50.04(4)(a)2.
2. The department is not required to serve a notice of violation if each of the following conditions exists:
50.04(4)(a)2.a.
a. The nursing home brings the violation to the department's attention.
50.04(4)(a)2.b.
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.
50.04(4)(a)3.
3. The department is not required to serve a notice of a class "C" violation if it finds that the nursing home is in substantial compliance with the specific rule violated.
50.04(4)(b)1.1. A class "A" violation is a violation of this subchapter or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a nursing home presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom.
50.04(4)(b)2.
2. A class "B" violation is a violation of this subchapter or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a nursing home directly threatening to the health, safety or welfare of a resident.
50.04(4)(b)3.
3. A class "C" violation is a violation of this subchapter or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a nursing home which does not directly threaten the health, safety or welfare of a resident.
50.04(4)(b)4.
4. Each day of violation constitutes a separate violation. Except as provided in
sub. (5) (a) 4., the department shall have the burden of showing that a violation existed on each day for which a forfeiture is assessed. No forfeiture may be assessed for a condition for which the nursing home has received a variance or waiver of a standard.
50.04(4)(c)1.1. The situation, condition or practice constituting a class "A" violation 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 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.
50.04(4)(c)2.
2. At the time of issuance of a notice of a class "B" or "C" violation, the department shall request a plan of correction which is subject to the department's approval. The nursing home shall have 10 days after receipt of notice of violation in which to prepare and submit a plan of correction but the department may extend this period up to 30 days where correction involves substantial capital improvement. The plan shall include a fixed time period within which violations are to be corrected. If the nursing home plan of correction is substantially in compliance, it may be modified upon agreement between the department and the nursing home to achieve full compliance. If it rejects a plan of correction, the department shall send notice of the rejection and the reason for the rejection to the nursing home and impose a plan of correction. The imposed plan of correction may be modified upon agreement between the department and the nursing home.
50.04(4)(c)3.
3. If the violation has been corrected prior to submission and approval of a plan of correction, the nursing home may submit a report of correction in place of a plan of correction. Such report shall be signed by the administrator under oath.
50.04(4)(c)4.
4. Upon a licensee's petition, the department shall determine whether to grant a licensee's request for an extended correction time. Such petition must be served on the department prior to expiration of the correction time originally approved. The burden of proof is on the petitioner to show good cause for not being able to comply with the original correction time approved.
50.04(4)(e)1.1. 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 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.
50.04(4)(e)2.
2. The division shall notify the nursing home of its decision to reverse, modify or uphold the contested action within 15 days after the close of the hearing.
50.04(4)(e)3.
3. In any petition for judicial review of a decision by the division under
subd. 2., the department, if not the petitioner who was in the proceeding before the division under
subd. 1., shall be the named respondent.
50.04(5)(a)(a)
Amounts. Any operator or owner of a nursing home which is in violation of this subchapter or any rule promulgated thereunder may be subject to the forfeitures specified in this section.
50.04(5)(a)1.
1. A class "A" violation may be subject to a forfeiture of not more than $5,000 for each violation.
50.04(5)(a)2.
2. A class "B" violation may be subject to a forfeiture of not more than $1,000 for each violation.
50.04(5)(a)3.
3. A class "C" violation may be subject to a forfeiture of not more than $100. No forfeiture may be assessed for a class "C" violation unless at least one of the following applies:
50.04(5)(a)3.a.
a. The department serves the nursing home a notice of violation following the nursing home's failure to correct a class "C" violation by the date specified in a correction order or an extended date set by the department, if granted.
50.04(5)(a)3.b.
b. The department serves the nursing home a notice of violation for a class "C" repeat violation.
50.04(5)(a)4.
4. Notwithstanding
subds. 1.,
2. and
3., if the violation or group of violations results from inadequate staffing, the amount of the forfeiture that the department may assess shall be no less than the difference between the cost of the staff actually employed and the estimated cost of the staff required. The number of staff required shall be determined by the provider contract, court order or the department, by rule, whichever is greatest. The inadequate staff shall be presumed to exist from the date of the notice of violation.
50.04(5)(a)5.
5. A nursing home which violates a statute or rule and which has received a notice of violation of the same statute or rule on one or more separate prior occasions within the prior 2-year period may be subject to a forfeiture 3 times the amount authorized for the class of violation involved. This provision only applies to a class "A" or class "B" violation. A notice of violation found to be unjustified after hearing may not be considered in determining whether to apply this subdivision.
50.04(5)(a)5m.
5m. Beginning on December 8, 1987, the department may consider, for purposes of applying triple forfeitures under
subd. 5., any notice of violation issued by the department within the 2-year period preceding December 8, 1987, or issued by the department on or after December 8, 1987.
50.04(5)(a)6.
6. If a licensee fails to correct a violation within the time specified in the notice of violation or approved plan of correction, or within the extended correction time granted under
sub. (4) (c) 4., or if violation continues after a report of correction, a separate forfeiture may be assessed upon the licensee in an amount not to exceed, for each day of continuing violation, $5,000 for class "A" violations and $1,000 for class "B" violations.
50.04(5)(b)
(b)
Factors in assessment of forfeitures. In determining whether a forfeiture is to be imposed and in fixing the amount of the forfeiture to be imposed, if any, for a violation, the following factors shall be considered:
50.04(5)(b)1.
1. The gravity of the violation, including the probability that death or serious physical or psychological harm to a resident will result or has resulted; the severity of the actual or potential harm; and the extent to which the provisions of the applicable statutes or rules were violated.
50.04(5)(b)2.
2. "Good faith" exercised by the licensee. Indications of good faith include, but are not limited to, awareness of the applicable statutes and regulation and reasonable diligence in complying with such requirements, prior accomplishments manifesting the licensee's desire to comply with the requirements, efforts to correct and any other mitigating factors in favor of the licensee.
50.04(5)(b)3.
3. Any previous violations committed by the licensee.
50.04(5)(b)4.
4. The financial benefit to the nursing home of committing or continuing the violation.
50.04(5)(c)
(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 shall send a notice of assessment to the nursing home. The notice shall specify the amount of the forfeiture assessed, the violation, the statute or rule alleged to have been violated, and shall inform the licensee of the right to hearing under
par. (e).
50.04(5)(d)1.1. In the case of a class "B" violation, no forfeiture may be assessed for the violation from the day following the date of discovery until the date of notification. If the department fails to approve or reject a plan of correction within 15 days after its receipt of a complete plan, no forfeiture may be imposed for the period beginning with the 15th day after receipt and ending when notice of approval or rejection is received by the home. If a plan of correction is approved and carried out, no forfeiture may be assessed during the time period specified in the approved plan of correction, commencing on the day the plan of correction is received by the department.
50.04(5)(d)2.
2. In the case of a class "C" violation for which a notice of violation has been served, a forfeiture may be assessed:
50.04(5)(d)2.a.
a. Under
par. (a) 3. a., for the period beginning on the date for correction set forth in the correction order or an extended date set by the department, if granted, and ending on the date on which the violation is corrected.
50.04(5)(dm)
(dm)
Forfeiture assessment date. In the case of a class "B" violation, the department may not assess a forfeiture upon a nursing home until:
50.04(5)(e)
(e)
Forfeiture appeal hearing. A nursing home may contest an assessment of forfeiture by sending, within 10 days after receipt of notice of a contested action, 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.
50.04(5)(f)
(f)
Forfeitures paid within 10 days. All forfeitures shall be paid to the department within 10 days of receipt of notice of assessment or, if the forfeiture is contested under
par. (e), within 10 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 state treasurer for deposit in the school fund.
50.04(5)(g)
(g)
Enforcement by attorney general. The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this section if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.
50.04(6)(a)(a)
Power of department. In addition to the right to assess forfeitures under
sub. (5), the department may issue a conditional license to any nursing home if the department finds that either a class "A" or class "B" violation, as defined in
sub. (4), continues to exist in such home. The issuance of a conditional license shall revoke any outstanding license held by the nursing home. The nursing home may seek review of a decision to issue a conditional license as provided under
s. 50.03 (5).
50.04(6)(b)
(b)
Violation correction plan. Prior to the issuance of a conditional license, the department shall establish a written plan of correction. The plan shall specify the violations which prevent full licensure and shall establish a time schedule for correction of the deficiencies. Retention of the license shall be conditional on meeting the requirements of the plan of correction.
50.04(6)(c)
(c)
Notice. Written notice of the decision to issue a conditional license shall be sent to the facility together with the proposed plan of correction. The notice shall inform the facility of its right to an informal conference prior to issuance of the conditional license under
par. (d) and of its right to a full hearing under
par. (e).
50.04(6)(d)
(d)
Informal conference. If the facility desires to have an informal conference it shall, within 4 working days of receipt of the notice under
par. (c), send a written request for an informal conference to the department. The department shall, within 4 working days from the receipt of the request, hold an informal conference in the county in which the facility is located. Following this conference the department may affirm or overrule its previous decision, or modify the terms of the conditional license and plan of correction. The conditional license may be issued after the informal conference, or after the time for requesting an informal conference has expired, prior to any further hearing.
50.04(6)(e)
(e)
Hearing. If after the informal conference the licensee desires to contest the basis for issuance of a conditional license, or the terms of the license or plan of correction, the licensee shall send a written request for hearing to the department within 4 working days after issuance of the conditional license. The department shall hold the hearing within 30 days of receipt of such notice and shall immediately notify the licensee of the date and location of the hearing.
50.04(6)(f)
(f)
Term; inspection. A conditional license shall be issued for a period specified by the department, but in no event for more than one year. The department shall periodically inspect any nursing home operating under a conditional license. If the department finds substantial failure by the nursing home to follow the plan of correction, the conditional license may be revoked as provided under
s. 50.03 (5). The licensee is entitled to a hearing on the revocation under
s. 50.03 (5), but the department may rely on facts found in a hearing under
par. (e) as grounds for revocation.
50.04(6)(g)
(g)
Expiration. If the department determines that a conditional license shall expire without renewal or replacement of the conditional license by a regular license, the department shall so notify the licensee at least 30 days prior to expiration of the license. The notice shall comply with notice requirements under
s. 50.03 (5). The licensee is entitled to a hearing under
s. 50.03 (5) prior to expiration of the license.
50.04(7)
(7) Violations. If an act forms the basis for a violation of this section and
s. 49.498, the department or the attorney general may impose sanctions in conformity with this section or under
s. 49.498, but not both.
50.04 History
History: 1977 c. 170 ss.
6,
29;
1977 c. 272;
1979 c. 34;
1981 c. 20,
121,
317,
391;
1983 a. 27 s.
2200 (1);
1985 a. 29;
1985 a. 182 s.
57;
1985 a. 332 s.
251 (1), (7);
1987 a. 27,
127,
399;
1989 a. 31,
336;
1991 a. 39,
269,
315;
1995 a. 27.
50.04 Annotation
State nursing home is not subject to forfeiture provisions of ch. 50. Wis. Vet. Home v. Div. Nurs. Forfeit. Appeals, 104 W (2d) 106, 310 NW (2d) 646 (Ct. App. 1981).
50.04 Annotation
County-operated nursing home was subject to forfeiture under (5). Lakeland Home v. Nursing Home Appeals Div. 118 W (2d) 636, 348 NW (2d) 523 (1984).
50.04 Annotation
Thirty-day limit in (5) (e) on commencing hearing is directory, not mandatory. St. Michael's Church v. Admin. Dept., 137 W (2d) 326, 404 NW (2d) 114 (Ct. App. 1987).
50.05
50.05
Placement of monitor and appointment of receiver. 50.05(1)(1)
Definitions. In this section:
50.05(1)(a)1.
1. With respect to a partnership, each partner thereof.
50.05(1)(a)1L.
1L. With respect to a limited liability company, each member thereof.
50.05(1)(a)2.
2. With respect to a corporation, each officer, director, principal stockholder and controlling person thereof.
50.05(1)(a)3.
3. With respect to a natural person: any person related in the first degree of kinship to that person; each partnership and each partner thereof of which that person or any affiliate of that person is a partner; each limited liability company and each member or manager thereof of which that person or any affiliate of that person is a member or manager; and each corporation in which that person or any affiliate of that person is an officer, director, principal stockholder or controlling person.
50.05(1)(b)
(b) "Controlling person" means any person who has the ability, directly or indirectly, to control the management or policies of the facility.
50.05(1)(c)
(c) "Emergency" means a situation, physical condition or one or more practices, methods or operations which presents imminent danger of death or serious physical or mental harm to residents of the facility.
50.05(1)(d)
(d) "Facility" means a nursing home or community-based residential facility.
50.05(1)(e)
(e) "Operator" means any person licensed or required to be licensed under this subchapter as the operator of a facility.
50.05(1)(f)
(f) "Principal stockholder" of a corporation means any person who, directly or indirectly, beneficially owns, holds or has the power to vote, 10% or more of any class of securities issued by the corporation.
50.05(2)
(2) Conditions for placement of a monitor or appointment of a receiver. The department may place a monitor in a facility and the secretary, as specified in
sub. (4), may petition for appointment of a receiver for a facility when any of the following conditions exist:
50.05(2)(a)
(a) The facility is operating without a license.
50.05(2)(b)
(b) The department has suspended, revoked or refused to renew the existing license of the facility.
50.05(2)(c)
(c) The department has initiated revocation or nonrenewal procedures and has determined that the lives, health, safety, or welfare of the residents cannot be adequately assured pending a full hearing on license nonrenewal or revocation.
50.05(2)(d)
(d) The facility is closing or intends to close and adequate arrangements for relocation of residents have not been made at least 30 days prior to closure.
50.05(2)(e)
(e) The department determines that an emergency exists or that placement of a monitor or appointment of a receiver is necessary to protect the health, safety or welfare of the residents.
50.05(2)(f)
(f) The facility is a nursing facility that is in violation of
s. 49.498 or a rule promulgated under
s. 49.498, 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:
50.05(2)(f)1.
1. There is an orderly closure of the nursing facility.
50.05(2)(f)2.
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.
50.05(3)
(3) Monitor. In any situation described in
sub. (2), the department may place a person to act as monitor in the facility. The monitor shall observe operation of the facility, assist the facility by advising it on how to comply with state regulations, and shall submit a written report periodically to the department on the operation of the facility. The department may require payment by the operator or controlling person of the facility for the costs of placement of a person to act as monitor in the facility.
50.05(4)
(4) Appointment of receiver. Only the secretary, represented by the department of justice, may apply for a court order appointing the secretary or the secretary's designee receiver of the facility. The secretary, as represented, may apply by verified petition to the circuit court for Dane county for the order. The court shall hold a hearing on the petition within 5 days of the filing of the petition. The petition and notice of the hearing shall be served on the operator, administrator or designated agent of the facility as provided under
ch. 801 or shall be posted in a conspicuous place in the facility not later than 3 days before the time specified for the hearing, unless a different period is fixed by order of the court. Notwithstanding
ss. 803.01 to
803.09 and
844.18, the only persons who may appear as a party at the hearing under this subsection or
sub. (5) are the secretary or the secretary's designee and the operator of the facility. The court shall appoint a receiver for a specified time period requested by the secretary up to 120 days, if it finds that any ground exists which would authorize the appointment of a receiver under
sub. (2) and that appointment of a receiver will contribute to the continuity of care or the orderly and safe transfer of residents in the facility. The court may extend the period of receivership in 30-day increments only on the petition of the department and if the court finds that the department has been unable to transfer all of the residents to another suitable location or the department has determined that it is necessary for the receivership to be extended for the continued health, safety and welfare of the residents. Notwithstanding
s. 808.03 (1), any order issued at the hearing on the petition for receivership under this subsection or
sub. (5) or at a subsequent hearing concerning matters arising under the receivership or concerning termination of the receivership under
sub. (14) may be appealed as a matter of right.
50.05(5)
(5) Emergency procedure. If it appears from the petition filed under
sub. (4), or from an affidavit or affidavits filed with the petition, or from testimony of witnesses under oath when the court determines that this is necessary, that there is probable cause to believe that an emergency exists in the facility, the court shall immediately issue the requested order for appointment of a receiver, ex parte and without further hearing. An appearance by the secretary or the secretary's designee to obtain the order is not a hearing of any preliminary contested matter for the purposes of
s. 801.58 (1). Notice of the petition and order shall be served on the operator, administrator, or designated agent of the facility as provided under
ch. 801 or shall be posted in a conspicuous place in the facility within 24 hours after issuance of the order and a hearing on the petition shall be held within 3 days after notice is served or posted unless the operator consents to a later date. After the hearing, the court may terminate, continue or modify the temporary order.
50.05(6)
(6) Objective. The receiver shall with all reasonable speed, but in any event by the date receivership ends under
sub. (4), provide for the orderly transfer of all residents in the facility to other suitable facilities or make other provisions for their continued health, safety and welfare.
50.05(7)
(7) Powers and duties of receiver. A receiver appointed under this chapter:
50.05(7)(a)
(a) May exercise those powers and shall perform those duties set out by the court.
