50.08(4)(a)(a) A nursing home is not required to obtain written informed consent before administering a psychotropic medication to a resident under
sub. (3) if all of the following apply:
50.08(4)(a)1.
1. The resident is not the subject of a court order to administer psychotropic medications under
s. 55.14.
50.08(4)(a)2.
2. There is an emergency in which a resident is at significant risk of physical or emotional harm or the resident puts others at significant risk of physical harm and in which time and distance preclude obtaining written informed consent before administering psychotropic medication.
50.08(4)(a)3.
3. A physician has determined that the resident or others will be harmed if the psychotropic medication is not administered before written informed consent is obtained.
50.08(4)(b)
(b) If
par. (a) applies, the nursing home shall obtain oral consent from the resident or, if the resident is incapacitated, a person acting on behalf of the resident, before administering the psychotropic medication, except as provided in
par. (c). The oral consent shall be entered in the resident's medical record. The oral consent shall be valid for 10 days, after which time the nursing home may not continue to administer the psychotropic medication unless it has obtained written informed consent under
sub. (3).
50.08(4)(c)
(c) If
par. (a) applies, the resident is incapacitated, and the nursing home has made a good faith effort to obtain oral consent, under
par. (b), of a person acting on behalf of the resident but has been unable to contact such a person, the nursing home may administer the psychotropic medication to the resident for up to 24 hours before obtaining consent under
par. (a) or
sub. (3).
50.08 History
History: 2009 a. 281.
50.085
50.085
Visitation by family members. 50.085(1)(a)
(a) “Adult child" means an individual who is at least 18 years of age and who is related to a resident biologically, through adoption, through the marriage or former marriage of the resident to the biological parent of the adult child, or by a judgment of parentage entered by a court of competent jurisdiction.
50.085(1)(am)
(am) “Family member" means any spouse, adult child, adult grandchild, parent, or sibling of a resident.
50.085(1)(b)
(b) “Resident" means an adult resident of any of the following:
50.085(1)(b)5.
5. Any home or other residential dwelling in which the resident is receiving care and services from any person.
50.085(1)(c)
(c) “Visitation" means an in-person meeting or any telephonic, written, or electronic communication.
50.085(2)
(2) Petition for visitation. If a family member is being denied visitation with a resident, the family member may petition a court to compel visitation with the resident. The court may not issue an order compelling visitation if the court finds any of the following:
50.085(2)(a)
(a) The resident, while having the capacity to evaluate and communicate decisions regarding visitation, expresses a desire to not have visitation with that family member.
50.085(2)(b)
(b) Visitation between the petitioning family member and the resident is not in the best interest of the resident.
50.085(3)
(3) Expedited hearing. If the petition under
sub. (2) states that the resident's health is in significant decline or that the resident's death may be imminent, the court shall conduct an emergency hearing on the petition under
sub. (2) as soon as practicable and no later than 10 days after the date the petition is filed with the court.
50.085(4)
(4) Sanctions; remedies. Upon a motion or on the court's own motion, if the court finds during a hearing on a petition under
sub. (2) that a person is knowingly isolating a resident, the court shall order the person to pay court costs and reasonable attorney fees of the petitioner under
sub. (2) and may order other appropriate remedies. No costs, fees, or other sanctions may be paid from the resident's finances or estate.
50.085 History
History: 2015 a. 343.
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, physician assistant, advanced practice nurse prescriber, attorney, and any other person, unless medically contraindicated as documented by the resident's physician, physician assistant, or advanced practice nurse prescriber 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 or domestic partner. If both spouses or both domestic partners under
ch.770 are residents of the same facility, the spouses or domestic partners shall be permitted to share a room unless medically contraindicated as documented by the resident's physician, physician assistant, or advanced practice nurse prescriber 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, physician assistant, or advanced practice nurse prescriber 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, physician assistant, or advanced practice nurse prescriber 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, physician assistant, or advanced practice nurse prescriber 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 that interferes with the free movement of the resident and that 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 adjudicated incompetent in this state 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.
50.09 Annotation
A Response: Issues Affecting Long-term Care. Purtell. Wis. Law. Oct. 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 aides, 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.
50.097
50.097
Registry. Any person may receive, upon specific written request to the department, requested information that is contained in the registry of individuals under
s. 146.40 (4g) (a).
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 790,
643 N.W.2d 841,
01-0971.
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.
