Chapter 49

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.

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.