Chapter DHS 134

DHS 134.31(3)(q)1. 1. No facility may assign a resident to a particular wing or other distinct area of the facility, whether for sleeping, dining or any other purpose, on the basis of the source or amount of payment for the resident’s care, except that a facility only part of which is certified for Medicare reimbursement under 42 USC 1395 is not prohibited from assigning a resident to the certified part of the facility because the source of payment for the resident’s care is Medicare.

DHS 134.31(3)(q)2. 2. Facilities shall offer and provide an identical package of basic services meeting the requirements of this chapter to all individuals regardless of the source of a resident’s payment or amount of payment. Facilities may offer enhancements of basic services, or enhancements of individual components of basic services, provided that these enhanced services are made available at an identical cost to all residents regardless of the source of a resident’s payment. A facility which elects to offer enhancements to basic services to its residents shall provide all residents with a detailed explanation of enhanced services and the additional charges for these services pursuant to par. (d) 1. b.

DHS 134.31(3)(q)3. 3. If a facility offers at extra charge additional services which are not covered by the medical assistance program under ss. 49.43 to 49.497, Stats., and chs. DHS 101 to 108, it shall provide them to any resident willing and able to pay for them, regardless of the source from which the resident pays the facility’s charges.

DHS 134.31(3)(q)4. 4. No facility may require, offer or provide an identification tag for a resident or any other item which discloses the source from which the facility’s charges for that resident’s care are paid.

DHS 134.31(3)(r) (r) Least restrictive conditions. The least restrictive conditions necessary to achieve the purposes of admission, commitment or placement, except in the case of a resident who is admitted or transferred under s. 51.35 (3) or 51.37, Stats., or under ch. 971 or 975, Stats.

DHS 134.31(3)(s) (s) Drastic treatment, experimental research and behavior modification using aversive stimuli. Not be subjected to drastic treatment, experimental research procedures or behavior modification using aversive stimuli without the expressed and informed consent of the resident and the resident’s legal guardian, if any, and after consultation with individual specialists and the patient’s legal counsel, if any.

DHS 134.31(4) (4) Corrections clients. Rights established under this section do not, except as determined by the department, apply to residents in a facility who are in the legal custody of the department for correctional purposes.

DHS 134.31(5) (5) Notification.

DHS 134.31(5)(a) (a) Serving notice. Copies of the resident rights provided under this section and the facility’s policies and regulations governing resident conduct and responsibilities shall be made available to each prospective resident and his or her guardian, if any, and to each member of the facility’s staff. Facility staff shall verbally explain to each new resident and to that person’s guardian, if any, prior to or at the time of the person’s admission to the facility, these rights and the facility’s policies and regulations governing resident conduct and responsibilities.

DHS 134.31(5)(b) (b) Amendments. Every amendment to the rights provided under this section and every amendment to the facility regulations and policies governing resident conduct and responsibilities requires notification of each resident and guardian, if any, at the time the amendment is put into effect. The facility shall provide the resident, guardian, if any, and each member of the facility’s staff with a copy of each amendment.

DHS 134.31(5)(c) (c) Posting. Copies of the resident’s rights provided under this chapter and the facility’s policies and regulations governing resident conduct and responsibilities shall be posted in a prominent place in the facility and in each locked unit, as defined in s. DHS 134.33 (1) (b), within the facility.

DHS 134.31(6) (6) Encouragement and assistance. Each facility shall encourage and assist residents to exercise their rights as residents and citizens, and each facility shall provide appropriate training for staff so that staff are aware of the rights of residents established under this section and are encouraged to respect them.

DHS 134.31(7) (7) Complaints.

DHS 134.31(7)(a) (a) Filing complaints. Any person may file a complaint with a licensee or the department regarding the operation of a facility. A complaint may be made orally or in writing. Any resident receiving services for a developmental disability or protectively placed under ch. 55, Stats., may seek advocacy assistance from the county department organized under s. 46.23, 51.42 or 51.437, Stats., or from the agency designated under s. 51.62 (2), Stats., to be the protection and advocacy agency for developmentally disabled persons.

DHS 134.31(7)(b) (b) Investigating and reviewing complaints.

DHS 134.31(7)(b)1. 1. Each facility shall establish a system for investigating, reviewing and documenting complaints and allegations that resident rights established under s. 50.09, Stats., and this section have been violated.

DHS 134.31(7)(b)2. 2. The facility shall designate a specific individual or individuals to conduct the investigation and report to the administrator.

DHS 134.31(7)(b)3. 3. The results of the investigation shall be reported to the administrator no later than 5 calendar days after a complaint or allegation is received.

DHS 134.31(7)(b)4. 4. Documentation of the findings of the investigation and the administrator’s review, as well as of the actions taken in response to the findings, shall be maintained by the facility.

DHS 134.31(7)(c) (c) Reporting complaints. Allegations that resident rights have been violated by persons licensed, certified or registered under ch. 441, 446 to 450, 455 or 456, Stats., shall be promptly reported by the facility to the appropriate licensing or examining board and to the person against whom the allegation has been made. Any employee of the facility and any person licensed, certified or registered under ch. 441, 446 to 450, 455 or 456, Stats., may report the allegations directly to the appropriate board.

DHS 134.31(7)(d) (d) Liability. As provided in s. 50.09 (6) (c), Stats., no person who files a report under par. (c) or who participates in good faith in the review system established under par. (b) may be held liable for civil damages for these acts.

DHS 134.31(7)(e) (e) Summary of complaints. The facility shall attach to its application for a new license or a license renewal a statement that summarizes complaints or allegations since the last time that the facility’s license was renewed that rights established under this section have been violated. The statement shall contain the dates of the complaints or allegations, the names of the persons involved, the dispositions and the dates of the dispositions. The department shall consider the statement in reviewing the application.

DHS 134.31 History History: Cr. Register, June, 1988, No. 390, eff. 7-1-88; corrections in (3) (f) 3. and (q) 3. made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2000, No. 532; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register October 2007 No. 622; corrections in (3) (f) 3. and (q) 3. made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637; 2019 Wis. Act 1: am. (3) (h) Register May 2019 No. 761, eff. 6-1-19.

DHS 134.32 DHS 134.32 Community organization access.

DHS 134.32(1) (1) Access.

DHS 134.32(1)(a) (a) Definition. In this section, “access” means the right of a community organization to:

DHS 134.32(1)(a)1. 1. Enter any facility;

DHS 134.32(1)(a)2. 2. Ask a resident’s permission to communicate privately and without restriction with the resident;

DHS 134.32(1)(a)3. 3. Communicate privately and without restriction with any resident who does not object; and

DHS 134.32(1)(a)4. 4. Inspect the health care, treatment and other records of a resident if permitted under ss. 51.30 and 146.81 to 146.83, Stats. Access does not include the right to examine the business records of the facility without the consent of the administrator or designee.

DHS 134.32(1)(b) (b) Right to access. An employee, agent or designated representative of a community legal services program or community service organization who meets the requirements of sub. (2) shall be permitted access to any facility whenever visitors are permitted under the written visitation policy permitted by s. DHS 134.31 (3) (a) 3., but not before 8:00 a.m. nor after 9:00 p.m.

DHS 134.32(2) (2) Conditions.

DHS 134.32(2)(a) (a) Identification. The employee, agent or designated representative of the community organization shall, upon request of the facility’s administrator or the administrator’s designee, present valid and current identification signed by the principal officer of the organization represented, and evidence of compliance with par. (b).

DHS 134.32(2)(b) (b) Purpose. The facility shall grant access for visits which are for the purpose of:

DHS 134.32(2)(b)1. 1. Talking with or offering personal, social or legal services to any resident or obtaining information from a resident about the facility and its operations;

DHS 134.32(2)(b)2. 2. Informing residents of their rights and entitlements and their corresponding obligations under federal and state law, by means of educational materials and discussions in groups or with individual residents;

DHS 134.32(2)(b)3. 3. Assisting residents in making claims for public assistance, medical assistance or social security benefits to which they are entitled, and in all matters in which a resident may be aggrieved; or

DHS 134.32(2)(b)4. 4. Engaging in any other method of advising and representing residents in order to ensure that they have full enjoyment of their rights.

DHS 134.32 Note Note: Assistance under subd. 3. may include organizational activity, counseling or litigative assistance.

DHS 134.32 History History: Cr. Register, June, 1988, No. 390, eff. 7-1-88.

DHS 134.33 DHS 134.33 Housing residents in locked units.

DHS 134.33(1) (1) Definitions. In this section:

DHS 134.33(1)(a) (a) “Consent” means a written, signed request given without duress by a resident capable of understanding the nature of the locked unit, the circumstances of his or her condition and the meaning of the consent to be given and that consent may be withdrawn at any time.

DHS 134.33(1)(b) (b) “Locked unit” means a ward, wing or room which is designated as a protective environment and is secured in a manner that prevents a resident from leaving the unit at will. A physical restraint applied to the body is not a locked unit. A facility locked for purposes of security is not a locked unit, provided that residents may exit at will.

DHS 134.33(2) (2) Restriction. Except as otherwise provided by this section, no resident may be housed in a locked unit. Physical restraints or repeated use of the emergency restraint under sub. (5) may not be used to circumvent this restriction. Placement in a locked unit shall be based on the determination that this placement is the least restrictive environment consistent with the needs of the person.

DHS 134.33 Note Note: For requirements relating to the use of physical restraints, see s. DHS 134.60 (5).

DHS 134.33(3) (3) Placement.

DHS 134.33(3)(a) (a) A resident may be housed in a locked unit under any one of the following conditions:

DHS 134.33(3)(a)1. 1. The resident or guardian consents to the resident being housed in a locked unit;

DHS 134.33(3)(a)2. 2. The court that protectively placed the resident under ch. 55, Stats., made a specific finding of the need for a locked unit;

DHS 134.33(3)(a)3. 3. The resident has been transferred to a locked unit pursuant to s. 55.15, Stats., and the medical record contains documentation of the notice provided to the guardian, the court and the agency designated under s. 55.02, Stats.; or

DHS 134.33(3)(a)4. 4. In an emergency governed by sub. (5).

DHS 134.33(3)(b) (b) A facility may transfer a resident from a locked unit to an unlocked unit without court approval pursuant to s. 55.15, Stats., if it determines that the needs of the resident can be met on an unlocked unit. Notice of the transfer shall be provided as required under s. 55.15, Stats., and shall be documented in the resident’s medical record.

DHS 134.33(4) (4) Resident consent.

DHS 134.33(4)(a) (a) A resident’s or guardian’s consent under sub. (3) (a) 1. to placement in a locked unit shall be effective for no more than 90 days from the date of the consent and may be withdrawn sooner. Consent may be renewed for 90-day periods. Consent shall be in writing.

DHS 134.33(4)(b) (b) The resident or guardian may withdraw his or her consent to the resident being placed in a locked unit at any time, orally or in writing. The resident shall be transferred to an unlocked unit promptly following withdrawal of consent.

DHS 134.33(5) (5) Emergencies. In an emergency, the person in charge of the facility may order the confinement of a resident to a locked unit if necessary to protect the resident or another person from injury or to prevent physical harm to the resident or another person resulting from the destruction of property, provided the physician is notified within one hour and written authorization for continued use is obtained from the physician within 12 hours. No resident may be confined for more than an additional 72 hours under order of the physician.

DHS 134.33 History History: Cr. Register, June, 1988, No. 390, eff. 7-1-88; corrections in (3) (a) 2., 3. and (b) made under s. 13.93 (2m) (b) 7., Stats., Register October 2007 No. 622.

subch. III of ch. DHS 134 Subchapter III — Management

DHS 134.41 DHS 134.41 Administrator.

DHS 134.41(1) (1) Administrator’s responsibility. The administrator is responsible for the total operation of the facility and shall provide the supervision necessary to ensure that the residents receive proper care and treatment, that their health and safety are protected and promoted and that their rights are respected.

DHS 134.41(2) (2) Full-time administrator. Every facility shall be supervised by a full-time administrator licensed under ch. 456, Stats., except that:

DHS 134.41(2)(a) (a) A facility licensed for 17 to 50 beds shall employ an administrator for at least 4 hours a day on each of 5 days in a week. No administrator may be employed by more than 2 of these facilities. The administrator shall be licensed under ch. 456, Stats., and

DHS 134.41(2)(b) (b) A facility licensed for 16 or fewer beds shall employ an administrator for at least 10 hours a week. No administrator may be employed by more than 4 of these facilities. The administrator shall be licensed under ch. 456, Stats.

DHS 134.41(3) (3) Absence of administrator. A staff person present in the facility and competent to supervise the staff and operate the facility shall be designated to be in charge whenever residents are present and there is not an administrator in the facility. The designee shall be identified to all staff.

DHS 134.41(4) (4) Change of administrator.

DHS 134.41(4)(a) (a) Termination. Except as provided in par. (b), no administrator may be terminated unless recruitment procedures are begun immediately.

DHS 134.41(4)(b) (b) Replacement. If it is necessary to immediately terminate an administrator or if the licensee abruptly loses an administrator for other reasons, a permanent replacement shall be employed as soon as possible but not later than 120 days following the effective date of the vacancy.

DHS 134.41(4)(c) (c) Temporary replacement. During a temporary vacancy in the position of administrator, the licensee shall employ a temporary replacement administrator until the original permanent administrator returns or until a new permanent administrator can be hired, whichever is appropriate.

DHS 134.41(4)(d) (d) Notice of change. When the licensee loses an administrator, the licensee shall notify the department within 2 working days of the loss and provide written notification to the department of the name and qualifications of the person in charge of the facility during the vacancy and, when known, the name and qualifications of the replacement administrator.

DHS 134.41 History History: Cr. Register, June, 1988, No. 390, eff. 7-1-88; CR 04-053: am. (2) (b) Register October 2004 No. 586, eff. 11-1-04.

DHS 134.42 DHS 134.42 Qualified intellectual disabilities professional (QIDP).

DHS 134.42(1) (1) Every facility shall have at least one qualified intellectual disabilities professional on staff in addition to the administrator, except that in a facility with 50 or fewer beds the administrator, if qualified, may perform the duties of the QIDP.

DHS 134.42(2) (2) The duties of the QIDP shall include:

DHS 134.42(2)(a) (a) Supervising the delivery of training, habilitation and rehabilitation services for each resident in accordance with the individual program plan (IPP) for that resident;

DHS 134.42(2)(b) (b) Integrating the various services for each resident as planned by the interdisciplinary team and as detailed in the resident’s IPP;

DHS 134.42(2)(c) (c) Reviewing each resident’s IPP on a monthly basis, or more often as needed, and preparing an accurate, written summation of the resident’s progress in measurable and observable terms for inclusion in the resident’s record;

DHS 134.42(2)(d) (d) Initiating modifications in a resident’s IPP as necessitated by the resident’s condition, and documenting in the resident’s record any changes observed in the resident’s condition and action taken in response to the observed changes; and

DHS 134.42(2)(e) (e) Communicating information concerning each resident’s progress to all relevant resident care staff and other professionals involved in the resident’s care.

DHS 134.42 History History: Cr. Register, June, 1988, No. 390, eff. 7-1-88; 2019 Wis. Act 1: am. (title), (1), (2) (intro.) Register May 2019 No. 761, eff. 6-1-19.

DHS 134.44 DHS 134.44 Employees and other service providers.

DHS 134.44(1) (1) Definition. In this section, “employee” means anyone directly employed by the facility.

DHS 134.44(2) (2) Qualifications and restrictions.

DHS 134.44(2)(a) (a) No person under 16 years of age may be employed by the facility to provide direct care to residents. An employee under 18 years of age who provides direct care to residents shall work under direct supervision.

DHS 134.44(2)(b) (b) No person with a documented history of child or resident abuse, neglect or exploitation may be hired or continue to be employed by the facility.

DHS 134.44(3) (3) Agreement with outside resource.

DHS 134.44(3)(a) (a) If the facility does not itself provide a required service, it shall have in effect a written agreement with a qualified professional or agency outside the facility to provide the service, including emergency and other health care. The facility shall ensure that the outside services and service providers meet the standards contained in this chapter.

DHS 134.44(3)(b) (b) The written agreement under par. (a) shall specify that the service be provided by direct contact with the residents and shall contain the responsibilities, functions, objectives and terms agreed to by the facility and the professional or agency. The agreement shall be signed by the administrator or the administrator’s representative and by the service provider or service provider’s representative.

DHS 134.44(4) (4) Personnel practices.