The inherent complexity of a service prescribed for a resident is such that it can be safely and effectively performed only by or under the supervision of registered nurses or licensed practical nurses.
The full recovery or medical improvement of the resident is not possible, but the services are needed to prevent, to the extent possible, deterioration of the resident's condition or to sustain current capacities of the resident.
Because of special medical complications, performing or supervising a service that is generally unskilled or observing the resident necessitates the use of a person whose licensed, registered, certified or permitted scope of practice is at least equivalent to that of a licensed practical nurse.
“Violation" means a failure to comply with any provision of this subchapter or administrative rule promulgated thereunder. An alleged deficiency in a nursing home reported in writing to the department by any of its authorized representatives shall not be deemed to be a violation until the department determines it is a violation by serving notice under s. 50.04 (4)
. If the facility contests the department determination, the facility shall be afforded the due process procedures in this subchapter.
History: 1975 c. 413
; 1977 c. 170
; 1979 c. 111
; 1983 a. 189
s. 329 (18)
; 1985 a. 29
; 1985 a. 332
s. 251 (1)
; 1987 a. 127
; 1989 a. 31
; 1991 a. 39
; 1993 a. 327
; 1995 a. 27
; 1997 a. 13
; 1999 a. 22
; 2001 a. 74
; 2003 a. 33
; 2005 a. 187
; 2007 a. 20
; 2009 a. 28
; 2011 a. 32
; 2013 a. 20
; 2013 a. 165
; 2015 a. 55
; 2017 a. 135
See s. 46.011
for definitions applicable to chs. 46
Up to 7 hours of nursing care may be provided by a community-based residential facility under sub. (1g). Hacker v. DHSS, 197 Wis. 2d 441
, 541 N.W.2d 766
The department can constitutionally license and regulate community-based residential facilities operated by religious organizations that are not exempt under s. 50.01 (1), 1985 stats. [now s. 50.01 (1g)] or s. 50.03 (9). 71. Atty. Gen. 112.
Department; powers and duties. 50.02(1)(1)
The department may provide uniform, statewide licensing, inspection, and regulation of community-based residential facilities and nursing homes as provided in this subchapter. The department shall certify, inspect, and otherwise regulate adult family homes, as specified under s. 50.032
and shall license adult family homes, as specified under s. 50.033
. Nothing in this subchapter may be construed to limit the authority of the department of safety and professional services or of municipalities to set standards of building safety and hygiene, but any local orders of municipalities shall be consistent with uniform, statewide regulation of community-based residential facilities. The department may not prohibit any nursing home from distributing over-the-counter drugs from bulk supply. The department may consult with nursing homes as needed and may provide specialized consultations when requested by any nursing home, separate from its inspection process, to scrutinize any particular questions the nursing home raises. The department shall, by rule, define “specialized consultation".
The department, by rule, shall develop, establish and enforce regulations and standards for the care, treatment, health, safety, rights, welfare and comfort of residents in community-based residential facilities and nursing homes and for the construction, general hygiene, maintenance and operation of those facilities which, in the light of advancing knowledge, will promote safe and adequate accommodation, care and treatment of residents in those facilities; and promulgate and enforce rules consistent with this section. Such standards and rules shall provide that intermediate care facilities, which have 16 or fewer beds may, if exempted from meeting certain physical plant, staffing and other requirements of the federal regulations, be exempted from meeting the corresponding provisions of the department's standards and rules. The department shall consult with the department of safety and professional services when developing exemptions relating to physical plant requirements.
The department shall promulgate rules that require each facility licensed under this subchapter to provide information necessary for the department to assess the facility's compliance with s. 55.14
The department shall, by rule, define “Class A" and “Class C" community-based residential facilities for the purposes of s. 50.035 (3)
The department shall promulgate all of the following rules with respect to adult family homes:
For the purposes of s. 50.032
, defining the term “permanent basis" and establishing minimum requirements for certification, certification application procedures and forms, standards for operation and procedures for monitoring, inspection, decertification and appeal of decertification. The rules shall be designed to protect and promote the health, safety and welfare of the disabled adults receiving care and maintenance in certified adult family homes.
For the purposes of s. 50.033
, establishing minimum requirements for licensure, licensure application procedures and forms, standards for operation and procedures for monitoring, inspection, revocation and appeal of revocation.
The department shall conduct plan reviews of all capital construction and remodeling of nursing homes to ensure that the plans comply with building code requirements under ch. 101
and with life safety code and physical plant requirements under s. 49.498
, this chapter or under rules promulgated under this chapter.
The department shall promulgate rules that establish a fee schedule for its services under subd. 1.
in conducting the plan reviews. The schedule established under these rules shall set fees for nursing home plan reviews in amounts that are less than the sum of the amounts required on September 30, 1995, for fees under this paragraph and for fees for examination of nursing home plans under s. 101.19 (1) (a)
, 1993 stats.
The department shall, by rule, define “intermediate nursing care", “limited nursing care" and “skilled nursing services" for use in regulating minimum hours of service provided to residents of nursing homes.
The department may, by rule, increase the minimum hours of nursing home care per day that are specified in s. 50.04 (2) (d) 1.
If a nursing home is certified as a provider of services under s. 49.45 (2) (a) 11.
and is named in a verified complaint filed with the department stating that staffing requirements imposed on the nursing home are not being met, the department shall, in order to verify the staffing requirements, randomly inspect payroll records at the nursing home that indicate the actual hours worked by personnel and the number of personnel on duty. The department may not limit its inspection to schedules of work assignments prepared by the nursing home.
The department shall promulgate rules that prescribe all of the following:
The method by which community-based residential facilities shall make referrals to resource centers or county departments under s. 50.035 (4n)
and the method by which residential care apartment complexes shall make referrals to resource centers under s. 50.034 (5n)
The time period for nursing homes to provide information to prospective residents under s. 50.04 (2g) (a)
and the time period and method by which nursing homes shall make referrals to resource centers under s. 50.04 (2h) (a)
Considerations in establishing standards and regulations. 50.02(3)(a)(a)
The department shall establish several levels and types of community-based residential facilities and nursing homes as provided in par. (b)
, including a category or categories designed to enable facilities to qualify for federal funds.
In setting standards and regulations, the department shall consider the residents' needs and abilities, the increased cost in relation to proposed benefits to be received, the services to be provided by the facility, the relationship between the physical structure and the objectives of the program conducted in the facility and the primary functions of the facility. Recognizing that size and structure will influence the ability of community-based residential facilities to provide a homelike environment, the legislature encourages the department to develop rules which facilitate in particular the development of: small facilities, small living units in larger facilities, individual residential units, independent living to the extent possible, and integration of residents into the community.
The department shall promulgate rules to establish a procedure for waiver of and variance from standards developed under this section. The department may limit the duration of the waiver or variance.
The department shall promulgate rules to establish a procedure for the admission, evaluation and care of short-term care nursing home residents. These rules shall specify that the nursing home or community-based residential facility shall be required to provide to the department as documentation of this admission, evaluation and care only that amount of information commensurate with the length of stay and the medical needs, if any, of the particular resident.
Reports to the board on aging and long-term care.
The department shall submit at least one report quarterly to the board on aging and long-term care regarding enforcement actions, consultation, staff training programs, new procedures and policies, complaint investigation and consumer participation in enforcement under this subchapter and changes that may be needed under this subchapter. The department shall submit at least one report annually to the board on aging and long-term care regarding implementation of rules under sub. (3) (d)
History: 1971 c. 125
; 1973 c. 122
; 1975 c. 119
; 1975 c. 413
; 1977 c. 29
; 1981 c. 20
; 1983 a. 542
; 1985 a. 29
; 1987 a. 161
; 1989 a. 336
; 1991 a. 250
; 1993 a. 16
; 1995 a. 27
, 9116 (5)
; 1995 a. 98
; 1997 a. 237
; 1999 a. 9
; 2005 a. 264
; 2007 a. 20
; 2009 a. 28
; 2011 a. 32
See also ch. DHS 132
, Wis. adm. code.
A municipal ordinance that required registration of nursing homes was in direct conflict with sub. (1) and, therefore, invalid. Volunteers of America v. Village of Brown Deer, 97 Wis. 2d 619
, 294 N.W.2d 44
(Ct. App. 1980).
Sub. (2) (am) 2. provides that the rules for appealing the revocation of an adult family home operating license are determined by DHS. Pursuant to this authority, DHS promulgated a rule that states that an appeal from a license revocation must be received within 10 days after the date of the notice. Section 801.15 (1) (b), which provides that when a deadline is less than eleven days, weekends and holidays are excluded from the counting period, only applies to proceedings before a circuit court and has no application to an appeal before an administrative agency. Baker v. Department of Health Services, 2012 WI App 71
, 342 Wis. 2d 174
, 816 N.W.2d 337
The state has given the department preemptive authority over community-based residential facilities and nursing homes. 68 Atty. Gen. 45.
The department may conduct plan reviews of all capital construction and remodeling of community-based residential facilities. The department shall promulgate rules that establish a fee schedule for its services in conducting the plan reviews.
History: 1977 c. 29
; 1977 c. 170
; 1993 a. 16
Licensing, powers and duties. 50.03(1)(1)
Penalty for unlicensed operation.
No person may conduct, maintain, operate or permit to be maintained or operated a community-based residential facility or nursing home unless it is licensed by the department. Any person who violates this subsection may, upon a first conviction, be fined not more than $500 for each day of unlicensed operation or imprisoned not more than 6 months or both. Any person convicted of a subsequent offense under this subsection may be fined not more than $5,000 for each day of unlicensed operation or imprisoned not more than one year in the county jail or both.
Distinct part or separate licensure for institutions for mental diseases.
Upon application to the department, the department may approve licensure of the operation of a nursing home or a distinct part of a nursing home as an institution for mental diseases, as defined under 42 CFR 435.1009
. Conditions and procedures for application for, approval of and operation under licensure under this subsection shall be established in rules promulgated by the department.
The department shall make or cause to be made such inspections and investigations as it deems necessary.
With approval of the department, the county board of any county having a population of 750,000 or more may, in an effort to assure compliance with this section, establish a program for the inspection of facilities licensed under this section within its jurisdiction. If a county agency deems such action necessary after inspection, the county agency may, after notifying the department, withdraw from the facility any persons receiving county support for care in a facility which fails to comply with the standards established by this section or rules promulgated under this section.
The department shall conduct both announced and unannounced inspections. Inspections of records not directly related to resident health, welfare or safety shall be made between the hours of 8 a.m. and 5 p.m. unless specifically authorized by the secretary. Any employee of the department who intentionally gives or causes to be given advance notice of an unannounced inspection to any unauthorized person is subject to disciplinary action ranging from a 5-day suspension without pay to termination of employment.
Any holder of a license or applicant for a license shall be deemed to have given consent to any authorized officer, employee or agent of the department to enter and inspect the facility in accordance with this subsection. Refusal to permit such entry or inspection shall constitute grounds for initial licensure denial, as provided in sub. (4)
, or suspension or revocation of license, as provided in sub. (5)
The applicant or licensee may review inspection reports and may submit additional information to the department. Portions of the record may be withheld to protect the confidentiality of residents or the identity of any person who has given information subject to the condition that his or her identity remain confidential.
If a complaint is received by a community-based residential facility, the licensee shall attempt to resolve the complaint informally. Failing such resolution, the licensee shall inform the complaining party of the procedure for filing a formal complaint under this section.
Any individual may file a formal complaint under this section regarding the general operation of a community-based residential facility and shall not be subject to reprisals for doing so. All formal complaints regarding community-based residential facilities shall be filed with the county department under s. 46.215
on forms supplied by the county department, unless the county department designates the department of health services to receive a formal complaint. The county department shall investigate or cause to be investigated each formal complaint. Records of the results of each investigation and the disposition of each formal complaint shall be kept by the county department and filed with the unit within the department of health services which licenses community-based residential facilities.
Upon receipt of a formal complaint, the county department may investigate the premises and records, and question the licensee, staff and residents of the community-based residential facility involved. The county department shall attempt to resolve the situation through negotiation or other appropriate means.
If no resolution is reached, the county department shall forward the formal complaint, the results of the investigation, and any other pertinent information to the unit within the department which may take further action under this chapter against the community-based residential facility. The unit shall review the complaint and may conduct further investigations, take enforcement action under this chapter or dismiss the complaint. The department shall notify the complainant in writing of the formal disposition of the complaint and the reasons therefor. If the complaint is dismissed, the complainant is entitled to an administrative hearing conducted by the department to determine the reasonableness of the dismissal.
If the county department designates the department to receive formal complaints, the subunit under s. 46.03 (22) (c)
shall receive the complaints and the department shall have all the powers and duties granted to the county department in this section.
Each licensee, registrant, or holder of a certificate or applicant for licensure, certification, or registration by the department under this subchapter shall file with the department the name and address of a person authorized to accept service of any notices or other papers which the department may send by registered or certified mail, with a return receipt requested, or by mail or electronic mail, with a return acknowledgement requested. The person authorized by a nursing home under this paragraph shall be located at the nursing home.
Notwithstanding s. 879.05
, whenever in this subchapter the department is required to serve any notice or other paper on a licensee or applicant for license, proper service is personal service or, if made to the most recent address on file with the department under par. (a)
, is the sending of the notice or paper by one of the following means:
By registered or certified mail, with a return receipt requested.
By mail or electronic mail, with a return acknowledgement requested.
Application for registration and license. 50.03(3)(am)
In this subsection, “managing employee" means a general manager, business manager, administrator, director or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the operation of the facility.
The application for a license and, except as otherwise provided in this subchapter, the report of a licensee shall be in writing upon forms provided by the department and shall contain such information as the department requires, including the name, address and type and extent of interest of each of the following persons:
All managing employees and, if any, the director of nursing of the facility.
Any person who, directly or indirectly, owns any interest in any of the following:
The partnership, corporation or other entity which operates the facility;
Any mortgage, note, deed of trust or other obligation secured in whole or in part by the land on which or building in which the facility is located, except that disclosure of the disbursements of a secured mortgage, note, deed of trust or other obligation is not required; and
Any lease or sublease of the land on which or the building in which the facility is located.
If any person named in response to subd. 1.
is a partnership, then each partner.
If any person named in response to subd. 1.
is a limited liability company, then each member.
If any person named in response to subd. 1.
is a corporation, then each officer and director of the corporation. In the case of a corporation required to report under section 12 of the securities exchange act, a copy of that report shall meet the requirements of this subdivision with respect to stockholders of the corporation. A report filed under this subdivision shall be the most recent report required to be filed under section 12 of the federal securities exchange act.
If any person named in response to par. (b) 2.
is a bank, credit union, savings bank, savings and loan association, investment association or insurance corporation, it is sufficient to name the entity involved without providing the information required under par. (b) 4.
The licensee shall promptly report any changes which affect the continuing accuracy and completeness of the information required under par. (b)
Failure by a nursing home to provide the information required under this subsection shall constitute a class “C" violation under s. 50.04 (4)
Community-based residential facilities shall report all formal complaints regarding their operation filed under sub. (2) (f)
and the disposition of each when reporting under sub. (4) (c) 1.
Except as provided in sub. (4m) (a)
, the department shall issue a license for a nursing home if it finds the applicant to be fit and qualified and if it finds that the nursing home meets the requirements established by this subchapter and, as applicable, requirements under 42 CFR 483
related to the operation of a nursing home. The department, or its designee, shall make such inspections and investigations as are necessary to determine the conditions existing in each case and shall file written reports. The department shall promulgate rules defining “fit and qualified" for the purposes of this subd. 1. a.
Except as provided in sub. (4m) (b)
, the department shall issue a license for a community-based residential facility if it finds the applicant to be fit and qualified, if it finds that the community-based residential facility meets the requirements established by this subchapter and if the community-based residential facility has paid the license fee under s. 50.037 (2) (a)
. In determining whether to issue a license for a community-based residential facility, the department may consider any action by the applicant or by an employee of the applicant that constitutes a substantial failure by the applicant or employee to protect and promote the health, safety or welfare of a resident. The department may deny licensure to or revoke licensure for any person who conducted, maintained, operated or permitted to be maintained or operated a community-based residential facility for which licensure was revoked. The department, or its designee, shall make such inspections and investigations as are necessary to determine the conditions existing in each case and shall file written reports. In reviewing the report of a community-based residential facility that is required to be submitted under par. (c) 1.
, the department shall consider all complaints filed under sub. (2) (f)
since initial license issuance or since the last review, whichever is later, and the disposition of each. The department shall promulgate rules defining “fit and qualified" for the purposes of this subd. 1. b.
The past record of violations of applicable laws and regulations of the United States or of this or any other state, in the operation of a residential or health care facility, or in any other health-related activity by any of the persons listed in sub. (3) (b)
shall be relevant to the issue of the fitness of an applicant for a license.
Within 10 working days after receipt of an application for initial licensure of a community-based residential facility, the department shall notify the city, town or village planning commission, or other appropriate city, town or village agency if there is no planning commission, of receipt of the application. The department shall request that the planning commission or agency send to the department, within 30 days, a description of any specific hazards which may affect the health and safety of the residents of the community-based residential facility. No license may be granted to a community-based residential facility until the 30-day period has expired or until the department receives the response of the planning commission or agency, whichever is sooner. In granting a license the department shall give full consideration to such hazards determined by the planning commission or agency.
A community-based residential facility license is valid until it is revoked or suspended under this section. Every 24 months, on a schedule determined by the department, a community-based residential facility licensee shall submit through an online system prescribed by the department a report in the form and containing the information that the department requires, including payment of any fee due under s. 50.037 (2) (a)
. If a complete biennial report is not timely filed, the department shall issue a warning to the licensee. The department may revoke a community-based residential facility license for failure to timely and completely report within 60 days after the report date established under the schedule determined by the department.
A nursing home license is valid until it is revoked or suspended under this section. Every 12 months, on a schedule determined by the department, a nursing home licensee shall submit a report in the form and containing the information that the department requires, including payment of the fee required under s. 50.135 (2) (a)
. If a complete report is not timely filed, the department shall issue a warning to the licensee. The department may revoke a nursing home license for failure to timely and completely report within 60 days after the report date established under the schedule determined by the department.