Seeking Justice in Death's Waiting Room: Barriers to Effectively Prosecuting Crime in Long-term Care Facilities. Hanrahan. Wis. Law. Aug. 2004.
A Response: Issues Affecting Long-term Care. Purtell. Wis. Law. Oct. 2004.
Resident's right to know; nursing home reports. 50.095(1)(1)
Every resident in or prospective resident of a nursing home has the right to know certain information from the nursing home which would aid an individual in assessing the quality of care provided by a nursing home.
The department may request from a nursing home information necessary for preparation of a report under sub. (3)
, and the nursing home, if so requested, shall provide the information.
By July 1, 1998, and annually thereafter, the department shall provide each nursing home and the office of the long-term care ombudsman with a report that includes the following information for the nursing home:
The ratio of nursing staff available to residents per shift at each skill level for the previous year for the nursing home, under criteria that the department shall promulgate as rules.
The staff replacement rates for full-time and part-time nursing staff, nurse aides, and administrators for the previous year for the nursing home and for all similar nursing homes in the same geographical area, as determined by the department.
Violations of statutes or rules by the nursing home during the previous year for the nursing home and for all similar nursing homes in the same geographical area, as determined by the department.
The department shall prepare a simplified summary of the information required under sub. (3) (am)
, as specified by rule by the department. The summary shall be on one sheet of paper and shall be in language that is easily understood by laypersons. The summary shall state that a complete copy of the most recent report of inspection of the nursing home is available from the department, upon request, for a minimal fee.
Upon receipt of a report under sub. (3)
, the nursing home shall make the report available to any person requesting the report. Upon receipt of a summary under sub. (3m)
, the nursing home shall provide a copy of the summary to every resident of the nursing home and his or her guardian, if any, to every prospective resident of the nursing home, if any, and to every person who accompanies a prospective resident or acts as the prospective resident's representative, as defined in s. 655.001 (12)
, if any.
Any person may receive, upon specific written request to the department, requested information that is contained in the registry of individuals under s. 146.40 (4g) (a)
Appeals of transfers or discharges.
The department shall promulgate rules establishing a fair mechanism for hearing appeals on transfers and discharges of residents from nursing homes.
History: 1989 a. 31
Private cause of action. 50.10(1)(1)
Any person residing in a nursing home has an independent cause of action to correct conditions in the nursing home or acts or omissions by the nursing home or by the department, that:
The person alleges violate this subchapter or rules promulgated under this subchapter; and
The person alleges are foreseeably related to impairing the person's health, safety, personal care, rights or welfare.
Actions under this section are for mandamus against the department or for injunctive relief against either the nursing home or the department.
History: 1981 c. 121
This section applies only to residents of a nursing home, which is different from a community based residential facility. Residents of community-based residential facilities do not have a private cause of action for statutory or administrative code violations. Farr v. Alternative Living Services, Inc. 2002 WI App 88
, 253 Wis. 2d 790
, 643 N.W.2d 841
Wisconsin's private cause of action for nursing home residents. Bertrand. Wis. Law. Sep. 1989.
Protecting the Rights of Nursing Home Residents. Spitzer-Resnick. Wis. Law. May 1993.
The remedies provided by this subchapter are cumulative and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party, and no judgment under this subchapter shall preclude any party from obtaining additional relief based upon the same facts.
History: 1977 c. 170
Waiver of federal requirements.
The department shall petition the secretary of the U.S. department of health and human services for a waiver of the requirement that it conduct annual medical assistance surveys of nursing homes, for a waiver of the requirement that it conduct annual independent medical reviews and independent professional reviews, to allow the department under 42 USC 1396a
(a) (26) and (31) to conduct biennial surveys and reviews and for any waivers necessary to implement the special requirements promulgated under s. 50.02 (3) (d)
History: 1981 c. 121
; 1985 a. 29
Fees permitted for a workshop or seminar.
If the department develops and provides a workshop or seminar relating to the provision of service by facilities, adult family homes or residential care apartment complexes under this subchapter, the department may establish a fee for each workshop or seminar and impose the fee on registrants for the workshop or seminar. A fee so established and imposed shall be in an amount sufficient to reimburse the department for the costs directly associated with developing and providing the workshop or seminar.
History: 1985 a. 120
; 1997 a. 27
Licensing and approval fees for inpatient health care facilities. 50.135(1)(1)
In this section, “inpatient health care facility" means any hospital, nursing home, county home, county mental hospital or other place licensed or approved by the department under ss. 49.70
, but does not include community-based residential facilities.
The annual fee for any inpatient health care facility except a nursing home is $18 per bed, based on the number of beds for which the facility is licensed. The annual fee for any nursing home is $6 per bed, based on the number of beds for which the nursing home is licensed. This fee shall be paid to the department on or before October 1 for the ensuing year. Each new inpatient health care facility shall pay this fee no later than 30 days before it opens.
Any inpatient health care facility that fails to pay its fee on or before the date specified in par. (a)
shall pay an additional fee of $10 per day for every day after the deadline.
The fees collected under par. (a)
shall be credited to the appropriation account under s. 20.435 (6) (jm)
for licensing, review and certifying activities.
Sub. (1) requires that all of the specifically enumerated facilities must be places licensed or approved by DHFS. A VA hospital is not within the definition of inpatient health care facility as it is subject to federal regulation and is not licensed or regulated by the state. State v. Powers, 2004 WI App 156
, 276 Wis. 2d 107
, 687 N.W.2d 50
Assessments on licensed beds. 50.14(1)(a)
Notwithstanding s. 50.01 (1m)
, “facility" means a nursing home or an intermediate care facility for persons with an intellectual disability that is not located outside the state.
“Intermediate care facility for persons with an intellectual disability" has the meaning given for “intermediate care facility for the mentally retarded" under 42 USC 1396d
For the privilege of doing business in this state, there is imposed on all licensed beds of a facility an assessment in the following amount per calendar month per licensed bed of the facility:
For nursing homes, an amount not to exceed $150 in state fiscal year 2009-10, and, beginning in state fiscal year 2010-11, an amount not to exceed $170.
For intermediate care facilities for persons with an intellectual disability, $910.
The assessment moneys collected under this section shall be deposited in the Medical Assistance trust fund.
In determining the number of licensed beds, all of the following apply:
If the amount of the beds is other than a whole number, the fractional part of the amount shall be disregarded unless it equals 50 percent or more of a whole number, in which case the amount shall be increased to the next whole number.
By the end of each month, each facility shall submit to the department the amount due under sub. (2)
for each licensed bed of the facility for the month preceding the month during which the payment is being submitted. The department shall verify the number of beds licensed and, if necessary, make adjustments to the payment, notify the facility of changes in the payment owing and send the facility an invoice for the additional amount due or send the facility a refund.
The department shall levy, enforce and collect the assessment under this section and shall develop and distribute forms necessary for levying and collection.
The department shall promulgate rules that establish procedures and requirements for levying the assessment under this section.
An affected facility may contest an action by the department under this section by submitting a written request for a hearing to the department within 30 days after the date of the department's action.
Any order or determination made by the department under a hearing as specified in par. (a)
is subject to judicial review as prescribed under ch. 227
See also ch. DHS 15
, Wis. adm. code.
Hospital regulation and approval act.
shall constitute the “Hospital Regulation and Approval Act".
History: 1975 c. 413
; Stats. 1975 s. 50.32.
See also ch. DHS 124
, Wis. adm. code.
“Conditions for Medicare participation for hospitals" means the conditions of participation specified under 42 CFR 482
or, with respect to critical access hospitals, 42 CFR 485
“Critical access hospital" means a hospital that is designated by the department as meeting the requirements of 42 USC 1395i-4
(c) (2) (B) and is federally certified as meeting the requirements of 42 USC 1395i-4
“Governmental unit" means the state, any county, town, city, village, or other political subdivision or any combination thereof, department, division, board or other agency of any of the foregoing.
“Hospital" means any building, structure, institution or place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment of and medical or surgical care for 3 or more nonrelated individuals hereinafter designated patients, suffering from illness, disease, injury or disability, whether physical or mental, and including pregnancy and regularly making available at least clinical laboratory services, and diagnostic X-ray services and treatment facilities for surgery, or obstetrical care, or other definitive medical treatment.
“Hospital" may include, but not in limitation thereof by enumeration, related facilities such as outpatient facilities, nurses', interns' and residents' quarters, training facilities and central service facilities operated in connection with hospitals.
“Hospital" includes “special hospitals" or those hospital facilities that provide a limited type of medical or surgical care, including orthopedic hospitals, children's hospitals, critical access hospitals, mental hospitals, psychiatric hospitals or maternity hospitals.
“Hospital-associated service” means a health care service that meets all of the following conditions:
The service is of the same type as those furnished by a hospital in an inpatient or outpatient facility.
The service is of a type for which a payment could be claimed as a hospital service under the federal Medicare program, 42 USC 1395
The service is provided at a location other than in a facility approved by the department under s. 50.35
The service is provided in a home setting before January 1, 2022.
“Requirements for hospitals" means all of the rules, standards, and requirements described in or promulgated under ss. 50.32
that apply to hospitals, including the standards described under s. 50.36 (1)
The purpose of ss. 50.32
is to provide for the development, establishment and enforcement of rules and standards for the construction, maintenance and operation of hospitals which, in the light of advancing knowledge, will promote safe and adequate care and treatment of patients in such hospitals.
History: 1975 c. 413
; Stats. 1975 s. 50.34.
Application and approval.
Application for approval to maintain a hospital shall be made to the department on forms provided by the department. On receipt of an application, the department shall, except as provided in s. 50.498
, issue a certificate of approval if the applicant and hospital facilities meet the requirements for hospitals. The department shall issue a single certificate of approval for the University of Wisconsin Hospitals and Clinics Authority that applies to all of the Authority's inpatient and outpatient hospital facilities that meet the requirements for hospitals and for which the Authority requests approval. For a free-standing pediatric teaching hospital, the department shall issue a single certificate of approval that applies to all of the hospital's inpatient and outpatient hospital facilities that meet the requirements for hospitals and for which the hospital requests approval. Except as provided in s. 50.498
, this approval shall be in effect until, for just cause and in the manner herein prescribed, it is suspended or revoked. The certificate of approval may be issued only for the premises and persons or governmental unit named in the application and is not transferable or assignable. The department shall withhold, suspend, or revoke approval for a failure to comply with s. 165.40 (6) (a) 1.
, but, except as provided in s. 50.498
, otherwise may not withhold, suspend, or revoke approval unless for a substantial failure to comply with the requirements for hospitals after giving a reasonable notice, a fair hearing, and a reasonable opportunity to comply. Failure by a hospital to comply with s. 50.36 (3m)
shall be considered to be a substantial failure to comply under this section.
History: 1975 c. 413
; Stats. 1975 s. 50.35; 1989 a. 37
; 1997 a. 93
; 2009 a. 2
; 2013 a. 236
Every 12 months, on a schedule determined by the department, an approved hospital shall submit an annual report in the form and containing the information that the department requires, including payment of the fee required under s. 50.135 (2) (a)
. If a complete annual report is not timely filed, the department shall issue a warning to the holder of the certificate for approval. The department may revoke approval for failure to timely and completely report within 60 days after the report date established under the schedule determined by the department.
History: 1997 a. 27
Rules and standards. 50.36(1)(1)
The department may use and enforce the conditions in 42 CFR 482.60
as standards that apply to psychiatric hospitals, which are hospitals primarily engaged in providing psychiatric services for the diagnosis and treatment of persons who have mental illness. Beginning on July 1, 2016, except as otherwise provided under ss. 50.32
, the department shall use and enforce the conditions for Medicare participation for hospitals as the minimum standards that apply to hospitals. The department shall interpret the conditions for Medicare participation for hospitals using guidelines adopted by the federal centers for medicare and medicaid services, unless the department determines that a different interpretation is reasonably necessary to protect public health and safety. The department may promulgate, adopt, amend, and enforce additional rules and standards for the construction, maintenance, and operation of hospitals that the department determines are necessary to provide safe and adequate care and treatment of hospital patients and to protect the health and safety of the patients and employees. The building codes and construction standards of the department of safety and professional services shall apply to all hospitals to the extent that they are not incompatible with any building codes or construction standards required by the conditions for Medicare participation for hospitals. Except for the construction codes and standards of the department of safety and professional services and except as provided in s. 50.39 (3)
, the department shall be the sole agency to adopt and enforce rules and standards pertaining to hospitals.