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50.033(5) (5)Injunction. The department or a licensing county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437 may commence an action in circuit court to enjoin the operation of an adult family home that is not licensed under sub. (1m) or that is licensed and has repeatedly used methods of operation in substantial violation of the rules promulgated under s. 50.02 (2) (am) 2. or that endanger the health, safety or welfare of any adult receiving care and maintenance in an adult family home.
50.033(6) (6)Penalties. Any person who violates this section or rules promulgated under s. 50.02 (2) (am) 2. may be fined not more than $500 or imprisoned for not more than one year in the county jail or both.
50.033 Cross-reference Cross-reference: See also ch. DHS 88, Wis. adm. code.
50.034 50.034 Residential care apartment complexes.
50.034(1)(1) Certification or registration required.
50.034(1)(a)(a) No person may operate a residential care apartment complex that provides living space for residents who are clients under s. 46.27 (11) or 46.277 and publicly funded services as a home health agency or under contract with a county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437 that is a home health agency unless the residential care apartment complex is certified by the department under this section. The department may charge a fee, in an amount determined by the department, for certification under this paragraph. The amount of any fee charged by the department for certification of a residential care apartment complex need not be promulgated as a rule under ch. 227.
50.034(1)(b) (b) No person may operate a residential care apartment complex that is not certified as required under par. (a) unless the residential care apartment complex is registered by the department.
50.034(2) (2)Rules. The department shall promulgate all of the following rules for the regulation of certified residential care apartment complexes and for the registration of residential care apartment complexes under this section:
50.034(2)(b) (b) Establishing standards for operation of certified residential care apartment complexes.
50.034(2)(c) (c) Establishing minimum information requirements for registration and registration application procedures and forms for residential care apartment complexes that are not certified.
50.034(2)(d) (d) Establishing procedures for monitoring certified residential care apartment complexes.
50.034(2)(e) (e) Establishing intermediate sanctions and penalties for and standards and procedures for imposing intermediate sanctions or penalties on certified residential care apartment complexes and for appeals of intermediate sanctions or penalties.
50.034(2)(f) (f) Establishing standards and procedures for appeals of revocations of certification or refusal to issue or renew certification.
50.034(3) (3)Requirements for operation. A certified or registered residential care apartment complex shall do all of the following:
50.034(3)(a) (a) Establish, with each resident of the residential care apartment complex, a mutually agreed-upon written service agreement that identifies the services to be provided to the resident, based on a comprehensive assessment of the resident's needs and preferences that is conducted by one of the following:
50.034(3)(a)1. 1. For residents for whom services are reimbursable under s. 46.27 (11), by the county department or aging unit designated under s. 46.27 (3) (b) in the county.
50.034(3)(a)2. 2. For residents for whom services are reimbursable under s. 46.277, by the county department under s. 46.277 (4) (a) in the county.
50.034(3)(a)3. 3. For residents who have private or 3rd-party funding, by the residential care apartment complex.
50.034(3)(b) (b) Establish a schedule of fees for services to residents of the residential care apartment complex.
50.034(3)(c) (c) Provide or ensure the provision of services that are sufficient and qualified to meet the needs identified in a resident's service agreement under par. (a), to meet unscheduled care needs and to provide emergency assistance 24 hours a day.
50.034(3)(d) (d) Establish, with each resident of the residential care apartment complex, a signed, negotiated risk agreement that identifies situations that could put the resident at risk and for which the resident understands and accepts responsibility.
50.034(3)(e) (e) If a residential care apartment complex has a policy on who may accompany or visit a patient, the residential care apartment complex shall extend the same right of accompaniment or visitation to a patient's domestic partner under ch. 770 as is accorded the spouse of a patient under the policy.
50.034(4) (4)Limitation. A nursing home or a community-based residential facility may not convert a separate area of its total area to a residential care apartment complex unless the department first approves the conversion. A nursing home, other than a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50, that intends to convert a separate area of its total area to a residential care apartment complex shall also agree to reduce its licensed nursing home beds by the corresponding number of residential care apartment complex residential units proposed for the conversion.
50.034(5) (5)Use of name prohibited. An entity that does not meet the definition under s. 50.01 (6d) may not designate itself as a "residential care apartment complex" or use the words "residential care apartment complex" to represent or tend to represent the entity as a residential care apartment complex or services provided by the entity as services provided by a residential care apartment complex.
50.034(5m) (5m)Provision of information required. Subject to sub. (5p), when a residential care apartment complex first provides written material regarding the residential care apartment complex to a prospective resident, the residential care apartment complex shall also provide the prospective resident information specified by the department concerning the services of a resource center under s. 46.283, the family care benefit under s. 46.286, and the availability of a functional screening and a financial and cost-sharing screening to determine the prospective resident's eligibility for the family care benefit under s. 46.286 (1).
50.034(5n) (5n)Required referral. Subject to sub. (5p), when a residential care apartment complex first provides written material regarding the residential care apartment complex to a prospective resident who is at least 65 years of age or has developmental disability or a physical disability and whose disability or condition is expected to last at least 90 days, the residential care apartment complex shall refer the prospective resident to a resource center under s. 46.283, unless any of the following applies:
50.034(5n)(a) (a) For a person for whom a screening for functional eligibility under s. 46.286 (1) (a) has been performed within the previous 6 months, the referral under this subsection need not include performance of an additional functional screening under s. 46.283 (4) (g).
50.034(5n)(b) (b) The person is entering the residential care apartment complex only for respite care.
50.034(5n)(c) (c) The person is an enrollee of a care management organization.
50.034(5n)(d) (d) For a person who seeks admission or is about to be admitted on a private pay basis and who waives the requirement for a financial and cost-sharing screening under s. 46.283 (4) (g), the referral under this subsection may not include performance of a financial and cost-sharing screening under s. 46.283 (4) (g), unless the person is expected to become eligible for medical assistance within 6 months.
50.034(5p) (5p)Applicability. Subsections (5m) and (5n) apply only if the secretary has certified under s. 46.281 (3) that a resource center is available for the residential care apartment complex and for specified groups of eligible individuals that include those persons seeking admission to or the residents of the residential care apartment complex.
50.034(5t) (5t)Notice of Long-Term Care Ombudsman Program. A residential care complex shall post in a conspicuous location in the residential care apartment complex a notice, provided by the board on aging and long-term care, of the name, address, and telephone number of the Long-Term Care Ombudsman Program under s. 16.009 (2) (b).
50.034(6) (6)Funding. Funding for supportive, personal or nursing services that a person who resides in a residential care apartment complex receives, other than private or 3rd-party funding, may be provided only under s. 46.27 (11) (c) 7. or 46.277 (5) (e), except if the provider of the services is a certified medical assistance provider under s. 49.45 or if the funding is provided as a family care benefit under ss. 46.2805 to 46.2895.
50.034(7) (7)Revocation of certification. Certification for a residential care apartment complex may be revoked because of the substantial and intentional violation of this section or of rules promulgated by the department under sub. (2) or because of failure to meet the minimum requirements for certification. The operator of the certified residential care apartment complex shall be given written notice of any revocation of certification and the grounds for the revocation. Any residential care apartment complex certification applicant or operator of a certified residential care apartment complex may, if aggrieved by the failure to issue or renew the certification or by revocation of certification, appeal under the procedures specified by the department by rule under sub. (2).
50.034(8) (8)Forfeitures.
50.034(8)(a)(a) Whoever violates sub. (5m) or (5n) or rules promulgated under sub. (5m) or (5n) may be required to forfeit not more than $500 for each violation.
50.034(8)(b) (b) The department may directly assess forfeitures provided for under par. (a). If the department determines that a forfeiture should be assessed for a particular violation, it shall send a notice of assessment to the residential care apartment complex. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated, and shall inform the residential care apartment complex of the right to a hearing under par. (c).
50.034(8)(c) (c) A residential care apartment complex may contest an assessment of a forfeiture by sending, within 10 days after receipt of notice under par. (b), a written request for a hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for a hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.
50.034(8)(d) (d) 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. (c), 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. The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund.
50.034(8)(e) (e) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this section 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.
50.034(10) (10) Inspection fee. If the department takes enforcement action against a residential care apartment complex for a violation of this section or rules promulgated under sub. (2), and the department subsequently conducts an on-site inspection of the residential care apartment complex to review the residential care apartment complex's action to correct the violation, the department may impose a $200 inspection fee on the residential care apartment complex.
50.034 Cross-reference Cross-reference: See also ch. DHS 89, Wis. adm. code.
50.035 50.035 Special provisions relating to regulation of community-based residential facilities.
50.035(1) (1) Personnel training. Each employee of a community-based residential facility shall, within 90 days after the beginning date of employment, receive basic first aid training and other safety training. The department shall indicate acceptable sources from which facility employees may receive this training. The department shall also develop instructional materials for use by facilities concerning acceptable methods of operation and procedures for protecting and serving the needs of facility residents. The department may require that all facility employees complete a program involving these materials and may sell the materials to facilities at cost. In addition, each facility employee shall, within 90 days after the beginning date of employment, receive training in fire prevention and control and evacuation techniques. Each facility shall coordinate its training in fire prevention and control and evacuation techniques with the local fire department.
50.035(2) (2)Fire protection.
50.035(2)(a)1.1. Except as provided in subd. 2., each community-based residential facility shall provide, at a minimum, a low-voltage interconnected smoke detection system to protect the entire facility that, if any detector is activated, either triggers alarms throughout the building or triggers an alarm located centrally.
50.035(2)(a)2. 2. A community-based residential facility that has 8 or less beds may use a radio-transmitting smoke detection system that triggers an audible alarm in a central area of the facility in lieu of the interconnected smoke detection system specified in subd. 1.
50.035(2)(a)3. 3. The department or the department of safety and professional services may waive the requirement under subd. 1. or 2. for a community-based residential facility that has a smoke detection or sprinkler system in place that is at least as effective for fire protection as the type of system required under the relevant subdivision.
50.035(2)(b) (b) No facility may install a smoke detection system that fails to receive the approval of the department or of the department of safety and professional services. At least one smoke detector shall be located at each of the following locations:
50.035(2)(b)1. 1. At the head of every open stairway.
50.035(2)(b)2. 2. At the door leading to every enclosed stairway on each floor level.
50.035(2)(b)3. 3. In every corridor, spaced not more than 30 feet apart and not further than 15 feet from any wall.
50.035(2)(b)4. 4. In each common use room, including living rooms, dining rooms, family rooms, lounges and recreation rooms but not including kitchens.
50.035(2)(b)5. 5. In each sleeping room in which smoking is allowed.
50.035(2)(c) (c) A community-based residential facility does not have to meet the requirements under pars. (a) and (b) prior to May 1, 1985. Beginning on May 1, 1985, the department may waive the requirements under pars. (a) and (b) for a community-based residential facility for a period not to exceed 6 months if the department finds that compliance with those requirements would result in an extreme hardship for the facility.
50.035(2d) (2d)Accompaniment or visitation. If a community-based residential facility has a policy on who may accompany or visit a patient, the community-based residential facility shall extend the same right of accompaniment or visitation to a patient's domestic partner under ch. 770 as is accorded the spouse of a patient under the policy.
50.035(3) (3)Manager's presence in facility.
50.035(3)(a)(a) The person responsible for managing a Class C community-based residential facility, or that person's agent, shall be present in the facility at any time that residents are in the facility. The person responsible for managing a Class A community-based residential facility, or that person's agent, shall be present in the facility from 7 p.m. to 7 a.m. when residents are in the facility.
50.035(3)(b) (b) The department may waive a requirement under par. (a) for a community-based residential facility:
50.035(3)(b)1. 1. For a specified period of time, not to exceed one year, if the department finds that compliance with the requirement would result in an unreasonable hardship for the facility and that all of the residents are physically and mentally capable of taking independent action in an emergency; or
50.035(3)(b)2. 2. For a specified period of time if the department finds that the primary purpose of the facility's program is to promote the independent functioning of its residents with minimum supervision.
50.035(4) (4)Fire notice. The licensee of a community-based residential facility, or his or her designee, shall notify the department and any county department under s. 46.215 or 46.22 that has residents placed in the facility of any fire that occurs in the facility for which the fire department is contacted. The notice shall be provided within 72 hours after such a fire occurs.
50.035(4m) (4m)Provision of information required. Subject to sub. (4p), when a community-based residential facility first provides written material regarding the community-based residential facility to a prospective resident, the community-based residential facility shall also provide the prospective resident information specified by the department concerning the services of a resource center under s. 46.283, the family care benefit under s. 46.286, and the availability of a functional screening and a financial and cost-sharing screening to determine the prospective resident's eligibility for the family care benefit under s. 46.286 (1).
50.035(4n) (4n)Required referral. When a community-based residential facility first provides written information regarding the community-based residential facility to a prospective resident who is at least 65 years of age or has developmental disability or a physical disability and whose disability or condition is expected to last at least 90 days, the community-based residential facility shall refer the individual to a resource center under s. 46.283 or, if the secretary has not certified under s. 46.281 (3) that a resource center is available in the area of the community-based residential facility to serve individuals in an eligibility group to which the prospective resident belongs, to the county department that administers a program under ss. 46.27 or 46.277, unless any of the following applies:
50.035(4n)(a) (a) For a person for whom a screening for functional eligibility under s. 46.286 (1) (a) has been performed within the previous 6 months, the referral under this subsection need not include performance of an additional functional screening under s. 46.283 (4) (g).
50.035(4n)(b) (b) The person is entering the community-based residential facility only for respite care.
50.035(4n)(c) (c) The person is an enrollee of a care management organization.
50.035(4n)(d) (d) For a person who seeks admission or is about to be admitted on a private pay basis and who waives the requirement for a financial and cost-sharing screening under s. 46.283 (4) (g), the referral under this subsection may not include performance of a financial and cost-sharing screening under s. 46.283 (4) (g), unless the person is expected to become eligible for medical assistance within 6 months.
50.035(4p) (4p)Applicability. Subsection (4m) applies only if the secretary has certified under s. 46.281 (3) that a resource center is available for the community-based residential facility and for specified groups of eligible individuals that include those persons seeking admission to or the residents of the community-based residential facility.
50.035(5) (5)Reports of death required.
50.035(5)(a)(a) In this subsection:
50.035(5)(a)1. 1. "Physical restraint" includes all of the following:
50.035(5)(a)1.a. a. A locked room.
50.035(5)(a)1.b. b. A device or garment that interferes with an individual's freedom of movement and that the individual is unable to remove easily.
50.035(5)(a)1.c. c. Restraint by a facility staff member of a resident by use of physical force.
50.035(5)(a)2. 2. "Psychotropic medication" means an antipsychotic, antidepressant, lithium carbonate or a tranquilizer.
50.035(5)(b) (b) No later than 24 hours after the death of a resident of a community-based residential facility, the community-based residential facility shall report the death to the department if one of the following applies:
50.035(5)(b)1. 1. There is reasonable cause to believe that the death was related to the use of physical restraint or a psychotropic medication.
50.035(5)(b)3. 3. There is reasonable cause to believe that the death was a suicide.
50.035(6) (6)Posting of notice required. The licensee of a community-based residential facility, or his or her designee, shall post in a conspicuous location in the community-based residential facility a notice, provided by the board on aging and long-term care, of the name, address and telephone number of the long-term care ombudsman program under s. 16.009 (2) (b).
50.035(10) (10)Exceptions to care limitations.
50.035(10)(a)(a) Notwithstanding the limitations on the type of care that may be required by and provided to residents under s. 50.01 (1g) (intro.), the following care may be provided in a community-based residential facility under the following circumstances:
50.035(10)(a)1. 1. Subject to par. (b), a community-based residential facility may provide more than 3 hours of nursing care per week or care above intermediate level nursing care for not more than 30 days to a resident who does not have a terminal illness but who has a temporary condition that requires the care, if all of the following conditions apply:
50.035(10)(a)1.a. a. The resident is otherwise appropriate for the level of care that is limited in a community-based residential facility under s. 50.01 (1g) (intro.).
50.035(10)(a)1.b. b. The services necessary to treat the resident's condition are available in the community-based residential facility.
50.035(10)(a)2. 2. Subject to par. (b) and if a community-based residential facility has obtained a waiver from the department or has requested such a waiver from the department and the decision is pending, the community-based residential facility may provide more than 3 hours of nursing care per week or care above intermediate level nursing care for more than 30 days to a resident who does not have a terminal illness but who has a stable or long-term condition that requires the care, if all of the following conditions apply:
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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)