Chapter DHS 88

DHS 88.02(36) (36) “Voluntary” means according to a resident’s free choice if the resident is competent, or by choice of the resident’s guardian if the resident is under guardianship.

DHS 88.02(37) (37) “Volunteer” means a person who provides services for residents without compensation, except for reimbursement for out-of-pocket expenses.

DHS 88.02 History History: Cr. Register, January, 1996, No. 482, eff. 2-1-96; corrections in (4) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, August, 2000, No. 536; correction in (4) (a) made under s. 13.93 (2m) (b) 7., Stats., Register December 2003 No. 576; CR 07-042: cr. (14m), (27g) and (27r) Register October 2007 No. 622, eff. 11-1-07; corrections in (4) (a), (b) and (12) made under s. 13.92 (4) (b) 6. and 7., Stats., Register November 2008 No. 635.

DHS 88.03 DHS 88.03 Licensing administration.

DHS 88.03(1) (1) Requirement. No person may operate an adult family home unless a licensing agency determines that the home is in compliance with all requirements of s. 50.033, Stats., and this chapter, and issues a license to that person.

DHS 88.03(2) (2) Application.

DHS 88.03(2)(a) (a) Application for a license shall be made on a department-approved form available from the licensing agency.

DHS 88.03 Note Note: To obtain a copy of the application form, contact the county agency in which the home is located or write or phone the appropriate regional office of the Department’s Division of Disability and Elder Services. See Appendix A for addresses and phone numbers of the Division of Disability and Elder Services regional offices.

DHS 88.03(2)(b) (b)

DHS 88.03(2)(b)1. 1. Before an applicant may be licensed to operate an adult family home, the applicant shall submit to the licensing agency a completed and signed application form, the program statement described under subd. 2., the licensure fee required under s. 50.033 (2), Stats., and a check or money order in an amount sufficient to cover the fees for conducting the criminal records check required under sub. (3) (b).

DHS 88.03(2)(b)2. 2. A home’s program statement shall describe the number and types of individuals the applicant is willing to accept into the home and whether the home is accessible to individuals with mobility problems. It shall also provide a brief description of the home, its location, the services available, who provides them and community resources available to residents who live within the home. A home shall follow its program statement. If a home makes any change in its program, the home shall revise its program statement and submit it to the licensing agency for approval 30 days before implementing the change.

DHS 88.03(2)(c) (c) An applicant requesting a license shall provide any additional information requested by the licensing agency that may assist the agency in evaluating the applicant or licensee’s character or qualifications. In assessing character and qualifications, the licensing agency may consider evidence of abuse or fraud, substantial or repeated violations of applicable or related statutes and rules in the licensee’s operation of or employment in any service or facility serving adults or children or in the licensee’s care of dependent persons, or a conviction or a pending criminal charge for a crime substantially related to caring for a dependent population or the funds or property of adults or minors or activities of the adult family home.

DHS 88.03(2)(d) (d) If a home is to be licensed as an adult family home and the home is also licensed as a children’s foster home under ch. DCF 56, the combined licensed bed capacity shall not exceed 4.

DHS 88.03(3) (3) Approval process.

DHS 88.03(3)(a) (a) Action by licensing agency. The licensing agency shall review the application form and program statement and any supporting documents, including criminal records checks, and shall interview the applicant and conduct an on-site visit of the home to determine if the requirements for a license set out in this chapter are met. If the requirements for a license are met and the applicant has paid the applicable fees, a license shall be issued. If requirements for a license are not met, the licensing agency shall send a written notice to the applicant stating the reasons for not approving the application and shall inform the applicant of the opportunity for a hearing under sub. (7). The licensing agency shall issue the license or the notice of denial within 70 days after receiving a complete application and the program statement and any supporting documents and following the on-site visit.

DHS 88.03(3)(b) (b) Criminal records check. Prior to issuing an initial license the licensing agency shall ask the Wisconsin department of justice to conduct a criminal records check on the license applicant and on any other adult household member. The licensee shall arrange for a criminal records check of all service providers. At least every second year following the issuance of an initial license the licensing agency shall request a criminal records check on the licensee and all other adult household members and the licensee shall arrange for a criminal records check on any service provider. In addition, during the period of licensure, the licensee shall arrange for a criminal records check on any new service provider. If any of these persons has a conviction record or a pending criminal charge which substantially relates to the care of a dependent population, the funds or property of adults or minors or activities of the adult family home, the licensing agency may deny, revoke, refuse to renew or suspend a license, initiate other enforcement action provided in this chapter or in ch. 50, Stats., or place conditions on the license.

DHS 88.03 Note Note: Examples of actions the Department will consider in making a determination that an act substantially relates to the care of adults or minors, the funds or property of adults or minors or activities of the adult family home are: abuse, neglect, sexual assault, indecent exposure, lewd and lascivious behavior, or any crime involving non-consensual sexual conduct; child abuse, sexual exploitation of children, child abduction, child neglect, contributing to the delinquency or neglect of a child, enticing a child, enticing a child for immoral purposes, exposing a minor to pornography or other harmful materials, incest, or any crime involving children as victims or participants; armed robbery, aggravated battery, false imprisonment, kidnaping, homicide, any crimes involving bodily harm or threat of bodily harm, any crime involving the use of a dangerous weapon or any crime evidencing disregard to health and safety; cruelty, neglect or abandonment of animals and instigating fights between animals; burglary, extortion, forgery, concealing identity, embezzlement and arson; crimes involving a substantial misrepresentation of any material fact to the public including bribery, fraud, racketeering or allowing an establishment to be used for illegal purposes; offenses involving narcotics, alcohol or controlled substances that result in a felony conviction, operating a motor vehicle while under the influence of an intoxicant or other drug, operating after revocation and leaving the scene of an accident after injury or death to a person or damage to a vehicle driven or attended by any person.

DHS 88.03 Note Note: Wisconsin’s Fair Employment Act, ss. 111.31 to 111.395, Stats., prohibits discrimination because of a criminal record or a pending charge, unless the record or charge substantially relates to the circumstances of the particular job or licensed activity.

DHS 88.03(3)(c) (c) Nurse aide registry check. If the applicant, licensee or any non-resident adult living in the home of the applicant or licensee or any other occupant of the home has experience as a nurse assistant, home health aide or hospice aide, as defined under ch. DHS 129, the licensing agency shall check the department’s registry for nurse assistants, home health aides and hospice aides under s. DHS 129.10 to determine if there is on the registry a substantiated finding that the person abused or neglected a client or misappropriated the funds or property of a client. If there is a substantiated finding of one or more of these offenses, the licensing agency may deny, revoke, refuse to renew or suspend a license, initiate other enforcement action provided for in this chapter or in ch. 50, Stats., or place conditions on the license.

DHS 88.03 Note Note: The department’s registry for nurse assistants, home health aides and hospice aides can be reached by calling [phone] to receive the information you need from an automated voice response unit, or you may call [phone].

DHS 88.03 Note Note: Refer to the note under s. DHS 88.03 (3) (b) for examples of actions to be considered in making a determination that an act substantially relates to the care of adults or minors, the funds or property of adults or minors or activities of the adult family home.

DHS 88.03(3)(d) (d) Health check. If the licensing agency suspects or has reason to believe that a license applicant, licensee, service provider or household member may pose a threat to the health, safety or welfare of residents, the licensing agency may require a physical examination, an alcohol or drug abuse assessment or a mental health evaluation of the person as a condition for issuance of a license.

DHS 88.03(4) (4) License issuance.

DHS 88.03(4)(a) (a) An adult family home license is valid indefinitely unless suspended or revoked.

DHS 88.03(4)(b) (b) Every 24 months, on a schedule determined by the department, a licensed adult family home shall submit a biennial report to the licensing agency in the form and containing the information that the department requires, including payment of the fee required under sub. (2). If a complete biennial report is not timely filed, the department shall issue a warning to the licensee. If a licensed adult family home that has not filed a timely report fails to submit a complete report to the licensing agency within 60 days after the date established under the schedule determined by the department, the licensing agency may revoke the license.

DHS 88.03(4)(c) (c) The licensee shall provide, in a format approved by the department, information required by the department to assess the facility’s compliance with s. 55.14, Stats., relating to involuntary administration of psychotropic medication to a resident.

DHS 88.03(5) (5) Changes to be reported to licensing agency. A licensee shall report to the licensing agency within 7 days, unless otherwise specified, the following changes:

DHS 88.03(5)(a) (a) A significant and ongoing change in the type or amount of services the licensee offers to provide if the change adversely affects any resident who needs the service.

DHS 88.03(5)(b) (b) A change in household members except paid staff.

DHS 88.03(5)(c) (c) Within 48 hours, that the licensee or service provider has pending or has been charged with or convicted of any crime which is substantially related to caring for dependent persons.

DHS 88.03(5)(d) (d) A change in the home’s structure or damages to the home that may present a hazard to the residents.

DHS 88.03(5)(e) (e)

DHS 88.03(5)(e)1. 1. Within 24 hours, a significant change in a resident’s status, such as but not limited to an accident requiring hospitalization, missing from the home or a reportable death. A death shall be reported if there is reasonable cause to believe the death was related to use of a physical restraint or psychotropic medication, was a suicide or was accidental.

DHS 88.03(5)(e)2. 2. A death due to incident or accident not related to use of a restraint, psychotropic medications or suicide shall be reported to the licensing agency within 3 days. In addition the home shall;

DHS 88.03(5)(e)2.a. a. Immediately notify the resident’s guardian if any and those identified in s. DHS 88.09 (1) (d) 3.

DHS 88.03(5)(e)2.b. b. Record the date, time and circumstance of the resident’s death in the resident: record, including the name of the person to whom the body is released.

DHS 88.03 Note Note: Deaths not to be reported to the licensing agency are those resulting from natural causes such as heart attach, a stroke or an illness when none of the circumstances in par. (e) 1. and 2. exist.

DHS 88.03 Note Note: Providing notice under this subsection does not relieve the licensee or other persons of any obligation to report an incident to any other agency including law enforcement.

DHS 88.03(6) (6) Action by licensing agency to enforce this chapter.

DHS 88.03(6)(a) (a) Requirement for plan of correction.

DHS 88.03(6)(a)1. 1. A licensing agency when it issues a notice of violation may require the licensee to submit a plan of correction for approval of the licensing agency. The licensee shall submit the plan of correction to the licensing agency not more than 30 days after the date of the notice or within a shorter period of time, as specified by the licensing agency, if the licensing agency determines that continuation of the violation may be harmful to the health, safety, welfare or rights of residents.

DHS 88.03(6)(a)2. 2. The licensing agency may require modifications in a proposed plan of correction before approving it or may substitute its own plan of correction.

DHS 88.03(6)(b) (b) Placing limits on type of individuals. A licensing agency may, at any time, following notice to the licensee and by modifying a license, limit the types of individuals served by an adult family home or the number of residents served by an adult family home for any of the following reasons:

DHS 88.03(6)(b)1. 1. The types of individuals are not compatible.

DHS 88.03(6)(b)2. 2. The licensee and service providers do not have the appropriate training to serve the residents.

DHS 88.03(6)(b)3. 3. The licensee is unable to demonstrate that the needs of residents as identified in their individual service plans under s. DHS 88.06 (3) are being met.

DHS 88.03(6)(c) (c) Placing conditions on license. A licensing agency may place a condition on a license if the licensing agency finds that a condition or occurrence relating to the operation and maintenance of the adult family home directly threatens the health, safety or welfare of a resident.

DHS 88.03(6)(d) (d) Revocation. A licensing agency may revoke an adult family home’s license if the licensing agency determines that the home has intentionally and substantially violated a requirement of this chapter or fails to meet the minimum requirements for licensure. The licensing agency shall give the licensee written notice of revocation and the grounds for the revocation and shall inform the licensee of the right to appeal that decision under sub. (7).

DHS 88.03(6)(e) (e) Suspension. A licensing agency may summarily suspend a license when it finds that there is imminent danger to the health, safety or welfare of the residents in care. A finding of imminent danger may be based on but is not limited to any of the following:

DHS 88.03(6)(e)1. 1. Failure of the licensee to provide environmental protections such as heat, water, electricity or telephone service.

DHS 88.03(6)(e)2. 2. The licensee, a service provider or any other person affiliated with or living in the adult family home or who has contact with residents has been convicted of or has a pending charge for a crime against life or for causing bodily harm.

DHS 88.03(6)(e)3. 3. The licensee, a service provider or any other person living in the adult family home or who has contact with residents has been convicted of a felony, misdemeanor or other offense or has a pending criminal charge which is substantially related to the care of the residents or activities of the home.

DHS 88.03(6)(e)4. 4. The licensee, a service provider or any other person living in the adult family home or who has contact with residents is the subject of a current investigation of alleged abuse or neglect of a resident.

DHS 88.03(6)(f) (f) Injunction. Pursuant to s. 50.033 (5), Stats., a licensing agency may commence an action in circuit court to enjoin the operation of an adult family home that is not licensed under this chapter or that is licensed and has repeatedly used methods of operation in substantial violation of this chapter, or that endangers the health, safety or welfare of any adult receiving care and maintenance in the home.

DHS 88.03(6)(g) (g) Sanctions.

DHS 88.03(6)(g)1. 1. A licensing agency shall provide an adult family home with written notice of any sanction to be imposed on the adult family home. The notice shall include:

DHS 88.03(6)(g)1.a. a. The grounds for a sanction based on an investigation made by the licensing agency.

DHS 88.03(6)(g)1.b. b. An explanation of the types of sanctions that the licensing agency is imposing under this section.

DHS 88.03(6)(g)1.c. c. An explanation of the process under sub. (7) for appealing an appealable sanction.

DHS 88.03(6)(g)2. 2. The licensing agency may order any of the following actions:

DHS 88.03(6)(g)2.a. a. That a person stop conducting, maintaining or operating an adult family home if the adult family home is without a valid license.

DHS 88.03(6)(g)2.b. b. That a licensee stop violating any provision of its license or of this chapter.

DHS 88.03(6)(g)2.c. c. That a licensee submit a plan of correction under par. (a) for violation of any provision of its license or of this chapter.

DHS 88.03(6)(g)2.d. d. That a licensee implement and comply with a plan of correction previously submitted by the licensee and approved by the licensing agency.

DHS 88.03(6)(g)2.e. e. That a licensee implement and comply with a plan of correction developed by the licensing agency.

DHS 88.03(6)(g)2.f. f. That a licensee accept no additional residents until all violations are corrected.

DHS 88.03(6)(g)2.g. g. That a licensee provide or secure training in one or more specific areas for the licensee or service provider.

DHS 88.03(6)(h) (h) Penalties. Pursuant to s. 50.033 (6), Stats., any person who violates s. 50.033, Stats., or this chapter may be fined not more than $500 or imprisoned for not more than one year in the county jail or both.

DHS 88.03(7) (7) Appeal.

DHS 88.03(7)(a) (a) Any person whose application for a license is denied under sub. (3) or revoked under sub. (6) (d) or suspended under sub. (6) (e) may request a hearing on that decision under s. 227.42, Stats.

DHS 88.03(7)(b) (b) A request for a hearing shall be in writing, shall be filed with the department of administration’s division of hearings and appeals and shall be sent to that office so that it is received there within 10 days after the date of the notice under sub. (3), (4) or (6) (d).

DHS 88.03 Note Note: A request for a hearing should be submitted to the Division of Hearings and Appeals, P.O. Box 7875, Madison, Wisconsin 53707.

DHS 88.03(8) (8) Monitoring of home.

DHS 88.03(8)(a) (a) The licensee shall comply with all department and licensing agency requests for information about the residents, services or operation of the home.

DHS 88.03(8)(b) (b) A licensing agency and service coordinator may, without notice, visit a home at any time to evaluate the status of resident health, safety or welfare or to determine if the home continues to comply with this chapter. The licensee shall permit the licensing agency and service coordinator to enter the home.

DHS 88.03(8)(c) (c) A licensing agency may require a licensee to request fire, health, sanitation or safety officials to inspect the home and premises to assist in evaluating the safety of the home. Any inspection shall be at the licensee’s expense.

DHS 88.03 History History: Cr. Register, January, 1996, No. 482, eff. 2-1-96; am. (2) (a), (b) 1., (c), (3) (d), (7) (a), r. and recr. (4), Register, August, 2000, No. 536, eff. 9-1-00; CR 07-042: cr. (4) (c) Register October 2007 No. 622, eff. 11-1-07; corrections in (2) (d) and (3) (c) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.

DHS 88.04 DHS 88.04 Licensee and service provider.

DHS 88.04(1) (1) Qualifications.

DHS 88.04(1)(a) (a) A licensee shall be at least 21 years of age and shall be physically, emotionally and mentally capable of providing care for residents of the adult family home.

DHS 88.04(1)(b) (b) A service provider shall be at least 18 years of age.

DHS 88.04(1)(c) (c) The licensee and service provider shall be persons who are responsible, mature and of reputable character and who exercise and display the capacity to successfully provide care for 3 or 4 unrelated adult residents as identified in the home’s program statement.

DHS 88.04(2) (2) Responsibilities.

DHS 88.04(2)(a) (a) The licensee shall ensure that the home and its operation comply with this chapter and with all other laws governing the home and its operation.

DHS 88.04(2)(b) (b) The licensee shall ensure that he or she or a service provider is present and awake at all times if any resident is in need of continuous care.

DHS 88.04(2)(c) (c) The licensee shall report in writing to the licensing agency any change in the type of individual served at least 30 days before the change. A 30 day written notice of any change in type of individual served shall also be provided to each resident and each resident’s guardian, designated representative, service coordinator, placing agency and third party payee.

DHS 88.04(2)(d) (d) The licensee shall ensure that at least one copy of ch. DHS 88 is in the home at all times and is available for review by any resident, any resident’s guardian or designated representative or any service provider.

DHS 88.04(2)(e) (e)

DHS 88.04(2)(e)1. 1. The licensee shall refer a resident to the county protective services agency designated under s. 55.02, Stats., if the licensee believes the resident is incompetent as defined in s. 54.10 (3), Stats., for an evaluation to determine if a competency proceeding under ch. 54, Stats., is needed.