Chapter 150

150.39(4) (4) A need for additional beds in the health planning area where the project would be located.

150.39(5) (5) The project is consistent with local plans for developing community-based services to provide long-term care.

150.39(6) (6) Health care personnel, capital and operating funds and other resources needed to provide the proposed services are available.

150.39(7) (7) The project can be undertaken within the period of validity of the approval and completed within a reasonable period thereafter.

150.39(8) (8) Appropriate methods alternative to providing nursing home care in the health planning area are unavailable.

150.39(10) (10) The quality of care to be provided is satisfactory, as determined by:

150.39(10)(a) (a) The department’s investigations.

150.39(10)(b) (b) Materials submitted by the applicant, including independent evaluations of performance in nursing homes owned or operated by the applicant and patient satisfaction surveys.

150.39(10)(c) (c) Recommendations from affected parties concerning the quality of care provided in nursing homes owned or operated by the applicant.

150.39(11) (11) For a project that would result in the relocation of nursing home beds, there are other adequate and appropriate resources available in the counties served by the nursing home to serve the nursing home residents who would be displaced by the relocation.

150.39 History History: 1983 a. 27; 1987 a. 399; 1993 a. 27, 290; 1997 a. 27.

150.40 150.40 Redistribution of closed beds.

150.40(1) (1) The department shall redistribute within a county the nursing home beds made available as a result of a nursing home closure within that county if all of the following apply at the time of the closure:

150.40(1)(a) (a) The number of other nursing home beds for each 1,000 persons 65 years of age or over in the county is less than 80 percent of the statewide average of nursing home beds for each 1,000 persons 65 years of age or over.

150.40(1)(b) (b) The total occupancy level for the other nursing homes in the county is equal to or more than the statewide average nursing home occupancy rate.

150.40(2) (2) Subsection (1) does not apply to the following:

150.40(2)(a) (a) Nursing home beds closed under a plan approved by the department under s. 46.277 (3) (b) or 46.278 (4) (b) 1., as a result of the relocation of former residents to community-based settings.

150.40(2)(b) (b) Facilities primarily serving the developmentally disabled.

150.40 History History: 1985 a. 29; 1987 a. 27.

150.401 150.401 Redistribution of nursing home beds to replace transferred beds.

150.401(1) (1) Notwithstanding ss. 150.33, 150.35, and 150.39, from the nursing home beds that are available under s. 150.31, the department shall redistribute a number of beds that corresponds to the number of approved beds of a nursing home whose owner has transferred to another location, resulting in the loss of a nursing home within 15 miles of a city with a population of 4,474 in 1990 in a county with a population of 30,226 in 1990.

150.401(2) (2) All of the following apply to the redistributed nursing home beds under sub. (1):

150.401(2)(a) (a) The beds may be redistributed only to a location in a city that is specified in sub. (1).

150.401(2)(b) (b) A person may not receive approval for the beds unless the person submits to the department, on a form provided by the department, an application that meets the requirements under s. 150.33 (2).

150.401 History History: 2001 a. 109.

150.41 150.41 Approvals not transferable. No person may transfer through sale, lease or donation any approval granted under this subchapter. The sale, lease or donation of a nursing home before the completion or licensure of a project at that nursing home voids the approval. This section does not apply to transfers of stock within a corporation that do not alter the controlling interest in the corporation or to transfers of interests within a limited liability company that do not alter the controlling interest in the limited liability company.

150.41 History History: 1983 a. 27; 1993 a. 112.

150.43 150.43 Judicial review. Any applicant adversely affected by a decision of the department under s. 150.35 (4) may petition for judicial review of the decision under s. 227.52. The scope of judicial review shall be as provided in s. 227.57 and the record before the reviewing court shall consist of:

150.43(1) (1) The application and all supporting material received prior to the department’s decision under s. 150.35 (3) or (3m).

150.43(3) (3) The record of the public meeting, if any, under s. 150.35 (2).

150.43(4) (4) The department’s analysis of the project and its compliance with the criteria specified in s. 150.39.

150.43(5) (5) Concluding briefs and arguments at a hearing and the findings of fact of the hearing examiner at the hearing under s. 150.35 (4).

150.43(6) (6) The department’s findings and conclusions issued under s. 150.35 (3) or (3m).

150.43 History History: 1983 a. 27; 1985 a. 182 s. 57; 1987 a. 27, 399; 1989 a. 173.

150.43 Annotation This section precludes all affected parties, except unsuccessful applicants for licenses, from seeking s. 227.52 judicial review of a DHSS decision to grant or deny a nursing home bed license. Cox v. DHSS, 184 Wis. 2d 309, 517 N.W.2d 526 (Ct. App. 1994).

150.45 150.45 Validity of an approval.

150.45(1) (1) An approval is valid for one year from the date of issuance. The department may grant a single extension of up to 6 months.

150.45(2) (2) The department shall specify the maximum capital expenditure that may be obligated for a project.

150.45(3) (3) Any person whose project has been approved under this subchapter shall document in writing, on forms developed by the department, the progress of the project. The person shall submit these forms semiannually until the project is completed. On these forms, the person shall:

150.45(3)(a) (a) Identify the project and the approval holder.

150.45(3)(b) (b) Specify the date of approval.

150.45(3)(c) (c) Describe the stages of the project that are complete.

150.45(3)(d) (d) Report on the project’s status, including any deficiencies.

150.45(3)(e) (e) Identify any cost overrun and propose changes in the project necessary to reduce costs, so as not to exceed the maximum approved capital expenditure.

150.45(3)(f) (f) Estimate the date that uncompleted stages of the project will be completed.

150.45 History History: 1983 a. 27; 1993 a. 290.

150.46 150.46 Exceptions.

150.46(1) (1) This subchapter does not apply to a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50.

150.46(2) (2) This subchapter does not apply to up to 4 facilities established and operated under s. 46.047.

150.46 History History: 1991 a. 120; 1993 a. 16; 1999 a. 9, 63; 2005 a. 22.

subch. IV of ch. 150 SUBCHAPTER IV

HEALTH CARE COOPERATIVE AGREEMENTS

150.84 150.84 Definitions. In this subchapter:

150.84(1) (1) “Cooperative agreement” means an agreement between 2 health care providers or among more than 2 health care providers for the sharing, allocation or referral of patients; or the sharing or allocation of personnel, instructional programs, support services and facilities, medical, diagnostic or laboratory facilities or procedures or other services customarily offered by health care providers.

150.84(2) (2) “Health care facility” means a facility, as defined in s. 647.01 (4), or any hospital, nursing home, community-based residential facility, county home, county infirmary, county hospital, county mental health center or other place licensed or approved by the department under s. 49.70, 49.71, 49.72, 50.02, 50.03, 50.35, 51.08 or 51.09 or a facility under s. 45.50, 51.05, 51.06, 233.40, 233.41, 233.42 or 252.10.

150.84(3) (3) “Health care provider” means any person licensed, registered, permitted or certified by the department or by the department of safety and professional services to provide health care services in this state.

150.84(4) (4) “Health maintenance organization” has the meaning given in s. 609.01 (2).

150.84(5) (5) “Preferred provider plan” has the meaning given in s. 609.01 (4).

150.84 History History: 1991 a. 250; 1993 a. 27; 1995 a. 27; 1997 a. 35; 1999 a. 9; 2005 a. 22; 2011 a. 32.

150.85 150.85 Certificate of public advantage.

150.85(1) (1) Authority. A health care provider may negotiate and voluntarily enter into a cooperative agreement with another health care provider in this state. The requirements of ch. 133 apply to the negotiations and cooperative agreement unless the parties to the agreement hold a certificate of public advantage for the agreement that is issued by the department and is in effect under this section.

150.85(2) (2) Application. Parties to a cooperative agreement may file an application with the department for a certificate of public advantage governing the cooperative agreement. The application shall include a signed, written copy of the cooperative agreement, and shall describe the nature and scope of the cooperation contemplated under the agreement and any consideration that passes to a party under the agreement.

150.85(3) (3) Procedure for department review.

150.85(3)(a) (a) The department shall review and approve or deny the application in accordance with the standards set forth in sub. (4) within 30 days after receiving the application. Unless the department issues a denial of the certificate of public advantage, the application is approved.

150.85(3)(b) (b) If the department denies the application for a certificate of public advantage, the department shall issue the denial to the applicants in writing, including a statement of the basis for the denial and notice of the opportunity for a hearing under s. 227.44. If the applicant desires to contest the denial of an application, it shall, within 10 days after receipt of the notice of denial, send a written request for hearing under s. 227.44 to the division of hearings and appeals in the department of administration and so notify the department of health services.

150.85(4) (4) Standards for certification.

150.85(4)(a) (a) The department shall issue a certificate of public advantage for a cooperative agreement if it determines all of the following:

150.85(4)(a)1. 1. That the benefits likely to result from the agreement substantially outweigh any disadvantages attributable to a reduction in competition likely to result.

150.85(4)(a)2. 2. That any reduction in competition likely to result from the agreement is reasonably necessary to obtain the benefits likely to result.

150.85(4)(b) (b) In order to determine that the criterion under par. (a) 1. is met, the department shall find that at least one of the following is likely to result from the cooperative agreement:

150.85(4)(b)1. 1. The quality of health care provided to residents of the state will be enhanced.

150.85(4)(b)2. 2. A hospital, if any, and health care facilities that customarily serve the communities in the area likely affected by the cooperative agreement will be preserved.

150.85(4)(b)3. 3. Services provided by the parties to the cooperative agreement will gain cost efficiency.

150.85(4)(b)4. 4. The utilization of health care resources and equipment in the area likely affected by the cooperative agreement will improve.

150.85(4)(b)5. 5. Duplication of health care resources in the area likely affected by the cooperative agreement will be avoided.

150.85(4)(c) (c) In order to determine that the criterion under par. (a) 2. is met, the department shall consider all of the following:

150.85(4)(c)1. 1. The likely adverse impact, if any, on the ability of health maintenance organizations, preferred provider plans, persons performing utilization review or other health care payers to negotiate optimal payment and service arrangements with hospitals and other health care providers.

150.85(4)(c)2. 2. Whether any reduction in competition among physicians, allied health professionals or other health care providers is likely to result directly or indirectly from the cooperative agreement.

150.85(4)(c)3. 3. Whether any arrangements that are less restrictive as to competition could likely achieve substantially the same benefits or a more favorable balance of benefits over disadvantages than that likely to be achieved from reducing competition.

150.85(5) (5) Certificate revocation.

150.85(5)(a) (a) If the department determines that the benefits resulting from or likely to result from a cooperative agreement under a certificate of public advantage no longer outweigh any disadvantages attributable to any actual or potential reduction in competition resulting from the agreement, the department may revoke the certificate of public advantage governing the agreement and, if revoked, shall so notify the holders of the certificate. A holder of a certificate of public advantage whose certificate is revoked by the department may contest the revocation by sending a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1), within 10 days after receipt of the notice of revocation.

150.85(5)(b) (b) If a party to a cooperative agreement that is issued a certificate of public advantage terminates its participation in the agreement, the party shall file a notice of termination with the department within 30 days after the termination takes effect. If all parties to the cooperative agreement terminate their participation in the agreement, the department shall revoke the certificate of public advantage for the agreement.

150.85(6) (6) Record keeping. The department shall maintain a file of all cooperative agreements for which certificates of public advantage are issued and that remain in effect.

150.85 History History: 1991 a. 250; 1995 a. 27 s. 9126 (19); 2007 a. 20 s. 9121 (6) (a).

150.85 Annotation Antitrust Immunity for Health Care Providers. Bosack. 80 MLR 245 (1997).

150.86 150.86 Judicial review. A denial by the department under s. 150.85 (3) (b) of an application for a certificate of public advantage and a revocation by the department under s. 150.85 (5) (a) of a certificate of public advantage is subject to judicial review under ch. 227.

150.86 History History: 1991 a. 250.

subch. VI of ch. 150 SUBCHAPTER VI

MORATORIUM ON CONSTRUCTION
OF HOSPITAL BEDS