50.04(2m)
(2m) Plan of care and assessment required. No nursing home may admit any patient until a physician has completed a plan of care for the patient and the patient is assessed or the patient is exempt from or waives assessment under
s. 46.27 (6) (a) or
46.271 (2m) (a) 2. Failure to comply with this subsection is a class "C" violation under
sub. (4) (b) 3.
50.04(2r)
(2r) Admissions requiring approval. Except in an emergency, a nursing home that is not certified as a provider of medical assistance or that is an intermediate care facility for the mentally retarded, as defined in
s. 46.278 (1m) (am), or an institution for mental diseases, as defined under
42 CFR 435.1009, may not admit as a resident an individual who has a developmental disability, as defined in
s. 51.01 (5), or who is both under age 65 and has mental illness, as defined in
s. 51.01 (13), unless the county department under
s. 46.23,
51.42 or
51.437 of the individual's county of residence has recommended the admission.
50.04(2t)(a)1.b.
b. A device or garment that interferes with an individual's freedom of movement and that the individual is unable to remove easily.
50.04(2t)(a)1.c.
c. Restraint by a facility staff member of a resident by use of physical force.
50.04(2t)(a)2.
2. "Psychotropic medication" means an antipsychotic, antidepressant, lithium carbonate or a tranquilizer.
50.04(2t)(b)
(b) No later than 24 hours after the death of a resident of a nursing home, the nursing home shall report the death to the department if one of the following applies:
50.04(2t)(b)1.
1. There is reasonable cause to believe that the death was related to the use of physical restraint or a psychotropic medication.
50.04(2t)(b)3.
3. There is reasonable cause to believe that the death was a suicide.
50.04(2v)
(2v) Posting of notice required. A nursing home shall post in a conspicuous location in the nursing home all of the following:
50.04(2v)(a)
(a) 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).
50.04(2v)(b)
(b) The most recent copy of the report for the nursing home that is specified under
s. 50.095 (3).
50.04(3)(a)(a)
Inspection. The department shall make or cause to be made at least one inspection biennially of each nursing home. The department may determine if conditions and practices comply with applicable standards by examining only a portion of the residents, records or physical plant when it conducts an inspection.
50.04(3)(b)
(b)
Biennial report. The department shall make at least one report on each nursing home in the state biennially. All conditions and practices not in compliance with applicable standards within the last 2 years shall be specifically stated. If a violation is corrected, is contested or is subject to an approved plan of correction, the same shall be specified in the biennial report. The department shall send a copy of the report to the nursing home and shall provide a copy to any person on request. The department may charge a reasonable fee to cover copying costs.
50.04(3)(c)
(c)
Posting of notice. The nursing home administrator shall retain a copy of the most recent biennial report prepared by the department under
par. (b) and shall post in a place readily visible to residents and visitors, such as the lobby or reception area of the facility, a notice stating that a copy of the report is available for public inspection on request to the administrator and that a copy will be provided by the department upon request for a minimal fee.
50.04(3)(d)
(d)
Survey of institutions for mental diseases. During inspections conducted under
par. (a), the department shall conduct a survey to determine whether any nursing home that is licensed under this section is an institution for mental diseases, as defined under
42 CFR 435.1009.
50.04(4)
(4) Notice of violation; correction. 50.04(4)(a)1.1. 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.
50.04(4)(a)1g.a.a. 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 "C" violation, the department may serve a correction order upon the licensee unless the nursing home corrects the violation before the completion of the inspection or investigation. If the correction is made before the completion of the inspection or investigation, the department may make a notation in the report under
sub. (3) (b) that shall specify the nature of the violation and the statute or rule alleged to have been violated.
50.04(4)(a)1g.b.
b. 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 "C" repeat violation, the department may serve a correction order or notice of violation upon the nursing home. If the nursing home corrects the violation before completion of the inspection or investigation, the department may, as an alternative to serving a correction order or notice of violation, make a notation in the report under
sub. (3) (b) that shall specify the nature of the violation and the statute or rule alleged to have been violated.
50.04(4)(a)1m.
1m. A correction order shall be prepared in writing and shall specify the nature of the violation, the statutory provision or rule alleged to have been violated and the date by which the violation shall be corrected. The department may grant an extension of the date for correction specified in the correction order. The nursing home shall correct the class "C" violation by the date specified in the correction order or the extended date, if granted.
50.04(4)(a)1r.
1r. The department may serve a notice of violation on a nursing home determined to be in violation of this subchapter or the rules promulgated under it for a class "C" violation if either of the following conditions apply:
50.04(4)(a)1r.a.
a. The nursing home fails to make a correction by the date specified in a correction order served under
subd. 1g. b. or by an extension of the date, if granted.
50.04(4)(a)1r.b.
b. The violation is a class "C" repeat violation, regardless of whether a correction order has first been served.
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)(d)1.1. The department shall suspend new admissions to a nursing home if all of the following apply:
50.04(4)(d)1.a.
a. The nursing home received notices of violation for a class "A" violation or 3 or more class "B" violations in the previous 12 months.
50.04(4)(d)1.b.
b. The nursing home received notices of violation for a class "A" violation or 3 or more class "B" violations in any 12-month period during the 3 years immediately preceding the period specified in
subd. 1. a.
50.04(4)(d)2.
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 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 corrected. Admission of a new resident during the period for which admissions have been suspended constitutes a class "B" violation.
50.04(4)(d)3.
3. In determining whether
subd. 1. applies, the department may not consider a notice of violation found to be unjustified after hearing.
50.04(4)(d)4.
4. If the department suspends new admissions to a nursing home under this paragraph, the department shall publish a class 1 notice under
ch. 985 in a newspaper likely to give notice in the area where the nursing home is located.
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 $10,000 for each violation.
50.04(5)(a)2.
2. A class "B" violation may be subject to a forfeiture of not more than $5,000 for each violation.
50.04(5)(a)3.
3. A class "C" violation may be subject to a forfeiture of not more than $500. 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.a.a. A nursing home that violates a statute or rule resulting in a class "A" violation and that has received a notice of violation for a class "A" violation within the previous 3-year period involving the same situation shall be subject to a forfeiture 3 times the amount authorized for a class "A" violation.
50.04(5)(a)5.b.
b. Except as provided in
subd. 5. a., a nursing home that violates a statute or rule resulting in a class "A" or class "B" violation and that has received a notice of [a] class "A" or class "B" violation of the same statute or rule within the previous 3-year period may be subject to a forfeiture 3 times the amount authorized for the most recent class of violation involved.
50.04 Note
NOTE: The bracketed word was inserted without underscoring by
1997 Wis. Act 280. The change was intended. Corrective legislation is pending.
50.04(5)(a)5.c.
c. A notice of violation found to be unjustified after hearing may not be considered in applying this subdivision.
50.04(5)(a)5.d.
d. The forfeiture amount that is tripled under this subdivision shall be the amount assessed after all appeals have been exhausted. If an assessment of forfeiture is not contested and the forfeiture is paid as provided in
par. (fm), the forfeiture amount that is tripled is the amount assessed after the reduction specified in
par. (fm).
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 a violation continues after a report of correction, the department may assess upon the licensee a separate forfeiture of not more than $10,000 for class "A" violations, and may assess a separate forfeiture of not more than $5,000 for class "B" violations, for each day of continuing violation.
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.
