Chapter 49

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.

49.498(4)(a)3. 3. The safety of individuals in the nursing facility is endangered, as documented in the resident’s clinical record.

49.498(4)(a)4. 4. The health of individuals in the nursing facility would otherwise be endangered, as documented by a physician in the resident’s clinical record.

49.498(4)(a)5. 5. The resident has failed, after reasonable and appropriate notice, to pay or have paid on his or her behalf under medical assistance or under medicare for a stay at the nursing facility. If a resident becomes eligible for medical assistance after admission to the nursing facility, only charges that may be imposed under medical assistance may be allowed in enforcement of this subdivision.

49.498(4)(a)6. 6. The nursing facility ceases to operate.

49.498(4)(b) (b)

49.498(4)(b)1. 1. Before effecting a transfer or discharge of a resident a nursing facility shall note in the resident’s record and notify the resident and, if known, an immediate family member of the resident or the resident’s legal counsel concerning the transfer or discharge and the reasons for it, at least 30 days in advance of the resident’s transfer or discharge, except that the nursing facility shall notify as soon as practicable in the circumstances specified in par. (a) 3. or 4.; in the circumstance specified in par. (a) 2. in which the resident’s health improves sufficiently to permit a more immediate transfer or discharge; in the circumstances specified in par. (a) 1. in which a more immediate transfer or discharge is necessitated by the resident’s urgent medical needs; or in the instance in which a resident has resided in the nursing facility fewer than 30 days.

49.498(4)(b)2. 2. Each notice under subd. 1. shall include all of the following:

49.498(4)(b)2.a. a. For transfers or discharges effected after September 30, 1990, notice of the resident’s right to appeal the transfer or discharge under a mechanism for hearing the appeals that is established by the department by rule.

49.498(4)(b)2.b. b. The name, mailing address and telephone number of the long-term care ombudsman program under s. 16.009 (2) (b).

49.498(4)(b)2.c. c. For a resident with developmental disability or mental illness, the mailing address and telephone number of the protection and advocacy agency designated under s. 51.62 (2) (a).

49.498(4)(c) (c) A nursing facility shall provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the nursing facility.

49.498(4)(d) (d)

49.498(4)(d)1. 1. Before a resident of a nursing facility is transferred for hospitalization or therapeutic leave, a nursing facility shall provide written information to the resident and an immediate family member or legal counsel concerning all of the following:

49.498(4)(d)1.a. a. The provisions of the approved state medicaid plan concerning the period, if any, during which the resident is permitted to return and resume residence in the nursing facility.

49.498(4)(d)1.b. b. The policies of the nursing facility regarding subd. 1. a., which shall be consistent with subd. 1. a.

49.498(4)(d)2. 2. At the time of a resident’s transfer to a hospital for therapeutic leave, a nursing facility shall provide written notice to the resident and an immediate family member or legal counsel of the duration of the period, if any, specified in subd. 1. a.

49.498(4)(d)3. 3. A nursing facility shall establish and follow a written policy under which a resident, who is eligible for medical assistance for nursing facility services, who is transferred from the nursing facility for hospitalization or therapeutic leave and whose hospitalization or therapeutic leave exceeds a period paid for by medical assistance for the resident, shall be permitted to be readmitted to the nursing facility immediately upon the first availability of a bed in a semiprivate room in the nursing facility, if at the time of readmission the resident requires the services provided by the nursing facility.

49.498(5) (5) Resident’s rights; access and visitation rights. A nursing facility shall do all of the following:

49.498(5)(a) (a) Permit immediate access to a resident by the department, by any representative of the secretary of the federal department of health and human services, by a representative of the board on aging and long-term care, by a representative of the protection and advocacy agency designated under s. 51.62 (2) (a) or by the resident’s attending physician.

49.498(5)(b) (b) Permit immediate access to a resident by immediate family or other relatives of the resident, subject to the resident’s right to deny or withdraw consent at any time.

49.498(5)(c) (c) Permit immediate access to a resident by others who are visiting with the consent of the resident, subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time.

49.498(5)(d) (d) Permit reasonable access to a resident by any entity or individual that provides health, social, legal or other services to the resident, subject to the resident’s right to deny or withdraw consent at any time.

49.498(5)(e) (e) Permit a designated representative of the long-term care ombudsman under s. 16.009 (4), with the permission of the resident or the resident’s legal counsel, and in accordance with s. 16.009 (4) (b) 1. d., to examine a resident’s clinical records.

49.498(6) (6) Equal access to quality care.

49.498(6)(a) (a) A nursing facility shall establish and maintain identical policies and practices regarding transfer, discharge and the provision of services required under the approved state medicaid plan for all individuals regardless of payment.

49.498(6)(b) (b) Paragraph (a) may not be construed to prohibit a nursing facility from charging any amount for services furnished, consistent with the notice required under sub. (3) (b) 3.

49.498(6)(c) (c) Paragraph (a) may not be construed to require the department to provide additional services on behalf of a resident than are otherwise provided under the approved state medicaid plan.

49.498(7) (7) Admissions policy.

49.498(7)(a) (a) Except as provided in par. (b), with respect to admissions practices of a nursing facility:

49.498(7)(a)1. 1. A nursing facility may not require individuals applying to reside or residing in the facility to waive their rights to benefits under medical assistance or under medicare.

49.498(7)(a)2. 2. A nursing facility may not require oral or written assurance that individuals applying to reside or residing in the nursing facility are ineligible for or will not apply for medical assistance or medicare.

49.498(7)(a)3. 3. A nursing facility shall prominently display written information in the nursing facility and provide oral and written information to individuals applying to reside or residing in the nursing facility concerning how to apply for and use benefits under medical assistance and how to receive refunds for previous payments covered by these benefits.

49.498(7)(a)4. 4. A nursing facility may not require a 3rd-party guarantee of payment to the nursing facility as a condition of admission or expedited admission to or continued stay in the nursing facility.

49.498(7)(a)5. 5. With respect to an individual who is entitled to medical assistance for nursing facility services, a nursing facility may not charge, solicit, accept or receive, in addition to any amount otherwise required to be paid under the approved state medicaid plan, a gift, money, donation or other consideration as a precondition of admitting or expediting the admission of an individual to the nursing facility or as a requirement for the individual’s continued stay in the facility.

49.498(7)(b) (b) Paragraph (a) may not be construed to do any of the following:

49.498(7)(b)1. 1. Prevent the department from prohibiting discrimination against individuals who are entitled to medical assistance under the approved state medicaid plan with respect to admissions practices of nursing facilities.

49.498(7)(b)1m. 1m. Permit a county, city, town or village to implement nursing facility admissions policies that conflict with state law.

49.498(7)(b)2. 2. Prevent a nursing facility from requiring an individual who has legal access to a resident’s income or resources available to pay for care in the nursing facility, to sign a contract, without incurring personal financial liability, to provide payment from the resident’s income or resources for care in the nursing facility.

49.498(7)(b)3. 3. Prevent a nursing facility from charging a resident who is eligible for medical assistance for items or services that the resident has requested and received and that are not included in the approved state medicaid plan.

49.498(7)(b)4. 4. Prohibit a nursing facility from soliciting, accepting or receiving a charitable, religious or philanthropic contribution from an organization or from a person who is unrelated to the resident or potential resident, but only to the extent that the contribution is not a condition of admission, expediting admission or continued stay in the nursing facility.

49.498(8) (8) Protection of resident funds.

49.498(8)(a) (a) A nursing facility:

49.498(8)(a)1. 1. May not require a resident to deposit his or her personal funds with the nursing facility.

49.498(8)(a)2. 2. Upon the written authorization of a resident, shall hold, safeguard and account for the resident’s personal funds under a system established and maintained by the nursing facility that is in accordance with par. (b).

49.498(8)(b) (b) Upon written authorization of a resident under par. (a), the nursing facility shall manage and account for the resident’s personal funds deposited with the nursing facility as follows:

49.498(8)(b)1. 1. The nursing facility shall deposit any amount of a resident’s personal funds in excess of $50 in an interest-bearing account that is separate from any of the nursing facility’s operating accounts and credits all interest earned on the separate account to the account. The nursing facility shall maintain a resident’s personal funds that do not exceed $50 in a noninterest-bearing account or petty cash fund.

49.498(8)(b)2. 2. The nursing facility shall assure a full and complete separate accounting of the personal funds of each resident for whom the facility has written authorization, maintain a written record of all financial transactions involving the personal funds of the resident deposited with the nursing facility and afford the resident or the resident’s legal representative with reasonable access to the record.

49.498(8)(b)3. 3. The nursing facility shall notify each resident receiving medical assistance of all of the following:

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.