50.035(11)(b)(b) The department may directly assess forfeitures provided for under par. (a). If the department determines that a forfeiture should be assessed for a particular violation, it shall send a notice of assessment to the community-based residential facility. The notice shall specify the amount of the forfeiture assessed, the violation and the statute or rule alleged to have been violated, and shall inform the licensee of the right to a hearing under par. (c). 50.035(11)(c)(c) A community-based residential facility may contest an assessment of a forfeiture by sending, within 10 days after receipt of notice under par. (b), a written request for a hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division 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 of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for a 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 party, other than the petitioner, who was in the proceeding before the division shall be the named respondent. 50.035(11)(d)(d) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under par. (c), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order. The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund. 50.035(11)(e)(e) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this section if the forfeiture 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 has been paid. 50.035 Cross-referenceCross-reference: See also ch. DHS 83, Wis. adm. code. 50.03750.037 Community-based residential facility licensing fees. 50.037(1)(1) Definition. In this section, “total monthly charges” means the total amount paid per month, including the basic monthly rate plus any additional fees, for care, treatment and services provided to a resident of a community-based residential facility by a community-based residential facility. 50.037(2)(a)1.1. Except as provided in subd. 2., the biennial fee for a community-based residential facility is $389, plus a biennial fee of $50.25 per resident, based on the number of residents that the facility is licensed to serve. 50.037(2)(a)2.2. The department may, by rule, increase the amount of the fee under subd. 1. 50.037(2)(b)(b) Fees specified under par. (a) shall be paid to the department by the community-based residential facility before the department may issue a license under s. 50.03 (4) (a) 1. b. A licensed community-based residential facility shall pay the fee under par. (a) by the date established by the department. A newly licensed community-based residential facility shall pay the fee under this subsection no later than 30 days before the opening of the facility. 50.037(2)(c)(c) A community-based residential facility that fails to submit the biennial fee prior to the date established by the department, or a new community-based residential facility subject to this section that fails to submit the biennial fee by 30 days prior to the opening of the new community-based residential facility, shall pay an additional fee of $10 per day for every day after the deadline that the facility does not pay the fee. 50.037(3)(3) Exemption. Community-based residential facilities where the total monthly charges for each resident do not exceed the monthly state supplemental payment rate under s. 49.77 (3s) that is in effect at the time the fee under sub. (2) is assessed are exempt from this section. 50.0450.04 Special provisions applying to licensing and regulation of nursing homes. 50.04(1)(1) Applicability. This section applies to nursing homes as defined in s. 50.01 (3). 50.04(1m)(1m) Definitions. In this section, “class “C” repeat violation” means a class “C” violation by a nursing home under the same statute or rule under which, within the previous 2 years, the department has served the nursing home a notice of violation or a correction order or has made a notation in the report under sub. (3) (b). 50.04(2)(a)(a) No nursing home within the state may operate except under the supervision of an administrator licensed under ch. 456 by the nursing home administrators examining board. If the holder of a nursing home license is unable to secure a new administrator because of the departure of an administrator, such license holder may, upon written notice to the department and upon the showing of a good faith effort to secure a licensed administrator, place the nursing home in the charge of an unlicensed individual subject to conditions and time limitations established by the department, with advice from the nursing home administrator examining board. An unlicensed individual who administers a nursing home as authorized under this subsection is not subject to the penalty provided under s. 456.09. 50.04(2)(b)(b) Each nursing home shall employ a charge nurse. The charge nurse shall either be a licensed practical nurse acting under the supervision of a professional nurse or a physician, or shall be a professional nurse. The department shall, by rule, define the duties of a charge nurse. 50.04(2)(c)1.1. Except as provided in subd. 2., beginning July 1, 1988, the department shall enforce nursing home minimum staffing requirements based on daily staffing levels. 50.04(2)(c)2.2. The department may enforce nursing home minimum staffing requirements based on weekly staffing levels for a nursing home if the secretary determines that the nursing home is unable to comply with nursing home minimum staffing requirements based on daily staffing levels because: 50.04(2)(c)2.a.a. The nursing home minimum staffing requirements based on daily staffing levels violate the terms of a collective bargaining agreement that is in effect on December 8, 1987; or 50.04(2)(c)2.b.b. A shortage of nurses or nurse aides available for employment by the nursing home exists. 50.04(2)(d)(d) Each nursing home, other than nursing homes that primarily serve the developmentally disabled, shall provide at least the following hours of service by registered nurses, licensed practical nurses, or nurse aides and may not use hours of service by a feeding assistant, as defined in s. 146.40 (1) (aw), in fulfilling these requirements: 50.04(2)(d)1.1. For each resident in need of intensive skilled nursing care, 3.25 hours per day, of which a minimum of 0.65 hour shall be provided by a registered nurse or licensed practical nurse. 50.04(2)(d)2.2. For each resident in need of skilled nursing care, 2.5 hours per day, of which a minimum of 0.5 hour shall be provided by a registered nurse or licensed practical nurse. 50.04(2)(d)3.3. For each resident in need of intermediate or limited nursing care, 2.0 hours per day, of which a minimum of 0.4 hour shall be provided by a registered nurse or licensed practical nurse. 50.04(2d)(2d) Accompaniment or visitation. If a nursing home has a policy on who may accompany or visit a patient, the nursing home shall extend the same right of accompaniment or visitation to a patient’s domestic partner under ch. 770 as is accorded the spouse of a patient under the policy. 50.04(2g)(2g) Provision of information required. 50.04(2g)(a)(a) A nursing home shall, within the time period after inquiry by a prospective resident that is prescribed by the department by rule, inform the prospective resident of the services of a resource center under s. 46.283, the family care benefit under s. 46.286, and the availability of a functional screening and a financial and cost-sharing screening to determine the prospective resident’s eligibility for the family care benefit under s. 46.286 (1). 50.04(2h)(a)(a) A nursing home shall, within the time period prescribed by the department by rule, refer to a resource center under s. 46.283 a person who is seeking admission, who is at least 65 years of age or has developmental disability or physical disability and whose disability or condition is expected to last at least 90 days, unless any of the following applies: 50.04(2h)(a)1.1. For a person for whom a screening for functional eligibility under s. 46.286 (1) (a) has been performed within the previous 6 months, the referral under this paragraph need not include performance of an additional functional screening under s. 46.283 (4) (g). 50.04(2h)(a)2.2. The person is seeking admission to the nursing home only for respite care. 50.04(2h)(a)3.3. The person is an enrollee of a care management organization. 50.04(2h)(a)4.4. For a person who seeks admission or is about to be admitted on a private pay basis and who waives the requirement for a financial and cost-sharing screening under s. 46.283 (4) (g), the referral under this subsection may not include performance of a financial and cost-sharing screening under s. 46.283 (4) (g), unless the person is expected to become eligible for medical assistance within 6 months. 50.04(2r)(2r) Admissions requiring approval. Except in an emergency, a nursing home that is not certified as a provider of medical assistance or that is an intermediate care facility for persons with an intellectual disability, as defined in s. 46.278 (1m) (am), or an institution for mental diseases, as defined under 42 CFR 435.1009, may not admit as a resident an individual who has a developmental disability, as defined in s. 51.01 (5), or who is both under age 65 and has mental illness, as defined in s. 51.01 (13), unless the county department under s. 46.23, 51.42 or 51.437 of the individual’s county of residence has recommended the admission. 50.04(2t)(a)1.b.b. A device or garment that interferes with an individual’s freedom of movement and that the individual is unable to remove easily. 50.04(2t)(a)1.c.c. Restraint by a facility staff member of a resident by use of physical force. 50.04(2t)(a)2.2. “Psychotropic medication” means an antipsychotic, antidepressant, lithium carbonate or a tranquilizer. 50.04(2t)(b)(b) No later than 24 hours after the death of a resident of a nursing home, the nursing home shall report the death to the department if one of the following applies: 50.04(2t)(b)1.1. There is reasonable cause to believe that the death was related to the use of physical restraint or a psychotropic medication. 50.04(2t)(b)3.3. There is reasonable cause to believe that the death was a suicide. 50.04(2v)(2v) Posting of notice required. A nursing home shall post in a conspicuous location in the nursing home all of the following: 50.04(2v)(a)(a) A notice, provided by the board on aging and long-term care, of the name, address and telephone number of the long-term care ombudsman program under s. 16.009 (2) (b). 50.04(2v)(b)(b) The most recent copy of the report for the nursing home that is specified under s. 50.095 (3). 50.04(3)(a)(a) Inspection. The department shall make or cause to be made at least one inspection biennially of each nursing home. The department may determine if conditions and practices comply with applicable standards by examining only a portion of the residents, records or physical plant when it conducts an inspection. 50.04(3)(b)(b) Biennial report. The department shall make at least one report on each nursing home in the state biennially. All conditions and practices not in compliance with applicable standards within the last 2 years shall be specifically stated. If a violation is corrected, is contested or is subject to an approved plan of correction, the same shall be specified in the biennial report. The department shall send a copy of the report to the nursing home and shall provide a copy to any person on request. The department may charge a reasonable fee to cover copying costs. 50.04(3)(c)(c) Posting of notice. The nursing home administrator shall retain a copy of the most recent biennial report prepared by the department under par. (b) and shall post in a place readily visible to residents and visitors, such as the lobby or reception area of the facility, a notice stating that a copy of the report is available for public inspection on request to the administrator and that a copy will be provided by the department upon request for a minimal fee. 50.04(3)(d)(d) Survey of institutions for mental diseases. During inspections conducted under par. (a), the department shall conduct a survey to determine whether any nursing home that is licensed under this section is an institution for mental diseases, as defined under 42 CFR 435.1009. 50.04(4)(4) Notice of violation; correction. 50.04(4)(a)1.1. Except as provided in par. (am) 2., if upon inspection or investigation the department determines that a nursing home is in violation of this subchapter or the rules promulgated under it and the violation is a class “A” or “B” violation, it shall promptly serve a notice of violation upon the licensee. Each notice of violation shall be prepared in writing and shall specify the nature of the violation, and the statutory provision or rule alleged to have been violated. The notice shall inform the licensee of the right to a hearing under par. (e). The written notice of a class “A” violation may be written and served by an agent of the department at the time of the inspection. 50.04(4)(a)1g.a.a. If upon inspection or investigation the department determines that a nursing home is in violation of this subchapter or the rules promulgated under it and the violation is a class “C” violation, the department may serve a correction order upon the licensee unless the nursing home corrects the violation before the completion of the inspection or investigation. If the correction is made before the completion of the inspection or investigation, the department may make a notation in the report under sub. (3) (b) that shall specify the nature of the violation and the statute or rule alleged to have been violated. 50.04(4)(a)1g.b.b. If upon inspection or investigation the department determines that a nursing home is in violation of this subchapter or the rules promulgated under it and the violation is a class “C” repeat violation, the department may serve a correction order or notice of violation upon the nursing home. If the nursing home corrects the violation before completion of the inspection or investigation, the department may, as an alternative to serving a correction order or notice of violation, make a notation in the report under sub. (3) (b) that shall specify the nature of the violation and the statute or rule alleged to have been violated. 50.04(4)(a)1m.1m. A correction order shall be prepared in writing and shall specify the nature of the violation, the statutory provision or rule alleged to have been violated and the date by which the violation shall be corrected. The department may grant an extension of the date for correction specified in the correction order. The nursing home shall correct the class “C” violation by the date specified in the correction order or the extended date, if granted. 50.04(4)(a)1r.1r. The department may serve a notice of violation on a nursing home determined to be in violation of this subchapter or the rules promulgated under it for a class “C” violation if either of the following conditions apply: 50.04(4)(a)1r.a.a. The nursing home fails to make a correction by the date specified in a correction order served under subd. 1g. b. or by an extension of the date, if granted. 50.04(4)(a)1r.b.b. The violation is a class “C” repeat violation, regardless of whether a correction order has first been served. 50.04(4)(a)2.2. The department is not required to serve a notice of violation if each of the following conditions exists: 50.04(4)(a)2.a.a. The nursing home brings the violation to the department’s attention. 50.04(4)(a)2.b.b. The nursing home has made every reasonable effort to prevent and correct the violation, but the violation occurred and remains uncorrected due to circumstances beyond the nursing home’s control, or the nursing home has corrected the violation. 50.04(4)(a)3.3. The department is not required to serve a notice of a class “C” violation if it finds that the nursing home is in substantial compliance with the specific rule violated. 50.04(4)(am)1.1. Notwithstanding s. 50.01 (3), in this paragraph, “nursing home” does not include a facility serving people with developmental disabilities. 50.04(4)(am)2.2. If an act or omission constitutes a violation of this subchapter or the rules promulgated under this subchapter, s. 49.498, or requirements under 42 CFR 483 related to the operation of a nursing home, the department may not issue under par. (a) a notice of violation of this subchapter, the rules promulgated under this subchapter, or s. 49.498 if the department has, in a statement of deficiency, cited the nursing home for the violation under requirements under 42 CFR 483 related to the operation of a nursing home. 50.04(4)(b)1.1. A class “A” violation is a violation of this subchapter or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a nursing home presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom. 50.04(4)(b)2.2. A class “B” violation is a violation of this subchapter or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a nursing home directly threatening to the health, safety or welfare of a resident. 50.04(4)(b)3.3. A class “C” violation is a violation of this subchapter or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a nursing home which does not directly threaten the health, safety or welfare of a resident. 50.04(4)(b)4.4. Each day of violation constitutes a separate violation. Except as provided in sub. (5) (a) 4., 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 home has received a variance or waiver of a standard. 50.04(4)(c)1.1. The situation, condition or practice constituting a class “A” violation or immediate jeopardy shall be abated or eliminated immediately unless a fixed period of time, as determined by the department and specified in the notice of violation, is required for correction. If the class “A” violation or immediate jeopardy is not abated or eliminated within the specified time period, the department shall maintain an action in circuit court for injunction or other process against the licensee, owner, operator, administrator or representative of the facility to restrain and enjoin violation of applicable rules, regulations and statutes. 50.04(4)(c)2.2. At the time of issuance of a notice of a class “B” or “C” violation, the department shall request a plan of correction which is subject to the department’s approval. The nursing home shall have 10 days after receipt of notice of violation in which to prepare and submit a plan of correction but the department may extend this period up to 30 days where correction involves substantial capital improvement. The plan shall include a fixed time period within which violations are to be corrected. If the nursing home plan of correction is substantially in compliance, it may be modified upon agreement between the department and the nursing home to achieve full compliance. If it rejects a plan of correction, the department shall send notice of the rejection and the reason for the rejection to the nursing home and impose a plan of correction. The imposed plan of correction may be modified upon agreement between the department and the nursing home. 50.04(4)(c)3.3. If the violation has been corrected prior to submission and approval of a plan of correction, the nursing home may submit a report of correction in place of a plan of correction. Such report shall be signed by the administrator under oath. 50.04(4)(c)4.4. Upon a licensee’s petition, the department shall determine whether to grant a licensee’s request for an extended correction time. Such petition must be served on the department prior to expiration of the correction time originally approved. The burden of proof is on the petitioner to show good cause for not being able to comply with the original correction time approved.
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Chs. 46-58, Charitable, Curative, Reformatory and Penal Institutions and Agencies
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