Waivers, Approvals, Variances, and Exceptions: Assisted Living

The following provides information on the procedure to be used by an adult family home, community-based residential facility, residential care apartment complex, or an adult day care to request a waiver, approval, variance, or exception of a Wisconsin state statute or administrative code.

Requirements

Wisconsin Admin. Code § 50.02(3)(c) states, "The department shall promulgate rules to establish a procedure for waivers and variances from standards developed under this section. The department may limit the duration of the waiver or variance."

Specific codes referencing waivers, approvals, variances, and exceptions are listed below.

Adult Family Homes – Wis. Admin. Code ch. DHS 88

Wisconsin Admin. Code § DHS 88.01(2)(b) states, "Exception to a requirement. The licensing agency may grant an exception to any requirement in this chapter except a resident right under s. DHS 88.10 if the licensee requests the exception in writing on a form provided by the department and presents a convincing argument that the proposed exception will not jeopardize the health, safety or welfare of residents or violate the rights of residents. The licensing agency shall respond in writing to the request within 45 days after receiving it. An exception may be granted only when it would not adversely affect the ability of the licensee to meet the residents' needs and if the exception will not jeopardize the health, safety or welfare of residents or violate the rights of residents. The licensing agency may impose conditions or time limitations on an exception. Violation of a condition under which the exception is granted constitutes a violation of this chapter."

Community-Based Residential Facilities – Wis. Admin. Code ch. DHS 83

Requirements for a waiver or variance are identified in Wis. Admin. Code § DHS 83.03.

Additional references to waivers or variances can be found in:
Definitions
  • Variance means the granting of an alternate means of meeting a requirement in this chapter.
  • Waiver means the granting of an exemption from a requirement of this chapter.

Residential Care Apartment Complexes – Wis. Admin. Code ch. DHS 89

Historically, the promulgation Wis. Admin. Code ch. DHS 89 for residential care apartment complexes was accompanied by intent to limit the Department of Health Services (DHS) ability to grant variances. Residential care apartment complex requirements were considered minimal and provided flexibility for providers in their abilities to meet requirements. As such, variances will not be approved unless the rule specifies that a variance may be permitted. In addition, Wis. Admin. Code § DHS 89.295 addresses variance for demonstration projects in Family Care pilots. This subchapter of the rule applied to the original five county pilots and is no longer applicable due to the subsequent expansion of Family Care within the state.

Request for a variance is defined in Wis. Admin. Code § DHS 89.22(2)(e).

Adult Day Care

An exception or variance may be granted to a requirement when it is assured that the health, safety, and welfare of the participants being served will not be jeopardized. A request for an exception or variance shall be in writing, shall be sent to DHS, and shall include justifications for the requested action and a description of any provisions planned to meet the intent of the requirement.

Additional information

Patient Rights and Resolution of Patient Grievances – Wis. Admin. Code ch. DHS 94

Wisconsin Admin. Code § DHS 94.10 states, "Isolation, seclusion and physical restraints. Any service provider using isolation, seclusion or physical restraint shall have written policies that meet the requirements specified under s. 51.61 (1) (i), Stats., and this chapter. Isolation, seclusion or physical restraint may be used only in an emergency, when part of a treatment program or as provided in s. 51.61 (1) (i) 2., Stats. For a community placement, the use of isolation, seclusion or physical restraint shall be specifically approved by the department on a case-by-case basis and by the county department if the county department has authorized the community placement. In granting approval, a determination shall be made that use is necessary for continued community placement of the individual and that supports and safeguards necessary for the individual are in place."

Note: The use of isolation, seclusion, or physical restraint may be further limited or prohibited by licensing or certification standards for that service provider.

Restrictive Measures Request Process

Definition

The term "restrictive measure" is used to encompass any type of manual restraint, isolation, seclusion, protective equipment, medical procedure restraint, or restraint to allow healing as defined in the Restrictive Measures Guidelines and Standards, P-02572 (PDF).

Use of restrictive measures for all Wisconsin residents of licensed facilities requires department approval by the Bureau of Assisted Living (BAL). As the licensing authority, BAL must approve all requests before providers implement the practice.

BAL may make an exception to the requirement for prior approval if the situation meets the definition of an emergency use of restrictive measures.

  • Wisconsin Admin. Code § DHS 88.10(3)(n)2. Restraints used in an emergency to protect injury/harm, emergency assistance summoned as soon as possible, report to BAL next business day with required information.
  • Wisconsin Admin. Code § DHS 83.27(2)(g). The CBRF may not admit or retain a person who requires a chemical or physical restraint except as authorized under 50.09(1)(k): "Physical restraints may be used in an emergency when necessary to protect the resident from injury to himself or herself or others or to property. However, authorization for continuing use of the physical restraints shall be secured from a physician, physician assistant, or advanced practice nurse prescriber within 12 hours."

Providers will also need to seek input and approval from the Managed Care Organization (MCO) prior to submitting a request to the BAL regional office for Waiver, Approval, Variance and Exception (WAVE) determination.

Provider will submit the following to BAL for approval:

Medicaid Funded

There are separate guidelines and an application process in place to address the approval and use of physical or mechanical restraints, seclusion, isolation, and protective equipment for individuals who live in community settings in all Medicaid funded adult long-term care programs. Medicaid funded adult long-term care programs include: Family Care, Family Care Partnership, IRIS (Include, Respect, I Self-Direct), and PACE (Program of All-Inclusive Care for the Elderly). Please see Restrictive Measures Guidelines and Standards, P-02572 (PDF) for additional information. This separate application process needs to be approved by DMS prior to submitting the request to the BAL regional office for WAVE determination.

Standard of Practice Strategies

Providers should consider and include the following strategies within the ISP or Behavioral Health Plan to ensure resident safety while using restrictive measures in assisted living facilities:

  • Submission was developed with the cooperation and approval of the team, including authorization by MCO, providers, and the consumer/guardian as applicable.
  • Includes medical authorization/approval for the outlined restrictive measure(s) which will be renewed annually by the medical practitioner. Medical authorization/approval specifies the restraint used and includes the rationale for use of the medical restraint. Includes documentation of less restrictive strategies and interventions tried previously and deemed ineffective (includes Standards of Practice).
  • The plan identifies potential triggers or antecedents of the consumer's behaviors and provides less restrictive measures/approaches/interventions towards deescalating the consumer's agitation.
  • The plan details use of the measures only when the consumer's behavior presents an immediate danger to self or other persons. The restrictive measures proposed are the least restrictive approach available to achieve an acceptable level of safety for the consumer. This applies to each measure proposed and to the interactive effects, if any, of all such measures.
  • There is a detailed description and/or pictures of each requested restrictive measure. Pictures are required for new requests, but renewal requests may include detailed written descriptions of measures instead of pictures.
  • There are specified frequencies/intervals for monitoring a consumer during use of a restrictive measure for signs and symptoms of adverse effects on his or her health and well-being specified in the plan.
  • The selection of the frequency of monitoring depends on the consumer, current standards of practice and manufacturer's recommendations, and the measure used must not be less than once every 30 minutes and must be clearly indicated in the restrictive measures plan.
  • The plan outlines the maximum duration of continuous application of the restrictive measure for each instance of use to ensure least restrictive environment.
  • The restrictive measures are not used in lieu of adequate staffing or for staff convenience.
  • While the restrictive measure is in use the health, safety, welfare, dignity and other rights of the consumer and other consumers are adequately ensured.
  • All staff involved in the use or monitoring of this restrictive measure received training prior to implementing it, to ensure it will be used properly and on-going training will occur at least annually.
  • The provider's supervision, monitoring plan and back-up arrangements are adequate to ensure effective response to unanticipated reactions to the measure that might arise.
  • The application includes a reasonable plan for reducing or eliminating the need for using the measure in a reasonable length of time with a measurable benchmark allowing the team to determine whether the plan is effective.
  • A written assessment shows how the proposed use of any mechanical restraint, protective equipment or other type of device is safe for the individual consumer. The items are checked regularly to ensure they remain in good working condition.
Training of Involved Staff

All staff involved in the administration of restraints and seclusion must receive adequate training. Training must occur prior to implementing any restrictive measure and, at minimum, annually. Assurance of training of all individuals involved in the administration of restrictive measures is the responsibility of the team. Training must include proactive strategies to intervene at the first signs of tension to prevent further escalation, information about how to use specific restrictive measure techniques or devices properly, and how to inspect the device or equipment. DHS does not require a specific training curriculum for direct support staff on techniques of restrictive measures, but DHS may request information from service providers on the training curriculum used and on the qualifications of the individuals conducting direct support staff training to determine how teams are addressing this need.

Restrictive Measures Definitions

Community-Based Residential Facilities

Wisconsin Admin. Code ch. DHS 83

  • Wis. Admin. Code § DHS 83.32(3)(e) Freedom from seclusion. Be free from seclusion.
  • Wis. Admin. Code § DHS 83.32(3)(f) Freedom from chemical restraints. Be free from all chemical restraints.
  • Wis. Admin. Code § DHS 83.32(3)(g) Freedom from physical restraints. Be free from physical restraints except upon prior review and approval by the department upon written authorization from the resident's primary physician or advanced practice nurse prescriber as defined in s. N 8.02 (2). The department may place conditions on the use of a restraint to protect the health, safety, welfare and rights of the resident.
  • Wis. Admin. Code § DHS 83.32(3)(L) Least restrictive environment. Have the least restrictive conditions necessary to achieve the purposes of the resident's admission. The CBRF may not impose a curfew, rule or other restriction on a resident's freedom of choice.
  • Wis. Admin. Code § DHS 83.32(3)(n) Safe environment. Live in a safe environment. The CBRF shall safeguard residents from environmental hazards to which it is likely the residents will be exposed, including both conditions that are hazardous to anyone and conditions that are hazardous to the resident because of the residents' conditions or disabilities.

Wisconsin Admin. Code § DHS 83.02 Definitions

  • "Chemical restraint" means a psychotropic medication used for discipline or convenience, and not required to treat medical symptoms.
  • "Involuntary administration of psychotropic medication" means any one of the following: (a) Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication. (b) Forcibly restraining an individual to enable administration of psychotropic medication. (c) Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.
  • "Physical restraint" means any manual method, article, device, or garment interfering with the free movement of the resident or the normal functioning of a portion of the resident's body or normal access to a portion of the resident's body, and which the resident is unable to remove easily, or confinement of a resident in a locked room.
  • "Seclusion" means physical or social separation of a resident from others by actions of employees, but does not include separation to prevent the spread of communicable disease or voluntary cool−down periods in an unlocked room.

 

Adult Family Homes

Wisconsin Admin. Code ch. DHS 88

  • Wis. Admin Code § DHS 88.10(3)(n) Freedom from seclusion and restraints.
    1. Except as provided in subd. 2., to be free from seclusion and from all physical and chemical restraints, including the use of an as-necessary (PRN) order for controlling acute, episodic behavior.
    2. Physical restraints may be used in an emergency when necessary to protect the resident or another person from injury or to prevent physical harm to the resident or another person resulting from the destruction of property, provided that law enforcement or other emergency assistance be summoned as soon as possible and the incident is reported to the licensing agency by the next business day with documentation of what happened, the actions taken by the adult family home and the outcomes.

Wisconsin Admin. Code § DHS 88.02 Definitions

  • "Chemical restraint" means a psychopharmacologic drug that is used for discipline or convenience and not required to treat medical symptoms.
  • "Involuntary administration of psychotropic medication" means any of the following: (a) Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication. (b) Forcibly restraining an individual to enable administration of psychotropic medication. (c) Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.
  • "Physical restraint" means any manual method or any article, device or garment interfering with the free movement of a resident or the normal functioning of a portion of the resident's body or normal access to a portion of the body, and which the individual is unable to remove easily, or confinement in a locked room.
  • "Seclusion" means physical or social separation from others by action of the licensee, service provider or others in the home, but does not include separation in order to prevent the spread of a communicable disease or a cool down period in an unlocked room as long as being in the room is voluntary on the resident's part.

Client Rights Limitations

Practices that limit resident rights and are implemented as a facility-wide practice are subject to DHS approval. Examples include but are not limited to magnetic locking systems, video monitoring, and food restrictions. It is also the practice of BAL to review any use of sound or video monitoring devices for individuals when use is initiated by the facility.

Medical or therapeutic indications may involve limitations of individual rights in certain situations. The WAVE committee will not review limitations of individual rights associated with telephone calls, clothing or possessions, storage space, privacy in toileting or bathing, and visitors. Those limitations should be specifically addressed in the resident's individual service plan.

If the individual is receiving services for developmental disability, mental health, and/or substance use, the individual is then covered under Wis. Admin. Code ch. DHS 94 for additional rights and protections. A limitation or denial of a right associated with telephone calls, clothing or possessions, storage space, privacy in toileting and bathing, and visitors must meet additional documentation and review requirements.

Please reference the Client Rights Office for additional guidance.

Submit a request

Complete the Assisted Living Facility Waiver, Approval, Variance or Exception Request, F-62548. The request must:

  • Identify the facility
  • Identify the resident if applicable
  • Include the administrative or statutory code requirement for which action is requested
  • Contain all information supporting the request
  • Contain specific information as indicated in the applicable regulations
  • Contain enough information for the department to determine that the proposed action will not adversely affect the health, safety, or welfare of residents

Email the completed request form to the Bureau of Assisted Living Regional Office in which the facility is located.

Approval or denial process

BAL has an established a WAVE committee that meets on a regular basis. Its function is to approve or deny any request by a regulated assisted living facility that requires department approval. The purpose of the committee is to ensure that all requests are reviewed consistently throughout the state and that DHS is in compliance with its statutory and administrative authority. The WAVE committee will review all requests with the exception of those determined by the committee to require only independent review by the BAL regional director.

Failure to provide some or all of the necessary information may result in denial or significant delay of the approval process.

Additional resources

View additional provider specific regulatory information on the following DHS webpages:

Contact us

If you have questions, email the Bureau Assisted Living Regional Office in which the facility is located.

Last Revised: August 10, 2021