Chapter DHS 132

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.

DHS 132.21(3)(d) (d) Revocation. The department may revoke a waiver or variance if:

DHS 132.21(3)(d)1. 1. It is determined that the waiver or variance is adversely affecting the health, safety or welfare of the residents; or

DHS 132.21(3)(d)2. 2. The facility has failed to comply with the variance as granted; or

DHS 132.21(3)(d)3. 3. The licensee notifies the department in writing that it wishes to relinquish the waiver or variance and be subject to the rule previously waived or varied; or

DHS 132.21(3)(d)4. 4. Required by a change in law.

DHS 132.21 History History: Cr. Register, July, 1982, No. 319, eff. 8-1-82; am. (3) (a) 1. d., Register, January, 1987, No. 373, eff. 2-1-87.

subch. III of ch. DHS 132 Subchapter III — Residents’ Rights and Protections

DHS 132.31 DHS 132.31 Rights of residents.

DHS 132.31(1) (1) Residents’ rights. Every resident shall have the right to all of the following:

DHS 132.31(1)(d) (d) Admission information. Be fully informed in writing, prior to or at the time of admission, of all services and the charges for these services, and be informed in writing, during the resident’s stay, of any changes in services available or in charges for services, as follows:

DHS 132.31(1)(d)1. 1. No person may be admitted to a facility without that person or that person’s guardian or any other responsible person designated in writing by the resident signing an acknowledgement of having received a statement of information before or on the day of admission which contains at least the following information or, in the case of a person to be admitted for short-term care, the information required under s. DHS 132.70 (3):

DHS 132.31(1)(d)1.a. a. An accurate description of the basic services provided by the facility, the rate charged for those services, and the method of payment for them;

DHS 132.31(1)(d)1.b. b. Information about all additional services regularly offered but not included in the basic services. The facility shall provide information on where a statement of the fees charged for each of these services can be obtained. These additional services include pharmacy, x-ray, beautician and all other additional services regularly offered to residents or arranged for residents by the facility;

DHS 132.31(1)(d)1.c. c. The method for notifying residents of a change in rates or fees;

DHS 132.31(1)(d)1.d. d. Terms for refunding advance payments in case of transfer, death or voluntary or involuntary discharge;

DHS 132.31(1)(d)1.e. e. Terms of holding and charging for a bed during a resident’s temporary absence;

DHS 132.31(1)(d)1.f. f. Conditions for involuntary discharge or transfer, including transfers within the facility;

DHS 132.31(1)(d)1.g. g. Information about the availability of storage space for personal effects; and

DHS 132.31(1)(d)1.h. h. A summary of residents’ rights recognized and protected by this section and all facility policies and regulations governing resident conduct and responsibilities.

DHS 132.31(1)(d)2. 2. No statement of admission information may be in conflict with any part of this chapter.

DHS 132.31(1)(p) (p) Nondiscriminatory treatment. Be free from discrimination based on the source from which the facility’s charges for the resident’s care are paid, as follows:

DHS 132.31(1)(p)1. 1. No facility may assign a resident to a particular wing or other distinct area of the facility, whether for sleeping, dining or any other purpose, on the basis of the source or amount of payment, except that a facility only part of which is certified for Medicare reimbursement under 42 USC 1395 is not prohibited from assigning a resident to the certified part of the facility because the source of payment for the resident’s care is Medicare.

DHS 132.31(1)(p)2. 2. Facilities shall offer and provide an identical package of basic services meeting the requirements of this chapter to all individuals regardless of the sources of a resident’s payment or amount of payment. Facilities may offer enhancements of basic services, or enhancements of individual components of basic services, provided that these enhanced services are made available at an identical cost to all residents regardless of the source of a resident’s payment. A facility which elects to offer enhancements to basic services to its residents must provide all residents with a detailed explanation of enhanced services and the additional charges for these services pursuant to par. (d) 1. b.

DHS 132.31(1)(p)3. 3. If a facility offers at extra charge additional services which are not covered by the medical assistance program under ss. 49.43 to 49.497, Stats., and chs. DHS 101 to 108, it shall provide them to any resident willing and able to pay for them, regardless of the source from which the resident pays the facility’s charges.

DHS 132.31(1)(p)4. 4. No facility may require, offer or provide an identification tag for a resident or any other item which discloses the source from which the facility’s charges for that resident’s care are paid.

DHS 132.31(4) (4) Notification.

DHS 132.31(4)(a) (a) Serving notice. Facility staff shall verbally explain to each new resident and to that person’s guardian, if any, prior to or at the time of the person’s admission to the facility, these rights and the facility’s policies and regulations governing resident conduct and responsibilities.

DHS 132.31(4)(b) (b) Amendments. All amendments to the rights provided under this section and all amendments to the facility regulations and policies governing resident conduct and responsibilities require notification of each resident or guardian, if any, or any other responsible person designated in writing by the resident, at the time the amendment is put into effect. The facility shall provide the resident or guardian, if any, or any other responsible person designated in writing by the resident and each member of the facility’s staff with a copy of all amendments.

DHS 132.31(6) (6) Complaints. Any person may file a complaint with a licensee or the department regarding the operation of a facility. Complaints may be made orally or in writing.

DHS 132.31 History History: Cr. Register, July, 1982, No. 319, eff. 8-1-82; r. and recr. (1) (c), (d), (j), (m), (2) to (4), renum. (5) to (6), cr. (1) (p) and (5), Register, January, 1987, No. 373, eff. 2-1-87; am. (1) (d) 1. intro., (k) and (4) (b), Register, February, 1989, No. 398, eff. 3-1-89; am. (6) (e), Register, August, 2000, No. 536, eff. 9-1-00; CR 04-053: am. (1) (k) Register October 2004 No. 586, eff. 11-1-04; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register August 2007, No. 620; CR 06-053: renum. (6) (a) to be (6), r. (1) (a) to (c), (e) to (o), (2), (3), (4) (c), (5) and (6) (b) to (e), am. (1) (intro.) and (4) (a), Register August 2007 No. 620, eff. 9-1-07; correction in (1) (p) 3. made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637.

DHS 132.33 DHS 132.33 Housing residents in locked units.

DHS 132.33(1) (1) Definitions. As used in this section:

DHS 132.33(1)(a) (a) “Locked unit” means a ward, wing or room which is designated as a protective environment and is secured in a manner that prevents a resident from leaving the unit at will. A physical restraint applied to the body is not a locked unit. A facility locked for purposes of security is not a locked unit, provided that residents may exit at will.

DHS 132.33(1)(b) (b) “Consent” means a written, signed request given without duress by a resident capable of understanding the nature of the locked unit, the circumstances of one’s condition, and the meaning of the consent to be given.

DHS 132.33(2) (2) Restriction. Except as otherwise provided by this section, no resident may be housed in a locked unit. Physical or chemical restraints or repeated use of emergency restraint under sub. (5) may not be used to circumvent this restriction. Placement in a locked unit shall be based on the determination that this placement is the least restrictive environment consistent with the needs of the person.

DHS 132.33 Note Note: For requirements relating to the use of physical and chemical restraints, including locked rooms, see s. DHS 132.60 (6).

DHS 132.33(3) (3) Placement.

DHS 132.33(3)(a) (a) A resident may be housed in a locked unit under any one of the following conditions:

DHS 132.33(3)(a)1. 1. The resident consents under sub. (4) to being housed on a locked unit;

DHS 132.33(3)(a)2. 2. The court that protectively placed the resident under s. 55.15, Stats., made a specific finding of the need for a locked unit;

DHS 132.33(3)(a)3. 3. The resident has been transferred to a locked unit pursuant to s. 55.15, Stats., and the medical record contains documentation of the notice provided to the guardian, the court and the agency designated under s. 55.02, Stats.; or

DHS 132.33(3)(a)4. 4. In an emergency governed by sub. (5).

DHS 132.33(3)(b) (b) A facility may transfer a resident from a locked unit to an unlocked unit without court approval pursuant to s. 55.15, Stats., if it determines that the needs of the resident can be met on an unlocked unit. Notice of the transfer shall be provided as required under s. 55.15, Stats., and shall be documented in the resident’s medical record.

DHS 132.33(4) (4) Consent.

DHS 132.33(4)(a) (a) A resident may give consent to reside in a locked unit.

DHS 132.33(4)(b) (b) The consent of par. (a) shall be effective only for 90 days from the date of the consent, unless revoked pursuant to par. (c). Consent may be renewed for 90-day periods pursuant to this subsection.

DHS 132.33(4)(c) (c) The consent of par. (a) may be revoked by the resident at any time. The resident shall be transferred to an unlocked unit promptly following revocation.

DHS 132.33(5) (5) Emergencies. In an emergency, a resident may be confined in a locked unit if necessary to protect the resident or others from injury or to protect property, provided the facility immediately attempts to notify the physician for instructions. A physician’s order for the confinement must be obtained within 12 hours. No resident may be confined for more than an additional 72 hours under order of the physician.

DHS 132.33 History History: Cr. Register, July, 1982, No. 319, eff. 8-1-82; am. (1) (a) and (2), r. and recr. (3), Register, January, 1987, No. 373, eff. 2-1-87; corrections in (3) (a) 2., 3. and (b) made under s. 13.93 (2m) (b) 7., Stats., Register October 2007 No. 622.

subch. IV of ch. DHS 132 Subchapter IV — Management

DHS 132.41 DHS 132.41 Administrator.

DHS 132.41(1) (1) Statutory reference. Section 50.04 (2), Stats., requires that a nursing home be supervised by an administrator licensed under ch. 456, Stats. Supervision shall include, but not be limited to, taking all reasonable steps to provide qualified personnel to assure the health, safety, and rights of the residents.

DHS 132.41(2) (2) Full-time administrator. Every nursing home shall be supervised full-time by an administrator licensed under ch. 456, Stats., except:

DHS 132.41(2)(a) (a) Multiple facilities. If more than one nursing home or other licensed health care facility is located on the same or contiguous property, one full-time administrator may serve all the facilities;

DHS 132.41(2)(b) (b) Small homes. A facility licensed for 50 beds or less shall employ an administrator for at least 4 hours per day on each of 5 days per week. No such administrator shall be employed in more than 2 nursing homes or other health care facilities.

DHS 132.41(4) (4) Change of administrator.

DHS 132.41(4)(a) (a) Termination of administrator. Except as provided in par. (b), no administrator shall be terminated unless recruitment procedures are begun immediately.

DHS 132.41(4)(b) (b) Replacement of administrator. If it is necessary immediately to terminate an administrator, or if the licensee loses an administrator for other reasons, a replacement shall be employed or designated as soon as possible within 120 days of the vacancy.

DHS 132.41(4)(c) (c) Temporary replacement. During any vacancy in the position of administrator, the licensee shall employ or designate a person competent to fulfill the functions of an administrator.

DHS 132.41(4)(d) (d) Notice of change of administrator. When the licensee loses an administrator, the licensee shall notify the department within 2 working days of loss and provide written notification to the department of the name and qualifications of the person in charge of the facility during the vacancy and the name and qualifications of the replacement administrator, when known.

DHS 132.41 Note Note: See s. 50.04 (2), Stats.

DHS 132.41 History History: Cr. Register, July, 1982, No. 319, eff. 8-1-82; CR 06-053: r. (3) Register August 2007 No. 620, eff. 9-1-07.

DHS 132.42 DHS 132.42 Employees.

DHS 132.42(1) (1) Definition. In this section, “employee” means anyone directly employed by the facility on other than a consulting or contractual basis.

DHS 132.42(3) (3) Physical health certifications.

DHS 132.42(3)(a) (a) New employees. Every employee shall be certified in writing by a physician, physician assistant or an advanced practice nurse prescriber as having been screened for the presence of clinically apparent communicable disease that could be transmitted to residents during the normal performance of the employee’s duties. This certification shall include screening for tuberculosis within 90 days prior to employment.

DHS 132.42(3)(b) (b) Continuing employees. Employees shall be rescreened for clinically apparent communicable disease as described in par. (a) based on the likelihood of exposure to a communicable disease, including tuberculosis. Exposure to a communicable disease may be in the facility, in the community or as a result of travel or other exposure.

DHS 132.42(3)(c) (c) Non-employees. Persons who reside in the facility but are not residents or employees, such as relatives of the facility’s owners shall be certified in writing as required in pars. (a) and (b).

DHS 132.42(4) (4) Disease surveillance and control. When an employee or prospective employee has a communicable disease that may result in the transmission of the communicable disease, he or she may not perform employment duties in the facility until the facility makes safe accommodations to prevent the transmission of the communicable disease.

DHS 132.42 Note Note: The Americans with Disabilities Act and Rehabilitation Act of 1973 prohibits the termination or non-hiring of an employee based solely on an employee having an infectious disease, illness or condition.

DHS 132.42(5) (5) Volunteers. Facilities may use volunteers provided that the volunteers receive the orientation and supervision necessary to assure resident health, safety, and welfare.

DHS 132.42 History History: Cr. Register, July, 1982, No. 319, eff. 8-1-82; am. (3) (a) and (4), Register, January, 1987, No. 373, eff. 2-1-87; CR 03-033: am. (3) (a), r. and recr. (4) Register December 2003 No. 576, eff. 1-1-04; CR 04-053: am. (3) and (4) Register October 2004 No. 586, eff. 11-1-04; CR 06-053: r. (2) Register August 2007 No. 620, eff. 9-1-07.

DHS 132.44 DHS 132.44 Employee development.

DHS 132.44(1) (1) New employees.

DHS 132.44(1)(a) (a) Orientation for all employees. Except in an emergency, before performing any duties, each new employee, including temporary help, shall receive appropriate orientation to the facility and its policies, including, but not limited to, policies relating to fire prevention, accident prevention, and emergency procedures. All employees shall be oriented to residents’ rights under s. DHS 132.31 and to their position and duties by the time they have worked 30 days.

DHS 132.44(1)(b) (b) Assignments. employees shall be assigned only to resident care duties consistent with their training.

DHS 132.44(2) (2) Continuing education.