50.065(2)(bm)
(bm) If the person who is the subject of the search under
par. (am) or
(b) is not a resident of this state, or if at any time within the 3 years preceding the date of the search that person has not been a resident of this state, or if the department or entity determines that the person's employment, licensing or state court records provide a reasonable basis for further investigation, the department or entity shall make a good faith effort to obtain from any state or other United States jurisdiction in which the person is a resident or was a resident within the 3 years preceding the date of the search information that is equivalent to the information specified in
par. (am) 1. or
(b) 1. The department or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions.
50.065(2)(br)1.1. Except as provided in subd. 2, an entity that receives information regarding the arrest or conviction of a caregiver from the federal bureau of investigation in connection with a criminal history search under this section may use the information only to determine whether the caregiver's arrest or conviction record disqualifies him or her from serving as a caregiver. An entity is immune from civil liability to a caregiver for using arrest or conviction information provided by the federal bureau of investigation to make an employment determination regarding the caregiver.
50.065(2)(br)2.
2. Subdivision 1. does not apply to use by an entity of arrest or conviction information that the entity requests from the federal bureau of investigation after September 30, 2007.
50.065(2)(d)
(d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver under
par. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.
50.065(2m)(a)(a) Any entity that places a caregiver in a client's residence to provide personal care services shall, before the caregiver provides services to the client, do all of the following:
50.065(2m)(a)1.
1. Except as provided in
par. (b), disclose to the client or the client's guardian in writing all information obtained under
sub. (2) (b) 1. or
(bb) regarding any conviction of the caregiver for a crime that is specified by rule under
par. (d), and, if the caregiver has demonstrated that he or she has been rehabilitated under
sub. (5), notice of that fact.
50.065(2m)(a)2.
2. Except as provided in
par. (b), disclose to the client or the client's guardian in writing all information obtained under
sub. (2) (b) 2.,
4., or
5. regarding the caregiver.
50.065(2m)(a)3.
3. Notify the client or the client's guardian that, for a fee, the department of justice performs for any person a criminal history record search on an individual.
50.065(2m)(a)4.
4. Notify the client or the client's guardian in writing that if the regularly assigned caregiver is unavailable and the entity assigns a substitute caregiver to provide personal care services to the client, the entity is not required to provide the disclosures under
subd. 1. or
2. for the substitute caregiver.
50.065(2m)(b)
(b) If a caregiver whom an entity has placed in a client's residence to provide personal care services is not available to provide the services and the entity assigns a substitute caregiver to provide personal care services to the client, the entity is not required to make the disclosures under
par. (a) 1. and
2. for the substitute caregiver.
50.065(2m)(c)
(c) Each time that an entity requests information under
sub. (3) (b) regarding a caregiver who provides personal care services, the entity shall provide the disclosures required under
par. (a) 1. and
2. to each client for whom the caregiver provides personal care services or to the client's guardian.
50.065(2m)(d)
(d) The department shall promulgate rules to specify crimes for which an entity must disclose a conviction to a client or the client's guardian under
par. (a) 1., and to specify who is a substitute caregiver for purposes of
pars. (a) 4. and
(b).
50.065 Cross-reference
Cross-reference: See also s.
DHS 12.115, Wis. adm. code.
50.065(3)(a)(a) Every 4 years or at any time within that period that the department considers appropriate, the department shall request the information specified in
sub. (2) (am) 1. to
5. for all persons who are licensed to operate an entity and for all persons who are nonclient residents of an entity.
50.065(3)(b)
(b) Every 4 years or at any other time within that period that an entity considers appropriate, the entity shall request the information specified in
sub. (2) (b) 1. to
5. for all caregivers of the entity.
50.065(3m)
(3m) Notwithstanding
subs. (2) (b) and
(3) (b), if the department obtains the information required under
sub. (2) (am) or
(3) (a) with respect to a person who is a caregiver specified under
sub. (1) (ag) 1. b. and that person is also an employee, contractor or nonclient resident of the entity, the entity is not required to obtain the information specified in
sub. (2) (b) or
(3) (b) with respect to that person.
50.065(4)
(4) An entity that violates
sub. (2),
(3) or
(4m) (b) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.
50.065(4m)(a)(a) Notwithstanding
s. 111.335, and except as provided in
sub. (5), the department may not license, certify, issue a certificate of approval to or register a person to operate an entity or continue the license, certification, certificate of approval or registration of a person to operate an entity if the department knows or should have known any of the following:
50.065(4m)(a)3.
3. That a unit of government or a state agency, as defined in
s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property of any client.
50.065(4m)(a)4.
4. That a final determination has been made under
s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, a final decision has been made under
s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.
50.065(4m)(a)5.
5. That, in the case of a position for which the person must be credentialed by the department of safety and professional services, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.
50.065(4m)(b)
(b) Notwithstanding
s. 111.335, and except as provided in
sub. (5), an entity may not employ or contract with a caregiver or permit to reside at the entity a nonclient resident, if the entity knows or should have known any of the following:
50.065(4m)(b)3.
3. That a unit of government or a state agency, as defined in
s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property of any client.
50.065(4m)(b)4.
4. That a final determination has been made under
s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, a final decision has been made under
s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.
50.065(4m)(b)5.
5. That, in the case of a position for which the person must be credentialed by the department of safety and professional services, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.
50.065(4m)(c)
(c) If the background information form completed by a person under
sub. (6) (am), or a person's response or lack of response to a disclosure policy described under
sub. (6) (am), indicates that the person is not ineligible to be employed or contracted with for a reason specified in
par. (b) 1. to
5., an entity may employ or contract with the person for not more than 60 days pending the receipt of the information sought under
sub. (2) (b). If the background information form completed by a person under
sub. (6) (am), or a person's response or lack of response to a disclosure policy described under
sub. (6) (am), indicates that the person is not ineligible to be permitted to reside at an entity for a reason specified in
par. (b) 1. to
5. and if an entity otherwise has no reason to believe that the person is ineligible to be permitted to reside at an entity for any of those reasons, the entity may permit the person to reside at the entity for not more than 60 days pending receipt of the information sought under
sub. (2) (am). An entity shall provide supervision for a person who is employed or contracted with or permitted to reside as permitted under this paragraph.
50.065(5)
(5) The department may license, certify, issue a certificate of approval to or register to operate an entity a person who otherwise may not be licensed, certified, issued a certificate of approval or registered for a reason specified in
sub. (4m) (a) 1. to
5., and an entity may employ, contract with or permit to reside at the entity a person who otherwise may not be employed, contracted with or permitted to reside at the entity for a reason specified in
sub. (4m) (b) 1. to
5., if the person demonstrates to the department, or, in the case of an entity that is located within the boundaries of a reservation, to the person or body designated by the tribe under
sub. (5d) (a) 3., by clear and convincing evidence and in accordance with procedures established by the department by rule, or by the tribe, that he or she has been rehabilitated. The department shall permit any person who has been convicted of a crime specified by rule under
sub. (2m) (d) and who wishes to provide personal care services to demonstrate to the department or, if the person wishes to provide personal care services only within the boundaries of a reservation and the department has approved a plan for the tribe to conduct rehabilitation reviews under
sub. (5d), to the tribe that he or she has been rehabilitated.
50.065(5c)
(5c) Any person who is permitted but fails under
sub. (5) to demonstrate to the department that he or she has been rehabilitated may appeal to the secretary of health services or his or her designee. Any person who is adversely affected by a decision of the secretary or his or her designee under this subsection has a right to a contested case hearing under
ch. 227.
50.065(5d)(a)(a) Any tribe that chooses to conduct rehabilitation reviews under
sub. (5) shall submit to the department a rehabilitation review plan that includes all of the following:
50.065(5d)(a)1.
1. The criteria to be used to determine if a person has been rehabilitated.
50.065(5d)(a)2.
2. The title of the person or body designated by the tribe to whom a request for review must be made.
50.065(5d)(a)3.
3. The title of the person or body designated by the tribe to determine whether a person has been rehabilitated.
50.065(5d)(a)3m.
3m. The title of the person or body designated by the tribe to whom a person may appeal an adverse decision made by the person specified under
subd. 3. and whether the tribe provides any further rights of appeal.
50.065(5d)(a)4.
4. The manner in which the tribe will submit information relating to a rehabilitation review to the department so that the department may include that information in its report to the legislature required under
sub. (5g).
50.065(5d)(a)5.
5. A copy of the form to be used to request a review and a copy of the form on which a written decision is to be made regarding whether a person has demonstrated rehabilitation.
50.065(5d)(b)
(b) If, within 90 days after receiving the plan, the department does not disapprove the plan, the plan shall be considered approved. If, within 90 days after receiving the plan, the department disapproves the plan, the department shall provide notice of that disapproval to the tribe in writing, together with the reasons for the disapproval. The department may not disapprove a plan unless the department finds that the plan is not rationally related to the protection of clients. If the department disapproves the plan, the tribe may, within 30 days after receiving notice of the disapproval, request that the secretary review the department's decision. A final decision under this paragraph is not subject to further review under
ch. 227.
50.065(5g)
(5g) Beginning on January 1, 1999, and annually thereafter, the department shall submit a report to the legislature under
s. 13.172 (2) that specifies the number of persons in the previous year who have requested to demonstrate to the department that they have been rehabilitated under
sub. (5), the number of persons who successfully demonstrated that they have been rehabilitated under
sub. (5) and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.
50.065(5m)
(5m) Notwithstanding
s. 111.335, the department may refuse to license, certify or register, or issue a certificate of approval to, a caregiver and an entity may refuse to employ or contract with a caregiver or to permit a nonclient resident to reside at the entity, if the caregiver or nonclient resident has been convicted of an offense that is not a serious crime, but that is, in the estimation of the department or entity, substantially related to the care of a client.
50.065(6)(a)(a) The department shall require any person who applies for issuance or continuation of a license, certification, certificate of approval or registration to operate an entity to complete a background information form that is provided by the department.
50.065(6)(am)
(am) Every 4 years an entity shall require its caregivers and nonclient residents to complete a background information form that is provided to the entity by the department, except that an entity need not require those caregivers to whom
par. (b) does not apply to complete the form if the entity requires the caregivers to disclose to the entity, in writing, all information requested on the form and notifies the caregivers annually of the disclosure requirement.
50.065(6)(b)
(b) For caregivers who are licensed, issued a certificate of approval or certified by, or registered with, the department, for nonclient residents, and for other persons specified by the department by rule, the entity shall send the background information form to the department.
50.065(6)(c)
(c) A person who provides false information on a background information form required under this subsection or a caregiver who fails to report information as required under a disclosure policy described under
par. (am) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.
50.065(7)
(7) The department shall do all of the following:
50.065(7)(c)
(c) Conduct throughout the state periodic training sessions that cover criminal background investigations; reporting and investigating misappropriation of property or abuse or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.
50.065(7)(d)
(d) Provide a background information form that requires the person completing the form to include his or her date of birth on the form.
50.065(8)
(8) The department may charge a fee for obtaining the information required under
sub. (2) (am) or
(3) (a) or for providing information to an entity to enable the entity to comply with
sub. (2) (b) or
(3) (b). No fee may be charged to a nurse aide, as defined in
s. 146.40 (1) (d), for obtaining or maintaining the information if to do so would be inconsistent with federal law.
50.065 History
History: 1997 a. 27,
105,
237;
1999 a. 9,
32,
56,
185,
186;
2001 a. 109;
2005 a. 25,
184,
277,
351;
2007 a. 20 s.
9121 (6) (a);
2007 a. 97,
116,
130,
153,
172;
2009 a. 276;
2011 a. 32,
35;
2013 a. 20;
2013 a. 173 s.
33;
2015 a. 366.
50.065 Annotation
When a collective bargaining agreement required just cause for termination and provided the right to grieve any termination decision, a county did not have sole discretion under sub. (5m) to decide whether to terminate an employee for the commission of a non-serious crime substantially related to the care of a client. As the county had the authority under sub. (5m) to retain the employee despite a conviction, nothing prevented it from agreeing to do so in a manner consistent with the collective bargaining agreement. Brown County v. Wisconsin Employment Relations Commission,
2007 WI App 247,
306 Wis. 2d 213,
742 N.W.2d 916,
07-0135.
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 655,
571 N.W.2d 393 (1997),
96-0866.
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),
99-1125.
50.08
50.08
Informed consent for psychotropic medications. 50.08(1)(c)
(c) “Person acting on behalf of the resident" means a guardian of the person, as defined in
s. 54.01 (12), or a health care agent, as defined in
s. 155.01 (4).
50.08(1)(d)
(d) “Psychotropic medication" means an antipsychotic, an antidepressant, lithium carbonate, or a tranquilizer.
50.08(2)
(2) A physician, an advanced practice nurse prescriber certified under
s. 441.16 (2), or a physician assistant licensed under
ch. 448, who prescribes a psychotropic medication to a nursing home resident who has degenerative brain disorder shall notify the nursing home if the prescribed medication has a boxed warning under
21 CFR 201.57.
50.08(3)(a)(a) Except as provided in
sub. (3m) or
(4), before administering a psychotropic medication that has a boxed warning under
21 CFR 201.57 to a resident who has degenerative brain disorder, a nursing home shall obtain written informed consent from the resident or, if the resident is incapacitated, a person acting on behalf of the resident, on a form provided by the department under
par. (b) or on a form that contains the same information as the form under
par. (b).
50.08(3)(b)
(b) The department shall make available on its Web site or by mail multiple, drug-specific forms for obtaining informed consent under
par. (a) for the administration of psychotropic medication that contain all of the following:
50.08(3)(b)1.
1. A space for a description of the benefits of the proposed treatment and the way the medication will be administered.
50.08(3)(b)2.
2. A description, using the most recently issued information from the federal food and drug administration, of the side effects or risks of side effects of the medication and any warnings about the medication.
50.08(3)(b)3.
3. A space for a description of any alternative treatment modes or medications.
50.08(3)(b)4.
4. A space for a description of the probable consequences of not receiving the medication.
50.08(3)(b)5.
5. A space for indicating the period for which the informed consent is effective, which shall be no longer than 15 months from the time the consent is given.
50.08(3)(b)6.
6. A statement that the resident or a person acting on behalf of the resident may withdraw informed consent, in writing, at any time.
50.08(3)(b)7.
7. A declaration that the resident or the person acting on behalf of the resident has been provided with specific, complete, and accurate information, and time to study the information or to seek additional information concerning the medication.
