Chapter 49

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).

49.665(1)(f) (f) “State plan” means the state child health plan under 42 USC 1397aa (b).

49.665(1)(g) (g) “Unborn child” means a person from the time of conception until it is born alive.

49.665(2) (2) Waivers.

49.665(2)(a) (a)

49.665(2)(a)1. 1. The department of health services shall request a waiver from the secretary of the federal department of health and human services to permit the department of health services to implement, beginning not later than July 1, 1998, or the effective date of the waiver, whichever is later, a health care program under this section. If a waiver that is consistent with all of the provisions of this section, excluding sub. (4) (a) 3m. and (ap) and provisions related to sub. (4) (ap), is granted and in effect, the department of health services shall implement the program under this section, subject to subd. 2. The department of health services may not implement the program under this section unless a waiver that is consistent with all of the provisions of this section, excluding sub. (4) (a) 3m. and (ap) and provisions related to sub. (4) (ap), is granted and in effect.

49.665(2)(a)2. 2. The department may not implement sub. (4) (ap) or provisions related to the coverage under sub. (4) (ap) unless a state plan amendment authorizing the coverage under sub. (4) (ap) is approved by the federal department of health and human services.

49.665(2)(b) (b) If the department of health services determines that it needs a waiver to require the verification specified in sub. (4) (a) 3m., the department shall request a waiver from the secretary of the federal department of health and human services and may not implement the verification requirement under sub. (4) (a) 3m. unless the waiver is granted. If a waiver is required and is granted, the department of health services may implement the verification requirement under sub. (4) (a) 3m. as appropriate. If a waiver is not required, the department of health services may require the verification specified in sub. (4) (a) 3m. for eligibility determinations and annual review eligibility determinations made by the department, beginning on January 1, 2004.

49.665(3) (3) Administration. Subject to sub. (2) (a) 2., the department shall administer a program to provide the health services and benefits described in s. 49.46 (2) to persons that meet the eligibility requirements specified in sub. (4). The department shall promulgate rules setting forth the application procedures and appeal and grievance procedures. The department may promulgate rules limiting access to the program under this section to defined enrollment periods. The department may also promulgate rules establishing a method by which the department may purchase family coverage offered by the employer of a member of an eligible family or of a member of an eligible child’s household, or family or individual coverage offered by the employer of an eligible unborn child’s mother or her spouse, under circumstances in which the department determines that purchasing that coverage would not be more costly than providing the coverage under this section.

49.665(4) (4) Eligibility.

49.665(4)(a) (a) A family is eligible for health care coverage under this section if the family meets all of the following requirements:

49.665(4)(a)1. 1. The family’s income does not exceed 185 percent of the poverty line, except as provided in par. (at) and except that a family that is already receiving health care coverage under this section may have an income that does not exceed 200 percent of the poverty line. The department shall establish by rule the criteria to be used to determine income.

49.665(4)(a)2. 2. The family does not have access to employer-subsidized health care coverage.

49.665(4)(a)3. 3. The family has not had access to employer-subsidized health care coverage within the time period established by the department by rule, but not to exceed 18 months, immediately preceding application for health care coverage under this section. The department may establish exceptions to this time period restriction by rule.

49.665(4)(a)3m. 3m. Each member of the family who is employed provides verification from his or her employer, in the manner specified by the department, of his or her earnings, of whether the employer provides health care coverage for which the family is eligible, and of the amount that the employer pays, if any, towards the cost of the health care coverage, excluding any deductibles or copayments required under the coverage.

49.665(4)(a)4. 4. The family meets all other requirements established by the department by rule. In establishing other eligibility criteria, the department may not include any health condition requirements.

49.665(4)(am) (am) A child who does not reside with his or her parent is eligible for health care coverage under this section if the child meets all of the following requirements:

49.665(4)(am)1. 1. The child’s income does not exceed 185 percent of the poverty line, except as provided in par. (at) and except that a child that is already receiving health care coverage under this section may have an income that does not exceed 200 percent of the poverty line. The department shall use the criteria established under par. (a) 1. to determine income under this subdivision.

49.665(4)(am)2. 2. The child does not have access to employer-subsidized health care coverage.

49.665(4)(am)3. 3. The child has not had access to employer-subsidized health care coverage within the time period established by the department under par. (a) 3. The department may establish exceptions to this subdivision.

49.665(4)(am)4. 4. The child meets all other requirements established by the department by rule. In establishing other eligibility criteria, the department may not include any health condition requirements.

49.665(4)(ap) (ap) An unborn child whose mother is not eligible for health care coverage under par. (a) or (am) or for medical assistance under s. 49.46 or 49.47, except that she may be eligible for benefits under s. 49.45 (27), is eligible for health care coverage under this section, which shall be limited to coverage for prenatal care, if all of the following requirements are met:

49.665(4)(ap)1. 1. The income of the unborn child’s mother, mother and her spouse, or mother and her family, whichever is applicable, does not exceed 185 percent of the poverty line, except as provided in par. (at) and except that, if an unborn child is already receiving health care coverage under this section, the applicable specified person or persons may have an income that does not exceed 200 percent of the poverty line. The department shall establish by rule the criteria to be used to determine income.

49.665(4)(ap)3. 3. The unborn child’s mother provides medical verification of her pregnancy, in the manner specified by the department.

49.665(4)(ap)4. 4. The unborn child and the mother of the unborn child meet all other requirements established by the department by rule except for any of the following:

49.665(4)(ap)4.a. a. The mother is not a U.S. citizen or an alien qualifying for medicaid under 8 USC 1612.

49.665(4)(ap)4.b. b. The mother is an inmate of a public institution.

49.665(4)(ap)4.c. c. The mother does not provide a social security number, but only if subd. 4. a. applies.

49.665(4)(at) (at)

49.665(4)(at)1. 1.

49.665(4)(at)1.a. a. Except as provided in subd. 1. b., the department shall establish a lower maximum income level for the initial eligibility determination if funding under s. 20.435 (4) (jz), (p), and (x) is insufficient to accommodate the projected enrollment levels for the health care program under this section. The adjustment may not be greater than necessary to ensure sufficient funding.