Chapter 146

146.40(4g) (4g) 

146.40(4g)(a) (a) The department shall establish and maintain a registry that contains all of the following:

146.40(4g)(a)1. 1. A listing of all individuals who are added to the registry as required under sub. (2g) and all individuals about whom the department is notified under sub. (4).

146.40(4g)(a)2. 2. A listing of all individuals about whom the department is notified under sub. (4r) (a) or (am), for whom the department makes findings under sub. (4r) (b) and to whom any of the following applies:

146.40(4g)(a)2.a. a. The individual waives a hearing or fails to notify the department under sub. (4r) (c).

146.40(4g)(a)2.b. b. A hearing officer finds reasonable cause to believe that the individual performed an action alleged under sub. (4r) (a) or (am).

146.40(4g)(a)3. 3. Findings of the department under sub. (4r) (b) or of the hearing officer under sub. (4r) (d) concerning the misappropriation of property or the neglect or abuse of a client by an individual listed under subd. 2.

146.40(4g)(a)4. 4. A brief statement, if any, of an individual about whom the department is notified under sub. (4) and who disputes the department’s findings under sub. (4r) (b) or the hearing officer’s findings under sub. (4r) (d).

146.40(4g)(b) (b) The department shall provide, upon receipt of a specific, written request, information requested that is contained in the registry under par. (a).

146.40(4g)(c) (c) Section 46.90 does not apply to this subsection.

146.40(4m) (4m) An instructional program under sub. (3) or (3g) for which the department has suspended or revoked approval or imposed a plan of correction or a competency evaluation program under sub. (3m) for which the department has suspended or revoked approval or imposed a plan of correction may contest the department’s action by sending, within 10 days after receipt of notice of the contested action, a written request for 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 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. This subsection does not apply to a revocation of approval under sub. (4d) (d).

146.40(4r) (4r) 

146.40(4r)(a) (a) Any individual may report to the department that he or she believes that any person employed by or under contract with an entity has neglected or abused a client or misappropriated the client’s property.

146.40(4r)(am) (am)

146.40(4r)(am)1. 1. An entity shall report to the department any allegation of misappropriation of the property of a client or of neglect or abuse of a client by any individual employed by or under contract with the entity if the individual is under the control of the entity.

146.40(4r)(am)3. 3. An entity that intentionally fails to report an allegation of misappropriation of the property of a client or of neglect or abuse of a client may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

146.40(4r)(b) (b) Except as provided in pars. (em) and (er), the department shall review and investigate any report received under par. (a) or (am) and, if the allegation is substantiated, make specific, documented findings concerning the misappropriation of property or the neglect or abuse. The department shall, in writing, notify the individual specified in the report that the individual’s name and the department’s findings about the individual shall be listed in the registry under sub. (4g) (a) 2. and 3. unless the individual contests the listings in a hearing before the division of hearings and appeals created under s. 15.103 (1). The written notification shall describe the investigation conducted by the department, enumerate the findings alleging misappropriation of property or neglect or abuse of a client and explain the consequence to the individual specified in the report of waiving a hearing to contest the findings. The individual specified in the report shall have 30 calendar days after receipt of the notification to indicate to the department in writing whether he or she intends to contest the listing or to waive the hearing.

146.40(4r)(c) (c) If an individual under par. (b) notifies the department that he or she waives a hearing to contest the listings in the registry under par. (b), or fails to notify the department within 30 calendar days after receipt of a notice under par. (b), the department shall enter the name of the individual under sub. (4g) (a) 2. and the department’s findings about the individual under sub. (4g) (a) 3.

146.40(4r)(d) (d) If the person specified in the report received under par. (a) or (am) timely notifies the division of hearings and appeals created under s. 15.103 (1) that he or she contests the listings in the registry under par. (b), the division of hearings and appeals shall hold a hearing under the requirements of ch. 227. If after presentation of evidence a hearing officer finds that there is no reasonable cause to believe that the person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall dismiss the proceeding. If after presentation of evidence a hearing officer finds that there is reasonable cause to believe that the person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall so find and shall cause the name of the person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 2. and the hearing officer’s findings about the person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 3.

146.40(4r)(e) (e) The individual may provide the department with a brief statement disputing the department’s findings under par. (b) or the hearing officer’s findings under par. (d) and, if so provided, the department shall enter the statement under sub. (4g) (a) 4.

146.40(4r)(em) (em) If the department receives a report under par. (a) or (am) and determines that an individual who is the subject of the report holds a credential that is related to the individual’s employment at, or contract with, the entity, the department shall refer the report to the department of safety and professional services.

146.40(4r)(er) (er) The department may contract with private field investigators to conduct investigations of reports received by the department under par. (a) or (am).

146.40(4r)(f) (f) Section 46.90 does not apply to this subsection.

146.40(5) (5) 

146.40(5)(a) (a) The department shall promulgate rules specifying standards for approval in this state of instructional programs and competency evaluation programs for nurse aides. The standards shall include specialized training in providing care to individuals with special needs.

146.40(5)(b) (b) The department shall promulgate rules specifying criteria for acceptance by this state of an instructional program and a competency evaluation program that is certified in another state, including whether the other state grants nurse aide privileges to persons who have completed instruction in an instructional program that is approved under sub. (3) and whether one of the following is true:

146.40(5)(b)1. 1. If the other state certifies instructional programs and competency evaluation programs for nurse aides, the state’s requirements are substantially similar, as determined by the department, to certification requirements in this state.

146.40(5)(b)2. 2. If the other state certifies nurse aides, that state’s requirements are such that one of the following applies:

146.40(5)(b)2.a. a. The instructional programs required for attendance by persons receiving certificates are substantially similar, as determined by the department, to instructional programs approved under sub. (3).

146.40(5)(b)2.b. b. The competency evaluation programs required for successful completion by persons receiving certificates are substantially similar, as determined by the department, to competency evaluation programs approved under sub. (3m).

146.40(6) (6) Any person who violates sub. (2) shall forfeit not more than $1,000.

146.40(7) (7) This section does not apply to a hospice that receives no federal or state moneys for any purpose.

146.40 History History: 1987 a. 128; 1989 a. 31, 84, 336; 1991 a. 39; 1993 a. 27, 399; 1995 a. 27; 1997 a. 27, 35, 156, 237, 252; 1999 a. 9, 22, 32; 2001 a. 74; 2007 a. 20 ss. 2862, 9121 (6) (a); 2007 a. 45, 153; 2011 a. 32, 120, 126; 2013 a. 36, 165, 357; 2015 a. 55; 2015 a. 195 s. 83; 2015 a. 265; 2017 a. 135; 2019 a. 185; 2023 a. 183.

146.40 Cross-reference Cross-reference: See also chs. DHS 13 and 129, Wis. adm. code.

146.40 Annotation Sub. (4r) provides for a hearing examiner to make a determination of abuse. That determination is the final agency determination. Kennedy v. DHSS, 199 Wis. 2d 442, 544 N.W.2d 917 (Ct. App. 1996), 95-1072.

146.60 146.60 Notice of release of genetically engineered organisms into the environment.

146.60(1) (1) Definitions. In this section:

146.60(1)(a) (a) “Confidential information” means information entitled to confidential treatment under sub. (6) (a) 1. or 2.

146.60(1)(b) (b) “Coordinated framework” means the coordinated framework for regulation of biotechnology set forth in 51 Fed. Reg. 23302 to 23350 (June 26, 1986), as amended by 52 Fed. Reg. 22892 to 22915 (June 16, 1987), and subsequent amendments to the coordinated framework for regulation of biotechnology.

146.60(1)(c) (c) “Departments” means the department of agriculture, trade and consumer protection and the department of natural resources.

146.60(1)(d) (d) “Federal regulator” means a federal agency or a designee of a federal agency which is responsible for regulating a release into the environment under the coordinated framework.

146.60(1)(e) (e) “Regulated release” means a release into the environment for which the coordinated framework requires that the person proposing to commence the release into the environment do any of the following:

146.60(1)(e)1. 1. Notify a federal regulator of the release into the environment.

146.60(1)(e)2. 2. Secure the approval of or a permit or license from a federal regulator as a condition of commencing the release into the environment.

146.60(1)(e)3. 3. Secure a determination by a federal regulator of the need for notification, approval, licensing or permitting by the federal regulator, if the determination is part of a procedure specified in the coordinated framework.

146.60(1)(f) (f) “Release into the environment” means the introduction or use in this state of an organism or pathogen anywhere except within an indoor facility which is designed to physically contain the organism or pathogen, including a laboratory, greenhouse, growth chamber or fermenter.

146.60(1)(g) (g) “Reviewing department” means the department designated in sub. (2) to review a regulated release.

146.60(2) (2) Department designation.

146.60(2)(a) (a) The department of natural resources shall be the reviewing department for any regulated release subject to 15 USC 2601 to 2629.

146.60(2)(b) (b) The department of agriculture, trade and consumer protection shall be the reviewing department for any regulated release subject to any federal requirement in the coordinated framework, except a requirement under 15 USC 2601 to 2629.

146.60(2)(c) (c) If a regulated release is subject to 15 USC 2601 to 2629 and to any other federal requirement in the coordinated framework, both departments shall be reviewing departments and shall enter into a memorandum of understanding designating one of them to be the lead reviewing department.

146.60(3) (3) Notification.

146.60(3)(a) (a) Except as provided under sub. (7), no person may commence a regulated release unless the person provides to the reviewing department for that regulated release all of the following information within 7 days after the person submits or should have submitted the information specified in subd. 1. to a federal regulator, whichever is sooner:

146.60(3)(a)1. 1. A copy of all information which the person is required to submit to the federal regulator and which is not confidential information.

146.60(3)(a)2. 2. A summary of any confidential information which the person submits or is required to submit to a federal regulator. The summary shall be sufficient enough to enable the reviewing department to prepare the comment authorized under sub. (4) and to provide information to the public and shall have minimal extraneous and irrelevant information.

146.60(3)(b) (b) A reviewing department may request that a person submit to it part or all of any of the confidential information that is the subject of the summary submitted to that reviewing department under par. (a) 2. That person shall submit the information to the reviewing department no later than 3 working days after receiving the request.

146.60(3)(c) (c) Notwithstanding sub. (6) (a):

146.60(3)(c)1. 1. If the department of natural resources receives information under this subsection or sub. (4) (c), it shall provide the department of agriculture, trade and consumer protection with a copy of the information.

146.60(3)(c)2. 2. If the department of agriculture, trade and consumer protection receives information under this subsection or sub. (4) (c), it shall provide the department of natural resources with a copy of the information.

146.60(3m) (3m) Public notice. No later than 5 working days after receiving information under sub. (3), the reviewing department shall send written notice of receipt of the information to the county board chairperson in a county without a county executive or county administrator or the county executive or county administrator and to the town board chairperson, village president or mayor of any town, village or city in which the release is proposed. No later than 5 working days after sending notice under this subsection, the reviewing department shall cause publication of a class 1 notice under ch. 985 in the county to which the notice is sent.

146.60(4) (4) Comment. The reviewing department may prepare a formal comment on the regulated release for submission to the federal regulator for that regulated release. The reviewing department shall submit that comment within the time established by the federal regulator for that regulated release. The comment shall address the criteria for notification or the granting of approval, a permit or a license under the applicable requirement in the coordinated framework and for the protection of the public health and the environment. To assist in the preparation of a comment, the reviewing department may do any of the following:

146.60(4)(a) (a) Hold an informational meeting on the proposed regulated release.

146.60(4)(b) (b) Provide an opportunity for the public to comment on the proposed regulated release.

146.60(4)(c) (c) Request information on the proposed regulated release from the person providing the information under sub. (3), in addition to the information provided under sub. (3). That person is not required to submit that information to the reviewing department.

146.60(4)(d) (d) Conduct a technical review of the proposed regulated release.

146.60(4)(e) (e) Seek the assistance of the University of Wisconsin System faculty and academic staff or the department of health services in reviewing the proposed regulated release.

146.60(5) (5) Memorandum of understanding. Within 6 months after June 13, 1989, the department of natural resources shall enter into a memorandum of understanding with the department of agriculture, trade and consumer protection setting forth the procedures and responsibilities of the departments in the administration of this section. The memorandum shall establish procedures that minimize the duplication of effort between the departments and for the person providing information under sub. (3).

146.60(6) (6) Confidential treatment of records.

146.60(6)(a) (a) Except as provided in pars. (b) and (c), the departments shall keep confidential any information received under this section if the person submitting the information notifies the departments that any of the following applies to that information:

146.60(6)(a)1. 1. The federal regulator to which the information has been submitted has determined that the information is entitled to confidential treatment and is not subject to public disclosure under 5 USC 552 or under the coordinated framework.

146.60(6)(a)2. 2. The person submitting the information to the departments has submitted a claim to the federal regulator that the information is entitled to confidential treatment under 5 USC 552 or under the coordinated framework, and the federal regulator has not made a determination on the claim.

146.60(6)(b) (b) Paragraph (a) shall not prevent the departments from exchanging information under sub. (3) (c) or (4) (c) or from using the information for the purposes of sub. (4) (d) or (e), subject to the requirements under par. (d). Any person receiving such information is subject to the penalty specified under sub. (9) (b) for the unauthorized release of that information.

146.60(6)(c) (c) The departments shall allow public access to any information which has been granted confidentiality under par. (a) if any of the following occurs:

146.60(6)(c)1. 1. The person providing the information to the departments expressly agrees to the public access to the information.

146.60(6)(c)2. 2. After information has been granted confidentiality under par. (a) 2., the federal regulator makes a determination that the information is not entitled to confidential treatment under 5 USC 552 or under the coordinated framework.

146.60(6)(c)3. 3. Either of the departments determines that:

146.60(6)(c)3.a. a. The person providing the information to the departments has not submitted that information under par. (a) or a claim under par. (a) 2. to the federal regulator; or

146.60(6)(c)3.b. b. The federal regulator to which the information has been submitted has determined that the information is not entitled to confidential treatment and is subject to public disclosure under 5 USC 552 or under the coordinated framework.

146.60(6)(d) (d)

146.60(6)(d)1. 1. The departments shall establish procedures to protect information required to be kept confidential under par. (a). Under the procedure, the departments may not submit any information under sub. (4) (d) or (e) to any person who is not an employee of either of the departments unless that person has signed an agreement which satisfies the requirements of subd. 2.

146.60(6)(d)2. 2. The agreement required under subd. 1. shall provide that information which is the subject of the agreement is subject to confidential treatment, shall prohibit the release or sharing of the information with any other person except at the direction of the reviewing department and in compliance with this section, shall acknowledge the penalties in sub. (9), s. 134.90 and any other applicable state law identified by the departments for the unauthorized disclosure of the information and shall contain a statement that the person receiving the information, any member of his or her immediate family or any organization with which he or she is associated has no substantial financial interest in the regulated release which is the subject of the information. Any person submitting the information under sub. (3) or (4) may waive any of the requirements under this subdivision.

146.60(7) (7) Exemptions.

146.60(7)(a) (a) This section does not apply to any of the following which is intended for human use and regulated under 21 USC 301 to 392 or 42 USC 262:

146.60(7)(a)1. 1. Drug.

146.60(7)(a)2. 2. Cosmetic.

146.60(7)(a)3. 3. Medical device.

146.60(7)(a)4. 4. Biological product.

146.60(7)(b) (b) A reviewing department may waive part or all of the requirements under sub. (3) for a specified regulated release if the reviewing department determines that the satisfaction of that requirement is not necessary to protect the public health or the environment.

146.60(7)(c) (c) A reviewing department may exempt a class of regulated releases from part or all of any requirement under sub. (3) if the department determines that the satisfaction of that requirement or part of a requirement is not necessary to protect the public health or the environment.