49.498(14)
(14) Rule making. The department shall promulgate all of the following rules:
49.498(14)(a)
(a) Establishing a fair mechanism meeting the requirements of
42 USC 1396r (e) (3) and (f) (3) for hearing appeals on transfers and discharges of residents from nursing facilities.
49.498(14)(c)
(c) Establishing criteria for the denial of payment under
s. 49.45 (6m) (d) 5., for the imposition of forfeitures under
sub. (16) (b), for the placement of a monitor or appointment of a receiver for a facility under
sub. (17) and for closure of a facility under
sub. (18) that do all of the following:
49.498(14)(c)2.
2. Are designed so as to minimize the time between the identification of violations and final imposition of the penalties.
49.498(14)(c)3.
3. Provide incrementally more severe penalties for repeated or uncorrected deficiencies.
49.498(15)(a)(a) A class "1" violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom.
49.498(15)(b)
(b) A class "2" violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility directly threatening to the health, safety or welfare of a resident.
49.498(15)(c)
(c) A class "3" violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility which does not directly threaten the health, safety or welfare of a resident.
49.498(15)(d)
(d) Each day of violation constitutes a separate violation. 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 facility has received a variance or waiver of a standard.
49.498(16)
(16) Forfeitures, penalty assessments and interest. 49.498(16)(a)(a) Any operator or owner of a nursing facility which is in violation of this section or any rule promulgated under this section may be subject to the following forfeitures:
49.498(16)(a)1.
1. A class "1" violation may be subject to a forfeiture of not more than $250 for each violation.
49.498(16)(a)2.
2. A class "2" violation may be subject to a forfeiture of not more than $125 for each violation.
49.498(16)(a)3.
3. A class "3" violation may be subject to a forfeiture of not more than $60 for each violation.
49.498(16)(b)
(b) 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, factors shall be considered that are established in rules that shall be promulgated by the department consistent with federal regulations promulgated to interpret
42 USC 1396r.
49.498(16)(c)1.1. Whenever the department imposes a forfeiture under
par. (a) for a violation of this section or the rules promulgated under this section, the department shall in addition levy a penalty assessment in the following amounts:
49.498(16)(c)1.a.
a. For a class "1" violation, not less than $5,100 nor more than $10,000.
49.498(16)(c)1.b.
b. For a class "2" violation, not less than $2,600 nor more than $5,000.
49.498(16)(c)1.c.
c. For a class "3" violation, not less than $100 nor more than $2,500.
49.498(16)(c)2.
2. Notwithstanding
subd. 1., whenever the department imposes a forfeiture under
par. (a) for the violation of the following, the department shall levy a penalty assessment in the following amounts:
49.498(16)(c)3.
3. If multiple violations are involved, the penalty assessment levied under
subd. 1. or
2. shall be based on the total forfeitures for all violations.
49.498(16)(d)
(d) If the period of the violation under
par. (a) is longer than one day, the penalty assessment shall additionally include interest for each day of the period at a rate established in rules that the department shall promulgate, except that no interest shall be computed for a day in the period between the date on which a request for a hearing, if any, is filed under
par. (f) and the date of the conclusion of all administrative and judicial proceedings arising out of the imposition of a forfeiture under
par. (a).
49.498(16)(dm)
(dm) 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, factors shall be considered that are established in rules that shall be promulgated by the department consistent with federal regulations promulgated to interpret
42 USC 1396r.
49.498(16)(e)
(e) The department may directly assess forfeitures provided for under
par. (a), penalty assessments provided for under
par. (c) and interest provided for under
par. (d). 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 facility. The notice shall specify the amount of the forfeiture assessed, the amount of the penalty assessment, the violation, the statute or rule alleged to have been violated, and shall inform the licensee of the right to hearing under
par. (f).
49.498(16)(f)
(f) A nursing facility may contest an assessment of forfeiture, penalty assessment or interest, if any, by sending a written request for hearing under
s. 227.44 to the division of hearings and appeals created under
s. 15.103 (1). The administrator 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 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 department, if not the petitioner who was in the proceeding before the division, shall be the named respondent.
49.498(16)(g)
(g) All forfeitures, penalty assessments and interest, if any, shall be paid to the department within 10 days of receipt of notice of assessment or, if the forfeiture, penalty assessment and interest, if any, are contested under
par. (f), 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
sub. (19) (b). The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund. The department shall deposit all penalty assessments and interest in the appropriation under
s. 20.435 (6) (g).
49.498(16)(h)
(h) The attorney general may bring an action in the name of the state to collect any forfeiture, penalty assessment or interest, if any, imposed under
par. (e) or
(f) if the forfeiture, penalty assessment or interest, if any, 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, penalty assessment or interest has been paid.
49.498(16m)
(16m) Appeals procedures. Appeals procedures under this section shall be consistent with the requirements specified in
42 CFR 431.151 (a) and (b). Any appeals under this section shall be filed with the division of hearings and appeals created under
s. 15.103 (1).
49.498(17)
(17) Temporary management. Any nursing facility that is in violation of this section or any rule promulgated under this section may be subject to placement of a monitor or appointment of a receiver, under the procedures and criteria specified in
s. 50.05 and under criteria promulgated as rules by the department under
sub. (14) (c).
49.498(18)
(18) Nursing facility closure and resident transfer. 49.498(18)(a)(a) Any nursing facility that is in violation of this section or any rule promulgated under this section may, in an emergency as determined by the department, be subject to closure by the department or to the transfer of residents of the nursing facility to another nursing facility, or both, under criteria promulgated as rules by the department under
sub. (14) (c).
49.498(18)(b)
(b) A nursing facility may contest closure of the nursing facility or transfer of residents of the nursing facility, if any, by sending a written request for hearing under
s. 227.44 to the division of hearings and appeals created under
s. 15.103 (1). The administrator 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 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 department, if not the petitioner who was in the proceeding before the division, shall be the named respondent.
49.498(19)(a)(a) All administrative remedies shall be exhausted before an agency determination under this section shall be subject to judicial review. Final decisions after hearing shall be subject to judicial review exclusively as provided in
s. 227.52, except that any petition for review of department action under this section shall be filed within 15 days after receipt of notice of the final agency determination.
49.498(19)(b)
(b) The court may stay enforcement under
s. 227.54 of the department's final decision if a showing is made that there is a substantial probability that the party seeking review will prevail on the merits and will suffer irreparable harm if a stay is not granted, and that the nursing facility will meet the requirements of this section and the rules promulgated under this section during such stay. Where a stay is granted the court may impose such conditions on the granting of the stay as may be necessary to safeguard the lives, health, rights, safety and welfare of residents, and to assure compliance by the nursing facility with the requirements of this section.
49.498(19)(c)
(c) The attorney general may delegate to the department the authority to represent the state in any action brought to challenge department decisions prior to exhaustion of administrative remedies and final disposition by the division of hearings and appeals created under
s. 15.103 (1).
49.498(20)
(20) Violations. If an act forms the basis for a violation of this section and
s. 50.04, the department or the attorney general may impose sanctions in conformity with this section or under
s. 50.04, but not both.
49.499
49.499
Nursing facility resident protection. 49.499(1)
(1) From the appropriation under
s. 20.435 (6) (g), the department shall contribute to the payment of all of the following, as needed by a resident in a nursing facility, as defined in
s. 49.498 (1) (i), that is in violation of
s. 49.498 or of a rule promulgated under
s. 49.498:
49.499(1)(a)
(a) The cost of relocating the resident from the nursing facility to another nursing facility.
49.499(1)(b)
(b) Maintenance of operation of a nursing facility pending correction of deficiencies or closure of the nursing facility.
49.499(1)(c)
(c) Reimbursement of the resident for any personal funds of the resident that were misappropriated by the nursing facility staff or other persons holding an interest in the nursing facility.
49.499(2m)
(2m) From the appropriation under
s. 20.435 (6) (g), the department may distribute funds for innovative projects designed to protect the health and property of a resident in a nursing facility, as defined in
s. 49.498 (1) (i).
49.499 History
History: 1989 a. 31;
1997 a. 27;
1999 a. 9.
OTHER MEDICALLY RELATED SERVICES
AND SUPPORT PROGRAMS
49.66
49.66
Definitions. In this subchapter:
49.66(1)
(1) "Department" means the department of health and family services.
49.66(2)
(2) "Secretary" means the secretary of health and family services.
49.66 History
History: 1995 a. 27 ss.
3179,
9126 (19).
49.665(1)(b)
(b) "Child" means a person who is under the age of 19.
49.665(1)(c)
(c) "Employer-subsidized health care coverage" means family coverage under a group health insurance plan offered by an employer for which the employer pays at least 80% of the cost, excluding any deductibles or copayments that may be required under the plan.
49.665(1)(d)
(d) "Family" means a unit that consists of at least one child and his or her parent or parents, all of whom reside in the same household. "Family" includes the spouse of an individual who is a parent if the spouse resides in the same household as the individual.
49.665(2)
(2) Waiver. The department of health and family services shall request a waiver from the secretary of the federal department of health and human services to permit the department of health and family services to implement, beginning not later than July 1, 1998, or the effective date of the waiver, whichever is later, a health care program under this section. If a waiver that is consistent with all of the provisions of this section is granted and in effect, the department of health and family services shall implement the program under this section. The department of health and family services may not implement the program under this section unless a waiver that is consistent with all of the provisions of this section is granted and in effect.
49.665(3)
(3) Administration. The department shall administer a program to provide the health services and benefits described in
s. 49.46 (2) to persons that meet the eligibility requirements specified in
sub. (4). The department shall promulgate rules setting forth the application procedures and appeal and grievance procedures. The department may promulgate rules limiting access to the program under this section to defined enrollment periods. The department may also promulgate rules establishing a method by which the department may purchase family coverage offered by the employer of a member of an eligible family or by a member of a child's household under circumstances in which the department determines that purchasing that coverage would not be more costly than providing the coverage under this section.
49.665(4)(a)(a) A family is eligible for health care coverage under this section if the family meets all of the following requirements:
49.665(4)(a)1.
1. The family's income does not exceed 185% of the poverty line, except as provided in
par. (at) and except that a family that is already receiving health care coverage under this section may have an income that does not exceed 200% of the poverty line. The department shall establish by rule the criteria to be used to determine income.
49.665(4)(a)2.
2. The family does not have access to employer-subsidized health care coverage.
49.665(4)(a)3.
3. The family has not had access to employer-subsidized health care coverage within the time period established by the department by rule, but not to exceed 18 months, immediately preceding application for health care coverage under this section. The department may establish exceptions to this time period restriction by rule.
49.665(4)(a)4.
4. The family meets all other requirements established by the department by rule. In establishing other eligibility criteria, the department may not include any health condition requirements.
49.665(4)(am)
(am) A child who does not reside with his or her parent is eligible for health care coverage under this section if the child meets all of the following requirements:
49.665(4)(am)1.
1. The child's income does not exceed 185% of the poverty line, except as provided in
par. (at) and except that a child that is already receiving health care coverage under this section may have an income that does not exceed 200% of the poverty line. The department shall use the criteria established under
par. (a) 1. to determine income under this subdivision.
49.665(4)(am)2.
2. The child does not have access to employer-subsidized health care coverage.
49.665(4)(am)3.
3. The child has not had access to employer-subsidized health care coverage within the time period established by the department under
par. (a) 3. The department may establish exceptions to this subdivision.
49.665(4)(am)4.
4. The child meets all other requirements established by the department by rule. In establishing other eligibility criteria, the department may not include any health condition requirements.
49.665(4)(at)1.a.a. Except as provided in
subd. 1. b., the department shall establish a lower maximum income level for the initial eligibility determination if funding under
s. 20.435 (4) (bc),
(jz) and
(p) is insufficient to accommodate the projected enrollment levels for the health care program under this section. The adjustment may not be greater than necessary to ensure sufficient funding.
49.665(4)(at)1.b.
b. The department may not lower the maximum income level for initial eligibility unless the department first submits to the joint committee on finance its plans for lowering the maximum income level and the committee approves the plan. If, within 14 days after submitting the plan to the joint committee on finance, the cochairpersons of the committee do not notify the secretary that the committee has scheduled a meeting for the purpose of reviewing the plan, the plan is considered approved by the committee.
49.665(4)(at)2.
2. If, after the department has established a lower maximum income level under
subd. 1., projections indicate that funding under
s. 20.435 (4) (bc),
(jz) and
(p) is sufficient to raise the level, the department shall, by state plan amendment, raise the maximum income level for initial eligibility, but not to exceed 185% of the poverty line.
49.665(4)(at)3.
3. The department may not adjust the maximum income level of 200% of the poverty line for persons already receiving health care coverage under this section.
49.665(4)(b)
(b) Notwithstanding fulfillment of the eligibility requirements under this subsection, no person is entitled to health care coverage under this section.
49.665(4)(c)
(c) No person may be denied health care coverage under this section solely because of a health condition of that person or of any family member of that person.
49.665(5)(a)(a) Except as provided in
pars. (b) and
(bm), a family, or child who does not reside with his or her parent, who receives health care coverage under this section shall pay a percentage of the cost of that coverage in accordance with a schedule established by the department by rule. If the schedule established by the department requires a family, or child who does not reside with his or her parent, to contribute more than 3% of the family's or child's income towards the cost of the health care coverage provided under this section, the department shall submit the schedule to the joint committee on finance for review and approval of the schedule. If the cochairpersons of the joint committee on finance do not notify the department within 14 working days after the date of the department's submittal of the schedule that the committee has scheduled a meeting to review the schedule, the department may implement the schedule. If, within 14 days after the date of the department's submittal of the schedule, the cochairpersons of the committee notify the department that the committee has scheduled a meeting to review the schedule, the department may not require a family, or child who does not reside with his or her parent, to contribute more than 3% of the family's or child's income unless the joint committee on finance approves the schedule. The joint committee on finance may not approve and the department may not implement a schedule that requires a family or child to contribute more than 3.5% of the family's or child's income towards the cost of the health care coverage provided under this section.
