Guidance on Exceptions to
CBRF Care Limitations
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Back to DSL-BQA 98-053
Residents Appropriate for Care in CBRFs
The definition of a CBRF was changed somewhat in 1997 Wisconsin Act 237, effective June
17, 1998. The change, made to the introduction of the definition in s. 50.01(1g), Stats.,
places parameters on the needs of persons considered to be appropriate for residing in a
CBRF:
"‘Community-based residential facility’ means a place where 5 or
more unrelated adults reside in which adults who are not related to
the operator or administrator and who do not require care above intermediate level nursing
care resident and receive care, treatment or services that are above the level
of room and board but not including that include no more than 3 hours
of nursing care are provided to persons residing in the facility as a primary
function of the facility per week per resident."
Exceptions to Above Definition
1997 Wisconsin Act 237 also incorporated some exceptions to the resident need-based
parameters in the above definition. These exceptions allow CBRFs to provide certain types
of care to certain types of residents under certain circumstances. In essence, CBRFs may
provide more than 3 hours of nursing care per week or care above intermediate
level nursing care under three circumstances:
Circumstance #1: For not more than 30 days, for not more than 4 residents or 10% of
the CBRF’s licensed capacity, whichever is greater, the CBRF may provide such
care to residents who do not have terminal illnesses but who have temporary
conditions that require such care if:
a. such residents are otherwise appropriate for CBRF care.
AND
b. The services necessary to treat such residents’ conditions are available in the
CBRF. For example, if the resident requires the assistance of two people to transfer, then
two staff people should be in the facility each period of time the resident may need
assistance with transfer. If the resident has a communicable infection, then staff should
be trained in techniques to prevent the spread of the infection.
(The CBRF can provide such care to more than 4 residents or more than 10% of the
CBRF’s licensed capacity, whichever is greater, if the CBRF has obtained a
waiver from the Department to do so or has requested such a waiver and the
Department’s decision is pending.)
Circumstance #2: The CBRF may provide more than 3 hours of nursing care per week or
care above intermediate level nursing care for more than 30 days to not more
than 4 residents or 10% of the CBRF’s licensed capacity, whichever is greater, if
the residents needing such care do not have terminal illnesses but have stable or
long-term conditions that require such care if:
a. Such residents are otherwise appropriate for CBRF care.
AND
b. The services necessary to treat such residents’ conditions are available in the
CBRF. This includes adequate numbers of trained staff, as determined by resident condition
and needs.
AND
c. The community-based residential facility has obtained a waiver from the Department
to provide such care or has requested such a waiver from the Department and the
Department’s decision is pending.
(The CBRF can provide such care to more than 4 residents or more than 10% of the
CBRF’s licensed capacity, whichever is greater if the CBRF has also
obtained a waiver from the Department to do so or has requested such a waiver and the
Department’s decision is pending.)
Circumstance #3: The CBRF may provide more than 3 hours of nursing care per week or
above intermediate level nursing care to residents who have a terminal illness and
require such care if:
a. The residents’ primary care provider is a licensed hospice or licensed home
health agency.
OR
b. The facility has, or has requested from the Department, a waiver of the requirement
that the primary care provider be a licensed hospice or licensed home health agency.
The specific language of these statutory exceptions, found at s. 50.035(10), Stats., is
stated below.
S. 50.035(10): Exceptions to CBRF Care Limitations
"(a) Notwithstanding the limitations on the type of care that may be required by
and provided to residents under s. 50.01(1g)(intro.), the following care may be provided
in a community-based residential facility under the following circumstances:
1. Subject to par. (b), a community-based residential facility may provide more than 3
hours of nursing care per week or care above intermediate level nursing care for not more
than 30 days to a resident who does not have a terminal illness but who has a temporary
condition that requires the care, if all of the following conditions apply:
a. The resident is otherwise appropriate for the level of care that is limited in a
community-based residential facility under s. 50.01(1g)(intro.).
b. The services necessary to treat the resident’s condition are available in the
community-based residential facility.
2. Subject to par. (b) and if a community-based residential facility has obtained a
waiver from the department or has requested such a waiver from the department and the
decision is pending, the community-based residential facility may provide more than 3
hours of nursing care per week or care above intermediate level nursing care for more than
30 days to a resident who does not have a terminal illness but who has a stable or
long-term condition that requires the care, if all of the following conditions apply:
a. The resident is otherwise appropriate for the level of care that is limited in a
community-based residential facility under s. 50.01(1g)(intro.).
b. The services necessary to treat the resident’s condition are available in the
community-based residential facility.
c. The community-based residential facility has obtained a waiver from the department
under this subdivision or has requested such a waiver from the department and the decision
is pending.
3. A community-based residential facility may provide more than 3 hours or nursing care
per week or care above intermediate level nursing care to a resident who has a terminal
illness and requires the care, under the following conditions:
a. If the resident’s primary care provider is a licensed hospice or a licensed
home health agency.
b. If the resident’s primary care provider is not a licensed hospice or a licensed
home health agency, but the community-based residential facility has obtained a waiver of
the requirement under subd. 3.a. from the department or has requested such a waiver and
the department’s decision is pending.
(b) A community-based residential facility may not have a total of more than 4
residents or 10% of the facility’s licensed capacity, whichever is greater, who
qualify for care under par. (a)1. or 2. unless the facility has obtained a waiver from the
department of the limitations of this paragraph or has requested such a waiver and the
department’s decision is pending.
(c) The department may grant a waiver of the limitation under par. (a)2. or 3.a. or
(b)."
Definitions Modified by Act 237
The following three terms, pertinent to care provided in CBRFs, have been added to
Chapter 50, Stats.
1. "‘Operator’ means any person licensed or required to be
licensed under s. 50.03(1) or a person who operates an adult family home that is
licensed under s. 50.033(1m)(b)." [s. 50.01(4m), Stats.]
2. "‘Personal care’ means assistance with the activities of daily
living, such as eating, dressing, bathing and ambulation, but does not include nursing
care." [s. 50.01(4o), Stats.]
3. "‘Resident’ means a person who is cared for or treated
in any and is not discharged from a nursing home or,
community-based residential facility or adult family home, irrespective of how
admitted." [s. 50.01(6), Stats.]
New definitions Added by Act 237
Five other definitions, new to ch. 50, Stats., aid in the interpretation of the types
of residents for whom a CBRF can care:
1. "‘Basic care’ includes periodic skilled nursing services or
physical, emotional, social or restorative care." [s. 50.01(1e), Stats.]
2. "‘Intermediate level nursing care’ means basic care that is
required by a person who has a long-term illness or disability that has reached a
relatively stable plateau." [s. 50.01(lt), Stats.]
3. "‘Licensed practical nurse’ means a nurse who is licensed or
has a temporary permit under s. 441.10." [s. 50.01(1w), Stats.]
4. "‘Nursing care’ means nursing procedures, other than personal
care, that are permitted to be performed by a registered nurse under s. 441.01(3) or by a
licensed practical nurse under s. 441.11(3), directly on or to a resident." [s.
50.01(2m), Stats.]
5. "‘Registered nurse’ means a nurse who is licensed under s.
441.06 or permitted under s. 441.08." [s. 50.019(5r), Stats.]
These five definitions clarify professional classifications and provide some guidance
to CBRFs and BQA surveyors regarding whether someone is an appropriate candidate for, or
resident of, a CBRF.
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