DHS 88.01(1)(1)
Authority and purpose. This chapter is promulgated under the authority of ss.
50.02 (2) (am) 2. and
50.033 (2), Stats., to establish licensing standards for the operation of adult family homes in order to protect and promote the health, safety and welfare of persons residing in and receiving care and maintenance in these homes.
DHS 88.01(2)(a)
(a) Applicability. This chapter applies to the department, county licensing agencies, adult family home license applicants and licensees, and service providers.
DHS 88.01(2)(b)
(b) Exception to a requirement. The licensing agency may grant an exception to any requirement in this chapter except a resident right under s.
DHS 88.10 if the licensee requests the exception in writing on a form provided by the department and presents a convincing argument that the proposed exception will not jeopardize the health, safety or welfare of residents or violate the rights of residents. The licensing agency shall respond in writing to the request within 45 days after receiving it. An exception may be granted only when it would not adversely affect the ability of the licensee to meet the residents' needs and if the exception will not jeopardize the health, safety or welfare of residents or violate the rights of residents. The licensing agency may impose conditions or time limitations on an exception. Violation of a condition under which the exception is granted constitutes a violation of this chapter.
DHS 88.01 Note
Note: For copies of the form for requesting an exception to a requirement, contact the licensing agency or write or phone the appropriate regional office of the Department's Division of Disability and Elder Services. See Appendix A for the addresses and phone numbers of those offices.
DHS 88.01 History
History: Cr.
Register, January, 1996, No. 482, eff. 2-1-96.
DHS 88.02
DHS 88.02
Definitions. In this chapter:
DHS 88.02(1)
(1) “Abuse" means conduct which is not accidental and which causes or could reasonably be expected to cause harm to a resident, and which may be physical abuse, mental abuse or material abuse.
DHS 88.02(2)
(2) “Accessible" means the absence of barriers that would prevent a person who is semiambulatory or nonambulatory or has a functional limitation caused by impairment of sight, hearing, coordination or perception from entering, leaving or functioning within an adult family home without physical help.
DHS 88.02(3)(a)
(a) Activities relating to the performance of self-care and engaging in leisure or recreational activities. “Self-care" includes dressing, eating, bathing, grooming, toileting, mobility, object manipulation, ambulation and rest.
DHS 88.02(3)(b)
(b) Activities relating to home and household management, including preparing meals, shopping and chores, personal housekeeping, using the telephone, managing one's personal finances, and health care activities including taking medicine, applying or changing dressings and using a medical device.
DHS 88.02(3)(c)
(c) Activities involving movement about in one's community, for purposes that include getting to and participating in vocational, recreational and social activities in the community with other members of the community.
DHS 88.02(4)
(4) “Adult" means an individual 18 years of age or over except that it does not mean either of the following:
DHS 88.02(4)(a)
(a) An individual 18 years of age or over whose placement in a home licensed under ch.
DCF 56 or
57 is funded by state or federal foster care funds or youth aid funds under s.
48.645, Stats., and who was placed in the home while under 18 years of age and became 18 years of age while a resident of the home.
DHS 88.02(4)(b)
(b) An individual 18 years of age or older who is a resident of a facility licensed under ch.
DCF 52.
DHS 88.02(5)
(5) “Adult family home" or “home" means a place where 3 or 4 adults not related to the licensee reside in which care, treatment or services above the level of room and board but not including nursing care are provided to persons residing in the home as a primary function of the place except that it does not mean a place described in s.
50.01 (1g) (a) to
(d), Stats.
DHS 88.02(6)
(6) “Ambulatory" means able to walk without difficulty or help.
DHS 88.02(7)
(7) “Building" means a structure entirely enclosed under one roof.
DHS 88.02(8)
(8) “Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat medical symptoms.
DHS 88.02(9)
(9) “Continuous care" means the need for supervision, intervention or services on a 24-hour basis to prevent, control and ameliorate a constant or intermittent mental or physical condition which may break out or become critical during any time of the day or night.
DHS 88.02 Note
Note: Examples of persons who need continuous care are wanderers, persons with irreversible dementia, persons who are self abusive or who become agitated or emotionally upset and persons whose changing or unstable health condition requires monitoring.
DHS 88.02(10)
(10) “Contraband" means any item the possession of which is illegal, contrary to the purpose of the resident's stay in the adult family home or poses a physical danger to other residents or to staff or both.
DHS 88.02(11)
(11) “County agency" means a county department of social services established under s.
46.215 or
46.22, Stats., a county department of human services established under s.
46.23, Stats., or a county department of community programs established under s.
51.42, Stats.
DHS 88.02(12)
(12) “Department" means the Wisconsin department of health services.
DHS 88.02(13)
(13) “Designated representative" means a person or agency designated in writing by a resident or by the resident's guardian to aid a resident or act on the resident's behalf, but not including the licensee or a service provider or a relative of the licensee or a service provider.
DHS 88.02(14)
(14) “Household member" means any person living in an adult family home, except a resident.
DHS 88.02(14m)
(14m) “Involuntary administration of psychotropic medication" means any of the following:
DHS 88.02(14m)(a)
(a) Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication.
DHS 88.02(14m)(b)
(b) Forcibly restraining an individual to enable administration of psychotropic medication.
DHS 88.02(14m)(c)
(c) Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.
DHS 88.02(15)
(15) “Licensee" means a person or persons licensed to operate an adult family home.
DHS 88.02(16)
(16) “Licensing agency" means a county agency in a county that elects to license adult family homes located in the county, or the department in a county where no county agency has been designated to license adult family homes.
DHS 88.02(17)
(17) “Material abuse" means the misuse of a person's property or financial resources, which may include financial deception, diverting income, mismanagement of funds or taking money against a person's will.
DHS 88.02(18)
(18) “Mental abuse" means a single or repeated act of force, harassment, including sexual harassment, deprivation, neglect or mental pressure which reasonably could cause mental anguish or fear, which may include persistent or excessive negative comments, threats, deliberate inducement of anxiety or singling out a resident for inappropriate criticism or encouraging the resident's peers to do the same.
DHS 88.02(19)
(19) “Neglect" means significant danger presented to a person's physical or mental health because the person responsible for his or her care is unable or fails to provide adequate food, shelter, clothing, medical care or dental care.
DHS 88.02(20)
(20) “Nursing care" means nursing procedures, excluding personal care, which under ch.
N 6, standards of practice for registered nurses and licensed practical nurses, may be performed only by a registered nurse or a licensed practical nurse directly on a resident.
DHS 88.02(21)
(21) “Personal care" means help with eating, dressing, bathing, ambulation and other self-care activities of daily living.
DHS 88.02(22)
(22) “Personal housekeeping" means the performance of routine housekeeping and household tasks.
DHS 88.02(23)
(23) “Physical abuse" means the willful infliction of physical pain or injury or unreasonable confinement, Including but not limited to direct beating, choking, sexual touching, unreasonable physical restraint or pain without physical marks.
DHS 88.02(24)
(24) “Physical restraint" means any manual method or any article, device or garment interfering with the free movement of a resident or the normal functioning of a portion of the resident's body or normal access to a portion of the body, and which the individual is unable to remove easily, or confinement in a locked room.
DHS 88.02(25)
(25) “Place" means a building or portion of a building which is self-sufficient for living, dining and sleeping and the provision of care, treatment or services to its residents.
DHS 88.02(26)
(26) “Placing agency" means the agency responsible for placing a resident in an adult family home.
DHS 88.02(27)
(27) “Primary function" means the basic or essential care, treatment or services provided to residents of the home.
DHS 88.02(27g)
(27g) “Protest" means make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of psychotropic medication. “Protest" does not mean a discernible negative response to a proposed method of administration of the psychotropic medication.
DHS 88.02(27r)
(27r) “Psychotropic medication" means a prescription drug, as defined in s.
450.01 (20), Stats., that is used to treat or manage a psychiatric symptom or challenging behavior.
DHS 88.02(28)
(28) “Relative" means a spouse, parent, step-parent, child, step-child, sibling, grandchild, grandparent, aunt, uncle, niece or nephew.
DHS 88.02(29)
(29) “Resident" means an adult, unrelated to the licensee, who lives and sleeps in the home and receives care, treatment or services in addition to room and board.
DHS 88.02(30)
(30) “Respite care" means temporary placement in an adult family home for maintenance of care, treatment or services, as established by the agency or individual responsible for planning, arranging or providing services to the individual, in addition to room and board, for no more than 14 consecutive days at a time.
DHS 88.02(31)
(31) “Seclusion" means physical or social separation from others by action of the licensee, service provider or others in the home, but does not include separation in order to prevent the spread of a communicable disease or a cool down period in an unlocked room as long as being in the room is voluntary on the resident's part.
DHS 88.02(32)
(32) “Service coordinator" means a person not affiliated with a adult family home who has primary responsibility for arranging, coordinating, managing and monitoring the care and services needed by a resident, including services provided outside of the adult family home.
DHS 88.02(33)
(33) “Service provider" means a person or persons who provide direct care or supervision for a resident of the adult family home, either as an employee of the licensee or as a volunteer.
DHS 88.02(34)
(34) “Type of individuals" means individuals grouped according to one of the following disabilities, conditions or statuses:
DHS 88.02(34)(a)
(a) A functional impairment that commonly accompanies advanced age.
DHS 88.02(34)(h)
(h) An individual under the legal custody of a government corrections agency or under the legal jurisdiction of a criminal court.
DHS 88.02(35)
(35) “Unrelated adult" means an adult who is not a relative of the licensee.
DHS 88.02(36)
(36) “Voluntary" means according to a resident's free choice if the resident is competent, or by choice of the resident's guardian if the resident is under guardianship.
DHS 88.02(37)
(37) “Volunteer" means a person who provides services for residents without compensation, except for reimbursement for out-of-pocket expenses.
DHS 88.02 History
History: Cr.
Register, January, 1996, No. 482, eff. 2-1-96; corrections in (4) (a) made under s. 13.93 (2m) (b) 7., Stats.,
Register, August, 2000, No. 536; correction in (4) (a) made under s. 13.93 (2m) (b) 7., Stats.,
Register December 2003 No. 576;
CR 07-042: cr. (14m), (27g) and (27r)
Register October 2007 No. 622, eff. 11-1-07; corrections in (4) (a), (b) and (12) made under s. 13.92 (4) (b) 6. and 7., Stats.,
Register November 2008 No. 635.
DHS 88.03
DHS 88.03
Licensing administration. DHS 88.03(1)(1)
Requirement. No person may operate an adult family home unless a licensing agency determines that the home is in compliance with all requirements of s.
50.033, Stats., and this chapter, and issues a license to that person.
DHS 88.03(2)(a)
(a) Application for a license shall be made on a department-approved form available from the licensing agency.
DHS 88.03 Note
Note: To obtain a copy of the application form, contact the county agency in which the home is located or write or phone the appropriate regional office of the Department's Division of Disability and Elder Services. See Appendix A for addresses and phone numbers of the Division of Disability and Elder Services regional offices.
DHS 88.03(2)(b)1.1. Before an applicant may be licensed to operate an adult family home, the applicant shall submit to the licensing agency a completed and signed application form, the program statement described under subd.
2., the licensure fee required under s.
50.033 (2), Stats., and a check or money order in an amount sufficient to cover the fees for conducting the criminal records check required under sub.
(3) (b).
DHS 88.03(2)(b)2.
2. A home's program statement shall describe the number and types of individuals the applicant is willing to accept into the home and whether the home is accessible to individuals with mobility problems. It shall also provide a brief description of the home, its location, the services available, who provides them and community resources available to residents who live within the home. A home shall follow its program statement. If a home makes any change in its program, the home shall revise its program statement and submit it to the licensing agency for approval 30 days before implementing the change.
DHS 88.03(2)(c)
(c) An applicant requesting a license shall provide any additional information requested by the licensing agency that may assist the agency in evaluating the applicant or licensee's character or qualifications. In assessing character and qualifications, the licensing agency may consider evidence of abuse or fraud, substantial or repeated violations of applicable or related statutes and rules in the licensee's operation of or employment in any service or facility serving adults or children or in the licensee's care of dependent persons, or a conviction or a pending criminal charge for a crime substantially related to caring for a dependent population or the funds or property of adults or minors or activities of the adult family home.
DHS 88.03(2)(d)
(d) If a home is to be licensed as an adult family home and the home is also licensed as a children's foster home under ch.
DCF 56, the combined licensed bed capacity shall not exceed 4.
DHS 88.03(3)(a)
(a) Action by licensing agency. The licensing agency shall review the application form and program statement and any supporting documents, including criminal records checks, and shall interview the applicant and conduct an on-site visit of the home to determine if the requirements for a license set out in this chapter are met. If the requirements for a license are met and the applicant has paid the applicable fees, a license shall be issued. If requirements for a license are not met, the licensing agency shall send a written notice to the applicant stating the reasons for not approving the application and shall inform the applicant of the opportunity for a hearing under sub.
(7). The licensing agency shall issue the license or the notice of denial within 70 days after receiving a complete application and the program statement and any supporting documents and following the on-site visit.
DHS 88.03(3)(b)
(b) Criminal records check. Prior to issuing an initial license the licensing agency shall ask the Wisconsin department of justice to conduct a criminal records check on the license applicant and on any other adult household member. The licensee shall arrange for a criminal records check of all service providers. At least every second year following the issuance of an initial license the licensing agency shall request a criminal records check on the licensee and all other adult household members and the licensee shall arrange for a criminal records check on any service provider. In addition, during the period of licensure, the licensee shall arrange for a criminal records check on any new service provider. If any of these persons has a conviction record or a pending criminal charge which substantially relates to the care of a dependent population, the funds or property of adults or minors or activities of the adult family home, the licensing agency may deny, revoke, refuse to renew or suspend a license, initiate other enforcement action provided in this chapter or in ch.
50, Stats., or place conditions on the license.
DHS 88.03 Note
Note: Examples of actions the Department will consider in making a determination that an act substantially relates to the care of adults or minors, the funds or property of adults or minors or activities of the adult family home are: abuse, neglect, sexual assault, indecent exposure, lewd and lascivious behavior, or any crime involving non-consensual sexual conduct; child abuse, sexual exploitation of children, child abduction, child neglect, contributing to the delinquency or neglect of a child, enticing a child, enticing a child for immoral purposes, exposing a minor to pornography or other harmful materials, incest, or any crime involving children as victims or participants; armed robbery, aggravated battery, false imprisonment, kidnaping, homicide, any crimes involving bodily harm or threat of bodily harm, any crime involving the use of a dangerous weapon or any crime evidencing disregard to health and safety; cruelty, neglect or abandonment of animals and instigating fights between animals; burglary, extortion, forgery, concealing identity, embezzlement and arson; crimes involving a substantial misrepresentation of any material fact to the public including bribery, fraud, racketeering or allowing an establishment to be used for illegal purposes; offenses involving narcotics, alcohol or controlled substances that result in a felony conviction, operating a motor vehicle while under the influence of an intoxicant or other drug, operating after revocation and leaving the scene of an accident after injury or death to a person or damage to a vehicle driven or attended by any person.
DHS 88.03 Note
Note: Wisconsin's Fair Employment Act, ss.
111.31 to
111.395, Stats., prohibits discrimination because of a criminal record or a pending charge, unless the record or charge substantially relates to the circumstances of the particular job or licensed activity.
DHS 88.03(3)(c)
(c) Nurse aide registry check. If the applicant, licensee or any non-resident adult living in the home of the applicant or licensee or any other occupant of the home has experience as a nurse assistant, home health aide or hospice aide, as defined under ch.
DHS 129, the licensing agency shall check the department's registry for nurse assistants, home health aides and hospice aides under s.
DHS 129.10 to determine if there is on the registry a substantiated finding that the person abused or neglected a client or misappropriated the funds or property of a client. If there is a substantiated finding of one or more of these offenses, the licensing agency may deny, revoke, refuse to renew or suspend a license, initiate other enforcement action provided for in this chapter or in ch.
50, Stats., or place conditions on the license.
DHS 88.03 Note
Note: The department's registry for nurse assistants, home health aides and hospice aides can be reached by calling (608) 266-5545 to receive the information you need from an automated voice response unit, or you may call (608) 267-2374.
DHS 88.03 Note
Note: Refer to the note under s.
DHS 88.03 (3) (b) for examples of actions to be considered in making a determination that an act substantially relates to the care of adults or minors, the funds or property of adults or minors or activities of the adult family home.
DHS 88.03(3)(d)
(d) Health check. If the licensing agency suspects or has reason to believe that a license applicant, licensee, service provider or household member may pose a threat to the health, safety or welfare of residents, the licensing agency may require a physical examination, an alcohol or drug abuse assessment or a mental health evaluation of the person as a condition for issuance of a license.
DHS 88.03(4)(a)
(a) An adult family home license is valid indefinitely unless suspended or revoked.
DHS 88.03(4)(b)
(b) Every 24 months, on a schedule determined by the department, a licensed adult family home shall submit a biennial report to the licensing agency in the form and containing the information that the department requires, including payment of the fee required under sub.
(2). If a complete biennial report is not timely filed, the department shall issue a warning to the licensee. If a licensed adult family home that has not filed a timely report fails to submit a complete report to the licensing agency within 60 days after the date established under the schedule determined by the department, the licensing agency may revoke the license.
