50.033 Cross-reference
Cross Reference: See also ch.
HFS 88, Wis. adm. code.
50.034
50.034
Residential care apartment complexes. 50.034(1)(1)
Certification or registration required. 50.034(1)(a)(a) No person may operate a residential care apartment complex that provides living space for residents who are clients under
s. 46.27 (11) or
46.277 and publicly funded services as a home health agency or under contract with a county department under
s. 46.215,
46.22,
46.23,
51.42 or
51.437 that is a home health agency unless the residential care apartment complex is certified by the department under this section. The department may charge a fee, in an amount determined by the department, for certification under this paragraph. The amount of any fee charged by the department for certification of a residential care apartment complex need not be promulgated as a rule under
ch. 227.
50.034(1)(b)
(b) No person may operate a residential care apartment complex that is not certified as required under
par. (a) unless the residential care apartment complex is registered by the department.
50.034(2)
(2) Rules. The department shall promulgate all of the following rules for the regulation of certified residential care apartment complexes and for the registration of residential care apartment complexes under this section:
50.034(2)(b)
(b) Establishing standards for operation of certified residential care apartment complexes.
50.034(2)(c)
(c) Establishing minimum information requirements for registration and registration application procedures and forms for residential care apartment complexes that are not certified.
50.034(2)(d)
(d) Establishing procedures for monitoring certified residential care apartment complexes.
50.034(2)(e)
(e) Establishing intermediate sanctions and penalties for and standards and procedures for imposing intermediate sanctions or penalties on certified residential care apartment complexes and for appeals of intermediate sanctions or penalties.
50.034(2)(f)
(f) Establishing standards and procedures for appeals of revocations of certification or refusal to issue or renew certification.
50.034(3)
(3) Requirements for operation. A certified or registered residential care apartment complex shall do all of the following:
50.034(3)(a)
(a) Establish, with each resident of the residential care apartment complex, a mutually agreed-upon written service agreement that identifies the services to be provided to the resident, based on a comprehensive assessment of the resident's needs and preferences that is conducted by one of the following:
50.034(3)(a)3.
3. For residents who have private or 3rd-party funding, by the residential care apartment complex.
50.034(3)(b)
(b) Establish a schedule of fees for services to residents of the residential care apartment complex.
50.034(3)(c)
(c) Provide or ensure the provision of services that are sufficient and qualified to meet the needs identified in a resident's service agreement under
par. (a), to meet unscheduled care needs and to provide emergency assistance 24 hours a day.
50.034(3)(d)
(d) Establish, with each resident of the residential care apartment complex, a signed, negotiated risk agreement that identifies situations that could put the resident at risk and for which the resident understands and accepts responsibility.
50.034(4)
(4) Limitation. A nursing home or a community-based residential facility may not convert a separate area of its total area to a residential care apartment complex unless the department first approves the conversion. A nursing home, other than the nursing homes operated at the Wisconsin Veterans Home at King or in southeastern Wisconsin by the department of veterans affairs under
s. 45.385, that intends to convert a separate area of its total area to a residential care apartment complex shall also agree to reduce its licensed nursing home beds by the corresponding number of residential care apartment complex residential units proposed for the conversion.
50.034(5)
(5) Use of name prohibited. An entity that does not meet the definition under
s. 50.01 (1d) may not designate itself as a "residential care apartment complex" or use the words "residential care apartment complex" to represent or tend to represent the entity as a residential care apartment complex or services provided by the entity as services provided by a residential care apartment complex.
50.034(5m)
(5m) Provision of information required. Subject to
sub. (5p), a residential care apartment complex shall, within the time period after inquiry by a prospective resident that is prescribed by the department by rule, inform the prospective resident of the services of a resource center under
s. 46.283, the family care benefit under
s. 46.286 and the availability of a functional and financial screen to determine the prospective resident's eligibility for the family care benefit under
s. 46.286 (1).
50.034(5n)
(5n) Required referral. Subject to
sub. (5p), a residential care apartment complex shall, within the time period prescribed by the department by rule, refer to a resource center under
s. 46.283 a person who is seeking admission, who is at least 65 years of age or has developmental disability or a physical disability and whose disability or condition is expected to last at least 90 days, unless any of the following applies:
50.034(5n)(a)
(a) For a person who has received a screen for functional eligibility under
s. 46.286 (1) (a) within the previous 6 months, the referral under this subsection need not include performance of an additional functional screen under
s. 46.283 (4) (g).
50.034(5n)(b)
(b) The person is entering the residential care apartment complex only for respite care.
50.034(5n)(c)
(c) The person is an enrollee of a care management organization.
50.034(5n)(d)
(d) For a person who seeks admission or is about to be admitted on a private pay basis and who waives the requirement for a financial screen under
s. 46.283 (4) (g), the referral under this subsection may not include performance of a financial screen under
s. 46.283 (4) (g), unless the person is expected to become eligible for medical assistance within 6 months.
50.034(5p)
(5p) Applicability. Subsections (5m) and
(5n) apply only if the secretary has certified under
s. 46.281 (3) that a resource center is available for the residential care apartment complex and for specified groups of eligible individuals that include those persons seeking admission to or the residents of the residential care apartment complex.
50.034(6)
(6) Funding. Funding for supportive, personal or nursing services that a person who resides in a residential care apartment complex receives, other than private or 3rd-party funding, may be provided only under
s. 46.27 (11) (c) 7. or
46.277 (5) (e), except if the provider of the services is a certified medical assistance provider under
s. 49.45 or if the funding is provided as a family care benefit under
ss. 46.2805 to
46.2895.
50.034(7)
(7) Revocation of certification. Certification for a residential care apartment complex may be revoked because of the substantial and intentional violation of this section or of rules promulgated by the department under
sub. (2) or because of failure to meet the minimum requirements for certification. The operator of the certified residential care apartment complex shall be given written notice of any revocation of certification and the grounds for the revocation. Any residential care apartment complex certification applicant or operator of a certified residential care apartment complex may, if aggrieved by the failure to issue or renew the certification or by revocation of certification, appeal under the procedures specified by the department by rule under
sub. (2).
50.034(8)(a)(a) Whoever violates
sub. (5m) or
(5n) or rules promulgated under
sub. (5m) or
(5n) may be required to forfeit not more than $500 for each violation.
50.034(8)(b)
(b) 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, it shall send a notice of assessment to the residential care apartment complex. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated, and shall inform the residential care apartment complex of the right to a hearing under
par. (c).
50.034(8)(c)
(c) A residential care apartment complex may contest an assessment of a forfeiture by sending, within 10 days after receipt of notice under
par. (b), a written request for a 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 after receipt of the request for a 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.
50.034(8)(d)
(d) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under
par. (c), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order. The department shall remit all forfeitures paid to the state treasurer for deposit in the school fund.
50.034(8)(e)
(e) 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.
50.034 Cross-reference
Cross Reference: See also ch.
HFS 89, Wis. adm. code.
50.035
50.035
Special provisions relating to regulation of community-based residential facilities. 50.035(1)
(1)
Personnel training. Each employee of a community-based residential facility shall, within 90 days after the beginning date of employment, receive basic first aid training and other safety training. The department shall indicate acceptable sources from which facility employees may receive this training. The department shall also develop instructional materials for use by facilities concerning acceptable methods of operation and procedures for protecting and serving the needs of facility residents. The department may require that all facility employees complete a program involving these materials and may sell the materials to facilities at cost. In addition, each facility employee shall, within 90 days after the beginning date of employment, receive training in fire prevention and control and evacuation techniques. Each facility shall coordinate its training in fire prevention and control and evacuation techniques with the local fire department.
50.035(2)(a)1.1. Except as provided in
subd. 2., each community-based residential facility shall provide, at a minimum, a low-voltage interconnected smoke detection system to protect the entire facility that, if any detector is activated, either triggers alarms throughout the building or triggers an alarm located centrally.
50.035(2)(a)2.
2. A community-based residential facility that has 8 or less beds may use a radio-transmitting smoke detection system that triggers an audible alarm in a central area of the facility in lieu of the interconnected smoke detection system specified in
subd. 1.
50.035(2)(a)3.
3. The department or the department of commerce may waive the requirement under
subd. 1. or
2. for a community-based residential facility that has a smoke detection or sprinkler system in place that is at least as effective for fire protection as the type of system required under the relevant subdivision.
50.035(2)(b)
(b) No facility may install a smoke detection system that fails to receive the approval of the department or of the department of commerce. At least one smoke detector shall be located at each of the following locations:
50.035(2)(b)2.
2. At the door leading to every enclosed stairway on each floor level.
50.035(2)(b)3.
3. In every corridor, spaced not more than 30 feet apart and not further than 15 feet from any wall.
50.035(2)(b)4.
4. In each common use room, including living rooms, dining rooms, family rooms, lounges and recreation rooms but not including kitchens.
50.035(2)(c)
(c) A community-based residential facility does not have to meet the requirements under
pars. (a) and
(b) prior to May 1, 1985. Beginning on May 1, 1985, the department may waive the requirements under
pars. (a) and
(b) for a community-based residential facility for a period not to exceed 6 months if the department finds that compliance with those requirements would result in an extreme hardship for the facility.
50.035(3)
(3) Manager's presence in facility. 50.035(3)(a)(a) The person responsible for managing a Class C community-based residential facility, or that person's agent, shall be present in the facility at any time that residents are in the facility. The person responsible for managing a Class A community-based residential facility, or that person's agent, shall be present in the facility from 7 p.m. to 7 a.m. when residents are in the facility.
50.035(3)(b)
(b) The department may waive a requirement under
par. (a) for a community-based residential facility:
50.035(3)(b)1.
1. For a specified period of time, not to exceed one year, if the department finds that compliance with the requirement would result in an unreasonable hardship for the facility and that all of the residents are physically and mentally capable of taking independent action in an emergency; or
50.035(3)(b)2.
2. For a specified period of time if the department finds that the primary purpose of the facility's program is to promote the independent functioning of its residents with minimum supervision.
50.035(4)
(4) Fire notice. The licensee of a community-based residential facility, or his or her designee, shall notify the department and any county department under
s. 46.215 or
46.22 that has residents placed in the facility of any fire that occurs in the facility for which the fire department is contacted. The notice shall be provided within 72 hours after such a fire occurs.
50.035(4m)
(4m) Provision of information required. Subject to
sub. (4p), a community-based residential facility shall, within the time period after inquiry by a prospective resident that is prescribed by the department by rule, inform the prospective resident of the services of a resource center under
s. 46.283, the family care benefit under
s. 46.286 and the availability of a functional and financial screen to determine the prospective resident's eligibility for the family care benefit under
s. 46.286 (1).
50.035(4n)
(4n) Required referral. Subject to
sub. (4p), a community-based residential facility shall, within the time period prescribed by the department by rule, refer to a resource center under
s. 46.283 a person who is seeking admission, who is at least 65 years of age or has developmental disability or a physical disability and whose disability or condition is expected to last at least 90 days, unless any of the following applies:
50.035(4n)(a)
(a) For a person who has received a screen for functional eligibility under
s. 46.286 (1) (a) within the previous 6 months, the referral under this subsection need not include performance of an additional functional screen under
s. 46.283 (4) (g).
50.035(4n)(b)
(b) The person is entering the community-based residential facility only for respite care.
50.035(4n)(c)
(c) The person is an enrollee of a care management organization.
50.035(4n)(d)
(d) For a person who seeks admission or is about to be admitted on a private pay basis and who waives the requirement for a financial screen under
s. 46.283 (4) (g), the referral under this subsection may not include performance of a financial screen under
s. 46.283 (4) (g), unless the person is expected to become eligible for medical assistance within 6 months.
50.035(4p)
(4p) Applicability. Subsections (4m) and
(4n) apply only if the secretary has certified under
s. 46.281 (3) that a resource center is available for the community-based residential facility and for specified groups of eligible individuals that include those persons seeking admission to or the residents of the community-based residential facility.
50.035(5)(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.
50.035(5)(a)1.c.
c. Restraint by a facility staff member of a resident by use of physical force.
50.035(5)(a)2.
2. "Psychotropic medication" means an antipsychotic, antidepressant, lithium carbonate or a tranquilizer.
50.035(5)(b)
(b) No later than 24 hours after the death of a resident of a community-based residential facility, the community-based residential facility shall report the death to the department if one of the following applies:
50.035(5)(b)1.
1. There is reasonable cause to believe that the death was related to the use of physical restraint or a psychotropic medication.
50.035(5)(b)3.
3. There is reasonable cause to believe that the death was a suicide.
50.035(6)
(6) Posting of notice required. The licensee of a community-based residential facility, or his or her designee, shall post in a conspicuous location in the community-based residential facility 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).
50.035(7)
(7) Statement of financial condition required. 50.035(7)(a)(a) No community-based residential facility may initially admit as a resident an individual who applies for admission to the facility and who intends to pay for residence in the facility from private funds, unless the individual provides certain financial information to the community-based residential facility. From this information, the community-based residential facility shall prepare and provide to the individual a statement of financial condition to which all of the following apply:
50.035(7)(a)2.
2. The statement estimates a date, if any, by which the individual's assets and other private funding sources would be depleted if the individual resides continuously in the community-based residential facility.
50.035(7)(a)3.
3. The statement indicates that public funding may not be available when the individual's assets and other private funding sources, if any, are depleted and specifies options that may be available to the individual at that time.
50.035(7)(b)
(b) The individual shall waive his or her right to confidentiality for the information provided under
par. (a), to the administrator of the community-based residential facility, to the preparer of the statement of financial condition and, if
par. (c) applies, to the county department under
s. 46.215 or
46.22.
50.035(7)(c)
(c) If the date estimated under
par. (a) 2. is less than 24 months after the date of the individual's statement of financial condition, the community-based residential facility shall provide the statement to the county department under
s. 46.215 or
46.22 and shall refer the potential resident to the county department to determine whether an assessment under
s. 46.27 (6) should be conducted.
50.035(9)
(9) Notification to prospective residents of assessment requirement. Every community-based residential facility shall inform all prospective residents of the assessment requirements under
ss. 46.27 (7) (cj) 3. and
(11) (c) 5n. and
46.277 (5) (d) 1n. for the receipt of funds under those sections.
50.035(10)(a)(a) Notwithstanding the limitations on the type of care that may be required by and provided to residents under
s. 50.01 (1g) (intro.), the following care may be provided in a community-based residential facility under the following circumstances:
50.035(10)(a)1.
1. Subject to
par. (b), a community-based residential facility may provide more than 3 hours of nursing care per week or care above intermediate level nursing care for not more than 30 days to a resident who does not have a terminal illness but who has a temporary condition that requires the care, if all of the following conditions apply:
