Chapter DHS 89

DHS 89.28(5) (5) Signed and dated. The risk agreement shall be signed and dated by both an authorized representative of the residential care apartment complex and by the tenant or the tenant’s guardian and agents designated under an activated power of attorney for health care under ch. 155, Stats., and durable power of attorney under ch. 244, Stats., if any.

DHS 89.28(6) (6) Updating. The risk agreement shall be updated when the tenant’s condition or service needs change in a way that may affect risk, as indicated by a review and update of the comprehensive assessment, by a change in the service agreement or at the request of the tenant or facility.

DHS 89.28 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; correction in (5) made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

DHS 89.29 DHS 89.29 Admission and retention of tenants.

DHS 89.29(1) (1) Admission. No residential care apartment complex may admit any of the following persons, unless the person being admitted shares an apartment with a competent spouse or other person who has legal responsibility for the individual:

DHS 89.29(1)(a) (a) A person who has a court determination of incompetence and is subject to guardianship under ch. 54, Stats.

DHS 89.29(1)(b) (b) A person who has an activated power of attorney for health care under ch. 155, Stats.

DHS 89.29(1)(c) (c) A person who has been found by a physician or psychologist to be incapable of recognizing danger, summoning assistance, expressing need or making care decisions

DHS 89.29 Note Note: This requirement is included because tenants need to be competent to understand and express their needs and preferences, enter into a service agreement and understand and accept risk.

DHS 89.29(1m) (1m) Family care information and referral. If the secretary of the department has certified that a resource center, as defined in s. DHS 10.13 (42), is available for the residential care apartment complex under s. DHS 10.71, the residential care apartment complex shall provide information to prospective residents and refer residents and prospective residents to the aging and disability resource center as required under s. 50.034 (5m) and (5n), Stats., and s. DHS 10.73.

DHS 89.29(2) (2) Retention.

DHS 89.29(2)(a) (a) A residential care apartment complex may retain a tenant whose service needs can be met by the facility or can be met with services made available by another provider.

DHS 89.29(2)(b) (b) A residential care apartment complex may retain a tenant who becomes incompetent or incapable of recognizing danger, summoning assistance, expressing need or making care decisions, provided that the facility ensures all of the following:

DHS 89.29(2)(b)1. 1. That adequate oversight, protection and services are provided for the individual.

DHS 89.29(2)(b)2. 2. That the tenant has a guardian appointed under ch. 54, Stats., or has an activated power of attorney for health care under ch. 155, Stats., or a durable power of attorney under ch. 244, Stats., or both. The activated power of attorney for health care or durable power of attorney shall, either singly or together, substantially cover the person’s areas of incapacity.

DHS 89.29(2)(b)3. 3. That both the service agreement and risk agreement are signed by the guardian and by the health care agent or the agent with power of attorney, if any.

DHS 89.29 Note Note: Facilities are permitted the option of retaining tenants who become incompetent or incapable of recognizing danger, summoning assistance, expressing need or making care decisions because familiar surroundings and routines are an important component of dementia care and in order to accommodate aging in place.

DHS 89.29(2)(c) (c) No owner, operator, staff member or family member of a person connected with a residential care apartment complex may serve as a guardian, representative payee or other financial conservator for a tenant of the facility.

DHS 89.29(3) (3) Termination of contract.

DHS 89.29(3)(a) (a) Reasons. A residential care apartment complex may terminate its contract with a tenant when any of the following conditions apply:

DHS 89.29(3)(a)1. 1. Except as provided under par. (b), the tenant’s needs cannot be met at the level of service which facilities are required to make available to tenants under s. DHS 89.23 (2).

DHS 89.29(3)(a)2. 2. Except as provided under par. (b), the time required to provide supportive, personal and nursing services to the tenant exceeds 28 hours per week.

DHS 89.29(3)(a)3. 3. Except as provided under par. (b), the tenant’s condition requires the immediate availability of a nurse 24 hours a day.

DHS 89.29(3)(a)4. 4. The tenant is adjudicated incompetent under ch. 54, Stats., has an activated power of attorney for health care under ch. 155, Stats., or has been found to be incapable of recognizing danger, summoning assistance, expressing need or making care decisions by 2 physicians or by one physician and one licensed psychologist who have personally examined the tenant and signed a statement specifying that the person is incapable.

DHS 89.29(3)(a)5. 5. The tenant’s behavior or condition poses an immediate threat to the health or safety of self or others. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to constitute a threat to self or others.

DHS 89.29(3)(a)6. 6. The tenant refuses to cooperate in an examination by a physician or licensed psychologist of his or her own choosing to determine his or her health or mental status for the purpose of establishing appropriateness for retention or termination.

DHS 89.29(3)(a)7. 7. The tenant’s fees have not been paid, provided the tenant and the tenant’s designated representative, where appropriate, were notified and given reasonable opportunity to pay any deficiency.

DHS 89.29(3)(a)8. 8. The tenant refuses to enter into a negotiated risk agreement or refuses to revise the risk agreement when there is a documented and significant medical reason for doing so.

DHS 89.29(3)(a)9. 9. The presence of any condition identified as grounds for termination in the service agreement, provided that these grounds are not inconsistent with requirements contained in subds. 1. to 8.

DHS 89.29(3)(b) (b) Supplemental services as an alternative to termination. A residential care apartment complex shall not terminate its contract with a tenant for a reason under par. (a) 1. to 3. if the tenant arranges for the needed services from another provider consistent with s. DHS 89.24 (2) (b) and any unmet needs or disputes regarding potentially unsafe situations are documented in a risk agreement.

DHS 89.29(3)(c) (c) Procedures for termination.

DHS 89.29(3)(c)1. 1.

DHS 89.29(3)(c)1.a. a. Except as provided under subd. 2., a residential care apartment complex shall provide 30 days advance notice of termination to the tenant and the tenant’s designated representative, if any. If there is no designated representative, the facility shall notify the county department of social or human services under s. 46.21, 46.22 or 46.23, Stats.

DHS 89.29(3)(c)1.b. b. Notice of termination shall include the grounds for termination and information about how to file a grievance consistent with the termination and grievance policies and procedures contained in the service agreement.

DHS 89.29(3)(c)1.c. c. The 30-day notice period required for termination may include the period covered by a notice of nonpayment of fees and opportunity to pay any deficiency as required under par. (a) 7., provided that notice of termination is included with the notice of non-payment of fees.

DHS 89.29(3)(c)2. 2. No 30-day notice is required in an emergency. In this subdivision, “emergency” means an immediate and documented threat to the health or safety of the tenant or of others in the facility.

DHS 89.29(3)(d) (d) Failure to meet requirements of this chapter. If the requirements of this chapter are violated by either the facility or the tenant, the party which is not in violation may terminate the contract on 30 days written notice without financial penalty.

DHS 89.29 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; corrections in (1) (a), (2) (b) 2. and (3) (a) 4. made under s. 13.93 (2m) (b) 7., Stats., Register October 2007 No. 622; correction in (1m) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; correction in (2) (b) 2. made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667; CR 23-046: am. (1m) Register April 2024 No. 820, eff. 5-1-24.

DHS 89.295 DHS 89.295 Variance for demonstration projects in family care pilots.

DHS 89.295(1) (1) In this section, “variance” means permission to meet a requirement of this subchapter by an alternative means.

DHS 89.295(2) (2) The purpose of a variance granted under this section is to demonstrate efficient ways of delivering and assuring the quality of supportive, personal and nursing services in conjunction with delivery of the family care benefit as defined in s. 46.2805 (4), Stats.

DHS 89.295(3) (3) The department may grant a variance to a requirement of this subchapter when it is demonstrated to the satisfaction of the department that granting the variance is consistent with the purpose of the demonstration and will not jeopardize the health, safety, welfare or rights of any resident in the residential care apartment complex. The department may place a time limit and conditions on the variance.

DHS 89.295(4) (4) A request for variance shall be submitted to the department in writing and shall include all of the following:

DHS 89.295(4)(a) (a) The efficiencies and quality assurance approaches to be demonstrated through the variance.

DHS 89.295(4)(b) (b) Identification of each requirement from which the variance is requested.

DHS 89.295(4)(c) (c) A description of the alternative means by which the facility will meet the intent of the requirements to be varied.

DHS 89.295(4)(d) (d) A plan for meeting the care needs and ensuring the health, safety and welfare of tenants.

DHS 89.295(4)(e) (e) An agreement to provide information to and to cooperate with the department in monitoring and evaluating the quality and cost effectiveness of the demonstration.

DHS 89.295(4)(f) (f) A letter of support for the variance from the care management organization as defined in s. 46.2805 (1), Stats., serving the area where the facility is located.

DHS 89.295(4)(g) (g) Documentation that the facility has a contract with a care management organization, as defined in s. 46.2805 (1), Stats., for services to its enrollees.

DHS 89.295 History History: Cr. Register, October, 2000, No. 538, eff. 11-1-00.

subch. III of ch. DHS 89 Subchapter III — Tenant Rights

DHS 89.31 DHS 89.31 Applicability. The provisions of this subchapter apply to all registered and certified residential care apartment complexes.

DHS 89.31 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.32 DHS 89.32 Facility policies and procedures. A residential care apartment complex shall establish written policies regarding tenant rights. Facility policies shall be consistent with and include all of the rights contained in this subchapter.

DHS 89.32 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.33 DHS 89.33 Explanation of tenant rights. A residential care apartment complex shall explain and provide copies of the tenant rights under this subchapter and of any related facility policies and procedures to the tenant and to his or her designated representative before the service agreement or any other written agreement between the tenant and the facility is signed. A copy of the rights and related policies shall be posted in a public place in the facility where they will be visible to tenants, visitors and staff.

DHS 89.33 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.34 DHS 89.34 Rights of tenants. A tenant of a residential care apartment complex shall have all the rights listed in this section. These rights in no way limit or restrict any other rights of the individual under the U.S. Constitution, civil rights legislation or any other applicable statute, rule or regulation. Tenant rights are all of the following:

DHS 89.34(1) (1) Courtesy and respect. To be treated with courtesy, respect and full recognition of the tenant’s dignity and individuality by all employees of the facility and all employees of service providers under contract to the facility.

DHS 89.34(2) (2) Privacy. To have privacy in his or her independent apartment and when receiving supportive, personal or nursing services.

DHS 89.34(3) (3) Self-direction. To make reasonable decisions relating to activities, daily routines, use of personal space, how to spend one’s time and other aspects of life in the residential care apartment complex.

DHS 89.34(4) (4) Management of financial affairs. To manage his or her own financial affairs unless the tenant delegates, in writing, responsibility for financial management to someone of the tenant’s choosing or the tenant is adjudicated incompetent, in which case the guardian shall be responsible.

DHS 89.34(5) (5) Service choice. To choose which services are included in the service agreement, including the right to refuse services provided that the refusal would not endanger the health or safety of the other tenants.

DHS 89.34(6) (6) Choice of health care providers. To the facility’s noninterference with the tenant’s choice of his or her physician and providers of other medical, mental health and pharmaceutical services. A tenant shall not be required to use medical, mental health or pharmaceutical providers who are employed by or affiliated with the facility or to whom the tenant is referred by facility staff. A tenant’s choice of providers of supportive, personal and nursing services from providers other than the residential care apartment complex is subject to the requirements of s. DHS 89.24 (2) (b).

DHS 89.34(7) (7) Furnishings and possessions. To furnish his or her independent apartment and to maintain personal possessions as space permits as long as the tenant does not unreasonably interfere with the other tenants’ choices or endanger the health or safety of the other tenants.

DHS 89.34(8) (8) Association. To receive visitors, meet with groups or participate in activities of the tenant’s choice, including organizing and participating in tenant or family councils or groups provided that the health or safety of the other tenants is not endangered.

DHS 89.34(9) (9) Mail. To receive and send sealed, unopened mail, including packages. The residential care apartment complex shall give mail to tenants on the day it is received or as soon as possible thereafter.

DHS 89.34(10) (10) Telephone. To have a private telephone properly installed in his or her independent apartment.

DHS 89.34(11) (11) Religion. No tenant may be required to engage in any religious activity.

DHS 89.34(12) (12) Confidentiality of records. To have his or her medical, personal and financial records kept confidential consistent with all applicable federal and state statutes, rules and regulations. For the purposes of registration, certification and administration, staff of the residential care apartment complex, the department, and any county department or aging unit designated to administer the medicaid waiver for those tenants whose services are paid for under s. 46.277, Stats., shall have access to a tenant’s records without the tenant’s consent, but may not disclose the information except as permitted by law.

DHS 89.34(13) (13) Access to records. A tenant or tenant’s designated representative may inspect, copy and challenge the accuracy of the tenant’s records.

DHS 89.34(14) (14) Disclosure of personal information. To have necessary discussion by facility employees regarding one’s physical, mental or medical condition, services, payment sources and other personal affairs conducted discreetly, and to not have facility employees, staff or any service provider under contract with the facility indiscreetly disclosing personal information about oneself to other tenants.

DHS 89.34(15) (15) Receipt of services. To receive services consistent with the service agreement and risk agreement.

DHS 89.34(16) (16) Medications. Except as provided for in the service agreement or risk agreement, to have the facility not interfere with the tenant’s ability to manage his or her own medications or, when the facility is managing the medications, to receive all prescribed medications in the dosage and at the intervals prescribed by the tenant’s physician and to refuse a medication unless there is a court order.

DHS 89.34(17) (17) Safe environment. To a safe environment in which to live.

DHS 89.34(18) (18) Freedom from abuse. To be free from physical, sexual or emotional abuse, neglect or financial exploitation or misappropriation of property by the facility, its staff or any service provider under contract with the facility.

DHS 89.34 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; CR 23-046: am. (12) Register April 2024 No. 820, eff. 5-1-24.

DHS 89.35 DHS 89.35 Grievances.

DHS 89.35(1) (1) A residential care apartment complex shall have a written grievance procedure and shall provide a copy to each tenant and tenant’s designated representative, where applicable. Tenants of a residential care apartment complex may file complaints with the department. The grievance procedure shall include information about how to file a complaint with the department.

DHS 89.35 Note Note: Complaints may be filed with the Department by writing or phoning the Bureau of Quality Assurance, Division of Disability and Elder Services, P.O. Box 7851, Madison, WI 53707, [phone].

DHS 89.35(2) (2) Any person assigned by the residential care apartment complex to investigate the facts associated with a grievance shall not have had any involvement in the issues leading to the grievance.

DHS 89.35(3) (3) The residential care apartment complex shall provide a written summary of the grievance, findings, conclusions and any action taken as a result of the grievance to the tenant, the tenant’s designated representative, if any, and, for tenants whose services are funded under s. 46.277, Stats., the county department or aging unit designated to administer the medical assistance waiver.

DHS 89.35(4) (4) Tenants of a residential care apartment complex may file complaints with the department. The department shall maintain a record of all complaints.

DHS 89.35 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; CR 23-046: am. (3) Register April 2024 No. 820, eff. 5-1-24.

DHS 89.36 DHS 89.36 Coercion and retaliation prohibited. Any form of coercion to discourage or prevent a tenant or the tenant’s guardian or designated representative from exercising any of the rights under this subchapter or from filing a grievance or complaint is prohibited. Any form of retaliation against a tenant for exercising his or her rights or filing a grievance or complaint, or against an employee or service provider who assists a tenant in exercising his or her rights or filing a grievance or complaint, is prohibited.

DHS 89.36 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

subch. IV of ch. DHS 89 Subchapter IV — Registration

DHS 89.41 DHS 89.41 Applicability. The provisions of this subchapter apply to a facility which is applying to the department for registration as a residential care apartment complex or which is registered by the department as a residential care apartment complex.