Section 50.034. Residential care apartment complexes.

 

(1)   Certification or registration required.

(a) No person may operate a residential care apartment complex that provides living space for residents who are clients under s. 46.27 (11) or 46.277 and publicly funded services as a home health agency or under contract with a county department under s. 46.215 , 46.22 , 46.23 , 51.42 or 51.437 that is a home health agency unless the residential care apartment complex is certified by the department under this section. The department may charge a fee, in an amount determined by the department, for certification under this paragraph. The amount of any fee charged by the department for certification of a residential care apartment complex need not be promulgated as a rule under ch. 227 .

(b) No person may operate a residential care apartment complex that is not certified as required under par. (a) unless the residential care apartment complex is registered by the department.

(2)   Rules. The department shall promulgate all of the following rules for the regulation of certified residential care apartment complexes and for the registration of residential care apartment complexes under this section:

(b) Establishing standards for operation of certified residential care apartment complexes.

(c) Establishing minimum information requirements for registration and registration application procedures and forms for residential care apartment complexes that are not certified.

(d) Establishing procedures for monitoring certified residential care apartment complexes.

(e) Establishing intermediate sanctions and penalties for and standards and procedures for imposing intermediate sanctions or penalties on certified residential care apartment complexes and for appeals of intermediate sanctions or penalties.

(f) Establishing standards and procedures for appeals of revocations of certification or refusal to issue or renew certification.

(3)   Requirements for operation. A certified or registered residential care apartment complex shall do all of the following:

(a) Establish, with each resident of the residential care apartment complex, a mutually agreed-upon written service agreement that identifies the services to be provided to the resident, based on a comprehensive assessment of the resident's needs and preferences that is conducted by one of the following:

1. For residents for whom services are reimbursable under s. 46.27 (11) , by the county department or aging unit designated under s. 46.27 (3) (b) in the county.

2. For residents for whom services are reimbursable under s. 46.277 , by the county department under s. 46.277 (4) (a) in the county.

3. For residents who have private or 3rd-party funding, by the residential care apartment complex.

(b) Establish a schedule of fees for services to residents of the residential care apartment complex.

(c) Provide or ensure the provision of services that are sufficient and qualified to meet the needs identified in a resident's service agreement under par. (a) , to meet unscheduled care needs and to provide emergency assistance 24 hours a day.

(d) Establish, with each resident of the residential care apartment complex, a signed, negotiated risk agreement that identifies situations that could put the resident at risk and for which the resident understands and accepts responsibility.

(e) If a residential care apartment complex has a policy on who may accompany or visit a patient, the residential care apartment complex 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.

(4)   Limitation. A nursing home or a community-based residential facility may not convert a separate area of its total area to a residential care apartment complex unless the department first approves the conversion. A nursing home, other than a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50 , that intends to convert a separate area of its total area to a residential care apartment complex shall also agree to reduce its licensed nursing home beds by the corresponding number of residential care apartment complex residential units proposed for the conversion.

(5)   Use of name prohibited. An entity that does not meet the definition under s. 50.01 (6d) may not designate itself as a “residential care apartment complex" or use the words “residential care apartment complex" to represent or tend to represent the entity as a residential care apartment complex or services provided by the entity as services provided by a residential care apartment complex.

(5m)   Provision of information required. Subject to sub. (5p) , when a residential care apartment complex first provides written material regarding the residential care apartment complex to a prospective resident, the residential care apartment complex shall also provide the prospective resident information specified by the department concerning the services of a resource center under s. 46.283 , the family care benefit under s. 46.286 , and the availability of a functional screening and a financial and cost-sharing screening to determine the prospective resident's eligibility for the family care benefit under s. 46.286 (1) .

(5n)   Required referral. Subject to sub. (5p) , when a residential care apartment complex first provides written material regarding the residential care apartment complex to a prospective resident who is at least 65 years of age or has developmental disability or a physical disability and whose disability or condition is expected to last at least 90 days, the residential care apartment complex shall refer the prospective resident to a resource center under s. 46.283 , unless any of the following applies:

(a) For a person for whom a screening for functional eligibility under s. 46.286 (1) (a) has been performed within the previous 6 months, the referral under this subsection need not include performance of an additional functional screening under s. 46.283 (4) (g) .

(b) The person is entering the residential care apartment complex only for respite care.

(c) The person is an enrollee of a care management organization.

(d) For a person who seeks admission or is about to be admitted on a private pay basis and who waives the requirement for a financial and cost-sharing screening under s. 46.283 (4) (g) , the referral under this subsection may not include performance of a financial and cost-sharing screening under s. 46.283 (4) (g) , unless the person is expected to become eligible for medical assistance within 6 months.

(5p)   Applicability. Subsections (5m) and (5n) apply only if the secretary has certified under s. 46.281 (3) that a resource center is available for the residential care apartment complex and for specified groups of eligible individuals that include those persons seeking admission to or the residents of the residential care apartment complex.

(5t)   Notice of Long-Term Care Ombudsman Program. A residential care complex shall post in a conspicuous location in the residential care apartment complex a notice, provided by the board on aging and long-term care, of the name, address, and telephone number of the Long-Term Care Ombudsman Program under s. 16.009 (2) (b) .

(6)   Funding. Funding for supportive, personal or nursing services that a person who resides in a residential care apartment complex receives, other than private or 3rd-party funding, may be provided only under s. 46.27 (11) (c) 7. or 46.277 (5) (e) , except if the provider of the services is a certified medical assistance provider under s. 49.45 or if the funding is provided as a family care benefit under ss. 46.2805 to 46.2895 .

(7)   Revocation of certification. Certification for a residential care apartment complex may be revoked because of the substantial and intentional violation of this section or of rules promulgated by the department under sub. (2) or because of failure to meet the minimum requirements for certification. The operator of the certified residential care apartment complex shall be given written notice of any revocation of certification and the grounds for the revocation. Any residential care apartment complex certification applicant or operator of a certified residential care apartment complex may, if aggrieved by the failure to issue or renew the certification or by revocation of certification, appeal under the procedures specified by the department by rule under sub. (2) .

(8)   Forfeitures.

(a) Whoever violates sub. (5m) or (5n) or rules promulgated under sub. (5m) or (5n) may be required to forfeit not more than $500 for each violation.

(b) The department may directly assess forfeitures provided for under par. (a) . If the department determines that a forfeiture should be assessed for a particular violation, it shall send a notice of assessment to the residential care apartment complex. 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 residential care apartment complex of the right to a hearing under par. (c) .

(c) A residential care apartment complex may contest an assessment of a forfeiture by sending, within 10 days after receipt of notice under par. (b) , a written request for a 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 a 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.

(d) All forfeitures shall be paid to the department within 10 days after receipt of notice of assessment or, if the forfeiture is contested under par. (c) , 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. The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund.

(e) 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.

(10)  I nspection fee. If the department takes enforcement action against a residential care apartment complex for a violation of this section or rules promulgated under sub. (2) , and the department subsequently conducts an on-site inspection of the residential care apartment complex to review the residential care apartment complex's action to correct the violation, the department may impose a $200 inspection fee on the residential care apartment complex.

1995 a. 27 ; 1997 a. 13 , 252 ; 1999 a. 9 , 63 , 185 ; 2001 a. 16 ; 2003 a. 33 ; 2005 a. 22 ; 2007 a. 20 ; 2009 a. 28 ; 2013 a. 165 s. 114 Cross-reference: See also ch. DHS 89 , Wis. adm. code.