49.496(6)(a)(a) The department may recover amounts under this section for medical assistance benefits paid on and after August 15, 1991.
49.496(6)(b)
(b) The department may file a claim under
sub. (3) only with respect to a recipient who dies after September 30, 1991.
49.496(6m)
(6m) Waiver due to hardship. The department shall promulgate rules establishing standards for determining whether the application of this section would work an undue hardship in individual cases. If the department determines that the application of this section would work an undue hardship in a particular case, the department shall waive application of this section in that case.
49.496(7)
(7) Instalment payments. If a recovery under
sub. (3) does not work an undue hardship on the heirs of the estate, and if the heirs wish to satisfy the recovery claim without selling a nonliquid asset that is subject to recovery, the department may establish a reasonable payment schedule subject to reasonable interest.
49.496 Annotation
Recovery of benefits from the estate of a recipient's surviving spouse under sub. (3) (a) exceeds the authority granted by federal law. DHSS v. Estate of Budney,
197 Wis. 2d 949,
541 N.W.2d 245 (Ct. App. 1995).
49.496 Annotation
Preserving the Homestead of the Small Estate: Wisconsin's Medical Recovery Law. Gilbert. Wis. Law. July 1992.
49.497
49.497
Recovery of incorrect medical assistance payments. 49.497(1)(1) The department may recover any payment made incorrectly for benefits specified under
s. 49.46,
49.468 or
49.47 if the incorrect payment results from any misstatement or omission of fact by a person supplying information in an application for benefits under
s. 49.46,
49.468 or
49.47. The department may also recover if a medical assistance recipient or any other person responsible for giving information on the recipient's behalf fails to report the receipt of income or assets in an amount that would have affected the recipient's eligibility for benefits. The department's right of recovery is against any medical assistance recipient to whom or on whose behalf the incorrect payment was made. The extent of recovery is limited to the amount of the benefits incorrectly granted. The county department under
s. 46.215 or
46.22 or the governing body of a federally recognized American Indian tribe administering medical assistance shall begin recovery actions on behalf of the department according to rules promulgated by the department.
49.497(2)
(2) A county or governing body of a federally recognized American Indian tribe may retain 15% of benefits distributed under
s. 49.46,
49.468 or
49.47 that are recovered under
sub. (1) due to the efforts of an employee or officer of the county or tribe.
49.497(3)
(3) Cash assets of medical assistance recipients that exceed asset limitations shall be applied against the cost of medical assistance benefits provided.
49.497 Annotation
There is no statutory authority to order a mother to repay lying-in expenses paid by medical assistance. In re Paternity of N.L.M.
166 Wis. 2d 306,
479 N.W.2d 237 (Ct. App. 1991).
49.498
49.498
Requirements for skilled nursing facilities. 49.498(1)(a)
(a) "Active treatment for developmental disability" means a continuous program for an individual who has a developmental disability that includes aggressive, consistent implementation of specialized and generic training, treatment, health services and related services, that is directed toward the individual's acquiring behaviors necessary for him or her to function with as much self-determination and independence as possible and that is directed toward preventing or decelerating regression or loss of the individual's current optimal functional status. "Active treatment for developmental disability" does not include services to maintain generally independent individuals with developmental disability who are able to function with little supervision or in the absence of active treatment for developmental disability.
49.498(1)(b)
(b) "Active treatment for mental illness" means the implementation of an individualized plan of care for an individual with mental illness that is developed under and supervised by a physician licensed under
ch. 448 and other qualified mental health care providers and that prescribes specific therapies and activities for the treatment of the individual while the individual experiences an acute episode of severe mental illness which necessitates supervision by trained mental health care providers.
49.498(1)(c)
(c) "Developmental disability" means any of the following:
49.498(1)(c)1.
1. Significantly subaverage general intellectual functioning that is concurrent with an individual's deficits in adaptive behavior and that manifested during the individual's developmental period.
49.498(1)(c)2.
2. A severe, chronic disability that meets all of the conditions for individuals with related conditions as specified in
42 CFR 435.1009.
49.498(1)(e)
(e) "Managing employee" means a general manager, business manager, administrator, director or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the operation of the facility.
49.498(1)(k)
(k) "Psychopharmacologic drugs" means drugs that modify psychological functions and mental states.
49.498(1)(L)
(L) "Registered professional nurse" means a registered nurse who is licensed under
ch. 441 or in a party state, as defined in
s. 441.50 (2) (j).
49.498(1)(m)
(m) "Resident" means an individual who resides in a nursing facility.
49.498(2)
(2) Requirements relating to provision of services. 49.498(2)(a)1.1. A nursing facility shall care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.
49.498(2)(a)2.
2. A nursing facility shall maintain a quality assessment and assurance committee that consists of the director of nursing services, a physician who is designated by the nursing facility and at least 3 other members of the nursing facility staff and that shall do all of the following:
49.498(2)(a)2.a.
a. Meet at least every 3 months to identify issues with respect to which quality assessment and assurance activities are necessary.
49.498(2)(a)2.b.
b. Develop and implement appropriate plans of action to correct identified quality deficiencies.
49.498(2)(b)
(b) A nursing facility shall provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care for each resident which:
49.498(2)(b)1.
1. Describes the medical, nursing and psychosocial needs of the resident and how the needs shall be met;
49.498(2)(b)2.
2. Is initially prepared, with participation to the extent practicable of the resident or the resident's family or legal counsel, by a team which includes the resident's attending physician and a registered professional nurse who has responsibility for the resident; and
49.498(2)(b)3.
3. Is periodically reviewed and revised by the team in
subd. 2. after the conduct of an assessment under
par. (c).
49.498(2)(c)1.1. A nursing facility shall conduct a comprehensive, accurate, standardized reproducible assessment of each resident's functional capacity that:
49.498(2)(c)1.a.
a. Describes the resident's capability to perform daily life functions and significant impairments in the resident's functional capacity.
49.498(2)(c)1.b.
b. Is based on a uniform minimum data set of core elements and common definitions specified as required under
42 USC 1395i-3 (f) (6) (A).
49.498(2)(c)1.c.
c. Uses an instrument which shall be specified by the department by rule.
49.498(2)(c)2.
2. A registered professional nurse shall conduct or coordinate with the appropriate participation of health professionals, sign and certify the completion of an assessment under
subd. 1. Each individual who completes a portion of the assessment shall sign and certify as to the accuracy of that portion of the assessment.
49.498(2)(c)3.
3. No individual may wilfully and knowingly certify under
subd. 2. a material and false statement in an assessment.
49.498(2)(c)4.
4. No individual may wilfully and knowingly cause another individual to certify under
subd. 2. a material and false statement in an assessment.
49.498(2)(c)5.
5. If the department determines by survey of a nursing facility or otherwise that an individual has knowingly and wilfully certified a false assessment under
subd. 2., the department may require that individuals who are independent of the nursing facility and are approved by the department conduct and certify assessments under this paragraph.
49.498(2)(c)6.a.
a. Conduct an assessment under
subd. 1. no later than 4 days after the admission of an individual admitted after September 30, 1990.
49.498(2)(c)6.b.
b. Conduct all of the assessments under
subd. 1. for a resident of the nursing facility by October 1, 1991, for a resident who resides in the facility on that date; promptly after a significant change in a resident's physical or mental condition; and, for every resident, no less often than once every 12 months.
49.498(2)(c)6.c.
c. Examine a resident no less frequently than once every 3 months and, as appropriate, revise the resident's assessment under
subd. 1. to assure the assessment's continuing accuracy.
49.498(2)(c)7.
7. The assessment conducted under
subd. 1. shall be used in developing, reviewing and revising a nursing facility resident's plan of care under
par. (b).
49.498(2)(c)8.
8. A nursing facility shall coordinate an assessment conducted under this paragraph with the conduct of preadmission screening under
s. 49.45 (6c) (b) to the maximum extent practicable in order to avoid duplicative testing and effort.
49.498(2)(d)1.1. To the extent needed to fulfill the plans of care required under
par. (b), a nursing facility shall provide or arrange for the provision of all of the following, which shall meet professional standards of quality:
49.498(2)(d)1.a.
a. Nursing services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.
49.498(2)(d)1.b.
b. Medically related social services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.
49.498(2)(d)1.c.
c. Pharmaceutical services, including procedures that assure the accurate acquiring, receiving, dispensing and administering of all drugs and biologicals, to meet the needs of each resident.
49.498(2)(d)1.d.
d. Dietary services that assure that the meals meet the daily nutritional and special dietary needs of each resident.
49.498(2)(d)1.e.
e. An ongoing program, directed by a qualified professional, of activities designed to meet the interests and the physical, mental and psychosocial well-being of each resident.
49.498(2)(d)1.f.
f. Routine dental services to the extent covered under the approved state medicaid plan and emergency dental services to meet the needs of each resident.
49.498(2)(d)2.
2. Services specified under
subd. 1. a. to
d. and
f. shall be provided to a resident by qualified persons in accordance with the resident's written plan of care under
par. (b).
49.498(2)(d)3.a.
a. Provide 24-hour per day licensed nursing services which are sufficient to meet the nursing needs of its residents; and
49.498(2)(d)3.b.
b. Shall use the services of a registered professional nurse at least 8 consecutive hours per day, 7 days per week.
49.498(2)(d)4.
4. Subject to
subd. 5., the department may waive the requirement under
subd. 3. a. or
b. if all of the following apply:
49.498(2)(d)4.a.
a. The nursing facility demonstrates to the satisfaction of the department that the nursing facility has been unable, despite diligent efforts including offering wages at the community prevailing rate for nursing facilities, to recruit appropriate personnel.
49.498(2)(d)4.b.
b. The department determines that a waiver of the requirement will not endanger the health or safety of nursing facility residents.
49.498(2)(d)4.c.
c. The department finds that a registered professional nurse or a physician is obligated to respond immediately to telephone calls from the nursing facility for any periods in which licensed nursing services are not available.
49.498(2)(d)5.
5. A waiver under
subd. 4. is subject to annual review by the department and to review by the secretary of the federal department of health and human services. The department may, in granting or reviewing a waiver, require the nursing facility to employ other qualified, licensed personnel.
49.498(2)(e)1.
1. A nursing facility shall provide, for individuals used as nurse's assistants by the facility as of July 1, 1989, for a competency evaluation program that is approved by the department under
s. 146.40 (3m) and for the preparation necessary for the individual to complete the program by January 1, 1990.
49.498(2)(e)2.
2. A nursing facility may not use the individual as a nurse's assistant unless the nursing facility has inquired of the department concerning information about the individual in the registry under
s. 146.40 (4g).
49.498(2)(e)3.
3. A nursing facility shall provide the regular performance review and regular in-service education that assures that individuals used as nurse's assistants are competent to perform services as nurse's assistants, including training for individuals to provide nursing and nursing-related services to nursing facility residents with cognitive impairments.
49.498(2)(f)
(f) A nursing facility shall do all of the following:
49.498(2)(f)1.
1. Require that the health care of every nursing facility resident be provided under the supervision of a physician.
49.498(2)(f)2.
2. Provide for the availability of a physician to furnish necessary medical care in case of emergency.
49.498(2)(f)3.
3. Maintain clinical records on all nursing facility residents which include all of the following:
49.498(2)(g)
(g) A nursing facility with more than 120 beds shall employ full-time at least one social worker with at least a bachelor's degree in social work or similar professional qualifications to provide or assure the provision of social services.
49.498(3)
(3) Resident's rights; general rights. 49.498(3)(a)(a) A nursing facility shall protect and promote the rights of each resident, including each of the following rights:
49.498(3)(a)1.
1. The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident's well-being, and, except with respect to a resident found incompetent under
s. 880.33, to participate in planning care and treatment or changes in care and treatment.
