“Incapacitated" means unable to receive and evaluate information effectively or to communicate decisions to such an extent that a person lacks the capacity to manage his or her health care decisions.
“Physician" means a person licensed to practice medicine and surgery under ch. 448
“Terminal condition" means an incurable condition caused by injury, disease or illness that according to reasonable medical judgment will produce death within 6 months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.
A person who is determined to be incapacitated under the requirements of sub. (8)
, does not have a valid living will or valid power of attorney for health care, and has not been adjudicated incompetent in this state may be admitted to a hospice under this section only if all of the following requirements are met:
An individual who is specified in sub. (3)
signs all of the following:
On behalf of the person who is incapacitated, an informed consent for the receipt of hospice care by the person who is incapacitated.
A statement certifying that it is his or her belief, to the best of his or her knowledge, that, if able to do so, the person who is incapacitated would have selected hospice care.
A physician certifies that the person who is incapacitated has a terminal condition and that the physician believes that the individual under par. (a)
is acting in accordance with the views or beliefs of the person who is incapacitated.
The following individuals, in the following order of priority, may act under sub. (2) (a)
The spouse or domestic partner under ch. 770
of the person who is incapacitated.
An adult child of the person who is incapacitated.
A parent of the person who is incapacitated.
An adult sibling of the person who is incapacitated.
A close friend or a relative of the person who is incapacitated, other than as specified in pars. (a)
, to whom all of the following apply:
The close friend or other relative is aged at least 18 and has maintained sufficient regular contact with the person who is incapacitated to be familiar with the person's activities, health and beliefs.
The close friend or other relative has exhibited special care and concern for the incapacitated person.
The individual who acts under sub. (2) (a)
may make all health care decisions related to receipt of hospice care by the person who is incapacitated.
The person who is incapacitated or the individual under sub. (4)
may object to or revoke the election of hospice care at any time.
A person who disagrees with a hospice decision made under this section may apply under s. 54.50
for temporary guardianship of the person who is incapacitated. In applying for the temporary guardianship, such a person has the burden of proving that the person who is incapacitated would not have consented to admission to a hospice or hospice care.
The individual who acts under sub. (2) (a)
shall, if feasible, provide to all other individuals listed under sub. (3)
notice of the proposed admission of the person who is incapacitated to a hospice and of the right to apply for temporary guardianship under sub. (6)
. If it is not feasible for the individual to provide this notice before admission of the person who is incapacitated to a hospice, the individual who acts under sub. (2) (a)
shall exercise reasonable diligence in providing the notice within 48 hours after the admission.
A determination that a person is incapacitated may be made only by 2 physicians or by one physician and one licensed advanced practice clinician, as defined in s. 155.01 (1g)
, who personally examine the person and sign a statement specifying that the person is incapacitated. Mere old age, eccentricity or physical disabilities, singly or together, are insufficient to determine that a person is incapacitated. Whoever determines that the person is incapacitated may not be a relative, as defined in s. 242.01 (11)
, of the person or have knowledge that he or she is entitled to or has claim on any portion of the person's estate. A copy of the statement shall be included in the records of the incapacitated person in the hospice to which he or she is admitted.
Accompaniment or visitation.
If a hospice has a policy on who may accompany or visit a patient, the hospice shall extend the same right of accompaniment or visitation to a patient's domestic partner under ch. 770
as is accorded the spouse of a patient under the policy.
History: 2009 a. 28
The department shall promulgate all of the following rules:
Except as provided in s. 50.942
, standards for the care, treatment, health, safety, rights, welfare and comfort of individuals with terminal illness, their families and other individuals who receive palliative care or supportive care from a hospice and the maintenance, general hygiene and operation of a hospice, which will permit the use of advancing knowledge to promote safe and adequate care and treatment for these individuals. These standards shall permit provision of services directly, as required under 42 CFR 418.56
, or by contract under which overall coordination of hospice services is maintained by hospice staff members and the hospice retains the responsibility for planning and coordination of hospice services and care on behalf of a hospice client and his or her family, if any.
Provisional hospice licensure fees or the methods of computation of those fees.
Inspection or investigation procedures that the department or the department's designated representative may use to assure the provision of care and treatment that is commensurate with the standards established under sub. (1)
Criteria for determining financial hardship for the waiver of licensing fees.
Criteria for determining that the applicant for licensure is fit and qualified.
A procedure for waiver of and variance from standards under sub. (1)
or criteria under sub. (5)
. The department may limit the duration of the waiver or variance.
See also ch. DHS 131
, Wis. adm. code.
Right of injunction.
The department may, upon the advice of the attorney general, who shall represent the department in all proceedings under this section, institute an action in the name of the state in the circuit court for Dane County for injunctive relief or other process against any licensee, owner, operator, administrator or representative of any owner of a hospice for the violation of any of the provisions of this subchapter or rules promulgated under this subchapter if the violation affects the health, safety or welfare of individuals with terminal illness.
History: 1989 a. 199
Any person who violates this subchapter or rules promulgated under this subchapter may be required to forfeit not more than $100 for the first violation and may be required to forfeit not more than $200 for the 2nd or any later violation within a year. The period shall be measured using the dates of issuance of citations of the violations. Each day of violation constitutes a separate violation.
In determining whether a forfeiture is to be imposed and in fixing the amount of the forfeiture to be imposed, if any, for a violation, the following factors shall be considered:
The gravity of the violation, including the probability that death or serious physical or psychological harm to a resident will result or has resulted; the severity of the actual or potential harm; and the extent to which the provisions of the applicable statutes or rules were violated.
Good faith exercised by the licensee. Indications of good faith include, but are not limited to, awareness of the applicable statutes and regulation and reasonable diligence in complying with such requirements, prior accomplishments manifesting the licensee's desire to comply with the requirements, efforts to correct and any other mitigating factors in favor of the licensee.
Any previous violations committed by the licensee.
The financial benefit to the hospice of committing or continuing the violation.
The department may directly assess forfeitures provided for under sub. (1)
. If the department determines that a forfeiture should be assessed for a particular violation or for failure to correct it, it shall send a notice of assessment to the hospice. The notice shall specify the amount of the forfeiture assessed, the violation, and the statute or rule alleged to have been violated, and shall inform the licensee of the right to a hearing under sub. (4)
A hospice may contest an assessment of forfeiture, by sending, within 10 days after receipt of notice under sub. (3)
, a written request for hearing under s. 227.44
to the division of hearings and appeals created under s. 15.103 (1)
. The administrator of the division may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46
. The decision of the administrator of the division shall be the final administrative decision. The division shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division are governed by ch. 227
. In any petition for judicial review of a decision by the division, the party, other than the petitioner, who was in the proceeding before the division shall be the named respondent.
All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under sub. (4)
, within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is appealed and the order is stayed by court order under the same terms and conditions as found in s. 50.03 (11)
. The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund.
The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this section if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.
History: 1989 a. 199
; 2003 a. 33
Fees permitted for a workshop or seminar.
If the department develops and provides a workshop or seminar relating to the provision of services by hospices 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: 1997 a. 27