Chapter 50

50.08 50.08 Informed consent for psychotropic medications.

50.08(1) (1) In this section:

50.08(1)(a) (a) “Degenerative brain disorder” has the meaning given in s. 55.01 (1v).

50.08(1)(b) (b) “Incapacitated” has the meaning given in s. 50.06 (1).

50.08(1)(c) (c) “Person acting on behalf of the resident” means a guardian of the person, as defined in s. 54.01 (12), or a health care agent, as defined in s. 155.01 (4).

50.08(1)(d) (d) “Psychotropic medication” means an antipsychotic, an antidepressant, lithium carbonate, or a tranquilizer.

50.08(2) (2) A physician, an advanced practice nurse prescriber certified under s. 441.16 (2), or a physician assistant who prescribes a psychotropic medication to a nursing home resident who has degenerative brain disorder shall notify the nursing home if the prescribed medication has a boxed warning under 21 CFR 201.57.

50.08(3) (3) 

50.08(3)(a) (a) Except as provided in sub. (3m) or (4), before administering a psychotropic medication that has a boxed warning under 21 CFR 201.57 to a resident who has degenerative brain disorder, a nursing home shall obtain written informed consent from the resident or, if the resident is incapacitated, a person acting on behalf of the resident, on a form provided by the department under par. (b) or on a form that contains the same information as the form under par. (b).

50.08(3)(b) (b) The department shall make available on its website or by mail multiple, drug-specific forms for obtaining informed consent under par. (a) for the administration of psychotropic medication that contain all of the following:

50.08(3)(b)1. 1. A space for a description of the benefits of the proposed treatment and the way the medication will be administered.

50.08(3)(b)2. 2. A description, using the most recently issued information from the federal food and drug administration, of the side effects or risks of side effects of the medication and any warnings about the medication.

50.08(3)(b)3. 3. A space for a description of any alternative treatment modes or medications.

50.08(3)(b)4. 4. A space for a description of the probable consequences of not receiving the medication.

50.08(3)(b)5. 5. A space for indicating the period for which the informed consent is effective, which shall be no longer than 15 months from the time the consent is given.

50.08(3)(b)6. 6. A statement that the resident or a person acting on behalf of the resident may withdraw informed consent, in writing, at any time.

50.08(3)(b)7. 7. A declaration that the resident or the person acting on behalf of the resident has been provided with specific, complete, and accurate information, and time to study the information or to seek additional information concerning the medication.

50.08(3)(b)8. 8. A space for the signature of the resident or the person acting on behalf of the resident.

50.08(3)(c) (c) Written informed consent provided by a guardian is subject to s. 54.25 (2) (d) 2. ab. and ac.

50.08(3)(cm) (cm) If a health care agent is acting on behalf of a resident, the health care agent shall give informed consent in accordance with the desires of the resident as expressed in the power of attorney for health care instrument under ch. 155 or, if the resident’s desires are unknown, in accordance with s. 155.20 (5).

50.08(3)(d) (d) Upon request, the nursing home shall give the resident, or a person acting on behalf of the resident, a copy of the completed informed consent form.

50.08(3)(e) (e) Unless consent is withdrawn sooner, written informed consent obtained under this subsection is valid for the period specified on the informed consent form but not for longer than 15 months from the date the resident, or a person acting on behalf of the resident, signed the form.

50.08(3)(f) (f) A resident, or a person acting on behalf of the resident, may withdraw consent, in writing, at any time.

50.08(3)(fm) (fm) At the time a resident, or a person acting on behalf of the resident, signs the informed consent form, the nursing home shall orally inform the resident, or the person acting on behalf of the resident, of all of the following:

50.08(3)(fm)1. 1. That the resident, or the person on behalf of the resident, may withdraw consent, in writing, at any time.

50.08(3)(fm)2. 2. That, unless consent is withdrawn sooner, the informed consent is valid for the period specified on the informed consent form or for 15 months from the date on which the resident, or the person acting on behalf of the resident, signs the form, whichever is shorter.

50.08(3)(g) (g) No person may retaliate against or threaten to retaliate against a resident or person acting on behalf of a resident for refusing to provide or withdrawing consent.

50.08(3)(h) (h) The nursing home shall use the most current written informed consent forms available from the department or shall update its own forms with the most current information about the medications available from the department.

50.08(3m) (3m) A nursing home is not required to obtain written informed consent before administering a psychotropic medication to a resident under sub. (3) if the prescription for the psychotropic medication is written or reauthorized while the resident is off of the nursing home’s premises.

50.08(4) (4) 

50.08(4)(a) (a) A nursing home is not required to obtain written informed consent before administering a psychotropic medication to a resident under sub. (3) if all of the following apply:

50.08(4)(a)1. 1. The resident is not the subject of a court order to administer psychotropic medications under s. 55.14.

50.08(4)(a)2. 2. There is an emergency in which a resident is at significant risk of physical or emotional harm or the resident puts others at significant risk of physical harm and in which time and distance preclude obtaining written informed consent before administering psychotropic medication.

50.08(4)(a)3. 3. A physician has determined that the resident or others will be harmed if the psychotropic medication is not administered before written informed consent is obtained.

50.08(4)(b) (b) If par. (a) applies, the nursing home shall obtain oral consent from the resident or, if the resident is incapacitated, a person acting on behalf of the resident, before administering the psychotropic medication, except as provided in par. (c). The oral consent shall be entered in the resident’s medical record. The oral consent shall be valid for 10 days, after which time the nursing home may not continue to administer the psychotropic medication unless it has obtained written informed consent under sub. (3).

50.08(4)(c) (c) If par. (a) applies, the resident is incapacitated, and the nursing home has made a good faith effort to obtain oral consent, under par. (b), of a person acting on behalf of the resident but has been unable to contact such a person, the nursing home may administer the psychotropic medication to the resident for up to 24 hours before obtaining consent under par. (a) or sub. (3).

50.08(5) (5) This section does not abridge any rights that a resident has under s. 51.61 (1) (g).

50.08 History History: 2009 a. 281; 2017 a. 365 s. 112; 2021 a. 23.

50.085 50.085 Visitation by family members.

50.085(1) (1) Definitions. In this section:

50.085(1)(a) (a) “Adult child” means an individual who is at least 18 years of age and who is related to a resident biologically, through adoption, through the marriage or former marriage of the resident to the biological parent of the adult child, or by a judgment of parentage entered by a court of competent jurisdiction.

50.085(1)(am) (am) “Family member” means any spouse, adult child, adult grandchild, parent, or sibling of a resident.

50.085(1)(b) (b) “Resident” means an adult resident of any of the following:

50.085(1)(b)1. 1. A hospital, as defined in s. 50.33 (2).

50.085(1)(b)2. 2. A hospice, as defined in s. 50.90 (1).

50.085(1)(b)3. 3. A nursing home, as defined in s. 50.01 (3).

50.085(1)(b)4. 4. A community-based residential facility, as defined in s. 50.01 (1g).

50.085(1)(b)5. 5. Any home or other residential dwelling in which the resident is receiving care and services from any person.

50.085(1)(c) (c) “Visitation” means an in-person meeting or any telephonic, written, or electronic communication.

50.085(2) (2) Petition for visitation. If a family member is being denied visitation with a resident, the family member may petition a court to compel visitation with the resident. The court may not issue an order compelling visitation if the court finds any of the following:

50.085(2)(a) (a) The resident, while having the capacity to evaluate and communicate decisions regarding visitation, expresses a desire to not have visitation with that family member.

50.085(2)(b) (b) Visitation between the petitioning family member and the resident is not in the best interest of the resident.

50.085(3) (3) Expedited hearing. If the petition under sub. (2) states that the resident’s health is in significant decline or that the resident’s death may be imminent, the court shall conduct an emergency hearing on the petition under sub. (2) as soon as practicable and no later than 10 days after the date the petition is filed with the court.

50.085(4) (4) Sanctions; remedies. Upon a motion or on the court’s own motion, if the court finds during a hearing on a petition under sub. (2) that a person is knowingly isolating a resident, the court shall order the person to pay court costs and reasonable attorney fees of the petitioner under sub. (2) and may order other appropriate remedies. No costs, fees, or other sanctions may be paid from the resident’s finances or estate.

50.085 History History: 2015 a. 343.

50.09 50.09 Rights of residents in certain facilities.

50.09(1) (1) Residents’ rights. Every resident in a nursing home or community-based residential facility shall, except as provided in sub. (5), have the right to:

50.09(1)(a) (a) Private and unrestricted communications with the resident’s family, physician, physician assistant, advanced practice nurse prescriber, attorney, and any other person, unless medically contraindicated as documented by the resident’s physician, physician assistant, or advanced practice nurse prescriber in the resident’s medical record, except that communications with public officials or with the resident’s attorney shall not be restricted in any event. The right to private and unrestricted communications shall include, but is not limited to, the right to:

50.09(1)(a)1. 1. Receive, send and mail sealed, unopened correspondence, and no resident’s incoming or outgoing correspondence shall be opened, delayed, held or censored.

50.09(1)(a)2. 2. Reasonable access to a telephone for private communications.

50.09(1)(a)3. 3. Opportunity for private visits.

50.09(1)(b) (b) Present grievances on the resident’s own behalf or others to the facility’s staff or administrator, to public officials or to any other person without justifiable fear of reprisal, and to join with other residents or individuals within or outside of the facility to work for improvements in resident care.

50.09(1)(c) (c) Manage the resident’s own financial affairs, including any personal allowances under federal or state programs, unless the resident delegates, in writing, such responsibility to the facility and the facility accepts the responsibility or unless the resident delegates to someone else of the resident’s choosing and that person accepts the responsibility. The resident shall receive, upon written request by the resident or guardian, a written monthly account of any financial transactions made by the facility under such a delegation of responsibility.

50.09(1)(d) (d) Be fully informed, in writing, prior to or at the time of admission of all services included in the per diem rate, other services available, the charges for such services, and be informed, in writing, during the resident’s stay of any changes in services available or in charges for services.

50.09(1)(e) (e) Be treated with courtesy, respect and full recognition of the resident’s dignity and individuality, by all employees of the facility and licensed, certified or registered providers of health care and pharmacists with whom the resident comes in contact.

50.09(1)(f) (f) Physical and emotional privacy in treatment, living arrangements and in caring for personal needs, including, but not limited to:

50.09(1)(f)1. 1. Privacy for visits by spouse or domestic partner. If both spouses or both domestic partners under ch. 770 are residents of the same facility, the spouses or domestic partners shall be permitted to share a room unless medically contraindicated as documented by the resident’s physician, physician assistant, or advanced practice nurse prescriber in the resident’s medical record.

50.09(1)(f)2. 2. Privacy concerning health care. Case discussion, consultation, examination and treatment are confidential and shall be conducted discreetly. Persons not directly involved in the resident’s care shall require the resident’s permission to authorize their presence.

50.09(1)(f)3. 3. Confidentiality of health and personal records, and the right to approve or refuse their release to any individual outside the facility, except in the case of the resident’s transfer to another facility or as required by law or 3rd-party payment contracts and except as provided in s. 146.82 (2) and (3).

50.09(1)(g) (g) Not to be required to perform services for the facility that are not included for therapeutic purposes in the resident’s plan of care.

50.09(1)(h) (h) Meet with, and participate in activities of social, religious, and community groups at the resident’s discretion, unless medically contraindicated as documented by the resident’s physician, physician assistant, or advanced practice nurse prescriber in the resident’s medical record.

50.09(1)(i) (i) Retain and use personal clothing and effects and to retain, as space permits, other personal possessions in a reasonably secure manner.

50.09(1)(j) (j) Be transferred or discharged, and be given reasonable advance notice of any planned transfer or discharge, and an explanation of the need for and alternatives to the transfer or discharge. The facility to which the resident is to be transferred must have accepted the resident for transfer, except in a medical emergency or if the transfer or discharge is for nonpayment of charges following a reasonable opportunity to pay a deficiency. No person may be involuntarily discharged for nonpayment under this paragraph if the person meets all of the following conditions:

50.09(1)(j)1. 1. He or she is in need of ongoing care and treatment and has not been accepted for ongoing care and treatment by another facility or through community support services.

50.09(1)(j)2. 2. The funding of his or her care in the nursing home or community-based residential facility under s. 49.45 (6m) is reduced or terminated because of one of the following:

50.09(1)(j)2.a. a. He or she requires a level or type of care which is not provided by the nursing home or community-based residential facility.

50.09(1)(j)2.b. b. The nursing home is found to be an institution for mental diseases, as defined under 42 CFR 435.1009.

50.09(1)(k) (k) Be free from mental and physical abuse, and be free from chemical and physical restraints except as authorized in writing by a physician, physician assistant, or advanced practice nurse prescriber for a specified and limited period of time and documented in the resident’s medical record. Physical restraints may be used in an emergency when necessary to protect the resident from injury to himself or herself or others or to property. However, authorization for continuing use of the physical restraints shall be secured from a physician, physician assistant, or advanced practice nurse prescriber within 12 hours. Any use of physical restraints shall be noted in the resident’s medical records. “Physical restraints” includes, but is not limited to, any article, device, or garment that interferes with the free movement of the resident and that the resident is unable to remove easily, and confinement in a locked room.

50.09(1)(L) (L) Receive adequate and appropriate care within the capacity of the facility.

50.09(1)(m) (m) Use the licensed, certified or registered provider of health care and pharmacist of the resident’s choice.

50.09(1)(n) (n) Be fully informed of the resident’s treatment and care and participate in the planning of the resident’s treatment and care.

50.09(2) (2) The department, in establishing standards for nursing homes and community-based residential facilities may establish, by rule, rights in addition to those specified in sub. (1) for residents in such facilities.

50.09(3) (3) If the resident is adjudicated incompetent in this state and not restored to legal capacity, the rights and responsibilities established under this section which the resident is not competent to exercise shall devolve upon the resident’s guardian.

50.09(4) (4) Each facility shall make available a copy of the rights and responsibilities established under this section and the facility’s rules to each resident and each resident’s legal representative, if any, at or prior to the time of admission to the facility, to each person who is a resident of the facility and to each member of the facility’s staff. The rights, responsibilities and rules shall be posted in a prominent place in each facility. Each facility shall prepare a written plan and provide appropriate staff training to implement each resident’s rights established under this section.

50.09(5) (5) Rights established under this section shall not, except as determined by the department of corrections, be applicable to residents in such facilities, if the resident is in the legal custody of the department of corrections and is a correctional client in such a facility.

50.09(6) (6) 

50.09(6)(a) (a) Each facility shall establish a system of reviewing complaints and allegations of violations of residents’ rights established under this section. The facility shall designate a specific individual who, for the purposes of effectuating this section, shall report to the administrator.

50.09(6)(b) (b) Allegations of violations of such rights by persons licensed, certified or registered under chs. 441, 446 to 450, 455 and 456 shall be promptly reported by the facility to the appropriate licensing, examining or affiliated credentialing board and to the person against whom the allegation has been made. Any employee of the facility and any person licensed, certified or registered under chs. 441, 446 to 450, 455 and 456 may also report such allegations to the board. Such board may make further investigation and take such disciplinary action, within the board’s statutory authority, as the case requires.

50.09(6)(c) (c) No person who files a report as required in par. (b) or who participates, in good faith, in the review system established under par. (a) shall be liable for civil damages for such acts.