Chapter DHS 89

DHS 89.27(2)(b)2. 2. Any supplemental fees for services not covered in the service agreement or other agreement between the facility and the tenant.

DHS 89.27(2)(c) (c) Policies and procedures.

DHS 89.27(2)(c)1. 1. ‘Additional services.’

DHS 89.27(2)(c)1.a. a. Types of additional services which the facility would make available or which the facility would assist in arranging for a tenant during acute episodes, following release from the hospital or during other periods when the tenant may experience temporary needs.

DHS 89.27(2)(c)1.b. b. Policies and procedures regarding services which the tenant arranges to receive from providers other than the residential care apartment complex.

DHS 89.27(2)(c)2. 2. ‘Termination or transfer.’ Grounds for termination of the contract between the tenant and the facility or relocation of the tenant to another residence and the procedure for tenant participation in decisions regarding termination and relocation. Conditions for termination contained in the service agreement shall not be contrary to the requirements relating to contract termination contained in s. DHS 89.29 (3).

DHS 89.27(2)(c)3. 3. ‘Tenant’s rights.’ The residential care apartment complex’s policies relating to tenant rights, including at a minimum, the rights identified in subch. III.

DHS 89.27(2)(c)4. 4. ‘Dispute resolution.’ The facility’s internal grievance procedure for resolving tenant complaints.

DHS 89.27(3) (3) Other specifications.

DHS 89.27(3)(a) (a) Only services selected and agreed to by the tenant may be included in the service agreement.

DHS 89.27(3)(b) (b) A service agreement may not waive any of the provisions of this chapter or other rights of the tenant.

DHS 89.27(3)(c) (c) The service agreement shall be presented in language and a format that make it possible for tenants to readily identify the type, amount, frequency and cost of services they receive, the qualifications of the staff providing those services and whether the services are provided directly by the facility or by subcontract.

DHS 89.27(3)(d) (d) The initial service agreement and any renewals of the service agreement shall be dated and signed by a representative of the facility; by the tenant or by the tenant’s guardian, if any, and all other persons with legal authority to make health care or financial decisions for the tenant; and by the county for a tenant whose services are funded under s. 46.277, Stats. The facility shall provide a copy of the service agreement to all parties who signed the agreement.

DHS 89.27 Note Note: Persons with legal authority to make health care or financial decisions for the tenant include agents designated under an activated power of attorney for health care under ch. 155, Stats., and durable power of attorney under ch. 244, Stats.

DHS 89.27(3)(e) (e) The service agreement shall be completed by the date of admission.

DHS 89.27(4) (4) Review and update. The service agreement shall be reviewed when there is a change in the comprehensive assessment or at the request of the facility or at the request or on behalf of the tenant and shall be updated as mutually agreed to by all parties to the agreement.

DHS 89.27 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; CR 23-046: am. (3) (d) Register April 2024 No. 820, eff. 5-1-24.

DHS 89.28 DHS 89.28 Risk agreement.

DHS 89.28(1) (1) Requirement. As a protection for both the individual tenant and the residential care apartment complex, a residential care apartment complex shall enter into a signed, jointly negotiated risk agreement with each tenant by the date of occupancy.

DHS 89.28(2) (2) Content. A risk agreement shall identify and state all of the following:

DHS 89.28(2)(a) (a) Risk to tenants.

DHS 89.28(2)(a)1. 1. Any situation or condition which is or should be known to the facility which involves a course of action taken or desired to be taken by the tenant contrary to the practice or advice of the facility and which could put the tenant at risk of harm or injury.

DHS 89.28(2)(a)2. 2. The tenant’s preference concerning how the situation is to be handled and the possible consequences of acting on that preference.

DHS 89.28(2)(a)3. 3. What the facility will and will not do to meet the tenant’s needs and comply with the tenant’s preference relative to the identified course of action.

DHS 89.28(2)(a)4. 4. Alternatives offered to reduce the risk or mitigate the consequences relating to the situation or condition.

DHS 89.28(2)(a)5. 5. The agreed-upon course of action, including responsibilities of both the tenant and the facility.

DHS 89.28(2)(a)6. 6. The tenant’s understanding and acceptance of responsibility for the outcome from the agreed-upon course of action.

DHS 89.28(2)(b) (b) Unmet needs. Any needs identified in the comprehensive assessment which will not be provided for by the facility, either directly or under contract.

DHS 89.28(2)(c) (c) Notice regarding enforcement in registered facilities. For registered facilities only, notice that the department does not routinely inspect registered facilities or verify their compliance with this chapter and does not enforce contractual obligations under the service or risk agreements.

DHS 89.28(3) (3) No waiver of rules or rights. A risk agreement may not waive any provision of this chapter or any other right of the tenant.

DHS 89.28(4) (4) Obligation to negotiate in good faith. Neither the tenant nor the facility shall refuse to accept reasonable risk or insist that the other party accept unreasonable risk.

DHS 89.28(5) (5) Signed and dated. The risk agreement shall be signed and dated by both an authorized representative of the residential care apartment complex and by the tenant or the tenant’s guardian and agents designated under an activated power of attorney for health care under ch. 155, Stats., and durable power of attorney under ch. 244, Stats., if any.

DHS 89.28(6) (6) Updating. The risk agreement shall be updated when the tenant’s condition or service needs change in a way that may affect risk, as indicated by a review and update of the comprehensive assessment, by a change in the service agreement or at the request of the tenant or facility.

DHS 89.28 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; correction in (5) made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

DHS 89.29 DHS 89.29 Admission and retention of tenants.

DHS 89.29(1) (1) Admission. No residential care apartment complex may admit any of the following persons, unless the person being admitted shares an apartment with a competent spouse or other person who has legal responsibility for the individual:

DHS 89.29(1)(a) (a) A person who has a court determination of incompetence and is subject to guardianship under ch. 54, Stats.

DHS 89.29(1)(b) (b) A person who has an activated power of attorney for health care under ch. 155, Stats.

DHS 89.29(1)(c) (c) A person who has been found by a physician or psychologist to be incapable of recognizing danger, summoning assistance, expressing need or making care decisions

DHS 89.29 Note Note: This requirement is included because tenants need to be competent to understand and express their needs and preferences, enter into a service agreement and understand and accept risk.

DHS 89.29(1m) (1m) Family care information and referral. If the secretary of the department has certified that a resource center, as defined in s. DHS 10.13 (42), is available for the residential care apartment complex under s. DHS 10.71, the residential care apartment complex shall provide information to prospective residents and refer residents and prospective residents to the aging and disability resource center as required under s. 50.034 (5m) and (5n), Stats., and s. DHS 10.73.

DHS 89.29(2) (2) Retention.

DHS 89.29(2)(a) (a) A residential care apartment complex may retain a tenant whose service needs can be met by the facility or can be met with services made available by another provider.

DHS 89.29(2)(b) (b) A residential care apartment complex may retain a tenant who becomes incompetent or incapable of recognizing danger, summoning assistance, expressing need or making care decisions, provided that the facility ensures all of the following:

DHS 89.29(2)(b)1. 1. That adequate oversight, protection and services are provided for the individual.

DHS 89.29(2)(b)2. 2. That the tenant has a guardian appointed under ch. 54, Stats., or has an activated power of attorney for health care under ch. 155, Stats., or a durable power of attorney under ch. 244, Stats., or both. The activated power of attorney for health care or durable power of attorney shall, either singly or together, substantially cover the person’s areas of incapacity.

DHS 89.29(2)(b)3. 3. That both the service agreement and risk agreement are signed by the guardian and by the health care agent or the agent with power of attorney, if any.

DHS 89.29 Note Note: Facilities are permitted the option of retaining tenants who become incompetent or incapable of recognizing danger, summoning assistance, expressing need or making care decisions because familiar surroundings and routines are an important component of dementia care and in order to accommodate aging in place.

DHS 89.29(2)(c) (c) No owner, operator, staff member or family member of a person connected with a residential care apartment complex may serve as a guardian, representative payee or other financial conservator for a tenant of the facility.

DHS 89.29(3) (3) Termination of contract.

DHS 89.29(3)(a) (a) Reasons. A residential care apartment complex may terminate its contract with a tenant when any of the following conditions apply:

DHS 89.29(3)(a)1. 1. Except as provided under par. (b), the tenant’s needs cannot be met at the level of service which facilities are required to make available to tenants under s. DHS 89.23 (2).

DHS 89.29(3)(a)2. 2. Except as provided under par. (b), the time required to provide supportive, personal and nursing services to the tenant exceeds 28 hours per week.

DHS 89.29(3)(a)3. 3. Except as provided under par. (b), the tenant’s condition requires the immediate availability of a nurse 24 hours a day.

DHS 89.29(3)(a)4. 4. The tenant is adjudicated incompetent under ch. 54, Stats., has an activated power of attorney for health care under ch. 155, Stats., or has been found to be incapable of recognizing danger, summoning assistance, expressing need or making care decisions by 2 physicians or by one physician and one licensed psychologist who have personally examined the tenant and signed a statement specifying that the person is incapable.

DHS 89.29(3)(a)5. 5. The tenant’s behavior or condition poses an immediate threat to the health or safety of self or others. Mere old age, eccentricity or physical disability, either singly or together, are insufficient to constitute a threat to self or others.

DHS 89.29(3)(a)6. 6. The tenant refuses to cooperate in an examination by a physician or licensed psychologist of his or her own choosing to determine his or her health or mental status for the purpose of establishing appropriateness for retention or termination.

DHS 89.29(3)(a)7. 7. The tenant’s fees have not been paid, provided the tenant and the tenant’s designated representative, where appropriate, were notified and given reasonable opportunity to pay any deficiency.

DHS 89.29(3)(a)8. 8. The tenant refuses to enter into a negotiated risk agreement or refuses to revise the risk agreement when there is a documented and significant medical reason for doing so.

DHS 89.29(3)(a)9. 9. The presence of any condition identified as grounds for termination in the service agreement, provided that these grounds are not inconsistent with requirements contained in subds. 1. to 8.

DHS 89.29(3)(b) (b) Supplemental services as an alternative to termination. A residential care apartment complex shall not terminate its contract with a tenant for a reason under par. (a) 1. to 3. if the tenant arranges for the needed services from another provider consistent with s. DHS 89.24 (2) (b) and any unmet needs or disputes regarding potentially unsafe situations are documented in a risk agreement.

DHS 89.29(3)(c) (c) Procedures for termination.

DHS 89.29(3)(c)1. 1.

DHS 89.29(3)(c)1.a. a. Except as provided under subd. 2., a residential care apartment complex shall provide 30 days advance notice of termination to the tenant and the tenant’s designated representative, if any. If there is no designated representative, the facility shall notify the county department of social or human services under s. 46.21, 46.22 or 46.23, Stats.

DHS 89.29(3)(c)1.b. b. Notice of termination shall include the grounds for termination and information about how to file a grievance consistent with the termination and grievance policies and procedures contained in the service agreement.

DHS 89.29(3)(c)1.c. c. The 30-day notice period required for termination may include the period covered by a notice of nonpayment of fees and opportunity to pay any deficiency as required under par. (a) 7., provided that notice of termination is included with the notice of non-payment of fees.

DHS 89.29(3)(c)2. 2. No 30-day notice is required in an emergency. In this subdivision, “emergency” means an immediate and documented threat to the health or safety of the tenant or of others in the facility.

DHS 89.29(3)(d) (d) Failure to meet requirements of this chapter. If the requirements of this chapter are violated by either the facility or the tenant, the party which is not in violation may terminate the contract on 30 days written notice without financial penalty.

DHS 89.29 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98; corrections in (1) (a), (2) (b) 2. and (3) (a) 4. made under s. 13.93 (2m) (b) 7., Stats., Register October 2007 No. 622; correction in (1m) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; correction in (2) (b) 2. made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667; CR 23-046: am. (1m) Register April 2024 No. 820, eff. 5-1-24.

DHS 89.295 DHS 89.295 Variance for demonstration projects in family care pilots.

DHS 89.295(1) (1) In this section, “variance” means permission to meet a requirement of this subchapter by an alternative means.

DHS 89.295(2) (2) The purpose of a variance granted under this section is to demonstrate efficient ways of delivering and assuring the quality of supportive, personal and nursing services in conjunction with delivery of the family care benefit as defined in s. 46.2805 (4), Stats.

DHS 89.295(3) (3) The department may grant a variance to a requirement of this subchapter when it is demonstrated to the satisfaction of the department that granting the variance is consistent with the purpose of the demonstration and will not jeopardize the health, safety, welfare or rights of any resident in the residential care apartment complex. The department may place a time limit and conditions on the variance.

DHS 89.295(4) (4) A request for variance shall be submitted to the department in writing and shall include all of the following:

DHS 89.295(4)(a) (a) The efficiencies and quality assurance approaches to be demonstrated through the variance.

DHS 89.295(4)(b) (b) Identification of each requirement from which the variance is requested.

DHS 89.295(4)(c) (c) A description of the alternative means by which the facility will meet the intent of the requirements to be varied.

DHS 89.295(4)(d) (d) A plan for meeting the care needs and ensuring the health, safety and welfare of tenants.

DHS 89.295(4)(e) (e) An agreement to provide information to and to cooperate with the department in monitoring and evaluating the quality and cost effectiveness of the demonstration.

DHS 89.295(4)(f) (f) A letter of support for the variance from the care management organization as defined in s. 46.2805 (1), Stats., serving the area where the facility is located.

DHS 89.295(4)(g) (g) Documentation that the facility has a contract with a care management organization, as defined in s. 46.2805 (1), Stats., for services to its enrollees.

DHS 89.295 History History: Cr. Register, October, 2000, No. 538, eff. 11-1-00.

subch. III of ch. DHS 89 Subchapter III — Tenant Rights

DHS 89.31 DHS 89.31 Applicability. The provisions of this subchapter apply to all registered and certified residential care apartment complexes.

DHS 89.31 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.32 DHS 89.32 Facility policies and procedures. A residential care apartment complex shall establish written policies regarding tenant rights. Facility policies shall be consistent with and include all of the rights contained in this subchapter.

DHS 89.32 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.

DHS 89.33 DHS 89.33 Explanation of tenant rights. A residential care apartment complex shall explain and provide copies of the tenant rights under this subchapter and of any related facility policies and procedures to the tenant and to his or her designated representative before the service agreement or any other written agreement between the tenant and the facility is signed. A copy of the rights and related policies shall be posted in a public place in the facility where they will be visible to tenants, visitors and staff.

DHS 89.33 History History: Cr. Register, February, 1997, No. 494, eff. 3-1-97; am. Register, November, 1998, No. 515, eff. 12-1-98.