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.