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.
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
Wis. 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 is identified in Wis. Admin. Code § DHS 83.03
Additional references to waivers or variances can be found in:
- Wis. Admin. Code § DHS 83.27(1)(b) License capacity
- Wis. Admin. Code § DHS 83.27(2)(d) Admission and retention limitations
- Wis. Admin. Code § DHS 83.32(3)(g) Freedom from physical restraints
- 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.
Patient Rights and Resolution of Patient Grievances – Wis. Admin. Code ch. DHS 94
Wis. 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.
Use of Restrictive Measures
Use of restrictive measures for all Wisconsin residents of state licensed assisted living 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.
Providers may also need to seek input from the placing agency (if any) prior to submitting a request to the BAL regional office for Waiver, Approval, Variance and Exception (WAVE) determination.
Additional guidelines and an application process are 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 additional application process needs to be approved by DMS prior to submitting the request to the BAL regional office for WAVE determination.
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. 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.
View additional provider specific regulatory information on the following DHS webpages:
- Adult Family Homes
- Community-Based Residential Facilities
- Residential Care Apartment Complexes
- Adult Day Care
If you have questions, email the Bureau Assisted Living Regional Office in which the facility is located.