Chapter 50

CARE AND SERVICE RESIDENTIAL FACILITIES

50.01 50.01 Definitions. As used in this subchapter:

50.01(1) (1) “Adult family home” means one of the following and does not include a place that is specified in sub. (1g) (a) to (d), (f), or (g):

50.01(1)(a) (a) A private residence to which all of the following apply:

50.01(1)(a)1. 1. Care and maintenance above the level of room and board but not including nursing care are provided in the private residence by the care provider whose primary domicile is this residence for 3 or 4 adults, or more adults if all of the adults are siblings, each of whom has a developmental disability, as defined in s. 51.01 (5), or, if the residence is licensed as a foster home, care and maintenance are provided to children, the combined total of adults and children so served being no more than 4, or more adults or children if all of the adults or all of the children are siblings.

50.01(1)(a)2. 2. The private residence was licensed under s. 48.62 as a home for the care of the adults specified in subd. 1. at least 12 months before any of the adults attained 18 years of age.

50.01(1)(b) (b) A place where 3 or 4 adults who are not related to the operator reside and receive care, treatment or services that are above the level of room and board and that may include up to 7 hours per week of nursing care per resident.

50.01(1b) (1b) “Advanced practice nurse prescriber” means an advanced practice nurse who is certified under s. 441.16 (2) to issue prescription orders.

50.01(1e) (1e) “Basic care” includes periodic skilled nursing services or physical, emotional, social or restorative care.

50.01(1g) (1g) “Community-based residential facility” means a place where 5 or more adults who are not related to the operator or administrator and who do not require care above intermediate level nursing care reside and receive care, treatment or services that are above the level of room and board but that include no more than 3 hours of nursing care per week per resident. “Community-based residential facility” does not include any of the following:

50.01(1g)(a) (a) A convent or facility owned or operated by members of a religious order exclusively for the reception and care or treatment of members of that order.

50.01(1g)(b) (b) A facility or private home that provides care, treatment, and services only for victims of domestic abuse, as defined in s. 49.165 (1) (a), and their children.

50.01(1g)(c) (c) A shelter facility as defined under s. 16.308 (1) (d).

50.01(1g)(d) (d) A place that provides lodging for individuals and in which all of the following conditions are met:

50.01(1g)(d)1. 1. Each lodged individual is able to exit the place under emergency conditions without the assistance of another individual.

50.01(1g)(d)2. 2. No lodged individual receives from the owner, manager or operator of the place or the owner’s, manager’s or operator’s agent or employee any of the following:

50.01(1g)(d)2.a. a. Personal care, supervision or treatment, or management, control or supervision of prescription medications.

50.01(1g)(d)2.b. b. Care or services other than board, information, referral, advocacy or job guidance; location and coordination of social services by an agency that is not affiliated with the owner, manager or operator, for which arrangements were made for an individual before he or she lodged in the place; or, in the case of an emergency, arrangement for the provision of health care or social services by an agency that is not affiliated with the owner, manager or operator.

50.01(1g)(e) (e) An adult family home.

50.01(1g)(f) (f) A residential care apartment complex.

50.01(1g)(g) (g) A residential facility in the village of Union Grove that was authorized to operate without a license under a final judgment entered by a court before January 1, 1982, and that continues to comply with the judgment notwithstanding the expiration of the judgment.

50.01(1g)(h) (h) A private residence that is the home to adults who independently arrange for and receive care, treatment, or services for themselves from a person or agency that has no authority to exercise direction or control over the residence.

50.01(1g)(i) (i) A group home licensed under s. 48.625 or a residential care center for children and youth licensed under s. 48.60 that provides care and maintenance for persons who are in extended out-of-home care under s. 48.366 or 938.366.

50.01(1m) (1m) “Facility” means a nursing home or community-based residential facility. If notice is required to be served on a facility or a facility is required to perform any act, “facility” means the person licensed or required to be licensed under s. 50.03 (1).

50.01(1ng) (1ng) “Immediate jeopardy” means a situation in which a nursing home’s noncompliance with one or more requirements under 42 CFR 483 related to the operation of a nursing home has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.

50.01(1r) (1r) “Home health agency” has the meaning given under s. 50.49 (1) (a).

50.01(1s) (1s) “Intensive skilled nursing care” means care requiring specialized nursing assessment skills and the performance of specific services and procedures that are complex because of the resident’s condition or the type or number of procedures that are necessary, including any of the following:

50.01(1s)(a) (a) Direct patient observation or monitoring or performance of complex nursing procedures by registered nurses or licensed practical nurses on a continuing basis.

50.01(1s)(b) (b) Repeated application of complex nursing procedures or services every 24 hours.

50.01(1s)(c) (c) Frequent monitoring and documentation of the resident’s condition and response to therapeutic measures.

50.01(1t) (1t) “Intermediate level nursing care” means basic care that is required by a person who has a long-term illness or disability that has reached a relatively stable plateau.

50.01(1w) (1w) “Licensed practical nurse” means a licensed practical nurse who is licensed or has a temporary permit under s. 441.10 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).

50.01(2) (2) “Nurse aide” means a person who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the person, for the direct health care of a patient or resident. “Nurse aide” does not mean a feeding assistant, as defined in s. 146.40 (1) (aw); a person who is licensed, permitted, certified, or registered under ch. 441, 448, 449, 450, 451, 455, 459, or 460; or a person whose duties primarily involve skills that are different than those taught in instructional programs for nurse aides.

50.01(2m) (2m) “Nursing care” means nursing procedures, other than personal care, that are permitted to be performed by a registered nurse under s. 441.01 (3) or by a licensed practical nurse under s. 441.001 (3), directly on or to a resident.

50.01(3) (3) “Nursing home” means a place where 5 or more persons who are not related to the operator or administrator reside, receive care or treatment and, because of their mental or physical condition, require access to 24-hour nursing services, including limited nursing care, intermediate level nursing care and skilled nursing services. “Nursing home” does not include any of the following:

50.01(3)(c) (c) A convent or facility owned or operated exclusively by and for members of a religious order that provides reception and care or treatment of an individual.

50.01(3)(d) (d) A hospice, as defined in s. 50.90 (1), that directly provides inpatient care.

50.01(3)(e) (e) A residential care apartment complex.

50.01(4) (4) “Nursing home administrator” has the meaning assigned in s. 456.01 (3).

50.01(4m) (4m) “Operator” means any person licensed or required to be licensed under s. 50.03 (1) or a person who operates an adult family home that is licensed under s. 50.033 (1m) (b).

50.01(4o) (4o) “Personal care” means assistance with the activities of daily living, such as eating, dressing, bathing and ambulation, but does not include nursing care.

50.01(4r) (4r) “Plan of correction” means a nursing home’s response to alleged deficiencies cited by the department on forms provided by the department.

50.01(5m) (5m) “Recuperative care” means care anticipated to be provided in a nursing home for a period of 90 days or less for a resident whose physician has certified that he or she is convalescing or recuperating from an illness or medical treatment.

50.01(5r) (5r) “Registered nurse” means a registered nurse who is licensed under s. 441.06 or permitted under s. 441.08 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).

50.01(6) (6) “Resident” means a person who is cared for or treated in and is not discharged from a nursing home, community-based residential facility or adult family home, irrespective of how admitted.

50.01(6d) (6d) “Residential care apartment complex” means a place where 5 or more adults reside that consists of independent apartments, each of which has an individual lockable entrance and exit, a kitchen, including a stove, and individual bathroom, sleeping and living areas, and that provides, to a person who resides in the place, not more than 28 hours per week of services that are supportive, personal and nursing services. “Residential care apartment complex” does not include a nursing home or a community-based residential facility, but may be physically part of a structure that is a nursing home or community-based residential facility. In this subsection, “stove” means a cooking appliance that is a microwave oven of at least 1,000 watts or that consists of burners and an oven.

50.01(6g) (6g) “Respite care” means care anticipated to be provided in a nursing home for a period of 28 days or less for the purpose of temporarily relieving a family member or other caregiver from his or her daily caregiving duties.

50.01(6r) (6r) “Short-term care” means recuperative care or respite care provided in a nursing home.

50.01(6v) (6v) “Skilled nursing services” means those services, to which all of the following apply, that are provided to a resident under a physician’s orders:

50.01(6v)(a) (a) The services require the skills of and are provided directly by or under the supervision of a person whose licensed, registered, certified or permitted scope of practice is at least equivalent to that of a licensed practical nurse.

50.01(6v)(b) (b) Any of the following circumstances exist:

50.01(6v)(b)1. 1. The inherent complexity of a service prescribed for a resident is such that it can be safely and effectively performed only by or under the supervision of registered nurses or licensed practical nurses.

50.01(6v)(b)2. 2. The full recovery or medical improvement of the resident is not possible, but the services are needed to prevent, to the extent possible, deterioration of the resident’s condition or to sustain current capacities of the resident.

50.01(6v)(b)3. 3. Because of special medical complications, performing or supervising a service that is generally unskilled or observing the resident necessitates the use of a person whose licensed, registered, certified or permitted scope of practice is at least equivalent to that of a licensed practical nurse.

50.01(7) (7) “Violation” means a failure to comply with any provision of this subchapter or administrative rule promulgated thereunder. An alleged deficiency in a nursing home reported in writing to the department by any of its authorized representatives shall not be deemed to be a violation until the department determines it is a violation by serving notice under s. 50.04 (4). If the facility contests the department determination, the facility shall be afforded the due process procedures in this subchapter.

50.01 History History: 1975 c. 413; 1977 c. 170, 418; 1979 c. 111; 1983 a. 189 s. 329 (18); 1985 a. 29, 276; 1985 a. 332 s. 251 (1); 1987 a. 127, 161; 1989 a. 31, 136, 199; 1991 a. 39; 1993 a. 327, 446, 491; 1995 a. 27; 1997 a. 13, 27, 156, 237; 1999 a. 22, 32; 2001 a. 74, 107; 2003 a. 33; 2005 a. 187; 2007 a. 20, 153; 2009 a. 28; 2011 a. 32, 70, 161; 2013 a. 20; 2013 a. 165 s. 114; 2015 a. 55; 2017 a. 135; 2021 a. 23.

50.01 Cross-reference Cross-reference: See s. 46.011 for definitions applicable to chs. 46, 48, 50, 51, 54, 55 and 58.

50.01 Annotation Up to seven hours of nursing care may be provided by a community-based residential facility under sub. (1g). Hacker v. DHSS, 197 Wis. 2d 441, 541 N.W.2d 766 (1995), 93-1043.

50.01 Annotation The department can constitutionally license and regulate community-based residential facilities operated by religious organizations that are not exempt under sub. (1) [now sub. (1g)] or s. 50.03 (9). 71. Atty. Gen. 112.

50.02 50.02 Department; powers and duties.

50.02(1) (1) Departmental authority. The department may provide uniform, statewide licensing, inspection, and regulation of community-based residential facilities and nursing homes as provided in this subchapter. The department shall certify, inspect, and otherwise regulate adult family homes, as specified under s. 50.032 and shall license adult family homes, as specified under s. 50.033. Nothing in this subchapter may be construed to limit the authority of the department of safety and professional services or of municipalities to set standards of building safety and hygiene, but any local orders of municipalities shall be consistent with uniform, statewide regulation of community-based residential facilities. The department may not prohibit any nursing home from distributing over-the-counter drugs from bulk supply. The department may consult with nursing homes as needed and may provide specialized consultations when requested by any nursing home, separate from its inspection process, to scrutinize any particular questions the nursing home raises. The department shall, by rule, define “specialized consultation”.

50.02(2) (2) Standards.

50.02(2)(a) (a) The department, by rule, shall develop, establish and enforce regulations and standards for the care, treatment, health, safety, rights, welfare and comfort of residents in community-based residential facilities and nursing homes and for the construction, general hygiene, maintenance and operation of those facilities which, in the light of advancing knowledge, will promote safe and adequate accommodation, care and treatment of residents in those facilities; and promulgate and enforce rules consistent with this section. Such standards and rules shall provide that intermediate care facilities, which have 16 or fewer beds may, if exempted from meeting certain physical plant, staffing and other requirements of the federal regulations, be exempted from meeting the corresponding provisions of the department’s standards and rules. The department shall consult with the department of safety and professional services when developing exemptions relating to physical plant requirements.

50.02(2)(ad) (ad) The department shall promulgate rules that require each facility licensed under this subchapter to provide information necessary for the department to assess the facility’s compliance with s. 55.14.

50.02(2)(ag) (ag) The department shall, by rule, define “Class A” and “Class C” community-based residential facilities for the purposes of s. 50.035 (3).

50.02(2)(am) (am) The department shall promulgate all of the following rules with respect to adult family homes:

50.02(2)(am)1. 1. For the purposes of s. 50.032, defining the term “permanent basis” and establishing minimum requirements for certification, certification application procedures and forms, standards for operation and procedures for monitoring, inspection, decertification and appeal of decertification. The rules shall be designed to protect and promote the health, safety and welfare of the disabled adults receiving care and maintenance in certified adult family homes.

50.02(2)(am)2. 2. For the purposes of s. 50.033, establishing minimum requirements for licensure, licensure application procedures and forms, standards for operation and procedures for monitoring, inspection, revocation and appeal of revocation.

50.02(2)(b) (b)

50.02(2)(b)1. 1. The department shall conduct plan reviews of all capital construction and remodeling of nursing homes to ensure that the plans comply with building code requirements under ch. 101 and with life safety code and physical plant requirements under s. 49.498, this chapter or under rules promulgated under this chapter.

50.02(2)(b)2. 2. The department shall promulgate rules that establish a fee schedule for its services under subd. 1. in conducting the plan reviews. The schedule established under these rules shall set fees for nursing home plan reviews in amounts that are less than the sum of the amounts required on September 30, 1995, for fees under this paragraph and for fees for examination of nursing home plans under s. 101.19 (1) (a), 1993 stats.

50.02(2)(bm) (bm) The department shall, by rule, define “intermediate nursing care”, “limited nursing care” and “skilled nursing services” for use in regulating minimum hours of service provided to residents of nursing homes.

50.02(2)(bn) (bn) The department may, by rule, increase the minimum hours of nursing home care per day that are specified in s. 50.04 (2) (d) 1. to 3.

50.02(2)(c) (c) If a nursing home is certified as a provider of services under s. 49.45 (2) (a) 11. and is named in a verified complaint filed with the department stating that staffing requirements imposed on the nursing home are not being met, the department shall, in order to verify the staffing requirements, randomly inspect payroll records at the nursing home that indicate the actual hours worked by personnel and the number of personnel on duty. The department may not limit its inspection to schedules of work assignments prepared by the nursing home.

50.02(2)(d) (d) The department shall promulgate rules that prescribe all of the following:

50.02(2)(d)1. 1. The method by which community-based residential facilities shall make referrals to resource centers or county departments under s. 50.035 (4n) and the method by which residential care apartment complexes shall make referrals to resource centers under s. 50.034 (5n).

50.02(2)(d)2. 2. The time period for nursing homes to provide information to prospective residents under s. 50.04 (2g) (a) and the time period and method by which nursing homes shall make referrals to resource centers under s. 50.04 (2h) (a).

50.02(3) (3) Considerations in establishing standards and regulations.

50.02(3)(a) (a) The department shall establish several levels and types of community-based residential facilities and nursing homes as provided in par. (b), including a category or categories designed to enable facilities to qualify for federal funds.

50.02(3)(b) (b) In setting standards and regulations, the department shall consider the residents’ needs and abilities, the increased cost in relation to proposed benefits to be received, the services to be provided by the facility, the relationship between the physical structure and the objectives of the program conducted in the facility and the primary functions of the facility. Recognizing that size and structure will influence the ability of community-based residential facilities to provide a homelike environment, the legislature encourages the department to develop rules which facilitate in particular the development of: small facilities, small living units in larger facilities, individual residential units, independent living to the extent possible, and integration of residents into the community.

50.02(3)(c) (c) The department shall promulgate rules to establish a procedure for waiver of and variance from standards developed under this section. The department may limit the duration of the waiver or variance.

50.02(3)(d) (d) The department shall promulgate rules to establish a procedure for the admission, evaluation and care of short-term care nursing home residents. These rules shall specify that the nursing home or community-based residential facility shall be required to provide to the department as documentation of this admission, evaluation and care only that amount of information commensurate with the length of stay and the medical needs, if any, of the particular resident.

50.02(4) (4) Reports to the board on aging and long-term care. The department shall submit at least one report quarterly to the board on aging and long-term care regarding enforcement actions, consultation, staff training programs, new procedures and policies, complaint investigation and consumer participation in enforcement under this subchapter and changes that may be needed under this subchapter. The department shall submit at least one report annually to the board on aging and long-term care regarding implementation of rules under sub. (3) (d).

50.02(5) (5) Death investigation. No later than 14 days after the date of a death reported under s. 50.035 (5) (b) or 50.04 (2t) (b), the department shall investigate the death.

50.02 History History: 1971 c. 125, 161; 1973 c. 122, 323, 327, 333; 1975 c. 119, 260; 1975 c. 413 ss. 5 to 8; 1977 c. 29, 170, 418; 1981 c. 20, 121, 391; 1983 a. 542; 1985 a. 29; 1987 a. 161; 1989 a. 336; 1991 a. 250; 1993 a. 16, 327; 1995 a. 27 ss. 3222 to 3225, 9116 (5); 1995 a. 98; 1997 a. 237; 1999 a. 9, 103; 2005 a. 264, 387; 2007 a. 20; 2009 a. 28; 2011 a. 32.

50.02 Cross-reference Cross-reference: See also ch. DHS 132 and 134, Wis. adm. code.

50.02 Annotation A municipal ordinance that required registration of nursing homes was in direct conflict with sub. (1) and, therefore, invalid. Volunteers of America v. Village of Brown Deer, 97 Wis. 2d 619, 294 N.W.2d 44 (Ct. App. 1980).

50.02 Annotation Sub. (2) (am) 2. provides that the rules for appealing the revocation of an adult family home operating license are determined by the Department of Health Services. Pursuant to this authority, the department promulgated a rule that states that an appeal from a license revocation must be received within ten days after the date of the notice. Section 801.15 (1) (b), which provides that when a deadline is less than 11 days, weekends and holidays are excluded from the counting period, only applies to proceedings before a circuit court and has no application to an appeal before an administrative agency. Baker v. Department of Health Services, 2012 WI App 71, 342 Wis. 2d 174, 816 N.W.2d 337, 11-1529.

50.02 Annotation The state has given the department preemptive authority over community-based residential facilities and nursing homes. 68 Atty. Gen. 45.