Wisconsin Legislature: DHS 134.32(2)(b)

(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.

(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.

(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.

(5) Notification.

(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.

(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.

(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.

(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.

(7) Complaints.

(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.

(b) Investigating and reviewing complaints.

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.

2. The facility shall designate a specific individual or individuals to conduct the investigation and report to the administrator.

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.

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.

(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.

(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.

(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.

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 Community organization access.

(1) Access.

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

1. Enter any facility;

2. Ask a resident’s permission to communicate privately and without restriction with the resident;

3. Communicate privately and without restriction with any resident who does not object; and

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.

(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.

(2) Conditions.

(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).

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

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;

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;

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

4. Engaging in any other method of advising and representing residents in order to ensure that they have full enjoyment of their rights.

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

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

DHS 134.33 Housing residents in locked units.

(1) Definitions. In this section:

(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.

(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.

(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.

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

(3) Placement.

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

1. The resident or guardian consents to the resident being housed in a locked unit;

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

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

4. In an emergency governed by sub. (5).

(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.

(4) Resident consent.

(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.

(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.

(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.

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.

Subchapter III — Management

DHS 134.41 Administrator.

(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.

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

(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

(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.

(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.

(4) Change of administrator.

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

(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.

(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.

(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.

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 Qualified intellectual disabilities professional (QIDP).

(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.

(2) The duties of the QIDP shall include:

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

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

(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;

(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

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

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 Employees and other service providers.

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

(2) Qualifications and restrictions.

(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.

(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.

(3) Agreement with outside resource.

(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.

(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.

(4) Personnel practices.

(a) The facility shall have written personnel policies that are available to all employees and that are substantially followed.

(b) The facility shall provide written position descriptions defining employee duties for use in employee orientation, in development of staffing patterns and in inservice training.

(c) Employees shall be assigned only to duties consistent with their educational and work experience qualifications and training. Employees who work directly with residents shall be able to demonstrate that they have the skills and techniques necessary to implement the individual program plans for residents under their care.

(d) Employees who provide direct care to residents may not be required to provide housekeeping, laundry or other support services if these duties interfere with the exercise of their direct care duties.