Chapter DHS 13

Register July 2011 No. 667

Chapter DHS 13

REPORTING AND INVESTIGATION OF CAREGIVER MISCONDUCT

DHS 13.01   Authority and purpose.

DHS 13.02   Applicability.

DHS 13.03   Definitions.

DHS 13.04   Caregiver misconduct registry.

DHS 13.05   Allegations of caregiver misconduct.

Ch. DHS 13 Note Note: Chapter HFS 13 was created as an emergency rule effective October 1, 1998. Chapter HFS 13 was renumbered to chapter DHS 13 under s. 13.92 (4) (b) 1., Stats., and corrections made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 13.01 DHS 13.01 Authority and purpose. This chapter is promulgated under the authority of ss. 146.40 (4g) and (4r) and 227.11 (2), Stats., to protect clients served in specified department-regulated programs by establishing a process for reporting allegations of abuse or neglect of a client or misappropriation of client’s property to the department, establishing a process for the investigation of those allegations and establishing the due process rights of persons who are subjects of the investigations.

DHS 13.01 History History: Cr. Register, June, 1999, No. 522, eff. 7-1-99.

DHS 13.02 DHS 13.02 Applicability. This chapter applies to the department, to all specified department-licensed, certified, approved or registered entities and to all persons employed by or under contract with an entity and who have access to the entity’s clients and who are under the entity’s control.

DHS 13.02 History History: Cr. Register, June, 1999, No. 522, eff. 7-1-99.

DHS 13.03 DHS 13.03 Definitions. In this chapter:

DHS 13.03(1) (1) 

DHS 13.03(1)(a) (a) “Abuse” means any of the following:

DHS 13.03(1)(a)1. 1. An act or repeated acts by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that, when contrary to the entity’s policies and procedures, not a part of the client’s treatment plan and done intentionally to cause harm, does any of the following:

DHS 13.03(1)(a)1.a. a. Causes or could reasonably be expected to cause pain or injury to a client or the death of a client, and the act does not constitute self-defense as defined in s. 939.48, Stats.

DHS 13.03(1)(a)1.b. b. Substantially disregards a client’s rights under ch. 50 or 51, Stats., or a caregiver’s duties and obligations to a client.

DHS 13.03(1)(a)1.c. c. Causes or could reasonably be expected to cause mental or emotional damage to a client, including harm to the client’s psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward aggressive behavior, agitation, or a fear of harm or death, or a combination of these behaviors. This subdivision does not apply to permissible restraint, isolation, or confinement implemented by order of a court or as permitted by statute.

DHS 13.03(1)(a)2. 2. An act or acts of sexual intercourse or sexual contact under s. 940.225, Stats., by a caregiver and involving a client.

DHS 13.03(1)(a)3. 3. The forcible administration of medication to or the performance of psychosurgery, electroconvulsive therapy or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.

DHS 13.03(1)(a)4. 4. A course of conduct or repeated acts by a caregiver which serve no legitimate purpose and which, when done with intent to harass, intimidate, humiliate, threaten or frighten a client, causes or could reasonably be expected to cause the client to be harassed, intimidated, humiliated, threatened or frightened.

DHS 13.03(1)(b) (b) “Abuse” does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

DHS 13.03(2) (2) “Access,” when used in reference to a person’s access to clients, means that in the course of performing the person’s expected duties for or functions with the entity, or as a nonclient resident of the entity, the person has or may have direct, regular contact with clients served by the entity.

DHS 13.03(3) (3) 

DHS 13.03(3)(a) (a) “Caregiver” means a person who is all of the following:

DHS 13.03(3)(a)1. 1. A person who has received regulatory approval from an agency or is employed by or under contract with an entity.

DHS 13.03(3)(a)2. 2. A person who has access to the entity’s clients.

DHS 13.03(3)(a)3. 3. A person who is under the entity’s control.

DHS 13.03(3)(b) (b) “Caregiver” does not include any of the following:

DHS 13.03(3)(b)1. 1. A person who performs solely clerical, administrative, maintenance or other support functions for the entity and is not expected to have regular, direct contact with clients or the personal property of clients.

DHS 13.03(3)(b)2. 2. A person who is employed by or under contract with an entity to provide infrequent or occasional services, such as delivering items to the facility, equipment maintenance, groundskeeping, construction or other similar services that are not directly related to the care of a client.

DHS 13.03(4) (4) “Caregiver misconduct registry” means information collected and preserved in a database by the department on all caregivers who have been found to have abused or neglected a client or misappropriated a client’s property, except for persons licensed, permitted, certified or registered under ch. 441, 448, 449, 450, 451, 455 or 459, Stats.

DHS 13.03(5) (5) “Caregiver registry” means the registry required under s. 146.40 (4g), Stats., which consists of 2 lists, the list under s. DHS 129.10 of nurse aides qualified by training and testing to work in a hospital or nursing home or for a home health agency or hospice program, and the caregiver misconduct registry, which includes nurse aides, under this chapter.

DHS 13.03(6) (6) “Client” means a person who receives care or treatment from an entity.

DHS 13.03(7) (7) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.

DHS 13.03(8) (8) “Credential” means a license, permit or certificate of certification or registration issued under chs. 440 to 480, Stats.

DHS 13.03(9) (9) “Department” means the Wisconsin department of health services.

DHS 13.03(10) (10) “Employed by” means working for another for compensation on a full-time, part-time, temporary or per diem basis.

DHS 13.03(11) (11) “Entity” has the meaning given in s. 50.065 (1) (c), Stats.

DHS 13.03 Note Note: Entities include those facilities, organizations or services that are licensed or certified by, approved by or registered with the department under the following chapters of the department’s administrative rules:
  DHS 34   Emergency mental health service programs
  DHS 35   Outpatient mental health clinics
  DHS 36   Comprehensive community services
  DHS 40   Mental health day treatment services for children
  DHS 50   Youth crisis stabilization facilities
  DHS 61   Community mental health, alcoholism and other drug abuse
    (AODA) program
  DHS 63   Community support programs for chronically mentally ill persons
  DHS 75   Community substance abuse standards
  DHS 83   Community-based residential facilities
  DHS 88   Licensed adult family homes
  DHS 89   Residential care apartment complexes
  DHS 105.17 Personal care agencies
  DHS 110   Ambulance service providers
  DHS 124   Hospitals
  DHS 127   Rural medical centers
  DHS 131   Hospices
  DHS 132   Nursing homes
  DHS 133   Home health agencies
  DHS 134   Facilities serving people with developmental disabilities

DHS 13.03(12) (12) “Misappropriation of property” means any of the following:

DHS 13.03(12)(a) (a) The intentional taking, carrying away, using, transferring, concealing or retaining possession of a client’s movable property without the client’s consent and with the intent to deprive the client of possession of the property.

DHS 13.03(12)(b) (b) Obtaining property of a client by intentionally deceiving the client with a false representation which is known to be false, made with the intent to defraud, and which does defraud the person to whom it is made. In this paragraph, “false representation” includes a promise made with the intent not to perform it if it is a part of a false and fraudulent scheme.

DHS 13.03(12)(c) (c) By virtue of his or her office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally using, transferring, concealing, or retaining possession of the money, security, instrument, paper or writing without the owner’s consent, contrary to his or her authority, and with the intent to convert it to his or her own use or to the use of any other person except the owner.

DHS 13.03(12)(d) (d) Intentionally using or attempting to use personal identifying information as defined in s. 943.201 (1) (b), Stats., or an individual’s birth certificate or financial transaction card as defined in s. 943.41 (1) (em), Stats., to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual.

DHS 13.03(12)(e) (e) Violating s. 943.38, Stats., involving the property of a client, or s. 943.41, Stats., involving fraudulent use of a client’s financial transaction card.

DHS 13.03(13) (13) “Misconduct” means abuse or neglect of a client or misappropriation of a client’s property.

DHS 13.03(14) (14) 

DHS 13.03(14)(a) (a) “Neglect” means an intentional omission or intentional course of conduct by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that is contrary to the entity’s policies and procedures, is not part of the client’s treatment plan and, through substantial carelessness or negligence, does any of the following:

DHS 13.03(14)(a)1. 1. Causes or could reasonably be expected to cause pain or injury to a client or the death of a client.

DHS 13.03(14)(a)2. 2. Substantially disregards a client’s rights under either ch. 50 or 51, Stats., or a caregiver’s duties and obligations to a client.

DHS 13.03(14)(a)3. 3. Causes or could reasonably be expected to cause mental or emotional damage to a client, including harm to the client’s psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward behavior, agitation, fear of harm or death, or a combination of these behaviors. This paragraph does not apply to permissible restraint, isolation or confinement implemented by order of a court or as permitted by statute.

DHS 13.03(14)(b) (b) “Neglect” does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

DHS 13.03(15) (15) “Nonclient resident” has the meaning specified in ss. 48.685 (1) (bm) and 50.065 (1) (cn), Stats.

DHS 13.03(16) (16) “Nurse aide” has the meaning given in s. DHS 129.03 (30).

DHS 13.03(17) (17) “Reasonable cause” means that the greater weight of evidence provides a reasonable ground for belief that the individual committed the act as alleged.

DHS 13.03(18) (18) “Under the entity’s control” means a person employed by or under contract with the entity for whom the entity does 2 or more of the following: