effect until the department determines that all class "A" and class "B" violations by the nursing home have been has corrected the violation. Admission of a new resident during the period for which admissions have been suspended constitutes a class "B" violation.

AB302, s. 16 Section 16. 50.04 (4) (e) 1. of the statutes is amended to read:

AB302,10,23 50.04 (4) (e) 1. If a nursing home desires to contest any department action under this subsection, it shall send a written request for a hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1) within 10 60 days of receipt of notice of the contested action. Department action that is subject to a hearing under this subsection includes service of a notice of a violation of this subchapter or rules promulgated under this subchapter, a notation in the report under sub. (3) (b), imposition of a plan of correction, and rejection of a nursing home's plan of correction, but does not include a correction order. Upon the request of the nursing home, the division shall grant a stay of the hearing under this paragraph until the department assesses a forfeiture, so that its hearing under this paragraph is consolidated with the forfeiture appeal hearing held under sub. (5) (e). All agency action under this subsection arising out of a violation, deficiency , or rejection and imposition of a plan of correction shall be the subject of a single hearing. Unless a stay is granted under this paragraph, the division shall commence the hearing within 30 days of the request for hearing, within 30 days of the department's acceptance of a nursing home's plan of correction, or within 30 days of the department's imposition of a plan of correction, whichever is later. The division shall send notice to the nursing home in conformance with s. 227.44. Issues litigated at the hearing may not be relitigated at subsequent hearings under this paragraph arising out of the same violation or deficiency.

AB302, s. 17 Section 17. 50.04 (5) (a) 5m. of the statutes is repealed.

AB302, s. 18 Section 18. 50.04 (5) (c) of the statutes is amended to read:

AB302,11,10 50.04 (5) (c) Assessment of forfeitures; powers and duties of department. The department may directly assess forfeitures provided for under par. (a). If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct it, it the department shall send a notice of assessment of forfeiture to the nursing home. The notice shall specify the amount of the forfeiture assessed, the violation, and the statute or rule alleged to have been violated, and shall inform the licensee of the right to hearing under par. (e). If the department does not issue a notice of forfeiture within 120 days after the date on which a nursing home receives the notice of a violation, the department may not assess a forfeiture for the violation.

AB302, s. 19 Section 19. 50.04 (5) (e) of the statutes is amended to read:

AB302,12,3 50.04 (5) (e) Forfeiture appeal hearing. A nursing home may contest an assessment of a forfeiture by sending, within 10 60 days after receipt of notice of a contested action the assessment of the forfeiture, a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days of receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent. If, after receipt of notice of assessment of a forfeiture, a nursing home that has timely requested a hearing under sub. (4) (e) on the notice of violation under sub. (4) for which the forfeiture was assessed requests a hearing under this paragraph on the assessment of the forfeiture, the hearing on the notice of violation under sub. (4) and the hearing on the assessment of the forfeiture shall be consolidated.

AB302, s. 20 Section 20. 50.04 (5) (f) of the statutes is amended to read:

AB302,12,11 50.04 (5) (f) Forfeitures paid within 10 60 days. All forfeitures shall be paid to the department within 10 60 days of receipt of notice of assessment of the forfeiture or, if the forfeiture is contested under par. (e), within 10 60 days of receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order under s. 50.03 (11). The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund.

AB302, s. 21 Section 21. 50.04 (5) (fm) of the statutes is amended to read:

AB302,12,18 50.04 (5) (fm) Forfeiture reduction for timely payment. If a nursing home does not contest a notice of violation under sub. (4) (e) and does not contest an assessment of a forfeiture under par. (e) for a class "A" or class "B" violation and pays the forfeiture to the department within 10 60 days after receipt of the notice of assessment of the forfeiture, the department shall reduce the amount of the assessment forfeiture by 35% 35 percent.

AB302, s. 22 Section 22. 50.04 (6) (a) of the statutes is repealed and recreated to read:

AB302,12,22 50.04 (6) (a) Power of department. 1. In addition to the right to impose forfeitures under sub. (5), the department may issue a conditional license to any nursing home if the department finds that any of the following is true:

AB302,12,24 a. A class "A" or class "B" violation, as defined in sub. (4), continues to exist in the nursing home.

AB302,13,2 b. A federal violation continues to exist that constitutes immediate jeopardy or actual harm not involving immediate jeopardy to a resident.

AB302,13,4 2. The issuance of a conditional license shall revoke any outstanding license held by the nursing home.

AB302,13,6 3. The nursing home may seek review of a decision to issue a conditional license as provided in s. 50.03 (5).

AB302, s. 23 Section 23. 50.04 (8) of the statutes is created to read:

AB302,13,13 50.04 (8) Protection and cost effectiveness programs; quality assurance. (a) The department may distribute moneys from the appropriation account under s. 20.435 (6) (g) for innovative projects designed to protect the property and the health, safety, and welfare of residents in nursing homes and to improve the efficiency and cost effectiveness of the operation of facilities so as to improve the quality of life, care, and treatment of residents.

AB302,13,18 (b) The department shall establish and maintain a quality assurance and improvement committee to review proposals and award moneys for innovative projects, as described in par. (a), that are approved by the committee. The department shall promulgate rules to guide the actions of the quality assurance and improvement committee.

AB302, s. 24 Section 24. 50.05 (2) (f) (intro.) of the statutes is amended to read:

AB302,13,25 50.05 (2) (f) (intro.) The facility is a nursing facility that is in violation of s. 49.498 or, a rule promulgated under s. 49.498, or a requirement under 42 CFR 483 related to the operation of a nursing facility, meets the criteria established by rule under s. 49.498 (14) (c) for placement of a monitor or appointment of a receiver, and there is a need for placement of a monitor or appointment of a receiver during the period that any of the following applies:

AB302, s. 25 Section 25. 50.05 (2) (f) 2. of the statutes is amended to read:

AB302,14,5 50.05 (2) (f) 2. The nursing facility institutes improvements in order to bring the nursing facility into compliance with the requirements of s. 49.498 or, a rule promulgated under s. 49.498, or a requirement under 42 CFR 483 related to the operation of a nursing facility.

AB302, s. 26 Section 26. Initial applicability.

AB302,14,10 (1) Hearing requests. The treatment of section 50.04 (4) (e) 1. and (5) (e) of the statutes first applies to requests for hearings related to a notice of violation, a report notation, a of plan correction, or a rejection of a plan of correction that is issued on the effective date of this subsection.

AB302,14,13 (2) Conditional licensure. The treatment of sections 50.01 (1ng) and 50.04 (6) (a) of the statutes first applies to violations that continue to exist on the effective date of this subsection.

AB302,14,16 (3) Suspension of admissions. The treatment of sections 50.01 (1ng) and 50.04 (4) (d) 1. a. and b. and (d) 2. of the statutes first applies to written notice of violations received on the effective date of this subsection.

AB302,14,19 (4) Suspension or revocation of licensure. The treatment of section 50.03 (5) (a) and (b) of the statutes first applies to findings made by the department of health services on the effective date of this subsection.

AB302,14,22 (5) Provisional license. The treatment of section 50.03 (4m) (a) of the statutes first applies to inspections made by the department of health services on the effective date of this subsection.