Chapter DHS 105

DHS 105.14(2)(c) (c) Fit and qualified determination. An applicant may not be certified unless the department determines the applicant is fit and qualified to operate an ADCC. To determine whether a person is fit and qualified, the department shall consider all of the following:

DHS 105.14(2)(c)1. 1. Whether the applicant, any operator, or any non-client residents, as defined in s. 50.065 (1) (cn), Stats., meet the requirements of ch. DHS 12 and s. 50.065, Stats.

DHS 105.14(2)(c)2. 2. The applicant’s history of compliance with Wisconsin or any other state or federal licensing or certification requirements, including any license revocation or denial.

DHS 105.14(2)(c)3. 3. The applicant’s arrest and criminal records, including any of the following:

DHS 105.14(2)(c)3.a. a. Crimes or acts involving abuse, neglect or mistreatment of a person or misappropriation of property of a person.

DHS 105.14(2)(c)3.b. b. Crimes or acts subject to elder abuse reporting under s. 46.90, Stats.

DHS 105.14(2)(c)3.c. c. Crimes or acts related to the manufacture, distribution, use, or dispensing of a controlled substance.

DHS 105.14(2)(c)3.d. d. Fraud or substantial or repeated violations of applicable laws and rules in the operation of any health care center or in the care of dependent persons.

DHS 105.14(2)(c)3.e. e. 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 center.

DHS 105.14(2)(c)4. 4. The financial history and the financial viability of the applicant or the applicant’s organization, including any outstanding debts, fees, or fines due to the department or other government agencies.

DHS 105.14(2)(d) (d) Department action.

DHS 105.14(2)(d)1. 1. Within 70 days of receipt of a complete application, the department shall review the application and either approve or deny certification of the ADCC.

DHS 105.14(2)(d)2. 2. A certification issued by the department shall be only for the premises and operator named in the application. A certification may not be transferred or assigned to another operator without following the change of ownership provisions in par. (i).

DHS 105.14(2)(d)3. 3. A certification is valid until suspended or revoked by the department.

DHS 105.14(2)(d)4. 4. The department shall deny a certification to any applicant who does not substantially comply with any provision of this chapter or ch. 49, Stats., who is not deemed fit and qualified as specified in par. (c), or who has failed to pay any fee or any outstanding amounts due to the department.

DHS 105.14(2)(d)5. 5. The department shall provide the reasons for denial and the process for appeal of the denial in writing to the applicant.

DHS 105.14(2)(e) (e) Monitoring after certification. The department shall conduct periodic inspections of the ADCC during the period of certification and may, without notice to the operator, visit an ADCC at any time to determine if the ADCC is compliant with this section. The operator shall be able to verify compliance with this section and shall provide the department access to the ADCC, its staff, each participant, and records.

DHS 105.14(2)(f) (f) Biennial reporting and fees. Every 24 months, on a date determined by the department, the operator shall submit a biennial report on the form provided by the department, and shall submit payment of the certification continuation fees.

DHS 105.14(2)(g) (g) Sanctions for noncompliance.

DHS 105.14(2)(g)1. 1. ‘Notice of violation.’ The department shall issue a written notice of violation when it finds that an ADCC is in violation of this section or with any federal, state, or local laws and codes that govern the operation of the ADCC. The notice shall explain the grounds for the notice of violation, the sanction to be imposed, if any, and, if certification is suspended or revoked, and the process for an appeal.

DHS 105.14(2)(g)2. 2. ‘Plan of correction.’ An ADCC may submit a written plan of correction to the department within 10 days after the date of receipt of the notice of violation.

DHS 105.14(2)(g)3. 3. ‘Suspension.’ The department may summarily suspend the ADCC’s certification following procedures in ch. 227, Stats., when the department finds that participant health, safety or welfare requires emergency action.

DHS 105.14(2)(g)4. 4. ‘Revocation.’ The department may revoke the ADCC’s certification whenever the department finds that the ADCC has failed to maintain substantial compliance with one or more of the requirements set forth in this section.

DHS 105.14(2)(h) (h) Appeals.

DHS 105.14(2)(h)1. 1. Any person whose application for certification is denied under par. (d) or suspended or revoked under par. (g) 3. or 4. may request a hearing on that decision in accordance with s. 227.42, Stats.

DHS 105.14(2)(h)2. 2. A request for hearing shall be made in writing to the department of administration’s division of hearings and appeals. The request for a hearing must be received by the division of hearings and appeals within 10 days of the department’s written notice of certification denial under par. (d) 5., suspension under par. (g) 3., or revocation under par. (g) 4.

DHS 105.14(2)(i) (i) Change of ownership.

DHS 105.14(2)(i)1. 1. When an ADDC seeks a change of ownership, the transferee shall submit a complete application for certification as required under par. (a) 2. at least 30 days prior to the change of ownership.

DHS 105.14(2)(i)2. 2. If a participant is given less than 30 days’ notice of the change of ownership, neither the transferor nor the transferee may enforce any advanced notice requirements for discharge as specified in any participant’s enrollment agreement.

DHS 105.14(2)(i)3. 3. The transferor shall notify the department within 30 days before a change of ownership of an ADCC and shall include the name and contact information of the transferee.

DHS 105.14(2)(i)4. 4. The transferor remains responsible for the operation of the ADCC until the department issues a certification to the transferee.

DHS 105.14(2)(i)5. 5. The transferor shall disclose to the transferee any waiver or variance granted by the department under sub. (1) (c), or outstanding deficiencies.

DHS 105.14(2)(i)6. 6. Any violation reported in a department inspection report shall be corrected prior to the change of ownership. Any correction must be verified by the department prior to the issuance of the certification to the transferee.

DHS 105.14(2)(i)7. 7. The department shall issue a certification only for the premises and persons named in the certification application. A certification may not be transferred or reassigned without following the change of ownership provisions in this paragraph.

DHS 105.14(2)(j) (j) ADCC closure.

DHS 105.14(2)(j)1. 1. An ADCC that intends to close shall notify the department, each participant or legal representative, and case manager, if any, in writing at least 30 days before closing and comply with the discharge requirements under sub. (5) (c).

DHS 105.14(2)(j)2. 2. The ADCC shall surrender the certification to the department when the ADCC closes.

DHS 105.14(2)(j)3. 3. The ADCC shall surrender its certification if it has not served any participants for 24 months.

DHS 105.14(2)(k) (k) Death reporting requirements.

DHS 105.14(2)(k)1. 1. If a participant dies while at or under the supervision of the ADCC, the ADCC shall report the following to the department no later than 3 days after any of the following occurs:

DHS 105.14(2)(k)1.a. a. Death due to physical restraint, psychotropic medication, or suicide, if there is reasonable cause to believe that the death was related to physical restraint, psychotropic medication, or suicide.

DHS 105.14(2)(k)1.b. b. Death due to accident or injury not attributable to physical restraint, psychotropic medication, or suicide.

DHS 105.14(2)(k)2. 2. An ADCC is not required to report a death to the department if the death is the result of natural causes, and none of the circumstances surrounding the death involve a condition under subd. 1.

DHS 105.14(2)(L) (L) Other reporting requirements. An ADCC shall send a written report to the department within 3 working days after any of the following occurs:

DHS 105.14(2)(L)1. 1. Any time a participant’s whereabouts are unknown, except those instances when a participant who is competent chooses not to disclose his or her whereabouts or location to the ADCC. The ADCC shall also notify the local law enforcement authority immediately upon discovering that a participant is missing.

DHS 105.14(2)(L)2. 2. Any time law enforcement is called to the ADCC as a result of an incident that jeopardizes the health, safety or welfare of a participant or caregiver. The ADCC’s report to the department shall provide a description of the circumstances requiring the law enforcement intervention.

DHS 105.14(2)(L)3. 3. Any incident or accident resulting in serious injury requiring hospital admission or emergency room treatment of a participant.

DHS 105.14(2)(L)4. 4. A catastrophe causing structural damage to the ADCC that results in any change in services provided to the participants.

DHS 105.14(2)(L)5. 5. A fire occurs on the premises of the ADCC.

DHS 105.14(2)(L)6. 6. Anytime the ADCC must evacuate and temporarily relocate participants and caregivers from the ADCC for reasons other than a fire drill.

DHS 105.14(2)(m) (m) Investigation and reporting requirements.

DHS 105.14(2)(m)1. 1. ‘Misconduct reporting.’ When an ADCC receives a report of an allegation of abuse or neglect of a participant, or misappropriation of property, the ADCC shall take immediate action to ensure the safety of each participant and security of their property. The ADCC shall do all of the following:

DHS 105.14(2)(m)1.a. a. Thoroughly investigate any allegation of abuse or neglect of a participant, or misappropriation of property and document all allegations, investigations, and the results of investigations.

DHS 105.14(2)(m)1.b. b. Report incidents to the department when the ADCC’s investigation concludes the alleged abuse, or neglect of a participant or misappropriation of property meets the definition of abuse or neglect of a participant, or of misappropriation of property under ch. DHS 13. The ADCC shall maintain documentation of any investigations.

DHS 105.14 Note Note:  Information and resources for reporting misconduct through the Misconduct Incident Reporting system are available at https://www.dhs.wisconsin.gov/caregiver/complaints.htm.

DHS 105.14(2)(m)1.c. c. Use the form or web-based application provided by the department to submit all reportable incidents to the department within 7 days from the date the ADCC knew or should have known about the abuse, neglect, or misappropriation of property.

DHS 105.14(2)(m)1.d. d. Document its conclusions and rationales in writing if it concludes, after investigation, that the incident did not meet the definition of abuse, neglect, or misappropriation.

DHS 105.14(2)(m)2. 2. ‘Elder abuse and adults-at-risk reporting.’ The ADCC shall follow the elder abuse reporting requirements under s. 46.90, Stats., and the adult at risk requirements under s. 55.043, Stats., whichever is applicable.

DHS 105.14(2)(m)3. 3. ‘Injuries of unknown source.’ When an ADCC receives a report of a participant’s injury with an unknown cause, it shall thoroughly investigate, document, and report an injury of unknown source in a manner consistent with the requirements of subd. 1. or 2. when both of the following conditions are met:

DHS 105.14(2)(m)3.a. a. The source of the injury was not observed by any person or the source of the injury could not be explained by the participant.

DHS 105.14(2)(m)3.b. b. The injury appears suspicious because of the extent of the injury or the location of the injury on the participant.

DHS 105.14(2)(m)3.c. c. The ADCC shall maintain documentation for each investigation of an injury referenced under subd. 3.

DHS 105.14(2)(m)4. 4. ‘Other duties.’ Filing reports under subd. 1. or 2. does not relieve the operator of any obligation to report an incident to any other authority, including law enforcement or the coroner, or both.

DHS 105.14(2)(n) (n) Notification of changes affecting a participant.

DHS 105.14(2)(n)1. 1. The ADCC shall immediately notify the participant’s legal representative and the participant’s residential provider and document the notification when there is an incident or injury to the participant or a significant change in the participant’s physical or mental condition.

DHS 105.14(2)(n)2. 2. The ADCC shall immediately notify the participant’s legal representative and document the notification when there is an allegation of abuse or neglect of the participant.

DHS 105.14(2)(n)3. 3. The ADCC shall notify the participant’s legal representative within 72 hours when there is an allegation of misappropriation of the participant’s property and document the notification.

DHS 105.14(2)(n)4. 4. The ADCC shall give the participant or the participant’s legal representative a 30-day written notice of any change in services available or in charges for services that will be in effect for more than 30 days.

DHS 105.14(2)(o) (o) Documentation requirement. All written reports required under sub. (2) (k) to (n), shall include, at a minimum, all of the following:

DHS 105.14(2)(o)1. 1. The time, date, place, and details of the reportable occurrence.

DHS 105.14(2)(o)2. 2. Any individuals involved in the reportable occurrence.

DHS 105.14(2)(o)3. 3. The action taken by the provider to ensure the health, safety, welfare and well-being of each participant following the reportable occurrence.

DHS 105.14(2)(p) (p) Record retention.

DHS 105.14(2)(p)1. 1. The ADCC shall retain all records required under this section for 2 years, unless otherwise specified in this section.

DHS 105.14(2)(p)2. 2. Participant records shall be retained for 7 years following the date of a participant’s final discharge.

DHS 105.14(2)(p)3. 3. Employee records shall be retained for 3 years following a caregiver’s separation from employment at the ADCC.

DHS 105.14(3) (3) Personnel.

DHS 105.14(3)(a) (a) Operator.

DHS 105.14(3)(a)1. 1. ‘Qualifications.’ An operator shall be at least 21 years old and meet the caregiver background requirements under s. 50.065, Stats., and ch. DHS 12.

DHS 105.14(3)(a)2. 2. ‘Responsibilities.’ An operator shall:

DHS 105.14(3)(a)2.a. a. Ensure the ADCC and its operation comply with all laws governing the ADCC.

DHS 105.14(3)(a)2.b. b. Comply with the requirements set by the Federal 1991 Americans with Disabilities Act, and by the occupation, safety and health administration.

DHS 105.14(3)(a)2.c. c. Develop and implement a procedure for standard precautions.

DHS 105.14(3)(a)2.d. d. Develop and implement written policies and procedures to investigate allegations of abuse, neglect, and misappropriation of property and injuries of unknown source as described in sub. (2) (m).

DHS 105.14(3)(a)2.e. e. Report any change in participant group in writing to the department at least 30 days in advance of the anticipated change. The ADCC shall not implement the change until the operator receives written approval from the department.

DHS 105.14(3)(a)2.f. f. Report any change in the ADCC’s capacity in writing to the department. The operator shall not implement the change in capacity until the operator receives written approval from the department.

DHS 105.14(3)(a)2.g. g. Provide to each participant, the participant’s legal representative, or third party payer, a 30 day written notice of any change in the ADCC’s capacity or client group.

DHS 105.14(3)(a)2.h. h. Post the ADCC certification, any statement of deficiency, notice of revocation and any other notice of enforcement action in a public area that is visually and physically accessible. A statement of deficiency shall remain posted for 90 days following receipt. Notices of revocation or suspension of certification shall remain posted until a final determination is made.

DHS 105.14(3)(a)2.i. i. Prohibit the existence or continuation of any condition which creates or may create a substantial risk to the health, safety, well-being or welfare of any participant.