DHS 85.01DHS 85.01 Purpose and authority. This chapter is promulgated under the authority of ss. 54.15 (7) and 227.11 (2) (a), Stats., to establish the criteria by which the department determines whether a private nonprofit corporation organized under ch. 181, 187, or 188, Stats., or an unincorporated association is suitable to perform the duties of a guardian of the person, or of the estate, or both, of a proposed ward. DHS 85.01 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10. DHS 85.02DHS 85.02 Applicability. This rule applies to private non-profit corporations or unincorporated associations applying to the department for consideration of suitability to perform the duties of guardian of a person or of an estate, or both, of a proposed ward. DHS 85.02 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10. DHS 85.03DHS 85.03 Definitions. As used in this chapter: DHS 85.03(1)(1) “Applicant” means a private nonprofit corporation or an unincorporated association that applies to the department for a finding of suitability to perform the duties of a corporate guardian. DHS 85.03(2)(2) “Corporate guardian” or “guardian” means a private nonprofit corporation or an unincorporated association appointed by a court to serve as guardian of the person, or of the estate, or both, of an individual who is found by a court to be in need of a guardian. DHS 85.03(3)(3) “Department” means the Wisconsin department of health services. DHS 85.03(6)(6) “Guardianship program” means a system that is established by a corporate guardian to manage the income and assets and provide for the essential requirements for health and safety and the personal needs of its wards under ch. 54, Stats. DHS 85.03(7)(7) “Guardianship program manager” means an employee designated by a corporate guardian, who is responsible for the management and day–to-day operation of the guardianship program. DHS 85.03(8)(8) “Guardian representative” means an individual assigned by a guardian to perform the functions of the guardian of the person under s. 54.25 (1) and (2), Stats., or of the estate under ss. 54.19 and 54.20, Stats., or both, of a ward. DHS 85.03(10)(10) “Unincorporated association” is an organization organized under ch. 184, Stats. DHS 85.03 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10; reprinted to correct error Register June 2010 No. 654. DHS 85.04(1)(a)(a) “Variance” means the granting of an alternate requirement in place of a requirement of this chapter. DHS 85.04(1)(b)(b) “Waiver” means the granting of an exemption from a requirement of this chapter. DHS 85.04(2)(2) Requirements for waivers and variances. The department may grant a waiver or variance of a requirement of this chapter to the corporate guardian if the department finds that the waiver or variance will not adversely affect the health, safety, or welfare of any ward and meet any of the following conditions: DHS 85.04(2)(a)(a) Strict enforcement of a requirement would result in unreasonable hardship on the ward. DHS 85.04(2)(b)(b) An alternative to a requirement, including a new concept, method, procedure or technique, other equipment, other personnel qualifications, or the conducting of a pilot project, is in the interests of better care or management. DHS 85.04(3)(3) Applying for a waiver or variance. A corporate guardian may apply for a waiver or variance at any time. Each request shall be made in writing to the department and include all of the following: DHS 85.04(3)(a)(a) The rule provision from which the waiver or variance is requested. DHS 85.04(3)(b)(b) The time period for which the waiver or variance is requested. DHS 85.04(3)(c)(c) If the request is for a variance, the specific proposed alternative action. DHS 85.04(4)(a)(a) The department shall grant or deny each request for waiver or variance in writing. A notice of denial shall contain the reasons for denial. If a notice of denial is not issued within 60 days after the receipt of a complete request, the waiver or variance shall be automatically approved. DHS 85.04(4)(b)(b) The terms of a requested variance may be modified upon agreement between the department and the corporate guardian. DHS 85.04(4)(c)(c) The department may impose conditions on the waiver or variance which it deems necessary. DHS 85.04(4)(d)(d) The department may limit the duration of a waiver or variance. DHS 85.04(5)(a)(a) Denial of a request for a waiver or variance may be contested by requesting a hearing as provided by ch. 227, Stats. DHS 85.04(5)(b)(b) The applicant shall sustain the burden of proving that the denial of a waiver or variance was unreasonable. DHS 85.04(6)(6) Revocation. The department may revoke a waiver or variance for any of the following reasons: DHS 85.04(6)(a)(a) The department determines that the waiver or variance is adversely affecting the health, safety or welfare of the wards. DHS 85.04(6)(b)(b) The guardian has failed to comply with the waiver or variance as granted. DHS 85.04(6)(c)(c) The guardian notifies the department in writing of the desire to relinquish the waiver or variance and be subject to the requirement previously waived or varied. DHS 85.04 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10. DHS 85.05DHS 85.05 Application. In this chapter: Only a private nonprofit corporation or an unincorporated association may apply to the department for a determination that the corporation or association is suitable to perform the duties of a guardian. A corporation or association applying for such a determination shall apply to the department on an application form provided by the department. The applicant shall submit the completed application and all of the following to the department: DHS 85.05(1)(1) The filed endorsement of the Articles of Incorporation submitted to the Wisconsin department of financial institutions, if applicable. DHS 85.05(2)(2) A copy of the applicant’s written grievance procedure for use by wards and interested parties. DHS 85.05(3)(3) A business plan that includes staffing projections. DHS 85.05(4)(4) A statement agreeing in writing to submit such reports and answer such questions as the department shall require in monitoring a corporate guardian. DHS 85.05(5)(5) Any additional information requested by the department. DHS 85.05 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10. DHS 85.06DHS 85.06 Criteria for approval. The department may not approve an applicant until the department determines the applicant is fit and qualified to receive a determination of suitability to perform the duties of a corporate guardian. In determining whether an applicant is fit and qualified, the department may consider all of the following: DHS 85.06(1)(1) Compliance history with Wisconsin’s or any other state’s licensing requirements and with any federal certification requirements, including any license revocation or denial. DHS 85.06(2)(2) Arrest history and criminal record, including any of the following: DHS 85.06(2)(a)(a) Crimes or acts involving abuse, neglect or mistreatment of a person or misappropriation of property of the person. DHS 85.06(2)(b)(b) Crimes or acts related to the manufacture, distribution, prescription, use, or dispensing of a controlled substance. DHS 85.06(2)(c)(c) Fraud or substantial or repeated violations of applicable laws and rules in the operation of any health care facility or in the care of dependent persons. DHS 85.06(2)(d)(d) A conviction or pending criminal charge which substantially relates to the care of adults or minors, to the funds or property of adults or minors, or to the operation of a residential or health care facility or agency. DHS 85.06(3)(3) Financial stability, including all of the following: DHS 85.06(3)(a)(a) Financial history and financial viability of the owner or related organization. DHS 85.06(3)(b)(b) Outstanding debts or amounts due to the department or other government agencies, including unpaid forfeitures and fines. DHS 85.06 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10. DHS 85.07(1)(1) If a corporate guardian sells or otherwise transfers ownership of the corporation or the association, the guardian shall notify each of its wards, the department, the court which ordered the guardianship, the county department designated under s. 55.02 (2), Stats., and all agencies or persons serving the ward in writing at least 30 days before the final transfer of ownership. This notice shall include the name and contact information of the new corporation. DHS 85.07(2)(2) The corporate guardian shall remain responsible for each ward until a successor guardian is appointed by the court. DHS 85.07(3)(3) The corporate guardian shall transfer the original records of its wards to the successor guardian appointed by the court. DHS 85.07 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10. DHS 85.08DHS 85.08 Corporate guardian closing. DHS 85.08(1)(1) If a guardian is a corporation and the corporation’s corporate status is revoked by the department of financial institutions or is voluntarily or involuntarily dissolved, or if the guardian is an unincorporated association and the association’s status is voluntarily or involuntarily dissolved by the members or a court, or becomes inactive, the guardian shall notify each of its wards, the department, the court which ordered the guardianship, the county department designated under s. 55.02 (2), Stats., and all agencies or persons serving the ward in writing at least 30 days before the corporation closes. DHS 85.08(2)(2) The corporate guardian shall remain responsible for each ward until a successor guardian is appointed by the court. DHS 85.08(3)(3) The corporate guardian shall transfer the original records of its wards to the successor guardian appointed by the court. DHS 85.08 HistoryHistory: CR 09-061: cr. Register May 2010 No. 653, eff. 6-1-10. DHS 85.09(1)(a)(a) The guardian shall designate an employee who is 21 years or older and is fit and qualified under s. DHS 85.06, to manage its guardianship program. DHS 85.09(1)(b)(b) The guardianship program manager shall have a high school diploma or its equivalent and have at least 3 years of relevant experience. DHS 85.09(1)(c)(c) The guardianship program manager shall be responsible for the ongoing training and competency of all employees. DHS 85.09(1)(d)(d) Any change of guardianship program manager shall be communicated to the department and the county department designated under s. 55.02 (2), Stats., within 14 days following the effective date of the change. DHS 85.09(2)(a)(a) Except at provided in sub. (1) (a) each employee shall have the skills, education and ability to fulfill the employee’s job requirements. DHS 85.09(2)(b)(b) An employee that has direct contact with a ward shall be at least 18 years old. DHS 85.09(3)(3) Background check. At the time of hire, employment or contract and every four years after, the corporate guardian shall conduct and document a caregiver background check on each employee following the procedures in s. 50.065, Stats., and ch. DHS 12. A guardian may not employ or contract with a person who has been convicted of the crimes or offenses, or has a governmental finding of misconduct, found in s. 50.065, Stats., unless the person has been approved under the department’s rehabilitation review process as defined in ch. DHS 12. DHS 85.09(4)(4) Employee records. A separate record for each employee shall be maintained, kept current, and include all of the following: DHS 85.09(4)(a)(a) A written job description including duties, responsibilities and qualifications required for the employee.
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Chs. DHS 30-100; Community Services
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