Chapter DHS 132

DHS 132.14(1m)(a) (a) Requirements. The department may grant a facility a license to operate as an institution for mental diseases if the following conditions are met:

DHS 132.14(1m)(a)1. 1. The conversion of all or some of the beds within the facility will result in a physically identifiable unit of the facility, which may be a ward, contiguous wards, a wing, a floor or a building, and which is separately staffed;

DHS 132.14(1m)(a)2. 2. The IMD shall have a minimum of 16 beds;

DHS 132.14(1m)(a)3. 3. The conversion of beds to or from an IMD shall not increase the total number of beds within the facility; and

DHS 132.14(1m)(a)4. 4. The facility has submitted an application under subs. (2) and (3) to convert all or a portion of its beds to an IMD and the department has determined that the facility is in substantial compliance with this chapter. A facility may not submit an application for conversion of beds to or from an IMD more than 2 times a year.

DHS 132.14(1m)(b) (b) Exclusion. An existing facility applying to be licensed in whole or part as an IMD is not subject to prior review under ch. 150, Stats.

DHS 132.14(2) (2) Application. Application for a license shall be made on a form provided by the department.

DHS 132.14 Note Note: To obtain a copy of the application form for a license to operate a nursing home, write: Division of Quality Assurance, P.O. Box 2969, Madison, Wisconsin 53701-2969.

DHS 132.14(3) (3) Requirements for licensure.

DHS 132.14(3)(a) (a) In every application the license applicant shall provide the following information:

DHS 132.14(3)(a)1. 1. The identities of all persons or business entities having the authority, directly or indirectly, to direct or cause the direction of the management or policies of the facility;

DHS 132.14(3)(a)2. 2. The identities of all persons or business entities having any ownership interest whatsoever in the facility, whether direct or indirect, and whether the interest is in the profits, land or building, including owners of any business entity which owns any part of the land or building;

DHS 132.14(3)(a)3. 3. The identities of all creditors holding a security interest in the premises, whether land or building; and

DHS 132.14(3)(a)4. 4. In the case of a change of ownership, disclosure of any relationship or connection between the old licensee and the new licensee, and between any owner or operator of the old licensee and the owner or operator of the new licensee, whether direct or indirect.

DHS 132.14(3)(a)5. 5. Disclosure of any financial failures directly or indirectly involving any person or business entity identified in the application concerning the operation of a residential or health care facility that resulted in any debt consolidation or restructuring, insolvency proceeding or mortgage foreclosure, or in the closing of a residential or health care facility or the moving of its residents. In this subdivision “insolvency” means bankruptcies, receiverships, assignments for the benefit of creditors, and similar court-supervised proceedings.

DHS 132.14(3)(b) (b) The applicant shall provide any additional information requested by the department during its review of the license application.

DHS 132.14(3)(bm) (bm) The applicant shall provide information to demonstrate that any person having the authority to directly manage the operation of the facility has the education, training or experience to operate and manage a health care facility to provide for the health, safety, and welfare of its residents in substantial compliance with state and federal requirements.

DHS 132.14(3)(c) (c) The applicant shall submit evidence to establish that he or she has sufficient resources to permit operation of the facility for a period of 6 months.

DHS 132.14(3)(d) (d) No license may be issued unless and until the applicant has supplied all information requested by the department.

DHS 132.14(4) (4) Review of application.

DHS 132.14(4)(a) (a) Investigation. After receiving a complete application, the department shall investigate the applicant to determine if the applicant is fit and qualified to be a licensee and to determine if the applicant is able to comply with this chapter.

DHS 132.14(4)(b) (b) Fit and qualified. In making its determination of the applicant’s fitness, the department shall review the information contained in the application and shall review any other documents that appear to be relevant in making that determination, including survey and complaint investigation findings for each facility with which the applicant is affiliated or was affiliated during the past 5 years. The department shall consider at least the following:

DHS 132.14(4)(b)1. 1. Any class A or class B violation, as defined under s. 50.04, Stats., issued by the department relating to the applicant’s operation of a residential or health care facility in Wisconsin;

DHS 132.14(4)(b)2. 2. Any adverse action against the applicant or any person or business entity named in the application by the licensing agency of this state or any other state relating to the applicant’s or any person or business entity named in the application’s operation of a residential or health care facility. In this subdivision,“adverse action” means an action initiated by a state licensing agency which resulted in a conditional license, the placement of a monitor or the appointment of a receiver, or the denial, suspension or revocation of the license of a residential or health care facility operated by the applicant or any person or business entity named in the application;

DHS 132.14(4)(b)3. 3. Any adverse action against the applicant or any person or business entity named in the application based upon noncompliance with federal statutes or regulations in the applicant’s or any person or business entity named in the application’s operation of a residential or health care facility in this or any other state. In this subdivision, “adverse action” means an action by a state or federal agency which resulted in the imposition of Category 3 remedies pursuant to 42 CFR sec. 488.408 (e), placement of a state monitor or the appointment of a receiver, transfer of residents, or the denial, non-renewal, cancellation or termination of certification of a residential or health care facility operated by the applicant;

DHS 132.14(4)(b)4. 4. The frequency of noncompliance with state licensure and federal certification laws in the applicant’s operation of a residential or health care facility in this or any other state;

DHS 132.14(4)(b)5. 5. Any denial, suspension, enjoining or revocation of a license the applicant had as a health care provider as defined in s. 146.81 (1), Stats., or any conviction of the applicant for providing health care without a license;

DHS 132.14(4)(b)6. 6. Any conviction of the applicant for a crime involving neglect or abuse of patients or of the elderly or involving assaultive behavior or wanton disregard for the health or safety of others;

DHS 132.14(4)(b)7. 7. Any conviction of the applicant for a crime related to the delivery of health care services or items;

DHS 132.14(4)(b)8. 8. Any conviction of the applicant for a crime involving controlled substances;

DHS 132.14(4)(b)9. 9. Any knowing or intentional failure or refusal by the applicant to disclose required ownership information; and

DHS 132.14(4)(b)10. 10. Any prior financial failures of the applicant and any person and related business entity identified in the application concerning the operation of a residential or health care facility that resulted in any debt consolidation or restructuring, insolvency proceeding or mortgage foreclosure or in the closing of residential or health care facility or the moving of its residents. “Insolvency” has the meaning provided in s. DHS 132.14 (3) (a) 5.

DHS 132.14(5) (5) Action by the department. Within 60 days after receiving a complete application for a license, the department shall either approve the application and issue a license or deny the application. The department shall deny a license to any applicant who has a history, determined under sub. (4) (b) 1. to 4., of substantial noncompliance with federal or this state’s or any state’s nursing home requirements, or who fails under sub. (4) (b) 5. to 10., to qualify for a license. If the application for a license is denied, the department shall give the applicant reasons, in writing, for the denial and shall identify the process for appealing the denial.

DHS 132.14(6) (6) Types of license.

DHS 132.14(6)(a) (a) Probationary license. If the applicant has not been previously licensed under this chapter or if the facility is not in operation at the time application is made, the department shall issue a probationary license. A probationary license shall be valid for 12 months from the date of issuance unless sooner suspended or revoked under s. 50.03 (5), Stats. If the applicant is found to be fit and qualified under sub. (4) and in substantial compliance with this chapter, the department shall issue a regular license upon expiration of the probationary license. The regular license is valid indefinitely unless suspended or revoked.

DHS 132.14(6)(b) (b) Regular license. If the applicant has been previously licensed, the department shall issue a regular license if the applicant is found to be in substantial compliance with this chapter. A regular license is valid indefinitely unless suspended or revoked.

DHS 132.14(7) (7) Scope of license.

DHS 132.14(7)(a) (a) The license is issued only for the premises and the persons named in the license application, and may not be transferred or assigned by the licensee.

DHS 132.14(7)(b) (b) The license shall state any applicable restrictions, including maximum bed capacity and the level of care that may be provided, and any other limitations that the department considers appropriate and necessary taking all facts and circumstances into account.

DHS 132.14(7)(c) (c) A licensee shall fully comply with all requirements and restrictions of the license.

DHS 132.14(8) (8) Reporting. Every 12 months, on a schedule determined by the department, a nursing home licensee shall submit a report to the department in the form and containing the information that the department requires, including payment of the fee required under s. 50.135 (2) (a), Stats. If a complete report is not timely filed, the department shall issue a warning to the licensee. If a nursing home licensee who has not filed a timely report fails to submit a complete report to the department within 60 days after the date established under the schedule determined by the department, the department may revoke the license.

DHS 132.14(9) (9) Reporting involuntary administration of psychotropic medication. 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 132.14 History History: Cr. Register, July, 1982, No. 319, eff. 8-1-82; cr. (5), Register, November, 1985, No. 359, eff. 12-1-85; r. and recr., Register, January, 1987, No. 373, eff. 2-1-87; emerg. cr. (1m), eff. 7-1-88; am. (3) (c), renum. (4) to (6) to be (5) to (7) and am. (5) and (6) (a), cr. (4), Register, February, 1989, No. 398, eff. 3-1-89; cr. (1m), Register, October, 1989, No. 406, eff. 11-1-89; am. (6), cr. (8), Register, August, 2000, No. 536, eff. 9-1-00; CR 06-053: cr. (3) (a) 5. and (bm), am. (4) (b) 2., 3. and 10., Register August 2007 No. 620, eff. 9-1-07; CR 07-042: cr. (9) Register October 2007 No. 622, eff. 11-1-07.

DHS 132.15 DHS 132.15 Certification for medical assistance. For requirements for certification under the medical assistance program, see ch. DHS 105.

DHS 132.15 History History: Cr. Register, July, 1982, No. 319, eff. 8-1-82; correction made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637.

DHS 132.16 DHS 132.16 Quality assurance and improvement projects.

DHS 132.16(1) (1) Funds. Pursuant to ss. 49.499 (2m) and 50.04 (8), Stats., the department may, from the appropriation under s. 20.435 (6) (g), Stats., distribute funds for innovative projects designed to protect the property and the health, safety, and welfare of residents in a facility and to improve the efficiency and cost effectiveness of the operation of a facility so as to improve the quality of life, care, and treatment of its residents.

DHS 132.16(2) (2) Quality assurance and improvement committee.

DHS 132.16(2)(a) (a) The department shall establish and maintain a quality assurance and improvement committee to review proposals and award funds to facilities for innovative projects approved by the committee under sub. (3).

DHS 132.16(2)(b) (b)

DHS 132.16(2)(b)1. 1. Committee members shall be appointed by the secretary for a term of up to 12 months and include, at the secretary’s discretion, one or more representatives from the department, the board on aging and long term care, disability, aging and long term care advocates, facilities, and other persons with an interest or expertise in quality improvement or delivery of long term care services. Facility members shall comprise at least half of the committee membership.

DHS 132.16(2)(b)2. 2. A representative’s term may be extended at the secretary’s discretion.

DHS 132.16(3) (3) Committee responsibilities. The quality assurance and improvement committee shall do all of the following:

DHS 132.16(3)(a) (a) Meet at least annually.

DHS 132.16(3)(b) (b) Develop and propose for the secretary’s approval criteria for review and approval of projects proposed under this section.

DHS 132.16(3)(c) (c) Considering the criteria approved by the secretary under par. (b), review proposals submitted by facilities under this section and approve submitted proposals, defer a determination pending additional information, or deny approval of proposals submitted.

DHS 132.16(3)(d) (d) Identify areas of need within a facility or corporation, the state or regions as projects to be addressed.

DHS 132.16(3)(e) (e) Develop opportunities and strategies for general improvement concerning licensed facilities.

DHS 132.16(3)(f) (f) Encourage proposals that develop innovative cost-effective methods for improving the operation and maintenance of facilities and that protect residents’ rights, health, safety and welfare and improve residents’ quality of life.

DHS 132.16(3)(g) (g) Disseminate within the department and to facilities and other interested individuals and organizations the information learned from approved projects.

DHS 132.16(3)(h) (h) Prepare an annual report to the secretary.

DHS 132.16(4) (4) A decision under sub. (3) (c) to defer or deny approval of or award funds for a proposal may not be appealed.

DHS 132.16 History History: CR 06-053: cr. Register August 2007 No. 620, eff. 9-1-07; CR 13-028: am. (1) Register December 2013 No. 696, eff. 1-1-14.

subch. II of ch. DHS 132 Subchapter II — Enforcement

DHS 132.21 DHS 132.21 Waivers and variances.

DHS 132.21(1) (1) Definitions. As used in this section:

DHS 132.21(1)(a) (a) “Waiver” means the grant of an exemption from a requirement of this chapter.

DHS 132.21(1)(b) (b) “Variance” means the granting of an alternate requirement in place of a requirement of this chapter.

DHS 132.21(2) (2) Requirements for waivers or variances. A waiver or variance may be granted if the department finds that the waiver or variance will not adversely affect the health, safety, or welfare of any resident and that:

DHS 132.21(2)(a) (a) Strict enforcement of a requirement would result in unreasonable hardship on the facility or on a resident; or

DHS 132.21(2)(b) (b) An alternative to a rule, including new concepts, methods, procedures, techniques, equipment, personnel qualifications, or the conducting of pilot projects, is in the interests of better care or management.

DHS 132.21(3) (3) Procedures.

DHS 132.21(3)(a) (a) Applications.

DHS 132.21(3)(a)1. 1. All applications for waiver or variance from the requirements of this chapter shall be made in writing to the department, specifying the following:

DHS 132.21(3)(a)1.a. a. The rule from which the waiver or variance is requested;

DHS 132.21(3)(a)1.b. b. The time period for which the waiver or variance is requested;

DHS 132.21(3)(a)1.c. c. If the request is for a variance, the specific alternative action which the facility proposes;

DHS 132.21(3)(a)1.d. d. The reasons for the request; and

DHS 132.21(3)(a)1.e. e. Justification that sub. (2) would be satisfied.

DHS 132.21(3)(a)2. 2. Requests for a waiver or variance may be made at any time.

DHS 132.21(3)(a)3. 3. The department may require additional information from the facility prior to acting on the request.

DHS 132.21(3)(b) (b) Grants and denials.

DHS 132.21(3)(b)1. 1. The department shall grant or deny each request for waiver or variance in writing. Notice of denials 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 132.21(3)(b)2. 2. The terms of a requested variance may be modified upon agreement between the department and a facility.

DHS 132.21(3)(b)3. 3. The department may impose such conditions on the granting of a waiver or variance which it deems necessary.

DHS 132.21(3)(b)4. 4. The department may limit the duration of any waiver or variance.

DHS 132.21(3)(c) (c) Hearings.

DHS 132.21(3)(c)1. 1. Denials of waivers or variances may be contested by requesting a hearing as provided by ch. 227, Stats.

DHS 132.21(3)(c)2. 2. The licensee shall sustain the burden of proving that the denial of a waiver or variance was unreasonable.