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Recent Changes to Chapter 50 of the Wisconsin Statutes Affecting Community-Based Residential Facilities

PDF Version of BQA 98-053 (PDF, 26 KB) - includes attachment

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Date: October 29, 1998 DSL-BQA 98-053

To: Community Based Residential Facilities CBRF-19

From: Judy Fryback, Director, Bureau of Quality Assurance

Guidance on Exceptions to CBRF Care Limitations (Attachment)

Significant changes to chapter 50 (exit DHFS) of the Wisconsin statutes became effective through 1997 Wisconsin Act 237 on June 17, 1998, unless otherwise specified in statute. The purpose of this memorandum is to alert CBRFs to those changes which occurred in definitions and in the exceptions under which residents requiring more than three hours of nursing care per week may receive care in the CBRF.

I. Definitions Applicable to CBRFs

Several new definitions were added to chapter 50. These include:

 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(1t), 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. This replaces s. 83.04(41), Wis. Admin. Code]

5. "‘Registered nurse’ means a nurse who is licensed under s. 441.06 or permitted under s. 441.08."

[s. 50.01(5r), Stats.]

The definitions of several terms currently in chapter 50 were modified, including:

1. "‘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 reside 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. ‘Community-based residential facility’ does not include any of the following:

(a) A convent or facility owned or operated by members of a religious order exclusively for the reception and care or treatment of members of that order.

(b) A facility or private home that provides care, treatment and services only for victims of domestic abuse, as defined in s. 46.95 (1) (a), and their children.

(c) A shelter facility as defined under s. 16.352 (1) (d).

(d) A place that provides lodging for individuals and in which all of the following conditions are met:

1. Each lodged individual is able to exit the place under emergency conditions without the assistance of another individual.

2. No lodged individual receives from the owner, manager or operator of the place or the owner’s, manager’s or operator’s agent or employe any of the following:

a. Personal care, supervision or treatment, or management, control or supervision of prescription medications.

b. Care or services other than board, information, referral, advocacy or job guidance; location and coordination of social services by an agency that is not affiliated with the owner, manager or operator, for which arrangements were made for an individual before he or she lodged in the place; or, in the case of an emergency, arrangement for the provision of health care or social services by an agency that is not affiliated with the owner, manager or operator.

(e) An adult family home.

(f) A residential care apartment complex.

(g) A residential facility in the village of Union Grove that was authorized to operate without a license under a final judgment entered by a court before January 1, 1982, and that continues to comply with the judgment notwithstanding the expiration of the judgment." [s. 50.01(1g), Stats.]"

2. "‘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.]

3. "‘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.]

4. "‘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.]

II. Exceptions to CBRF Care Limitations

1997 Wisconsin Act 237 specifies that certain types of residents may be provided certain types of care under certain circumstances. The Act modifies what is currently addressed in ss. 83.06(1) and 83.34(2), Wis. Admin. Code. In essence, chapter 50 now provides that CBRFs may provide more than three hours of nursing care per week or care above intermediate level nursing care under three circumstances:

1. Residents who have temporary conditions, but who do not have a terminal illness, may receive more than three hours of nursing care per week for up to 30 days. The resident must otherwise be eligible for CBRF care and the facility must have the services to provide the care the resident requires. For example, if a resident now requires the assistance of two staff to transfer, then two staff should be on duty at all times the resident may be expected to need or to request assistance with transfer. If the resident has an infection, then staff should be trained in techniques to prevent the spread of the infection. (Previously, under s. 83.06(1)(a), Wis. Admin. Code, CBRFs could provide such care to such residents for no more than 90 days. The language in Act 237 provided no exceptions to this restriction.) If the CBRF is providing care to more than four such residents or 10% of the CBRF’s licensed capacity, whichever is greater, the CBRF must obtain a waiver from the Department to provide such care.

2. Residents who do not have terminal illnesses but who have stable or long-term conditions that require more than three hours of nursing care per week may receive care for more than 30 days if the facility requests or has received a waiver from the Department. The resident must otherwise be eligible for CBRF care and the facility must have the services to provide the care the resident requires. (Previously, under s. 83.06(1)(a), Wis. Admin. Code, CBRFs could provide such care for more than 90 days if the CBRF requested and the Department granted a waiver to do so. Act 237 modified chapter 50 to limit the period the CBRF can provide such care to such residents to no more than 30 days unless the CBRF has obtained a waiver from the Department or has requested such a waiver from the Department and a decision is pending.) In addition, if the CBRF is providing care to more than four such residents or 10% of the CBRF’s licensed capacity, whichever is greater, the CBRF must obtain a separate waiver from the Department to provide such care.

3. Residents who have terminal illnesses and whose primary care provider is NOT a licensed hospice or licensed home health agency, may receive more than three hours of nursing care per week if the CBRF requests or has received a waiver from the Department.

The specific language of what has become s. 50.035(10), Stats. is as follows:

"(a) Notwithstanding the limitations on the type of care that may be required by and provided to residents under s. 50.01(1g), 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 three 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).

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 three 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).

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 three hours of 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 four 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 limitation 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)."

If you wish to review the current version chapter 50 in its entirety, you can access it via the internet at www.legis.state.wi.us (exit DHFS) and click on "Statutes and Constitution," then on "Wisconsin Statutes and Annotations." The updated version of chapter 50 should be posted at that site. We also intend to provide a link to that site at the BQA website in the near future.

Should you have any questions regarding any of the preceding changes to chapter 50 made by 1997 Wisconsin Act 237, please contact one of the Regional Field Operations Directors (RFOD) listed below  [via Regional Offices, ask for Assisted Living Supervisor]

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