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 89.29(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 NoteNote: 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 NoteNote: 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.