50.07
50.07
Prohibited acts. 50.07(1)(a)
(a) Intentionally fail to correct or interfere with the correction of a class "A" or class "B" violation within the time specified on the notice of violation or approved plan of correction under
s. 50.04 as the maximum period given for correction, unless an extension is granted and the corrections are made before expiration of extension.
50.07(1)(b)
(b) Intentionally prevent, interfere with, or attempt to impede in any way the work of any duly authorized representative of the department in the investigation and enforcement of any provision of this subchapter.
50.07(1)(c)
(c) Intentionally prevent or attempt to prevent any such representative from examining any relevant books or records in the conduct of official duties under this subchapter.
50.07(1)(d)
(d) Intentionally prevent or interfere with any such representative in the preserving of evidence of any violation of any of the provisions of this subchapter or the rules promulgated under this subchapter.
50.07(1)(e)
(e) Intentionally retaliate or discriminate against any resident or employee for contacting or providing information to any state official, including any representative of the office of the long-term care ombudsman under
s. 16.009 (4), or for initiating, participating in, or testifying in an action for any remedy authorized under this subchapter.
50.07(1)(em)
(em) Intentionally retaliate or discriminate against any resident or employee on whose behalf another person contacted or provided information to any state official, including any representative of the office of the long-term care ombudsman under
s. 16.009 (4), or initiated, participated in or testified in an action for any remedy authorized under this subchapter.
50.07(1)(f)
(f) Intentionally destroy, change or otherwise modify an inspector's original report.
50.07(2)
(2) Violators of this section may be imprisoned up to 6 months or fined not more than $1,000 or both for each violation.
50.07(3)(b)(b) Any employee who is discharged or otherwise retaliated or discriminated against in violation of
sub. (1) (e) or
(em) may file a complaint with the department of workforce development under
s. 106.54 (5).
50.07(3)(c)
(c) Any person not described in
par. (b) who is retaliated or discriminated against in violation of
sub. (1) (e) or
(em) may commence an action in circuit court for damages incurred as a result of the violation.
50.07 Annotation
Sub. (1) (e) does not provide a remedy to a terminated employee and does not prevent a private action for wrongful termination to an employee who reports abuse. There is a public policy exception to the employment-at-will doctrine in this case. Hausman v. St. Croix Care Center, Inc.
214 Wis. 2d 654,
571 N.W.2d 393 (1997).
50.07 Annotation
This section is similar to a patient's bill of rights. Sub. (1) (e) protects both patients and employees. An insurance policy providing coverage to a nursing home for personal injuries interfering with rights provided by a patient's bill of rights was applicable to a wrongful discharge claim alleging interference with the plaintiff's rights under sub. (1) (e). St. Paul Fire and Marine Insurance Co. v. Hausman,
231 Wis. 2d 25,
604 N.W.2d 908 (Ct. App. 1999).
50.09
50.09
Rights of residents in certain facilities. 50.09(1)
(1)
Residents' rights. Every resident in a nursing home or community-based residential facility shall, except as provided in
sub. (5), have the right to:
50.09(1)(a)
(a) Private and unrestricted communications with the resident's family, physician, attorney and any other person, unless medically contraindicated as documented by the resident's physician in the resident's medical record, except that communications with public officials or with the resident's attorney shall not be restricted in any event. The right to private and unrestricted communications shall include, but is not limited to, the right to:
50.09(1)(a)1.
1. Receive, send and mail sealed, unopened correspondence, and no resident's incoming or outgoing correspondence shall be opened, delayed, held or censored.
50.09(1)(a)2.
2. Reasonable access to a telephone for private communications.
50.09(1)(b)
(b) Present grievances on the resident's own behalf or others to the facility's staff or administrator, to public officials or to any other person without justifiable fear of reprisal, and to join with other residents or individuals within or outside of the facility to work for improvements in resident care.
50.09(1)(c)
(c) Manage the resident's own financial affairs, including any personal allowances under federal or state programs, unless the resident delegates, in writing, such responsibility to the facility and the facility accepts the responsibility or unless the resident delegates to someone else of the resident's choosing and that person accepts the responsibility. The resident shall receive, upon written request by the resident or guardian, a written monthly account of any financial transactions made by the facility under such a delegation of responsibility.
50.09(1)(d)
(d) Be fully informed, in writing, prior to or at the time of admission of all services included in the per diem rate, other services available, the charges for such services, and be informed, in writing, during the resident's stay of any changes in services available or in charges for services.
50.09(1)(e)
(e) Be treated with courtesy, respect and full recognition of the resident's dignity and individuality, by all employees of the facility and licensed, certified or registered providers of health care and pharmacists with whom the resident comes in contact.
50.09(1)(f)
(f) Physical and emotional privacy in treatment, living arrangements and in caring for personal needs, including, but not limited to:
50.09(1)(f)1.
1. Privacy for visits by spouse. If both spouses are residents of the same facility, they shall be permitted to share a room unless medically contraindicated as documented by the resident's physician in the resident's medical record.
50.09(1)(f)2.
2. Privacy concerning health care. Case discussion, consultation, examination and treatment are confidential and shall be conducted discreetly. Persons not directly involved in the resident's care shall require the resident's permission to authorize their presence.
50.09(1)(f)3.
3. Confidentiality of health and personal records, and the right to approve or refuse their release to any individual outside the facility, except in the case of the resident's transfer to another facility or as required by law or 3rd-party payment contracts and except as provided in
s. 146.82 (2) and
(3).
50.09(1)(g)
(g) Not to be required to perform services for the facility that are not included for therapeutic purposes in the resident's plan of care.
50.09(1)(h)
(h) Meet with, and participate in activities of social, religious and community groups at the resident's discretion, unless medically contraindicated as documented by the resident's physician in the resident's medical record.
50.09(1)(i)
(i) Retain and use personal clothing and effects and to retain, as space permits, other personal possessions in a reasonably secure manner.
50.09(1)(j)
(j) Be transferred or discharged, and be given reasonable advance notice of any planned transfer or discharge, and an explanation of the need for and alternatives to the transfer or discharge. The facility to which the resident is to be transferred must have accepted the resident for transfer, except in a medical emergency or if the transfer or discharge is for nonpayment of charges following a reasonable opportunity to pay a deficiency. No person may be involuntarily discharged for nonpayment under this paragraph if the person meets all of the following conditions:
50.09(1)(j)1.
1. He or she is in need of ongoing care and treatment and has not been accepted for ongoing care and treatment by another facility or through community support services.
50.09(1)(j)2.
2. The funding of his or her care in the nursing home or community-based residential facility under
s. 49.45 (6m) is reduced or terminated because of one of the following:
50.09(1)(j)2.a.
a. He or she requires a level or type of care which is not provided by the nursing home or community-based residential facility.
50.09(1)(k)
(k) Be free from mental and physical abuse, and be free from chemical and physical restraints except as authorized in writing by a physician for a specified and limited period of time and documented in the resident's medical record. Physical restraints may be used in an emergency when necessary to protect the resident from injury to himself or herself or others or to property. However, authorization for continuing use of the physical restraints shall be secured from a physician within 12 hours. Any use of physical restraints shall be noted in the resident's medical records. "Physical restraints" includes, but is not limited to, any article, device or garment which interferes with the free movement of the resident and which the resident is unable to remove easily, and confinement in a locked room.
50.09(1)(L)
(L) Receive adequate and appropriate care within the capacity of the facility.
50.09(1)(m)
(m) Use the licensed, certified or registered provider of health care and pharmacist of the resident's choice.
50.09(1)(n)
(n) Be fully informed of the resident's treatment and care and participate in the planning of the resident's treatment and care.
50.09(2)
(2) The department, in establishing standards for nursing homes and community-based residential facilities may establish, by rule, rights in addition to those specified in
sub. (1) for residents in such facilities.
50.09(3)
(3) If the resident is adjudged to be incompetent under
ch. 51 or
880 and not restored to legal capacity, the rights and responsibilities established under this section which the resident is not competent to exercise shall devolve upon the resident's guardian.
50.09(4)
(4) Each facility shall make available a copy of the rights and responsibilities established under this section and the facility's rules to each resident and each resident's legal representative, if any, at or prior to the time of admission to the facility, to each person who is a resident of the facility and to each member of the facility's staff. The rights, responsibilities and rules shall be posted in a prominent place in each facility. Each facility shall prepare a written plan and provide appropriate staff training to implement each resident's rights established under this section.
50.09(5)
(5) Rights established under this section shall not, except as determined by the department of corrections, be applicable to residents in such facilities, if the resident is in the legal custody of the department of corrections and is a correctional client in such a facility.
50.09(6)(a)(a) Each facility shall establish a system of reviewing complaints and allegations of violations of residents' rights established under this section. The facility shall designate a specific individual who, for the purposes of effectuating this section, shall report to the administrator.
50.09(6)(b)
(b) Allegations of violations of such rights by persons licensed, certified or registered under
chs. 441,
446 to
450,
455 and
456 shall be promptly reported by the facility to the appropriate licensing, examining or affiliated credentialing board and to the person against whom the allegation has been made. Any employee of the facility and any person licensed, certified or registered under
chs. 441,
446 to
450,
455 and
456 may also report such allegations to the board. Such board may make further investigation and take such disciplinary action, within the board's statutory authority, as the case requires.
50.09(6)(c)
(c) No person who files a report as required in
par. (b) or who participates, in good faith, in the review system established under
par. (a) shall be liable for civil damages for such acts.
50.09(6)(d)
(d) The facility shall attach a statement, which summarizes complaints or allegations of violations of rights established under this section, to the report required under
s. 50.03 (4) (c) 1. or
2. The statement shall contain the date of the complaint or allegation, the name of the persons involved, the disposition of the matter and the date of disposition. The department shall consider the statement in reviewing the report.
50.09 Annotation
A resident's right under sub. (1) (e) to be treated with respect is not waived by misbehavior. Hacker v. DHSS,
189 Wis. 2d 328,
525 N.W.2d 364 (Ct. App. 1994).
50.09 Annotation
Abuse and Neglect in Long-term Care Facilities: The Civil Justice System's Response. Studinski. Wis. Law. Aug. 2004.
50.09 Annotation
Preventing Abuse and Neglect in Health Care Settings: The Regulatory Agency's Responsibility. Dawson. Wis. Law. Aug. 2004.
50.09 Annotation
Seeking Justice in Death's Waiting Room: Barriers to Effectively Prosecuting Crime in Long-term Care Facilities. Hanrahan. Wis. Law. Aug. 2004.
50.095
50.095
Resident's right to know; nursing home reports. 50.095(1)(1) Every resident in or prospective resident of a nursing home has the right to know certain information from the nursing home which would aid an individual in assessing the quality of care provided by a nursing home.
50.095(2)
(2) The department may request from a nursing home information necessary for preparation of a report under
sub. (3), and the nursing home, if so requested, shall provide the information.
50.095(3)
(3) By July 1, 1998, and annually thereafter, the department shall provide each nursing home and the office of the long-term care ombudsman with a report that includes the following information for the nursing home:
50.095(3)(am)
(am) The ratio of nursing staff available to residents per shift at each skill level for the previous year for the nursing home, under criteria that the department shall promulgate as rules.
50.095(3)(b)
(b) The staff replacement rates for full-time and part-time nursing staff, nurse's assistants and administrators for the previous year for the nursing home and for all similar nursing homes in the same geographical area, as determined by the department.
50.095(3)(c)
(c) Violations of statutes or rules by the nursing home during the previous year for the nursing home and for all similar nursing homes in the same geographical area, as determined by the department.
50.095(3m)
(3m) The department shall prepare a simplified summary of the information required under
sub. (3) (am) to
(c), as specified by rule by the department. The summary shall be on one sheet of paper and shall be in language that is easily understood by laypersons. The summary shall state that a complete copy of the most recent report of inspection of the nursing home is available from the department, upon request, for a minimal fee.
50.095(4)
(4) Upon receipt of a report under
sub. (3), the nursing home shall make the report available to any person requesting the report. Upon receipt of a summary under
sub. (3m), the nursing home shall provide a copy of the summary to every resident of the nursing home and his or her guardian, if any, to every prospective resident of the nursing home, if any, and to every person who accompanies a prospective resident or acts as the prospective resident's representative, as defined in
s. 655.001 (12), if any.
50.095 History
History: 1987 a. 27,
127;
1997 a. 114 ss.
20 to
25;
1997 a. 237.
50.097
50.097
Registry. Any person may receive, upon specific written request to the department, requested information that is contained in the registry of nurse's assistants and home health aides under
s. 146.40 (4g) (a) or that is contained in the registry of hospice aides under
s. 146.40 (4g) (a) 1.
50.097 History
History: 1989 a. 31;
1991 a. 39.
50.098
50.098
Appeals of transfers or discharges. The department shall promulgate rules establishing a fair mechanism for hearing appeals on transfers and discharges of residents from nursing homes.
50.098 History
History: 1989 a. 31.
50.10
50.10
Private cause of action. 50.10(1)
(1) Any person residing in a nursing home has an independent cause of action to correct conditions in the nursing home or acts or omissions by the nursing home or by the department, that:
50.10(1)(a)
(a) The person alleges violate this subchapter or rules promulgated under this subchapter; and
50.10(1)(b)
(b) The person alleges are foreseeably related to impairing the person's health, safety, personal care, rights or welfare.
50.10(2)
(2) Actions under this section are for mandamus against the department or for injunctive relief against either the nursing home or the department.
50.10 History
History: 1981 c. 121,
391.
50.10 Annotation
This section applies only to residents of a nursing home, which is different from a community based residential facility. Residents of community-based residential facilities do not have a private cause of action for statutory or administrative code violations. Farr v. Alternative Living Services, Inc. 2002 WI App 88,
253 Wis. 2d 796,
643 N.W.2d 841.
50.10 Annotation
Wisconsin's private cause of action for nursing home residents. Bertrand. Wis. Law. Sep. 1989.
50.10 Annotation
Protecting the Rights of Nursing Home Residents. Spitzer-Resnick. Wis. Law. May 1993.
50.11
50.11
Cumulative remedies. The remedies provided by this subchapter are cumulative and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party, and no judgment under this subchapter shall preclude any party from obtaining additional relief based upon the same facts.
50.11 History
History: 1977 c. 170.
50.12
50.12
Waiver of federal requirements. The department shall petition the secretary of the U.S. department of health and human services for a waiver of the requirement that it conduct annual medical assistance surveys of nursing homes, for a waiver of the requirement that it conduct annual independent medical reviews and independent professional reviews, to allow the department under
42 USC 1396a (a) (26) and (31) to conduct biennial surveys and reviews and for any waivers necessary to implement the special requirements promulgated under
s. 50.02 (3) (d).
50.12 History
History: 1981 c. 121;
1985 a. 29.
50.13
50.13
Fees permitted for a workshop or seminar. If the department develops and provides a workshop or seminar relating to the provision of service by facilities, adult family homes or residential care apartment complexes under this subchapter, the department may establish a fee for each workshop or seminar and impose the fee on registrants for the workshop or seminar. A fee so established and imposed shall be in an amount sufficient to reimburse the department for the costs directly associated with developing and providing the workshop or seminar.
50.13 History
History: 1985 a. 120;
1997 a. 27.
50.135
50.135
Licensing and approval fees for inpatient health care facilities. 50.135(1)
(1)
Definition. In this section, "inpatient health care facility" means any hospital, nursing home, county home, county mental hospital or other place licensed or approved by the department under
ss. 49.70,
49.71,
49.72,
50.02,
50.03,
50.35,
51.08 and
51.09, but does not include community-based residential facilities.
50.135(2)(a)(a) The annual fee for any inpatient health care facility except a nursing home is $18 per bed, based on the number of beds for which the facility is licensed. The annual fee for any nursing home is $6 per bed, based on the number of beds for which the nursing home is licensed. This fee shall be paid to the department on or before October 1 for the ensuing year. Each new inpatient health care facility shall pay this fee no later than 30 days before it opens.
