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50.02 Annotation 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).
50.02 Annotation 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, 11-1529.
50.02 Annotation The state has given the department preemptive authority over community-based residential facilities and nursing homes. 68 Atty. Gen. 45.
50.025 50.025 Plan reviews. 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.
50.025 History History: 1977 c. 29; 1977 c. 170 ss. 7, 9; 1993 a. 16.
50.03 50.03 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.
50.03(1m) (1m)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.
50.03(2) (2)Administration.
50.03(2)(a)(a) The department shall make or cause to be made such inspections and investigations as it deems necessary.
50.03(2)(b) (b) With approval of the department, the county board of any county having a population of 500,000 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.
50.03(2)(c) (c) 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.
50.03(2)(d) (d) 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).
50.03(2)(e) (e) 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.
50.03(2)(f)1.1. 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.
50.03(2)(f)2. 2. 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 or 46.22 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.
50.03(2)(f)3. 3. 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.
50.03(2)(f)4. 4. 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.
50.03(2)(f)5. 5. 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.
50.03(2m) (2m)Service of notices.
50.03(2m)(a)(a) 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.
50.03(2m)(b) (b) 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:
50.03(2m)(b)1. 1. By registered or certified mail, with a return receipt requested.
50.03(2m)(b)2. 2. By mail or electronic mail, with a return acknowledgement requested.
50.03(3) (3)Application for registration and license.
50.03(3)(am)(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.
50.03(3)(b) (b) The application for a license and 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:
50.03(3)(b)1. 1. All managing employees and, if any, the director of nursing of the facility.
50.03(3)(b)2. 2. Any person who, directly or indirectly, owns any interest in any of the following:
50.03(3)(b)2.a. a. The partnership, corporation or other entity which operates the facility;
50.03(3)(b)2.b. b. The profits, if any, of the facility;
50.03(3)(b)2.c. c. The building in which the facility is located;
50.03(3)(b)2.d. d. The land on which the facility is located;
50.03(3)(b)2.e. e. 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
50.03(3)(b)2.f. f. Any lease or sublease of the land on which or the building in which the facility is located.
50.03(3)(b)3. 3. If any person named in response to subd. 1. or 2. is a partnership, then each partner.
50.03(3)(b)3L. 3L. If any person named in response to subd. 1. or 2. is a limited liability company, then each member.
50.03(3)(b)4. 4. If any person named in response to subd. 1. or 2. 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.
50.03(3)(c) (c) 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.
50.03(3)(d) (d) The licensee shall promptly report any changes which affect the continuing accuracy and completeness of the information required under par. (b).
50.03(3)(e) (e) Failure by a nursing home to provide the information required under this subsection shall constitute a class "C" violation under s. 50.04 (4).
50.03(3)(f) (f) 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.
50.03(4) (4)Issuance of license.
50.03(4)(a)1.a.a. 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.
50.03(4)(a)1.b. b. 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.
50.03(4)(a)2. 2. 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.
50.03(4)(a)3. 3. 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.
50.03(4)(c)1.1. 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 a biennial report in the form and containing the information that the department requires, including payment of the fees required 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.
50.03(4)(c)2. 2. 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.
50.03(4)(d) (d) Immediately upon the denial of any application for a license under this section, the department shall notify the applicant in writing. Notice of denial shall include a clear and concise statement of the violations on which denial is based and notice of the opportunity for a hearing under s. 227.44. If the applicant desires to contest the denial of a license it shall provide written notice to the department of a request for a hearing within 10 days after receipt of the notice of denial.
50.03(4)(e) (e) Each license shall be issued only for the premises and persons named in the application and is not transferable or assignable. The license shall be posted in a place readily visible to residents and visitors, such as the lobby or reception area of the facility. Any license granted shall state the number of the facility's beds that are licensed by the department, the person to whom the license is granted, the date of issuance, the maximum level of care for which the facility is licensed as a condition of its licensure and such additional information and special conditions as the department may prescribe.
50.03(4)(f) (f) The issuance or continuance of a license after notice of a violation has been sent shall not constitute a waiver by the department of its power to rely on the violation as the basis for subsequent license revocation or other enforcement action under this subchapter arising out of the notice of violation.
50.03(4)(g) (g) Prior to initial licensure of a community-based residential facility, the applicant for licensure shall make a good faith effort to establish a community advisory committee consisting of representatives from the proposed community-based residential facility, the neighborhood in which the proposed community-based residential facility will be located and a local unit of government. The community advisory committee shall provide a forum for communication for those persons interested in the proposed community-based residential facility. Any committee established under this paragraph shall continue in existence after licensure to make recommendations to the licensee regarding the impact of the community-based residential facility on the neighborhood. The department shall determine compliance with this paragraph both prior to and after initial licensure.
50.03(4m) (4m)Probationary license.
50.03(4m)(a)(a) If the applicant for licensure as a nursing home has not been previously licensed under this subchapter or if the nursing home is not in operation at the time application is made, the department shall issue a probationary license. A probationary license shall be valid for 12 months from the date of issuance unless sooner suspended or revoked under sub. (5). Prior to the expiration of a probationary license, the department shall inspect the nursing home and, if the nursing home meets the applicable requirements for licensure and, if applicable, substantially complies with requirements under 42 CFR 483 related to the operation of a nursing home, shall issue a regular license under sub. (4) (a) 1. a. If the department finds that the nursing home does not meet the requirements for licensure or does not substantially comply with requirements under 42 CFR 483 related to the operation of a nursing home, the department may not issue a regular license under sub. (4) (a) 1. a.
50.03(4m)(b) (b) If the applicant for licensure as a community-based residential facility has not been previously licensed under this subchapter or if the community-based residential facility is not in operation at the time application is made, the department shall issue a probationary license, except that the department may deny licensure to any person who conducted, maintained, operated or permitted to be maintained or operated a community-based residential facility for which licensure was revoked within 5 years before application is made. A probationary license shall be valid for up to 12 months from the date of issuance unless sooner suspended or revoked under sub. (5g). Prior to the expiration of a probationary license, the department shall evaluate the community-based residential facility. In evaluating the community-based residential facility, the department may conduct an inspection of the community-based residential facility. If, after the department evaluates the community-based residential facility, the department finds that the community-based residential facility meets the applicable requirements for licensure, the department shall issue a regular license under sub. (4) (a) 1. b. If the department finds that the community-based residential facility does not meet the requirements for licensure, the department may not issue a regular license under sub. (4) (a) 1. b.
50.03(5) (5)Suspension and revocation of nursing home licenses.
50.03(5)(a)(a) Power of department. The department, after notice to a nursing home applicant or licensee, may suspend or revoke a license in any case in which the department finds that the nursing home has substantially failed to comply with the applicable requirements of this subchapter and the rules promulgated under this subchapter, with s. 49.498, or with requirements under 42 CFR 483 related to the operation of a nursing home. No state or federal funds passing through the state treasury may be paid to a nursing home that does not have a valid license issued under this section.
50.03(5)(b) (b) Form of notice. Notice under this subsection shall include a clear and concise statement of the violations on which the revocation is based, the statute, rule, or federal requirement violated and notice of the opportunity for an evidentiary hearing under par. (c).
50.03(5)(c) (c) Contest of revocation. If a nursing home desires to contest the revocation of a license, the nursing home shall, within 10 days after receipt of notice under par. (b), notify the department in writing of its request for a hearing under s. 227.44. The department shall hold the hearing within 30 days of receipt of such notice and shall send notice to the nursing home of the hearing as provided under s. 227.44 (2).
50.03(5)(d) (d) Effective date of revocation.
50.03(5)(d)1.1. Subject to s. 227.51 (3), revocation under this subsection 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(5)(d)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 of the nursing home.
50.03(5g) (5g)Sanctions and penalties for community-based residential facilities.
50.03(5g)(a)(a) In this subsection, "licensee" means a community-based residential facility that is licensed under sub. (4) or (4m) (b).
50.03(5g)(b) (b) If, based on an investigation made by the department, the department provides to a community-based residential facility written notice of the grounds for a sanction, an explanation of the types of sanctions that the department may impose under this subsection and an explanation of the process for appealing a sanction imposed under this subsection, the department may order any of the following sanctions:
50.03(5g)(b)1. 1. That a person stop conducting, maintaining or operating the community-based residential facility if the community-based residential facility is without a valid license or probationary license in violation of sub. (1).
50.03(5g)(b)2. 2. That, within 30 days after the date of the order, the community-based residential facility terminate the employment of any employed person who conducted, maintained, operated or permitted to be maintained or operated a community-based residential facility for which licensure was revoked before issuance of the department's order. This subdivision includes employment of a person in any capacity, whether as an officer, director, agent or employee of the community-based residential facility.
50.03(5g)(b)3. 3. That a licensee stop violating any provision of licensure applicable to a community-based residential facility under sub. (4) or (4m) or of rules relating to community-based residential facilities promulgated by the department under sub. (4) or (4m).
50.03(5g)(b)4. 4. That a licensee submit a plan of correction for violation of any provision of licensure applicable to a community-based residential facility under sub. (4) or (4m) or of a rule relating to community-based residential facilities promulgated by the department under sub. (4) or (4m).
50.03(5g)(b)5. 5. That a licensee implement and comply with a plan of correction previously submitted by the licensee and approved by the department.
50.03(5g)(b)6. 6. That a licensee implement and comply with a plan of correction that is developed by the department.
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)(c)3. 3. Revocation of licensure, as specified in pars. (d) to (g).
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.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)