(1) REQUIREMENT. No
person may operate an adult family home unless a licensing agency determines
that the home is in compliance with all requirements of s.
50.033, Stats., and this
chapter, and issues a license to that person.
(2) APPLICATION.
(a) Application for a license shall be made
on a department-approved form available from the licensing agency.
Note: To obtain a copy of the application form, contact the
county agency in which the home is located or write or phone the appropriate
regional office of the Department's Division of Disability and Elder Services.
See Appendix A for addresses and phone numbers of the Division of Disability
and Elder Services regional offices.
(b)
1.
Before an applicant may be licensed to operate an adult family home, the
applicant shall submit to the licensing agency a completed and signed
application form, the program statement described under subd. 2., the licensure
fee required under s.
50.033(2),
Stats., and a check or money order in an amount sufficient to cover the fees
for conducting the criminal records check required under sub. (3)
(b).
2. A home's program statement
shall describe the number and types of individuals the applicant is willing to
accept into the home and whether the home is accessible to individuals with
mobility problems. It shall also provide a brief description of the home, its
location, the services available, who provides them and community resources
available to residents who live within the home. A home shall follow its
program statement. If a home makes any change in its program, the home shall
revise its program statement and submit it to the licensing agency for approval
30 days before implementing the change.
(c) An applicant requesting a license shall
provide any additional information requested by the licensing agency that may
assist the agency in evaluating the applicant or licensee's character or
qualifications. In assessing character and qualifications, the licensing agency
may consider evidence of abuse or fraud, substantial or repeated violations of
applicable or related statutes and rules in the licensee's operation of or
employment in any service or facility serving adults or children or in the
licensee's care of dependent persons, or a conviction or a pending criminal
charge for a crime substantially related to caring for a dependent population
or the funds or property of adults or minors or activities of the adult family
home.
(d) If a home is to be
licensed as an adult family home and the home is also licensed as a children's
foster home under ch. DCF 56, the combined licensed bed capacity shall not
exceed 4.
(3) APPROVAL
PROCESS.
(a)
Action by licensing
agency. The licensing agency shall review the application form and
program statement and any supporting documents, including criminal records
checks, and shall interview the applicant and conduct an on-site visit of the
home to determine if the requirements for a license set out in this chapter are
met. If the requirements for a license are met and the applicant has paid the
applicable fees, a license shall be issued. If requirements for a license are
not met, the licensing agency shall send a written notice to the applicant
stating the reasons for not approving the application and shall inform the
applicant of the opportunity for a hearing under sub. (7). The licensing agency
shall issue the license or the notice of denial within 70 days after receiving
a complete application and the program statement and any supporting documents
and following the on-site visit.
(b)
Criminal records check.
Prior to issuing an initial license the licensing agency shall ask the
Wisconsin department of justice to conduct a criminal records check on the
license applicant and on any other adult household member. The licensee shall
arrange for a criminal records check of all service providers. At least every
second year following the issuance of an initial license the licensing agency
shall request a criminal records check on the licensee and all other adult
household members and the licensee shall arrange for a criminal records check
on any service provider. In addition, during the period of licensure, the
licensee shall arrange for a criminal records check on any new service
provider. If any of these persons has a conviction record or a pending criminal
charge which substantially relates to the care of a dependent population, the
funds or property of adults or minors or activities of the adult family home,
the licensing agency may deny, revoke, refuse to renew or suspend a license,
initiate other enforcement action provided in this chapter or in ch. 50,
Stats., or place conditions on the license.
Note: Examples of actions the Department will consider in
making a determination that an act substantially relates to the care of adults
or minors, the funds or property of adults or minors or activities of the adult
family home are: abuse, neglect, sexual assault, indecent exposure, lewd and
lascivious behavior, or any crime involving non-consensual sexual conduct;
child abuse, sexual exploitation of children, child abduction, child neglect,
contributing to the delinquency or neglect of a child, enticing a child,
enticing a child for immoral purposes, exposing a minor to pornography or other
harmful materials, incest, or any crime involving children as victims or
participants; armed robbery, aggravated battery, false imprisonment, kidnaping,
homicide, any crimes involving bodily harm or threat of bodily harm, any crime
involving the use of a dangerous weapon or any crime evidencing disregard to
health and safety; cruelty, neglect or abandonment of animals and instigating
fights between animals; burglary, extortion, forgery, concealing identity,
embezzlement and arson; crimes involving a substantial misrepresentation of any
material fact to the public including bribery, fraud, racketeering or allowing
an establishment to be used for illegal purposes; offenses involving narcotics,
alcohol or controlled substances that result in a felony conviction, operating
a motor vehicle while under the influence of an intoxicant or other drug,
operating after revocation and leaving the scene of an accident after injury or
death to a person or damage to a vehicle driven or attended by any
person.
Note: Wisconsin's Fair Employment Act, ss.
111.31 to
111.395, Stats., prohibits
discrimination because of a criminal record or a pending charge, unless the
record or charge substantially relates to the circumstances of the particular
job or licensed activity.
(c)
Nurse aide registry
check. If the applicant, licensee or any non-resident adult living in
the home of the applicant or licensee or any other occupant of the home has
experience as a nurse assistant, home health aide or hospice aide, as defined
under ch. DHS 129, the licensing agency shall check the department's registry
for nurse assistants, home health aides and hospice aides under s.
DHS
129.10 to determine if there is on the registry a
substantiated finding that the person abused or neglected a client or
misappropriated the funds or property of a client. If there is a substantiated
finding of one or more of these offenses, the licensing agency may deny,
revoke, refuse to renew or suspend a license, initiate other enforcement action
provided for in this chapter or in ch. 50, Stats., or place conditions on the
license.
Note: The department's registry for nurse assistants, home
health aides and hospice aides can be reached by calling (608) 266-5545 to
receive the information you need from an automated voice response unit, or you
may call (608) 267-2374.
Note: Refer to the note under s.
DHS 88.03(3)
(b) for examples of actions to be considered
in making a determination that an act substantially relates to the care of
adults or minors, the funds or property of adults or minors or activities of
the adult family home.
(d)
Health check. If the licensing agency suspects or has reason
to believe that a license applicant, licensee, service provider or household
member may pose a threat to the health, safety or welfare of residents, the
licensing agency may require a physical examination, an alcohol or drug abuse
assessment or a mental health evaluation of the person as a condition for
issuance of a license.
(4) LICENSE ISSUANCE.
(a) An adult family home license is valid
indefinitely unless suspended or revoked.
(b) Every 24 months, on a schedule determined
by the department, a licensed adult family home shall submit a biennial report
to the licensing agency in the form and containing the information that the
department requires, including payment of the fee required under sub. (2). If a
complete biennial report is not timely filed, the department shall issue a
warning to the licensee. If a licensed adult family home that has not filed a
timely report fails to submit a complete report to the licensing agency within
60 days after the date established under the schedule determined by the
department, the licensing agency may revoke the license.
(c) The licensee shall provide, in a format
approved by the department, information required by the department to assess
the facility's compliance with s.
55.14, Stats., relating to
involuntary administration of psychotropic medication to a resident.
(5) CHANGES TO BE REPORTED TO
LICENSING AGENCY. A licensee shall report to the licensing agency within 7
days, unless otherwise specified, the following changes:
(a) A significant and ongoing change in the
type or amount of services the licensee offers to provide if the change
adversely affects any resident who needs the service.
(b) A change in household members except paid
staff.
(c) Within 48 hours, that
the licensee or service provider has pending or has been charged with or
convicted of any crime which is substantially related to caring for dependent
persons.
(d) A change in the home's
structure or damages to the home that may present a hazard to the
residents.
(e)
1. Within 24 hours, a significant change in a
resident's status, such as but not limited to an accident requiring
hospitalization, missing from the home or a reportable death. A death shall be
reported if there is reasonable cause to believe the death was related to use
of a physical restraint or psychotropic medication, was a suicide or was
accidental.
2. A death due to
incident or accident not related to use of a restraint, psychotropic
medications or suicide shall be reported to the licensing agency within 3 days.
In addition the home shall;
a. Immediately
notify the resident's guardian if any and those identified in s.
DHS 88.09(1) (d)
3.
b. Record the date, time and circumstance of
the resident's death in the resident: record, including the name of the person
to whom the body is released.
Note: Deaths not to be reported to the licensing agency are
those resulting from natural causes such as heart attach, a stroke or an
illness when none of the circumstances in par. (e) 1. and 2. exist.
Note: Providing notice under this subsection does not relieve
the licensee or other persons of any obligation to report an incident to any
other agency including law enforcement.
(6) ACTION BY LICENSING AGENCY TO
ENFORCE THIS CHAPTER.
(a)
Requirement
for plan of correction.
1. A
licensing agency when it issues a notice of violation may require the licensee
to submit a plan of correction for approval of the licensing agency. The
licensee shall submit the plan of correction to the licensing agency not more
than 30 days after the date of the notice or within a shorter period of time,
as specified by the licensing agency, if the licensing agency determines that
continuation of the violation may be harmful to the health, safety, welfare or
rights of residents.
2. The
licensing agency may require modifications in a proposed plan of correction
before approving it or may substitute its own plan of correction.
(b)
Placing limits on type
of individuals. A licensing agency may, at any time, following notice
to the licensee and by modifying a license, limit the types of individuals
served by an adult family home or the number of residents served by an adult
family home for any of the following reasons:
1. The types of individuals are not
compatible.
2. The licensee and
service providers do not have the appropriate training to serve the
residents.
3. The licensee is
unable to demonstrate that the needs of residents as identified in their
individual service plans under s.
DHS
88.06(3) are being met.
(c)
Placing conditions on
license. A licensing agency may place a condition on a license if the
licensing agency finds that a condition or occurrence relating to the operation
and maintenance of the adult family home directly threatens the health, safety
or welfare of a resident.
(d)
Revocation. A licensing agency may revoke an adult family
home's license if the licensing agency determines that the home has
intentionally and substantially violated a requirement of this chapter or fails
to meet the minimum requirements for licensure. The licensing agency shall give
the licensee written notice of revocation and the grounds for the revocation
and shall inform the licensee of the right to appeal that decision under sub.
(7).
(e)
Suspension. A licensing agency may summarily suspend a license
when it finds that there is imminent danger to the health, safety or welfare of
the residents in care. A finding of imminent danger may be based on but is not
limited to any of the following:
1. Failure
of the licensee to provide environmental protections such as heat, water,
electricity or telephone service.
2. The licensee, a service provider or any
other person affiliated with or living in the adult family home or who has
contact with residents has been convicted of or has a pending charge for a
crime against life or for causing bodily harm.
3. The licensee, a service provider or any
other person living in the adult family home or who has contact with residents
has been convicted of a felony, misdemeanor or other offense or has a pending
criminal charge which is substantially related to the care of the residents or
activities of the home.
4. The
licensee, a service provider or any other person living in the adult family
home or who has contact with residents is the subject of a current
investigation of alleged abuse or neglect of a resident.
(f)
Injunction. Pursuant to
s. 50.033(5),
Stats., a licensing agency may commence an action in circuit court to enjoin
the operation of an adult family home that is not licensed under this chapter
or that is licensed and has repeatedly used methods of operation in substantial
violation of this chapter, or that endangers the health, safety or welfare of
any adult receiving care and maintenance in the home.
(g)
Sanctions.
1. A licensing agency shall provide an adult
family home with written notice of any sanction to be imposed on the adult
family home. The notice shall include:
a. The
grounds for a sanction based on an investigation made by the licensing
agency.
b. An explanation of the
types of sanctions that the licensing agency is imposing under this
section.
c. An explanation of the
process under sub. (7) for appealing an appealable sanction.
2. The licensing agency may order
any of the following actions:
a. That a person
stop conducting, maintaining or operating an adult family home if the adult
family home is without a valid license.
b. That a licensee stop violating any
provision of its license or of this chapter.
c. That a licensee submit a plan of
correction under par. (a) for violation of any provision of its license or of
this chapter.
d. That a licensee
implement and comply with a plan of correction previously submitted by the
licensee and approved by the licensing agency.
e. That a licensee implement and comply with
a plan of correction developed by the licensing agency.
f. That a licensee accept no additional
residents until all violations are corrected.
g. That a licensee provide or secure training
in one or more specific areas for the licensee or service provider.
(h)
Penalties. Pursuant to s.
50.033(6),
Stats., any person who violates s.
50.033, Stats., or this chapter
may be fined not more than $500 or imprisoned for not more than one year in the
county jail or both.
(7)
APPEAL.
(a) Any person whose application for
a license is denied under sub. (3) or revoked under sub. (6) (d) or suspended
under sub. (6) (e) may request a hearing on that decision under s.
227.42, Stats.
(b) A request for a hearing shall be in
writing, shall be filed with the department of administration's division of
hearings and appeals and shall be sent to that office so that it is received
there within 10 days after the date of the notice under sub. (3), (4) or (6)
(d).
Note: A request for a hearing should be submitted to the
Division of Hearings and Appeals, P.O. Box 7875, Madison, Wisconsin
53707.
(8)
MONITORING OF HOME.
(a) The licensee shall
comply with all department and licensing agency requests for information about
the residents, services or operation of the home.
(b) A licensing agency and service
coordinator may, without notice, visit a home at any time to evaluate the
status of resident health, safety or welfare or to determine if the home
continues to comply with this chapter. The licensee shall permit the licensing
agency and service coordinator to enter the home.
(c) A licensing agency may require a licensee
to request fire, health, sanitation or safety officials to inspect the home and
premises to assist in evaluating the safety of the home. Any inspection shall
be at the licensee's expense.
Notes
Wis. Admin. Code Department
of Health Services
DHS 88.03
Cr. Register, January,
1996, No. 482, eff. 2-1-96; am. (2) (a), (b) 1., (c), (3) (d), (7) (a), r. and
recr. (4), Register, August, 2000, No. 536, eff. 9-1-00; CR 07-042: cr. (4) (c)
Register October 2007 No. 622, eff. 11-1-07; corrections in (2) (d) and (3) (c)
made under s. 13.92(4) (b) 7,
Stats., Register November 2008 No.
635.
