50.03(5g)(b)7.
7. That a licensee accept no additional residents until all violations are corrected.
50.03(5g)(b)8.
8. That a licensee provide training in one or more specific areas for all of the licensee's staff or for specific staff members.
50.03(5g)(c)
(c) If the department provides to a community-based residential facility written notice of the grounds for a sanction or penalty, an explanation of the types of sanctions or penalties that the department may impose under this subsection and an explanation of the process for appealing a sanction or penalty imposed under this subsection, the department may impose any of the following against a licensee or other person who violates the applicable provisions of this section or rules promulgated under the applicable provisions of this section or who fails to comply with an order issued under
par. (b) by the time specified in the order:
50.03(5g)(c)1.
1. A daily forfeiture amount per violation of not less than $10 nor more than $1,000 for each violation, with each day of violation constituting a separate offense. All of the following apply to a forfeiture under this subdivision:
50.03(5g)(c)1.a.
a. Within the limits specified in this subdivision, the department may, by rule, set daily forfeiture amounts and payment deadlines based on the size and type of community-based residential facility and the seriousness of the violation. The department may set daily forfeiture amounts that increase periodically within the statutory limits if there is continued failure to comply with an order issued under
par. (b).
50.03(5g)(c)1.b.
b. The department may directly assess a forfeiture imposed under this subdivision by specifying the amount of that forfeiture in the notice provided under this paragraph.
50.03(5g)(c)1.c.
c. 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. (f), 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 under
s. 50.03 (11). The department shall remit all forfeitures paid under this subdivision to the secretary of administration for deposit in the school fund.
50.03(5g)(c)1.d.
d. The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this subdivision 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.
50.03(5g)(c)2.
2. Suspension of licensure for the community-based residential facility for 14 days.
50.03(5g)(cm)
(cm) If the department imposes a sanction on or takes other enforcement action against a community-based residential facility for a violation of this subchapter or rules promulgated under it, and the department subsequently conducts an on-site inspection of the community-based residential facility to review the community-based residential facility's action to correct the violation, the department may impose a $200 inspection fee on the community-based residential facility.
50.03(5g)(d)
(d) Under the procedure specified in
par. (e), the department may revoke a license for a licensee for any of the following reasons:
50.03(5g)(d)1.
1. The department has imposed a sanction or penalty on the licensee under
par. (c) and the licensee continues to violate or resumes violation of a provision of licensure under
sub. (4) or
(4m), a rule promulgated under this subchapter or an order issued under
par. (b) that forms any part of the basis for the penalty.
50.03(5g)(d)2.
2. The licensee or a person under the supervision of the licensee has substantially violated a provision of licensure applicable to a community-based residential facility under
sub. (4) or
(4m), a rule relating to community-based residential facilities promulgated under this subchapter or an order issued under
par. (b).
50.03(5g)(d)3.
3. The licensee or a person under the supervision of the licensee has acted in relation to or has created a condition relating to the operation or maintenance of the community-based residential facility that directly threatens the health, safety or welfare of a resident of the community-based residential facility.
50.03(5g)(d)4.
4. The licensee or a person under the supervision of the licensee has repeatedly violated the same or similar provisions of licensure under
sub. (4) or
(4m), rules promulgated under this subchapter or orders issued under
par. (b).
50.03(5g)(e)1.1. The department may revoke a license for a licensee for the reason specified in
par. (d) 1.,
2.,
3. or
4. if the department provides the licensee with written notice of revocation, the grounds for the revocation and an explanation of the process for appealing the revocation, at least 30 days before the date of revocation. The department may revoke the license only if the violation remains substantially uncorrected on the date of revocation or license expiration.
50.03(5g)(e)2.
2. The department may revoke a license for a licensee for the reason specified in
par. (d) 2. or
3. immediately if the department provides the licensee with written notice of revocation, the grounds for the revocation and an explanation of the process for appealing the revocation.
50.03(5g)(e)3.
3. The department may deny a license for a licensee whose license was revoked under this paragraph.
50.03(5g)(f)
(f) If a community-based residential facility desires to contest the revocation of a license or to contest the imposing of a sanction under this subsection, the community-based residential facility shall, within 10 days after receipt of notice under
par. (e), notify the department in writing of its request for a hearing under
s. 227.44. The department shall hold the hearing within 30 days after receipt of such notice and shall send notice to the community-based residential facility of the hearing as provided under
s. 227.44 (2).
50.03(5g)(g)1.1. Subject to
s. 227.51 (3), revocation shall become effective on the date set by the department in the notice of revocation, or upon final action after hearing under
ch. 227, or after court action if a stay is granted under
sub. (11), whichever is later.
50.03(5g)(g)3.
3. The department may extend the effective date of license revocation in any case in order to permit orderly removal and relocation of residents.
50.03(5m)(a)(a)
Departmental authority. The department may remove any resident from any facility required to be licensed under this chapter when any of the following conditions exist:
50.03(5m)(a)2.
2. The department has suspended or revoked the existing license of the facility as provided under
sub. (5).
50.03(5m)(a)3.
3. The department has initiated revocation procedures under
sub. (5) and has determined that the lives, health, safety, or welfare of the resident cannot be adequately assured pending a full hearing on license revocation under
sub. (5).
50.03(5m)(a)4.
4. The facility has requested the aid of the department in the removal of the resident and the department finds that the resident consents to removal or that the removal is made for valid medical reasons or for the welfare of the resident or of other residents.
50.03(5m)(a)5.
5. The facility is closing, intends to close or is changing its type or level of services or means of reimbursement accepted and will relocate at least 5 residents or 5% of the residents, whichever is greater.
50.03(5m)(a)6.
6. The department determines that an emergency exists which requires immediate removal of the resident. An emergency is a situation, physical condition or one or more practices, methods or operations which presents imminent danger of death or serious physical or mental harm to a resident of a facility.
50.03(5m)(b)
(b)
Removal decision. In deciding to remove a resident from a facility under this subsection, the department shall balance the likelihood of serious harm to the resident which may result from the removal against the likelihood of serious harm which may result if the resident remains in the facility.
50.03(5m)(c)
(c)
Relocation. The department shall offer removal and relocation assistance to residents removed under this section, including information on available alternative placements. Residents shall be involved in planning the removal and shall choose among the available alternative placements, except that where an emergency situation makes prior resident involvement impossible the department may make a temporary placement until a final placement can be arranged. Residents may choose their final alternative placement and shall be given assistance in transferring to such place. No resident may be forced to remain in a temporary or permanent placement except pursuant under s.
55.06, 2003 stats., or an order under
s. 55.12 for protective placement. Where the department makes or participates in making the relocation decision, consideration shall be given to proximity to residents' relatives and friends.
50.03(5m)(d)
(d)
Transfer trauma mitigation. The department shall prepare resident removal plans and transfer trauma mitigation care plans to assure safe and orderly removals and protect residents' health, safety, welfare and rights. In nonemergency situations, and where possible in emergency situations, the department shall design transfer trauma mitigation care plans for the individual resident and implement such care in advance of removal. The resident shall be provided with opportunity for 3 visits to potential alternative placements prior to removal, except where medically contraindicated or where the need for immediate removal requires reduction in the number of visits.
50.03(5m)(e)
(e)
Relocation teams. The department may place relocation teams in any facility from which residents are being removed, discharged or transferred for any reason, for the purpose of implementing removal plans and training the staffs of transferring and receiving facilities in transfer trauma mitigation.
50.03(5m)(f)
(f)
Nonemergency removal procedures. In any removal conducted under
par. (a) 1. to
5., the department shall provide written notice to the facility and to any resident sought to be removed, to the resident's guardian, if any, and to a member of the resident's family, where practicable, prior to the removal. The notice shall state the basis for the order of removal and shall inform the facility and the resident or the resident's guardian, if any, of their right to a hearing prior to removal. The facility and the resident or the resident's guardian, if any, shall advise the department within 10 working days following receipt of notice if a hearing is requested.
50.03(5m)(g)
(g)
Emergency removal procedures. In any removal conducted under
par. (a) 6. the department shall notify the facility and any resident to be removed that an emergency situation has been found to exist and removal has been ordered, and shall involve the residents in removal planning if possible. Following emergency removal, the department shall provide written notice to the facility, to the resident, to the resident's guardian, if any, and to a member of the resident's family, where practicable, of the basis for the finding that an emergency existed and of the right to challenge removal under
par. (h).
50.03(5m)(h)
(h)
Hearing. Within 10 days following removal under
par. (g), the facility may send a written request for a hearing to challenge the removal to the department. The department shall hold the hearing within 30 days of receipt of the request. Where the challenge is by a resident, the hearing shall be held prior to removal at a location convenient to the resident. At the hearing, the burden of proving that a factual basis existed for removal under
par. (a) shall rest on the department. If the facility prevails, it shall be reimbursed by the department for payments lost less expenses saved as a result of the removal and the department shall assist the resident in returning to the facility, if assistance is requested. No resident removed may be held liable for the charge for care which would have been made had the resident remained in the facility. The department shall assume this liability, if any. If a resident prevails after hearing, the department shall reimburse the resident for any excess expenses directly caused by the order to remove.
50.03(5m)(i)
(i)
County as agent. The department may authorize the county in which the facility is located to carry out, under the department's supervision, any powers and duties conferred upon the department in this subsection.
50.03(7)(a)(a)
Licensed facility. Notwithstanding the existence or pursuit of any other remedy, the department may, upon the advice of the attorney general, maintain an action in the name of the state in the circuit court for injunction or other process against any licensee, owner, operator, administrator or representative of any owner of a facility to restrain and enjoin the repeated violation of any of the provisions of this subchapter, rules promulgated by the department under this subchapter, or requirements under
42 CFR 483 related to the operation of a nursing home where the violation affects the health, safety or welfare of the residents.
50.03(7)(b)
(b)
Unlicensed facility. Notwithstanding the existence or pursuit of any other remedy, the department may, upon the advice of the attorney general, maintain an action in the name of the state for injunction or other process against any person or agency to restrain or prevent the establishment, management or operation of any facility required to be licensed under this section without a license.
50.03(7)(c)
(c)
Enforcement by counties maintaining inspection programs. The county board of any county conducting inspections under
sub. (2) (b) may, upon notifying the department that a facility is in violation of this subchapter or the rules promulgated under this subchapter, authorize the district attorney to maintain an action in the name of the state in circuit court for injunction or other process against the facility, its owner, operator, administrator or representative, to restrain and enjoin repeated violations where the violations affect the health, safety or welfare of the residents.
50.03(9)
(9) Exception for churches opposed to medical treatment. Nothing in this section shall be so construed as to give authority to supervise or regulate or control the remedial care or treatment of individual patients who are adherents of a church or religious denomination which subscribes to the act of healing by prayer and the principles of which are opposed to medical treatment and who are residents in any facility operated by a member or members, or by an association or corporation composed of members of such church or religious denomination, if the facility admits only adherents of such church or denomination and is so designated; nor shall the existence of any of the above conditions alone militate against the licensing of such a home or institution. Such facility shall comply with all rules and regulations relating to sanitation and safety of the premises and be subject to inspection thereof. Nothing in this subsection shall modify or repeal any laws, rules and regulations governing the control of communicable diseases.
50.03(10)
(10) Uniform accounting system. The department shall establish a uniform classification of accounts and accounting procedures for each level of licensure which shall be based on generally accepted accounting principles and which reflect the allocation of revenues and expenses by primary functions, to be used by the department in carrying out this subsection and
s. 49.45. Each facility subject to this subsection or
s. 49.45 shall satisfactorily establish with the department by a date set by the department that it has instituted the uniform accounting system as required in this subsection or is making suitable progress in the establishment of each system.
50.03(11)(a)(a) All administrative remedies shall be exhausted before an agency determination under this subchapter 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 chapter shall be filed within 15 days after receipt of notice of the final agency determination.
50.03(11)(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 facility will meet the requirements of this subchapter and the rules promulgated under this subchapter 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 facility with the requirements of this subchapter.
50.03(11)(d)
(d) 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 department.
50.03(13)(a)(a)
New license. Whenever ownership of a facility is transferred from the person or persons named in the license to any other person or persons, the transferee must obtain a new license. The license may be a probationary license. Penalties under
sub. (1) shall apply to violations of this subsection. The transferee shall notify the department of the transfer, file an application under
sub. (3) (b), and apply for a new license at least 30 days prior to final transfer. Retention of any interest required to be disclosed under
sub. (3) (b) after transfer by any person who held such an interest prior to transfer may constitute grounds for denial of a license where violations of this subchapter, or of requirements of
42 CFR 483 related to the operation of a nursing home, for which notice had been given to the transferor are outstanding and uncorrected, if the department determines that effective control over operation of the facility has not been transferred. If the transferor was a provider under
s. 49.43 (10), the transferee and transferor shall comply with
s. 49.45 (21).
50.03(13)(b)
(b)
Duty of transferor. The transferor shall notify the department at least 30 days prior to final transfer. The transferor shall remain responsible for the operation of the home until such time as a license is issued to the transferee, unless the facility is voluntarily closed as provided under
sub. (14). The transferor shall also disclose to the transferee the existence of any outstanding waiver or variance and the conditions attached to such waiver or variance.
50.03(13)(c)
(c)
Outstanding violations. Violations reported in departmental inspection reports prior to the transfer of ownership shall be corrected, with corrections verified by departmental survey, prior to the issuance of a full license to the transferee. The license granted to the transferee shall be subject to the plan of correction submitted by the previous owner and approved by the department and any conditions contained in a conditional license issued to the previous owner. In the case of a nursing home, if there are outstanding violations and no approved plan of correction has been implemented, the department may issue a conditional license and plan of correction as provided in
s. 50.04 (6).
50.03(13)(d)
(d)
Forfeitures. The transferor shall remain liable for all forfeitures assessed against the facility which are imposed for violations occurring prior to transfer of ownership.
50.03(14)(a)
(a) The department may provide, direct or arrange for relocation planning, placement and implementation services in order to minimize the trauma associated with the relocation of residents and to ensure the orderly relocation of residents.
50.03(14)(b)
(b) The county departments of the county in which the facility is located that are responsible for providing services under
s. 46.215 (1) (L),
46.22 (1) (b) 1. c.,
51.42 or
51.437 shall participate in the development and implementation of individual relocation plans. Any county department of another county shall participate in the development and implementation of individual relocation plans in place of the county departments of the county in which the facility is located, if the county department accepts responsibility for the resident or is delegated responsibility for the resident by the department or by a court.
50.03(14)(c)1.
1. Provide at least 30 days' written notice prior to relocation to each resident who is to be relocated, to the resident's guardian, if any, and to a member of the resident's family, if practicable, unless the resident requests that notice to the family be withheld.
50.03(14)(c)2.
2. Attempt to resolve complaints from residents under this section.
50.03(14)(c)3.
3. Identify and, to the greatest extent practicable, attempt to secure an appropriate alternate placement for each resident to be relocated.
50.03(14)(c)4.
4. Consult the resident's physician on the proposed relocation's effect on the resident's health.
50.03(14)(c)5.
5. Hold a planning conference at which an individual relocation plan will be developed with the resident, with the resident's guardian, if any, and with a member of the resident's family, if practicable, unless the resident requests that a family member not be present.
50.03(14)(c)6.
6. Implement the individual relocation plan developed under
subd. 5.
50.03(14)(c)7.
7. Notify the department of its intention to relocate residents. The notice shall state the facts requiring the proposed relocation of residents and the proposed date of closing or changing of the type or level of services or means of reimbursement.
50.03(14)(c)8.
8. At the time the facility notifies the department under
subd. 7., submit to the department a preliminary plan that includes:
50.03(14)(c)8.a.
a. The proposed timetable for planning and implementation of relocations and the resources, policies and procedures that the facility will provide or arrange in order to plan and implement the relocations.
50.03(14)(c)8.b.
b. A list of the residents to be relocated and their current levels of care and a brief description of any special needs or conditions.
50.03(14)(c)8.c.
c. An indication of which residents have guardians and the names and addresses of the guardians.
50.03(14)(d)
(d) The department shall notify the facility within 10 days after receiving the preliminary plan under
par. (c) 8., if it disapproves the plan. If the department does not notify the facility of disapproval, the plan is deemed approved. If the department disapproves the preliminary plan it shall, within 10 days of notifying the facility, begin working with the facility to modify the disapproved plan. No residents may be relocated until the department approves the preliminary plan or until a modified plan is agreed upon. If a plan is not approved or agreed upon within 30 days of receipt of the notice of relocation, the department may impose a plan that the facility shall carry out. Failure to submit, gain approval for or implement a plan in a timely fashion is not a basis for a facility to declare an emergency under
sub. (5m) (a) 6. or to relocate any resident under
sub. (5m) (g).
50.03(14)(e)
(e) Upon approval of, agreement to or imposition of a plan for relocation, the facility shall establish a date of closing or changing of the type or level of services or means of reimbursement and shall notify the department of the date. The date may not be earlier than 90 days from the date of approval, agreement or imposition if 5 to 50 residents will be relocated, or 120 days from the date of approval, agreement or imposition if more than 50 residents will be relocated.
50.03 History
History: 1975 c. 413;
1977 c. 29,
170,
205,
272,
418,
447;
1979 c. 221;
1981 c. 20,
72,
121;
1981 c. 314 s.
146;
1985 a. 29 ss.
1058,
3202 (56) (a);
1985 a. 176;
1985 a. 182 s.
57;
1985 a. 332 s.
251 (1), (3);
1987 a. 27,
127,
399;
1989 a. 31,
359;
1991 a. 39,
221;
1993 a. 27,
112,
375,
491;
1995 a. 27 ss.
3227 to
3232,
9126 (19);
1997 a. 27,
114;
2001 a. 16;
2003 a. 33;
2005 a. 264,
387;
2007 a. 20 s.
9121 (6) (a);
2007 a. 92;
2009 a. 28;
2011 a. 70.
50.03 Annotation
The department can constitutionally license and regulate community-based residential facilities that are operated by religious organizations and that are not exempt convents or similar facilities under s. 50.01 (1) [now 50.01 (1g)] or s. 50.03 (9).
71 Atty. Gen. 112.
50.032
50.032
Certification of certain adult family homes. 50.032(1m)(a)(a) No person may operate an adult family home unless the adult family home is certified under this section.
50.032(1m)(b)
(b) A county department under
s. 46.215,
46.22,
46.23,
51.42 or
51.437 may certify an adult family home that is located in the county. The department shall certify an adult family home in a county that elects not to certify adult family homes.
50.032(2)
(2) Regulation. Except as provided in
sub. (2d), standards for operation of certified adult family homes and procedures for application for certification, monitoring, inspection, decertification and appeal of decertification under this section shall be under rules promulgated by the department under
s. 50.02 (2) (am) 1. An adult family home certification is valid until decertified under this section. Certification is not transferable.
50.032(2d)
(2d) Accompaniment or visitation. If an adult family home has a policy on who may accompany or visit a patient, the adult family home shall extend the same right of accompaniment or visitation to a patient's domestic partner under
ch.770 as is accorded the spouse of a patient under the policy.
50.032(2m)
(2m) Exception. Notwithstanding
s. 50.01 (1g) (b), if an individual served in an adult family home attains 18 years of age and leaves the adult family home on a permanent basis, as defined in rules promulgated by the department, he or she may be replaced for receipt of service by an individual who has a developmental disability, as defined in
s. 51.01 (5).
50.032(2r)
(2r) Reporting. Every 12 months, on a schedule determined by the department, a certified adult family home shall submit an annual report in the form and containing the information that the department requires, including payment of a fee, if any is required under rules promulgated under
s. 50.02 (2) (am) 1. If a complete annual report is not timely filed, the department shall issue a warning to the operator of the certified adult family home. The department may decertify a certified adult family home for failure to timely and completely report within 60 days after the report date established under the schedule determined by the department.
50.032(3)
(3) Investigation of alleged violations. If the department or a certifying county department under
sub. (1m) (b) is advised or has reason to believe that any person is violating this section or the rules promulgated under
s. 50.02 (2) (am) 1., the department or the certifying county department shall make an investigation to determine the facts. For the purposes of this investigation, the department or the certifying county department may inspect the premises where the violation is alleged to occur. If the department or the certifying county department finds that the requirements of this section and of rules under
s. 50.02 (2) (am) 1. are met, the department or the certifying county department may certify the premises under this section. If the department or the certifying county department finds that a person is violating this section or the rules under
s. 50.02 (2) (am) 1., the department or the certifying county department may institute an action under
sub. (5) or
(6).
50.032(4)
(4) Decertification. A certified adult family home may be decertified because of the substantial and intentional violation of this section or of rules promulgated by the department under
s. 50.02 (2) (am) 1. or because of failure to meet the minimum requirements for certification. The operator of the certified adult family home shall be given written notice of any decertification and the grounds for the decertification. Any adult family home certification applicant or operator of a certified adult family home may, if aggrieved by the failure to issue the certification or by decertification, appeal under the procedures specified by the department by rule under
s. 50.02 (2) (am) 1.
50.032(5)
(5) Injunction. The department or a certifying county department under
s. 46.215,
46.22,
46.23,
51.42 or
51.437 may commence an action in circuit court to enjoin the operation of an adult family home that is not certified under
sub. (1m) or that is certified and has repeatedly used methods of operation in substantial violation of the rules promulgated under
s. 50.02 (2) (am) 1. or that endanger the health, safety or welfare of any disabled adult receiving care and maintenance in an adult family home.
50.032(6)
(6) Penalties. Any person who violates this section or rules promulgated under
s. 50.02 (2) (am) 1. may be fined not more than $500 or imprisoned for not more than one year in the county jail or both.
