DHS 89.15 HistoryHistory: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; correction made under s. 13.92 (4) (b) 7., Stats., Register February 2015 No. 710. DHS 89.21DHS 89.21 Applicability. The provisions of this subchapter apply to all residential care apartment complexes. DHS 89.22(1)(1) Compliance with applicable codes. A residential care apartment complex shall comply with all applicable statutes, rules and regulations. DHS 89.22 NoteNote: The Wisconsin department of safety and professional services considers residential care apartment complexes to be multifamily dwellings subject to the code in effect at the time of construction.
DHS 89.22(2)(a)(a) Independent apartments. All living units in a residential care apartment complex shall be independent apartments. DHS 89.22(2)(b)(b) Physical features. Each independent apartment shall have at least the following: DHS 89.22(2)(b)1.1. An individual lockable entrance and exit. A single door may serve as both entrance and exit. Keys to the door to the independent apartment and to the residential care apartment complex shall be supplied to the tenant. DHS 89.22(2)(b)2.2. A kitchen. The kitchen shall be a visually and functionally distinct area within the apartment. The refrigerator shall have a freezer compartment. The sink shall have hot and cold running water. The stove shall be designed so that it can be disconnected, if necessary, for tenant safety. DHS 89.22(2)(b)3.3. An individual bathroom. The bathroom shall not be shared with or accessed from any other living unit. DHS 89.22(2)(b)4.4. Sleeping and living areas. The sleeping and living areas shall each be visually and functionally distinct areas within the apartment but need not be separate rooms. These areas shall contain sufficient space so that the tenant does not have to either sleep in the living area or use the sleeping area for eating, socializing or other general living uses and so that the tenant has the ability, if he or she so wishes, to arrange furniture in a way that provides some visual privacy for the sleeping area. DHS 89.22(2)(c)1.1. Each apartment shall contain a minimum of 250 square feet of interior floor space, excluding closets. DHS 89.22(2)(c)2.2. Each independent apartment shall be of adequate size and configuration to permit tenants to carry out, with or without assistance, all the functions necessary for independent living, including sleeping; sitting; dressing; personal hygiene; storing, preparing, serving and eating food; storing clothing and other personal possessions; doing personal correspondence and paperwork; and entertaining visitors. DHS 89.22(2)(d)(d) Multiple occupancy. Multiple occupancy of an independent apartment shall be limited to a spouse or a roommate chosen at the initiative of the tenant. DHS 89.22(2)(e)1.1. In this paragraph, “variance” means permission to meet a requirement by an alternative means. A variance granted under this paragraph shall not exempt a facility from any other applicable rule, regulation or ordinance. DHS 89.22(2)(e)2.2. The department may grant a variance to the minimum floor space requirement under par. (c) 1. provided that the variance does not reduce the minimum floor space requirement under par. (c) 1. by more than 10%. DHS 89.22(2)(e)3.3. A variance may be granted only when a building or portion of a building constructed or under construction prior to the effective date of this rule is converted to a residential care apartment complex and the variance does not adversely affect the ability of the residential care apartment complex to meet the tenants’ needs and does not jeopardize the health, safety or independence of the tenants. DHS 89.22(2)(e)4.4. A request for a variance shall be submitted to the department in writing and shall identify the requirement from which the variance is requested, the justification for the variance, and the alternative means by which the facility will meet the intent of the requirement. The department shall respond in writing to a request for a variance. DHS 89.22 NoteNote: A request for a variance should be sent to: Bureau of Quality Assurance, Division of Disability and Elder Services, P.O. Box 7851, Madison, WI 53707.
DHS 89.22(3)(3) Accessibility of public and common use areas. All public and common use areas of a residential care apartment complex shall be accessible to and useable by tenants who use a wheelchair or other mobility aid consistent with the accessibility standards contained in ch. SPS 362. All areas for tenant use within the facility shall be accessible from indoors. DHS 89.22(4)(a)(a) Physical and programmatic separation. A residential care apartment complex shall be both physically and programmatically distinct from any nursing home, community-based residential facility or hospital to which it is attached or of which it is a part. DHS 89.22 NoteNote: This does not require separation between a residential care apartment complex and congregate housing, housing for the elderly or other purely residential use. For example, residential care apartment complex apartments may be interspersed with non-assisted living apartment units in the same building and a residential care apartment complex may share dining room and other common space with an attached apartment building.
DHS 89.22(4)(b)(b) Physical separation. Tenants shall not be required to first enter or pass through a portion of the health care facility or community-based residential facility in order to enter a residential care apartment complex. Similarly, people shall not be required to pass through the residential care apartment complex in order to enter a health care facility or community-based residential facility. A residential care apartment complex may share a common lobby and access area of a multipurpose building and may be entered via elevator from the lobby or access area. A dining room or activity area may be shared, provided it is not scheduled for concurrent use by residents of the health care facility or community-based residential facility and tenants of the residential care apartment complex. DHS 89.22(4)(c)(c) Program separation. Residential care apartment complex services shall be made available in the residential care apartment complex. Tenants of the residential care apartment complex shall not be required to go to a community-based residential facility or health care facility to receive supportive, personal or nursing services included in the service agreement. Nor shall tenants of a health care facility or community-based residential facility be required to receive services in a residential care apartment complex. DHS 89.22 NoteNote: This requirement does not prohibit voluntary sharing of activities; sharing of other services, such as physical therapy; sharing of administrative functions; or sharing of the space devoted to such activities, services or functions with the attached facility. Neither does it restrict sharing of space or activities with congregate housing, housing for the elderly or other purely residential uses.
DHS 89.22 HistoryHistory: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; correction in (3) made under s. 13.93 (2m) (b) 7., Stats., Register December 2004 No. 588; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register January 2012 No. 673. DHS 89.23(1)(1) General requirement. A residential care apartment complex shall provide or contract for services that are sufficient and qualified to meet the care needs identified in the tenant service agreements, to meet unscheduled care needs of its tenants and to make emergency assistance available 24 hours a day. DHS 89.23(2)(a)1.1. In this paragraph, “capacity to provide” means that the facility is able to provide the minimum required services to any tenant who needs or develops a need for those services. DHS 89.23 NoteNote: A residential care apartment complex should be able to respond to changes in its tenants’ need for the minimum required services by revising the service agreements and, if necessary, by either adjusting its staffing plan or contracting for services from other providers.
DHS 89.23(2)(a)2.2. A residential care apartment complex shall have the capacity to provide all of the following services to all tenants, either directly or under contract: DHS 89.23(2)(a)2.a.a. Supportive services: meals, housekeeping in tenants’ apartments, laundry service and arranging access to medical services. In this subparagraph, “access” means arranging for medical services and transportation to medical services. DHS 89.23(2)(a)2.b.b. Personal services: daily assistance with all activities of daily living which include dressing, eating, bathing, grooming, toileting, transferring and ambulation or mobility. DHS 89.23(2)(a)2.c.c. Nursing services: health monitoring, medication administration and medication management. DHS 89.23(2)(a)3.3. A residential care apartment complex shall ensure that sufficient services are available to meet care needs identified in each tenant’s service agreement. DHS 89.23(2)(a)4.4. Services above the minimum required levels may be made available at the option of the facility. DHS 89.23(2)(a)5.5. A facility is not required to provide or be staffed to provide services which are not needed, are not included in the service agreements or are above the minimum required levels. DHS 89.23(2)(b)1.1. The number, assignment and responsibilities of staff shall be adequate to provide all services identified in the tenants’ service agreements. DHS 89.23(2)(b)2.2. Staff assignments shall include sufficient time necessary to permit staff to assist tenants with unscheduled care needs. DHS 89.23(2)(c)(c) Emergency assistance. A residential care apartment complex shall ensure that tenant health and safety are protected in the event of an emergency and shall have the capacity to provide emergency assistance 24 hours a day. A residential care apartment complex shall have a written emergency plan which describes staff responsibilities and procedures to be followed in the event of fire, sudden serious illness, accident, severe weather or other emergency and is developed in cooperation with local fire and emergency services. DHS 89.23(3)(a)(a) Residential care apartment complex services shall be provided by qualified staff, consistent with the requirements under sub. (4). DHS 89.23(3)(b)(b) Services shall be provided in the type, amount and frequency identified in the service agreements. DHS 89.23(3)(c)(c) Services to meet both scheduled and unscheduled care needs shall be provided in a timely manner. DHS 89.23(3)(d)(d) Services shall be appropriate to the needs, abilities and preferences of tenants as identified in the comprehensive assessment, service agreement and risk agreement. DHS 89.23(3)(e)(e) Services shall be provided in a manner which respects tenant privacy, enhances tenant self-reliance and supports tenant autonomy in decision-making, including the right to accept risk. DHS 89.23(3)(f)(f) Meals and snacks served to tenants shall be prepared, stored and served in a safe and sanitary manner. DHS 89.23(4)(a)1.1. Residential care apartment complex services shall be provided by staff who are trained in the services that they provide and are capable of doing their assigned work. Any service provider employed by or under contract to a residential care apartment complex shall meet applicable federal or state standards for that service or profession. DHS 89.23(4)(a)2.2. Nursing services and supervision of delegated nursing services shall be provided consistent with the standards contained in the Wisconsin nurse practice act. Medication administration and medication management shall be performed by or, as a delegated task, under the supervision of a nurse or pharmacist. DHS 89.23 NoteNote: The nurse practice act is published as “Wisconsin Statutes and Administrative Code Relating to the Practice of Nursing” and is available from the Department of Safety and Professional Services, Board of Nursing, P.O. Box 8935, Madison, WI 53708.
DHS 89.23(4)(a)3.3. Personal and supportive services shall be provided by staff who have documented training or experience in needs and techniques for assistance with tenant care and activities of daily living, such as bathing, grooming, skin care, transfer, ambulation, exercise, meal preparation and eating assistance, dressing, and use of adaptive aids and equipment. DHS 89.23(4)(b)1.1. Each residential care apartment complex shall have a designated service manager who shall be responsible for day-to-day operation of, including ensuring that the services provided are sufficient to meet tenant needs and are provided by qualified persons; that staff are appropriately trained and supervised; that facility policies and procedures are followed; and that the health, safety and autonomy of the tenants are protected. The service manager shall be capable of managing a multi-disciplinary staff to provide services specified in the service agreements. DHS 89.23(4)(b)2.2. A person shall be designated to be in charge of the facility whenever there is not a service manager present. The person in charge shall be competent to supervise staff of the residential care apartment complex. The person in charge shall be available to the residential care apartment complex and shall be identified to and easily reachable by all tenants and staff. In this subdivision “available” means accessible and able to ensure that services are provided to tenants as required under sub. (1). The person in charge is available if he or she is either present in the facility or present, awake and on duty in an attached or adjacent residential, health care or other similar facility and able to be physically present in the facility on short notice. DHS 89.23(4)(c)(c) Freedom from abuse, neglect and exploitation. A residential care apartment complex shall ensure that tenants are free from abuse, neglect or financial exploitation by the facility or its staff. A residential care apartment complex shall not employ an individual who has been convicted of a crime that is substantially related to the circumstances of the job or for whom there is a substantiated finding of abuse or neglect or misappropriation of property in the department’s registry for nurse aides, home health aides and hospice aides. The facility shall conduct a criminal records check with the Wisconsin department of justice and shall check with the department’s registry for nurse aides, home health aides and hospice aides when hiring a service manager, service providers and other persons to work in the facility or have contact with tenants. DHS 89.23 NoteNote: Substantiated findings of client abuse or neglect or misappropriation of client property are recorded in the department’s registry which can be accessed 24 hours a day by calling (608) 266-5545. See ch. DHS 12 for required background checks including a criminal record check. DHS 89.23(4)(d)1.1. All facility staff shall have training in safety procedures, including fire safety, first aid, universal precautions and the facility’s emergency plan, and in the facility’s policies and procedures relating to tenant rights. DHS 89.23(4)(d)2.2. Staff providing residential care apartment complex services to tenants shall have documented training or experience in the following areas: DHS 89.23(4)(d)2.a.a. Physical, functional and psychological characteristics associated with aging or likely to be present in the tenant population and their implications for service needs. DHS 89.23(4)(d)2.b.b. The purpose and philosophy of assisted living, including respect for tenant privacy, autonomy and independence. DHS 89.23(4)(d)2.c.c. Assigned duties and responsibilities, including the needs and abilities of individual tenants for whom staff will be providing care. DHS 89.23(5)(5) Documentation. A residential care apartment complex shall document that the requirements for provider qualifications have been met. DHS 89.23(6)(6) Written staffing plan. A residential care apartment complex shall maintain an up-to-date, written staffing plan which describes how the facility is staffed to provide services that are sufficient to meet tenant needs and that are provided by qualified staff. The facility shall inform current and prospective tenants and their representatives about the existence and availability of the staffing plan and shall provide copies of the plan upon request. DHS 89.24(1)(1) Limit on hours of service provided. A residential care apartment complex shall provide not more than 28 hours per week of supportive, personal and nursing services to each tenant. There is no limit on the type or amount of other services, activities or amenities which the facility provides. DHS 89.24 NoteNote: Some individuals may initially need little or no service but, over time, may need more services up to the full 28 hours per week.
DHS 89.24(2)(2) Amount of service provided to individual tenants. DHS 89.24(2)(a)(a) Services provided by the residential care apartment complex. The amount of supportive, personal and nursing service which a facility provides to a tenant, either directly or under contract, shall be determined by the tenant’s needs and preferences, as documented in the service agreement. A residential care apartment complex shall not limit the hours of service it makes available for an individual tenant to less than 28 hours per week if needed by the tenant. DHS 89.24(2)(b)(b) Services from providers other than the residential care apartment complex. DHS 89.24(2)(b)1.1. A tenant may contract for additional services not included in the service agreement from providers of the tenant’s choice, so long as the tenant informs the facility, complies with applicable facility policies and procedures and agrees to have the arrangements reflected in the risk agreement. Except as limited by a facility under subd. 3., there is no restriction on the amount or type of service which a tenant may receive from providers other than the facility. DHS 89.24(2)(b)2.2. A residential care apartment complex may approve the provider of supportive, personal or nursing services for any particular tenant and require that providers of these services comply with established facility standards and policies. DHS 89.24(2)(b)3.3. A residential care apartment complex may only limit the amount of supportive, personal and nursing service a tenant purchases from outside providers when the total amount of supportive, personal and nursing services that the tenant receives from all paid providers exceeds 28 hours per week. A facility may not limit the amount of hospice care a tenant receives or the amount of unpaid services provided by the tenants family or friends. A facility may not limit the amount of recuperative care which a tenant receives, provided the recuperative care will not raise the total service level above 28 hours per week for more than 90 days. DHS 89.24(3)(a)(a) Purpose. A residential care apartment complex shall compute hours of service provided to an individual tenant when necessary for the purpose of determining whether the 28 hour per week limit on services under sub. (1) has been reached and making related decisions about the appropriateness of continued residency in the facility. The computation may be initiated by the facility or at the request of the tenant, the tenant’s family or other representative, or the department. Facilities are not required to continually document the amount of time spent in providing services to each tenant. DHS 89.24 NoteNote: This requirement is intended solely for the purpose of determining whether a person can appropriately reside in a residential care apartment complex. It is not intended for the purposes of documenting or billing for services provided or for determining facility staffing levels.
