Chapter 49

49.498(1)(i) (i) “Nursing facility” has the meaning given under 42 USC 1396r (a).

49.498(1)(j) (j) “Physician” has the meaning given under s. 448.01 (5).

49.498(1)(k) (k) “Psychopharmacologic drugs” means drugs that modify psychological functions and mental states.

49.498(1)(L) (L) “Registered professional nurse” means a registered nurse who is licensed under ch. 441 or who holds a multistate license, as defined in s. 441.51 (2) (h), issued in a party state, as defined in s. 441.51 (2) (k).

49.498(1)(m) (m) “Resident” means an individual who resides in a nursing facility.

49.498(2) (2) Requirements relating to provision of services.

49.498(2)(a) (a)

49.498(2)(a)1. 1. A nursing facility shall care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.

49.498(2)(a)2. 2. A nursing facility shall maintain a quality assessment and assurance committee that consists of the director of nursing services, a physician who is designated by the nursing facility and at least 3 other members of the nursing facility staff and that shall do all of the following:

49.498(2)(a)2.a. a. Meet at least every 3 months to identify issues with respect to which quality assessment and assurance activities are necessary.

49.498(2)(a)2.b. b. Develop and implement appropriate plans of action to correct identified quality deficiencies.

49.498(2)(a)3. 3. A quality assessment and assurance committee described under subd. 2. may establish written guidelines or procedures for making therapeutic alternate drug selections for the purposes of s. 450.01 (16) (hm) if the committee members include a pharmacist, as defined in s. 450.01 (15).

49.498(2)(b) (b) A nursing facility shall provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident in accordance with a written plan of care for each resident which:

49.498(2)(b)1. 1. Describes the medical, nursing and psychosocial needs of the resident and how the needs shall be met;

49.498(2)(b)2. 2. Is initially prepared, with participation to the extent practicable of the resident or the resident’s family or legal counsel, by a team which includes the resident’s attending physician and a registered professional nurse who has responsibility for the resident; and

49.498(2)(b)3. 3. Is periodically reviewed and revised by the team in subd. 2. after the conduct of an assessment under par. (c).

49.498(2)(c) (c)

49.498(2)(c)1. 1. A nursing facility shall conduct a comprehensive, accurate, standardized reproducible assessment of each resident’s functional capacity that:

49.498(2)(c)1.a. a. Describes the resident’s capability to perform daily life functions and significant impairments in the resident’s functional capacity.

49.498(2)(c)1.b. b. Is based on a uniform minimum data set of core elements and common definitions specified as required under 42 USC 1395i-3 (f) (6) (A).

49.498(2)(c)1.c. c. Uses an instrument which shall be specified by the department by rule.

49.498(2)(c)1.d. d. Includes identification of the resident’s medical problems.

49.498(2)(c)2. 2. A registered professional nurse shall conduct or coordinate with the appropriate participation of health professionals, sign and certify the completion of an assessment under subd. 1. Each individual who completes a portion of the assessment shall sign and certify as to the accuracy of that portion of the assessment.

49.498(2)(c)3. 3. No individual may willfully and knowingly certify under subd. 2. a material and false statement in an assessment.

49.498(2)(c)4. 4. No individual may willfully and knowingly cause another individual to certify under subd. 2. a material and false statement in an assessment.

49.498(2)(c)5. 5. If the department determines by survey of a nursing facility or otherwise that an individual has knowingly and willfully certified a false assessment under subd. 2., the department may require that individuals who are independent of the nursing facility and are approved by the department conduct and certify assessments under this paragraph.

49.498(2)(c)6. 6. A nursing facility shall:

49.498(2)(c)6.a. a. Conduct an assessment under subd. 1. no later than 4 days after the admission of an individual admitted after September 30, 1990.

49.498(2)(c)6.b. b. Conduct all of the assessments under subd. 1. for a resident of the nursing facility by October 1, 1991, for a resident who resides in the facility on that date; promptly after a significant change in a resident’s physical or mental condition; and, for every resident, no less often than once every 12 months.

49.498(2)(c)6.c. c. Examine a resident no less frequently than once every 3 months and, as appropriate, revise the resident’s assessment under subd. 1. to assure the assessment’s continuing accuracy.

49.498(2)(c)7. 7. The assessment conducted under subd. 1. shall be used in developing, reviewing and revising a nursing facility resident’s plan of care under par. (b).

49.498(2)(c)8. 8. A nursing facility shall coordinate an assessment conducted under this paragraph with the conduct of preadmission screening under s. 49.45 (6c) (b) to the maximum extent practicable in order to avoid duplicative testing and effort.

49.498(2)(d) (d)

49.498(2)(d)1. 1. To the extent needed to fulfill the plans of care required under par. (b), a nursing facility shall provide or arrange for the provision of all of the following, which shall meet professional standards of quality:

49.498(2)(d)1.a. a. Nursing services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.

49.498(2)(d)1.b. b. Medically related social services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident.

49.498(2)(d)1.c. c. Pharmaceutical services, including procedures that assure the accurate acquiring, receiving, dispensing and administering of all drugs and biologicals, to meet the needs of each resident.

49.498(2)(d)1.d. d. Dietary services that assure that the meals meet the daily nutritional and special dietary needs of each resident.

49.498(2)(d)1.e. e. An ongoing program, directed by a qualified professional, of activities designed to meet the interests and the physical, mental and psychosocial well-being of each resident.

49.498(2)(d)1.f. f. Routine dental services to the extent covered under the approved state medicaid plan and emergency dental services to meet the needs of each resident.

49.498(2)(d)2. 2. Services specified under subd. 1. a. to d. and f. shall be provided to a resident by qualified persons in accordance with the resident’s written plan of care under par. (b).

49.498(2)(d)3. 3. Unless waived under subd. 4., a nursing facility shall:

49.498(2)(d)3.a. a. Provide 24-hour per day licensed nursing services which are sufficient to meet the nursing needs of its residents; and

49.498(2)(d)3.b. b. Shall use the services of a registered professional nurse at least 8 consecutive hours per day, 7 days per week.

49.498(2)(d)4. 4. Subject to subd. 5., the department may waive the requirement under subd. 3. a. or b. if all of the following apply:

49.498(2)(d)4.a. a. The nursing facility demonstrates to the satisfaction of the department that the nursing facility has been unable, despite diligent efforts including offering wages at the community prevailing rate for nursing facilities, to recruit appropriate personnel.

49.498(2)(d)4.b. b. The department determines that a waiver of the requirement will not endanger the health or safety of nursing facility residents.

49.498(2)(d)4.c. c. The department finds that a registered professional nurse or a physician is obligated to respond immediately to telephone calls from the nursing facility for any periods in which licensed nursing services are not available.

49.498(2)(d)5. 5. A waiver under subd. 4. is subject to annual review by the department and to review by the secretary of the federal department of health and human services. The department may, in granting or reviewing a waiver, require the nursing facility to employ other qualified, licensed personnel.

49.498(2)(e) (e) Except as otherwise provided in s. 146.40, all of the following apply:

49.498(2)(e)2. 2. A nursing facility may not use the individual as a nurse aide unless the nursing facility has inquired of the department concerning information about the individual in the registry under s. 146.40 (4g).

49.498(2)(e)3. 3. A nursing facility shall provide the regular performance review and regular in-service education that assures that individuals used as nurse aides are competent to perform services as nurse aides, including training for individuals to provide nursing and nursing-related services to nursing facility residents with cognitive impairments.

49.498(2)(f) (f) A nursing facility shall do all of the following:

49.498(2)(f)1. 1. Require that the health care of every nursing facility resident be provided under the supervision of a physician.

49.498(2)(f)2. 2. Provide for the availability of a physician to furnish necessary medical care in case of emergency.

49.498(2)(f)3. 3. Maintain clinical records on all nursing facility residents which include all of the following:

49.498(2)(f)3.a. a. Written plans of care, as required under par. (b).

49.498(2)(f)3.b. b. Assessments, as required under par. (c).

49.498(2)(f)3.c. c. Results of any preadmission screening conducted under s. 49.45 (6c) (b).

49.498(2)(g) (g) A nursing facility with more than 120 beds shall employ full-time at least one social worker with at least a bachelor’s degree in social work or similar professional qualifications to provide or assure the provision of social services.

49.498(3) (3) Resident’s rights; general rights.

49.498(3)(a) (a) A nursing facility shall protect and promote the rights of each resident, including each of the following rights:

49.498(3)(a)1. 1. The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident’s well-being, and, except with respect to a resident who is adjudicated incompetent, to participate in planning care and treatment or changes in care and treatment.

49.498(3)(a)2. 2. The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for the purpose of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed:

49.498(3)(a)2.a. a. To ensure the physical safety of the resident or other residents; and

49.498(3)(a)2.b. b. Upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used, except in emergency circumstances until the order could reasonably be obtained.

49.498(3)(a)3. 3. The right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups, except that this subdivision may not be construed to require provision of a private room.

49.498(3)(a)4. 4. The right to confidentiality of personal and clinical records.

49.498(3)(a)5. 5. The rights:

49.498(3)(a)5.a. a. To reside and receive services with reasonable accommodations of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered; and

49.498(3)(a)5.b. b. To receive notice before the room or roommate of the resident in the nursing facility is changed.

49.498(3)(a)6. 6. The right to voice grievances with respect to treatment or care that is or is not furnished, without discrimination or reprisal for voicing the grievances, and the right to prompt efforts by the nursing facility to resolve grievances that the resident may have, including those with respect to the behavior of other residents.

49.498(3)(a)7. 7. The right of the resident to organize and participate in resident groups in the nursing facility and the right of the resident’s family to meet in the nursing facility with the families of other residents in the nursing facility.

49.498(3)(a)8. 8. The right of the resident to participate in social, religious and community activities that do not interfere with the rights of other residents in the nursing facility.

49.498(3)(a)9. 9. The right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the federal department of health and human services or the department with respect to the nursing facility and any plan of correction in effect with respect to the nursing facility.

49.498(3)(a)10. 10. Any other right specified in rules that the department shall promulgate in conformity with federal regulations.

49.498(3)(b) (b) Except as provided in par. (c), a nursing facility shall do all of the following:

49.498(3)(b)1. 1. Inform each resident, orally and in writing at the time of admission to the nursing facility, of the resident’s legal rights during the stay at the nursing facility, including a description of the protection of personal funds under sub. (8) and a statement that a resident may file a complaint with the department under s. 146.40 (4r) (a) concerning misappropriation of property or neglect or abuse of a resident.

49.498(3)(b)2. 2. Make available to each resident, upon reasonable request, a written statement of the rights specified in subd. 1. which is updated upon changes in nursing rights.

49.498(3)(b)3. 3. Inform each resident who is entitled to medical assistance:

49.498(3)(b)3.a. a. At the time of admission to the nursing facility or, if later, at the time the resident becomes eligible for medical assistance, of the items and services that are included in nursing facility services under the approved state medicaid plan and for which the resident may not be charged, except as permitted, and of other items and services that the nursing facility offers and for which the resident may be charged and the amount of the charges for the items and services; and

49.498(3)(b)3.b. b. Of changes in the items and services described in subd. 3. a. and of changes in the charges imposed for items and services described in subd. 3. a.

49.498(3)(b)4. 4. Inform each other resident, in writing before or at the time of admission and periodically during the resident’s stay, of services available in the nursing facility and of related charges for the services, including any charges for services not covered under medicare or by the nursing facility’s basic per diem charge.

49.498(3)(c) (c) For a resident who is adjudicated incompetent in this state, the rights of a resident under this subsection devolve upon and, to the extent determined necessary by a court of competent jurisdiction, are exercised by the resident’s guardian.

49.498(3)(d) (d) Psychopharmacologic drugs may be administered to a resident only on the orders of a physician and only as part of a plan included in the written plan of care under par. (b) designed to eliminate or modify the symptoms for which the drugs are prescribed and only if, at least annually, an independent, external consultant reviews the appropriateness of the drug plan of each resident receiving the pharmacologic drugs.

49.498(4) (4) Resident’s rights; transfer and discharge rights.

49.498(4)(a) (a) A nursing facility shall permit a resident to remain in the nursing facility and may not transfer or discharge the resident from the nursing facility unless one of the following applies:

49.498(4)(a)1. 1. The transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the nursing facility, as documented by the resident’s physician in the resident’s clinical record.

49.498(4)(a)2. 2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so that the resident no longer needs the services provided by the nursing facility, as documented by the resident’s physician in the resident’s clinical record.