Chapter 49

49.498(8)(b)3.a. a. When the amount in the resident’s account is $200 less than the dollar amount permitted under 42 USC 1381 to 1385.

49.498(8)(b)3.b. b. That if the amount in the account, in addition to the value of the resident’s other nonexempt resources, reaches the amount under 42 USC 1382 (a) (3) (B) the resident may lose eligibility for medical assistance or for supplemental security income benefits.

49.498(8)(b)4. 4. Upon the death of a resident with an account under subd. 1., the nursing facility shall promptly convey the resident’s personal funds and a final accounting of the funds to the individual administering the resident’s estate.

49.498(8)(b)5. 5. The nursing facility shall purchase a surety bond or otherwise provide satisfactory assurance of the security of all personal funds of residents that are deposited with the nursing facility.

49.498(8)(b)6. 6. The nursing facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made by medical assistance or medicare.

49.498(8m) (8m) Posting of survey results. A nursing facility shall post in a place that is readily accessible to residents, residents’ family members and residents’ legal representatives, the results of the most recent survey of the facility conducted under sub. (13).

49.498(9) (9) Administration requirements.

49.498(9)(a) (a) A nursing facility shall be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident, consistent with federal regulations.

49.498(9)(b) (b) If a change occurs in any of the following, the nursing facility shall provide notice to the department, at the time of the change, of the change and the identity of each new person or company under the change:

49.498(9)(b)1. 1. The persons with an ownership or control interest in the nursing facility.

49.498(9)(b)2. 2. The persons who are officers, directors, agents or managing employees of the nursing facility.

49.498(9)(b)3. 3. The corporation, association or other company responsible for the management of the nursing facility.

49.498(9)(b)4. 4. The individual who is the administrator or director of the nursing facility.

49.498(9)(c) (c) The administrator of a nursing facility shall meet standards established under 42 USC 1396r (f) (4).

49.498(10) (10) Licensing requirements.

49.498(10)(a) (a) A nursing facility shall be licensed under s. 50.03 (1).

49.498(10)(b) (b) Except as waived under 42 USC 1396r (d) (2) (B) (i) or found under 42 USC 1396r (d) (2) (B) (ii), a nursing facility shall meet the provisions that are applicable to nursing homes of the edition of the life safety code of the national fire protection association specified in federal regulations.

49.498(11) (11) Infection control. A nursing facility shall do all of the following:

49.498(11)(a) (a) Establish and maintain an infection control program designed to provide a safe, sanitary and comfortable environment in which residents reside and to help prevent the development and transmission of disease and infection.

49.498(11)(b) (b) Be designed, constructed, equipped and maintained in a manner so as to protect the health and safety of residents, personnel and the general public.

49.498(12) (12) Compliance with laws, regulations and professional standards.

49.498(12)(a) (a) A nursing facility shall operate and provide services in compliance with all applicable state laws and federal regulations and with accepted professional standards and principles that apply to professionals providing services in the nursing facility.

49.498(12)(b) (b) A nursing facility shall meet requirements relating to the health and safety of residents or relating to physical facilities for the health and safety of residents under regulations promulgated by the federal department of health and human services.

49.498(13) (13) Annual standard survey. A nursing facility is subject to a standard survey under 42 USC 1396r (g) (2) (A) (i). No person may notify a nursing facility or cause a nursing facility to be notified of the time or date on which the survey is scheduled to be conducted.

49.498(14) (14) Rule making. The department shall promulgate all of the following rules:

49.498(14)(a) (a) Establishing a fair mechanism meeting the requirements of 42 USC 1396r (e) (3) and (f) (3) for hearing appeals on transfers and discharges of residents from nursing facilities.

49.498(14)(b) (b) Specifying an instrument for use in performing assessments of residents under sub. (2) (c) 1. c.

49.498(14)(c) (c) Establishing criteria for the denial of payment under s. 49.45 (6m) (d) 5., for the imposition of forfeitures under sub. (16) (b), for the placement of a monitor or appointment of a receiver for a facility under sub. (17) and for closure of a facility under sub. (18) that do all of the following:

49.498(14)(c)1. 1. Are consistent with federal regulations promulgated to interpret 42 USC 1396r.

49.498(14)(c)2. 2. Are designed so as to minimize the time between the identification of violations and final imposition of the penalties.

49.498(14)(c)3. 3. Provide incrementally more severe penalties for repeated or uncorrected deficiencies.

49.498(14)(d) (d) Establishing the percentage of interest to be assessed under sub. (16) (d).

49.498(15) (15) Classification of violations.

49.498(15)(a) (a) A class “1” violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom.

49.498(15)(b) (b) A class “2” violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility directly threatening to the health, safety or welfare of a resident.

49.498(15)(c) (c) A class “3” violation is a violation of this section or of the rules promulgated under this section which creates a condition or occurrence relating to the operation and maintenance of a nursing facility which does not directly threaten the health, safety or welfare of a resident.

49.498(15)(d) (d) Each day of violation constitutes a separate violation. The department shall have the burden of showing that a violation existed on each day for which a forfeiture is assessed. No forfeiture may be assessed for a condition for which the nursing facility has received a variance or waiver of a standard.

49.498(16) (16) Forfeitures, penalty assessments and interest.

49.498(16)(a) (a) Any operator or owner of a nursing facility which is in violation of this section or any rule promulgated under this section may be subject to the following forfeitures:

49.498(16)(a)1. 1. A class “1” violation may be subject to a forfeiture of not more than $250 for each violation.

49.498(16)(a)2. 2. A class “2” violation may be subject to a forfeiture of not more than $125 for each violation.

49.498(16)(a)3. 3. A class “3” violation may be subject to a forfeiture of not more than $60 for each violation.

49.498(16)(b) (b) In determining whether a forfeiture is to be imposed and in fixing the amount of the forfeiture to be imposed, if any, for a violation, factors shall be considered that are established in rules that shall be promulgated by the department consistent with federal regulations promulgated to interpret 42 USC 1396r.

49.498(16)(c) (c)

49.498(16)(c)1. 1. Whenever the department imposes a forfeiture under par. (a) for a violation of this section or the rules promulgated under this section, the department shall in addition levy a penalty assessment in the following amounts:

49.498(16)(c)1.a. a. For a class “1” violation, not less than $5,100 nor more than $10,000.

49.498(16)(c)1.b. b. For a class “2” violation, not less than $2,600 nor more than $5,000.

49.498(16)(c)1.c. c. For a class “3” violation, not less than $100 nor more than $2,500.

49.498(16)(c)2. 2. Notwithstanding subd. 1., whenever the department imposes a forfeiture under par. (a) for the violation of the following, the department shall levy a penalty assessment in the following amounts:

49.498(16)(c)2.a. a. For a violation of sub. (2) (c) 3., $1,000.

49.498(16)(c)2.b. b. For a violation of sub. (2) (c) 4., $5,000.

49.498(16)(c)2.c. c. For a violation of sub. (13), $2,000.

49.498(16)(c)3. 3. If multiple violations are involved, the penalty assessment levied under subd. 1. or 2. shall be based on the total forfeitures for all violations.

49.498(16)(d) (d) If the period of the violation under par. (a) is longer than one day, the penalty assessment shall additionally include interest for each day of the period at a rate established in rules that the department shall promulgate, except that no interest shall be computed for a day in the period between the date on which a request for a hearing, if any, is filed under par. (f) and the date of the conclusion of all administrative and judicial proceedings arising out of the imposition of a forfeiture under par. (a).

49.498(16)(dm) (dm) In determining whether a forfeiture is to be imposed and in fixing the amount of the forfeiture to be imposed, if any, for a violation, factors shall be considered that are established in rules that shall be promulgated by the department consistent with federal regulations promulgated to interpret 42 USC 1396r.

49.498(16)(e) (e) The department may directly assess forfeitures provided for under par. (a), penalty assessments provided for under par. (c) and interest provided for under par. (d). If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct it, it shall send a notice of assessment to the nursing facility. The notice shall specify the amount of the forfeiture assessed, the amount of the penalty assessment, the violation, the statute or rule alleged to have been violated, and shall inform the licensee of the right to hearing under par. (f).

49.498(16)(f) (f) A nursing facility may contest an assessment of forfeiture, penalty assessment or interest, if any, by sending a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator 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 shall be the final administrative decision. The division shall commence the hearing within 30 days of 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 department, if not the petitioner who was in the proceeding before the division, shall be the named respondent.

49.498(16)(g) (g) All forfeitures, penalty assessments, and interest, if any, shall be paid to the department within 10 days of receipt of notice of assessment or, if the forfeiture, penalty assessment, and interest, if any, are contested under par. (f), within 10 days of receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order under sub. (19) (b). The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund. The department shall deposit all penalty assessments and interest in the appropriation under s. 20.435 (6) (g).

49.498(16)(h) (h) The attorney general may bring an action in the name of the state to collect any forfeiture, penalty assessment or interest, if any, imposed under par. (e) or (f) if the forfeiture, penalty assessment or interest, if any, has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture, penalty assessment or interest has been paid.

49.498(16m) (16m) Appeals procedures. Appeals procedures under this section shall be consistent with the requirements specified in 42 CFR 431.151 (a) and (b). Any appeals under this section shall be filed with the division of hearings and appeals created under s. 15.103 (1).

49.498(17) (17) Temporary management. Any nursing facility that is in violation of this section or any rule promulgated under this section may be subject to placement of a monitor or appointment of a receiver, under the procedures and criteria specified in s. 50.05 and under criteria promulgated as rules by the department under sub. (14) (c).

49.498(18) (18) Nursing facility closure and resident transfer.

49.498(18)(a) (a) Any nursing facility that is in violation of this section or any rule promulgated under this section may, in an emergency as determined by the department, be subject to closure by the department or to the transfer of residents of the nursing facility to another nursing facility, or both, under criteria promulgated as rules by the department under sub. (14) (c).

49.498(18)(b) (b) A nursing facility may contest closure of the nursing facility or transfer of residents of the nursing facility, if any, by sending a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator 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 shall be the final administrative decision. The division shall commence the hearing within 30 days of 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 department, if not the petitioner who was in the proceeding before the division, shall be the named respondent.

49.498(19) (19) Judicial review.

49.498(19)(a) (a) All administrative remedies shall be exhausted before an agency determination under this section shall be subject to judicial review. Final decisions after hearing shall be subject to judicial review exclusively as provided in s. 227.52, except that any petition for review of department action under this section shall be filed within 15 days after receipt of notice of the final agency determination.

49.498(19)(b) (b) The court may stay enforcement under s. 227.54 of the department’s final decision if a showing is made that there is a substantial probability that the party seeking review will prevail on the merits and will suffer irreparable harm if a stay is not granted, and that the nursing facility will meet the requirements of this section and the rules promulgated under this section during such stay. Where a stay is granted the court may impose such conditions on the granting of the stay as may be necessary to safeguard the lives, health, rights, safety and welfare of residents, and to assure compliance by the nursing facility with the requirements of this section.

49.498(19)(c) (c) The attorney general may delegate to the department the authority to represent the state in any action brought to challenge department decisions prior to exhaustion of administrative remedies and final disposition by the division of hearings and appeals created under s. 15.103 (1).

49.498(20) (20) Violations. If an act forms the basis for a violation of this section and s. 50.04, the department or the attorney general may impose sanctions in conformity with this section or under s. 50.04, but not both.

49.498 History History: 1989 a. 31; 1991 a. 32, 39; 1993 a. 16; 1995 a. 27, 407; 1997 a. 27; 1999 a. 22; 2003 a. 33; 2005 a. 387; 2007 a. 153; 2013 a. 294; 2017 a. 135.

49.499 49.499 Nursing facility resident protection.

49.499(1) (1) From the appropriation under s. 20.435 (6) (g), the department shall contribute to the payment of all of the following, as needed by a resident in a nursing facility, as defined in s. 49.498 (1) (i), that is in violation of s. 49.498 or of a rule promulgated under s. 49.498:

49.499(1)(a) (a) The cost of relocating the resident from the nursing facility to another nursing facility.

49.499(1)(b) (b) Maintenance of operation of a nursing facility pending correction of deficiencies or closure of the nursing facility.

49.499(1)(c) (c) Reimbursement of the resident for any personal funds of the resident that were misappropriated by the nursing facility staff or other persons holding an interest in the nursing facility.

49.499(2m) (2m) From the appropriation under s. 20.435 (6) (g), the department may distribute funds for innovative projects designed to protect the health and property of a resident in a nursing facility, as defined in s. 49.498 (1) (i).

49.499 History History: 1989 a. 31; 1997 a. 27; 1999 a. 9.

subch. V of ch. 49 SUBCHAPTER V

OTHER SUPPORT AND MEDICAL PROGRAMS

49.66 49.66 Definitions. In this subchapter:

49.66(1) (1) “Department” means the department of health services.

49.66(2) (2) “Secretary” means the secretary of health services.

49.66 History History: 1995 a. 27 ss. 3179, 9126 (19); 2007 a. 20 s. 9121 (6) (a).

49.665 49.665 Badger care.

49.665(1) (1) Definitions. In this section:

49.665(1)(b) (b) “Child” means a person who is born and who is under the age of 19.

49.665(1)(c) (c) “Employer-subsidized health care coverage” means family coverage under a group health insurance plan offered by an employer for which the employer pays at least 80 percent of the cost, excluding any deductibles or copayments that may be required under the plan.

49.665(1)(d) (d) “Family” means a unit that consists of at least one child and his or her parent or parents, all of whom reside in the same household. “Family” includes the spouse of an individual who is a parent if the spouse resides in the same household as the individual.

49.665(1)(e) (e) “Parent” has the meaning given in s. 49.141 (1) (j).