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.
50.05(7)(b)
(b) Shall operate the facility in such a manner as to assure safety and adequate health care for the residents.
50.05(7)(c)
(c) Shall have the same rights to possession of the building in which the facility is located and of all goods and fixtures in the building at the time the petition for receivership is filed as the operator would have had if the receiver had not been appointed. The receiver shall take such action as is reasonably necessary to protect or conserve the tangible assets or property of which the receiver takes possession, or the proceeds of any transfer thereof, and may use them only in the performance of the powers and duties set forth in this section and by order of the court.
50.05(7)(d)
(d) May use the building, fixtures, furnishings, and any accompanying consumable goods in the provision of care and services to residents and to any other persons receiving services from the facility at the time the petition for receivership was filed. The receiver shall collect payments for all goods and services provided to residents or others during the period of the receivership, at the same rate of payment as was charged by the operators at the time the petition for receivership was filed, unless a different rate is set by the court.
50.05(7)(e)
(e) May correct or eliminate any deficiency in the structure or furnishings of the facility which presents an immediate or serious danger to the health or safety of residents while they remain in the facility, provided the total cost of correction does not exceed $3,000. The court may order expenditures for this purpose in excess of $3,000 only on application from the receiver.
50.05(7)(f)
(f) May let contracts and hire agents and employes to carry out the powers and duties created under this section. Competitive bidding requirements under
s. 16.75 do not apply to contracts for services or materials let by the receiver.
50.05(7)(g)
(g) Except as specified in
sub. (9), shall honor all leases, mortgages and secured transactions governing the building in which the facility is located and all goods and fixtures in the building of which the receiver has taken possession, but only to the extent of payments which, in the case of a rental agreement, are for the use of the property during the period of the receivership, or which, in the case of a purchase agreement, come due during the period of the receivership.
50.05(7)(h)
(h) Shall have full power to direct and manage and to discharge employes of the facility, subject to any contract rights they may have. The receiver shall pay employes at the same rate of compensation, including benefits, that the employes would have received from the operator, except that the receiver shall compensate employes for time actually worked during the period of receivership and may reimburse for vacations or periods of sick leave. The receiver may grant salary increases and fringe benefits to employes of a nursing home, in accord with the facility payment formula under
s. 49.45 (6m). Receivership does not relieve the operator of any obligation to employes not carried out by the receiver.
50.05(7)(i)
(i) Shall, if any resident is transferred or discharged, provide for:
50.05(7)(i)1.
1. Transportation of the resident and the resident's belongings and medical records to the place to which the resident is being transferred or discharged.
50.05(7)(i)2.
2. Aid in location of an alternative placement and in discharge planning.
50.05(7)(i)3.
3. If the patient is being transferred, preparation for transfer to mitigate transfer trauma.
50.05(7)(j)
(j) Shall, if any resident is to be transferred, permit participation by the resident or the resident's guardian in the selection of the resident's alternative placement.
50.05(7)(k)
(k) Shall, unless emergency transfer is necessary, prepare a resident under
pars. (i) 3. and
(j) by explaining alternative placements, and by providing orientation to the placement chosen by the resident or the resident's guardian.
50.05(7)(L)
(L) Shall be entitled to and shall take possession of all property or assets of residents which are in the possession of an owner, operator or controlling person of the facility. The receiver shall preserve all property, assets and records of residents of which the receiver takes possession and shall provide for the prompt transfer of the property, assets and records to the alternative placement of any transferred resident.
50.05(7)(m)
(m) May restrict admissions to the facility.
50.05(8)(a)(a) A person who is served with notice of an order of the court appointing a receiver and of the receiver's name and address shall be liable to pay the receiver for any goods or services provided by the receiver after the date of the order if the person would have been liable for the goods or services as supplied by the operator. The receiver shall give a receipt for each payment and shall keep a copy of each receipt on file. The receiver shall deposit amounts received in a special account and shall use this account for all disbursements.
50.05(8)(b)
(b) The receiver may bring an action to enforce the liability created by
par. (a). Proof of payment to the receiver is as effective in favor of the person making the payment as payment of the amount to the person who would, but for this subsection, have been entitled to receive the sum so paid.
50.05(8)(c)
(c) A resident may not be discharged, nor may any contract or rights be forfeited or impaired, nor may forfeiture or liability be increased, by reason of an omission to pay an owner, operator or other person a sum paid to the receiver.
50.05(9)
(9) Avoidance of preexisting leases, mortgages and contracts. 50.05(9)(a)(a) A receiver may not be required to honor any lease, mortgage, secured transaction or other wholly or partially executory contract entered into by the owners or operators of the facility if:
50.05(9)(a)1.
1. The person seeking payment under the lease, mortgage, secured transaction or other wholly or partially executory contract was an operator or controlling person of the facility or was an affiliate of an operator or controlling person at the time the lease, mortgage, secured transaction or other wholly or partially executory contract was made; or
50.05(9)(a)2.
2. The rental, price or rate of interest required to be paid under the lease, mortgage, secured transaction or other wholly or partially executory contract was in excess of a reasonable rental, price or rate of interest at the time the contract was entered into.
50.05(9)(a)3.
3. Payment under the lease, mortgage, secured transaction or other wholly or partially executory contract has been modified by the parties' subsequent oral or written agreement or constructive waiver.
50.05(9)(b)
(b) If the receiver is in possession of real estate or goods subject to a lease, mortgage or security interest which the receiver is permitted to avoid under
par. (a), and if the real estate or goods are necessary for the continued operation of the facility under this section, the receiver may apply to the court to set a reasonable rental, price or rate of interest to be paid by the receiver during the duration of the receivership. The court shall hold a hearing on the application within 15 days. The receiver shall send notice of the application to any known owners of the property involved at least 10 days prior to the hearing. Payment by the receiver of the amount determined by the court to be reasonable is a defense to any action against the receiver for payment or for possession of the goods or real estate subject to the lease or mortgage involved by any person who received such notice, but the payment does not relieve the owner or operator of the facility of any liability for the difference between the amount paid by the receiver and the amount due under the original lease or mortgage involved.
