16.009 Board on aging and long-term care.
(1) In this section:
(ac) “Access” means the ability to have contact with a person or to obtain, examine, or retrieve information or data pertinent to the activities of the board with respect to a person.
(ag) “Board" means the board on aging and long-term care.
(ar) “Client" means an individual who requests or is receiving services of the office.
(br) “Disclosure” means the release, the transfer, the provision of access to, or divulging in any manner of information outside the entity holding the information.
(cg) “Enrollee” means an enrollee, as defined in s. 46.2805 (3), an individual receiving services under the Family Care Partnership Program or the program of all-inclusive care for the elderly, or an individual receiving long-term care benefits as a veteran.
(cm) “Family Care Partnership Program” means an integrated health and long-term care program operated under an amendment to the state Medical Assistance plan under 42 USC 1396u-2 and a waiver under 42 USC 1396n (c).
(cr) “Family care program” means the program under ss. 46.2805 to 46.2895 that provides the family care benefit, as defined in s. 46.2805 (4).
(ef) “Immediate family member” means a member of a client's household or a relative of a client with whom the client has a close personal or significant financial relationship.
(em) “Long-term care facility" includes any of the following:
1. A nursing home, as defined in s. 50.01 (3).
2. A community-based residential facility, as defined in s. 50.01 (1g).
3. A facility, as defined in s. 647.01 (4).
4. A swing bed in an acute care facility or extended care facility, as specified under 42 USC 1395tt.
5. A hospice, as defined in s. 50.90 (1) (c).
6. An adult family home, as defined in s. 50.01 (1).
7. A residential care apartment complex, as defined in s. 50.01 (6d).
(f) “Long-term care insurance" means insurance that provides coverage both for an extended stay in a nursing home and home health services for a person with a chronic condition. The insurance may also provide coverage for other services that assist the insured person in living outside a nursing home, including but not limited to adult day care and continuing care retirement communities.
(gm) “Office" means the office of the long-term care ombudsman.
(gr) “Ombudsman" means the state long-term care ombudsman, as specified in sub. (4) (a), or any employee or volunteer who is a representative of the office and who is designated by the state long-term care ombudsman to fulfill the duties under this section, 42 USC 3058g, and 45 CFR 1324.
(gv) “Program of all-inclusive care for the elderly” means in integrated health and long-term care program operated under 42 USC 1395eee or 1396u-4.
(i) “Program" means the long-term care ombudsman program.
(j) “Resident" means a person cared for or treated in a long-term care facility.
(k) “Self-directed services option” has the meaning given in s. 46.2899 (1).
(2) The board shall:
(a) Appoint an executive director within the classified service who shall serve as the state long-term care ombudsman as specified under sub. (4) (a) and who shall employ staff within the classified service.
(b) Implement a long-term care ombudsman program, to do all of the following:
1. Investigate complaints from any person concerning improper conditions or treatment of persons who are 60 years of age or older and who receive long-term care in certified or licensed long-term care facilities or under programs administered by state or federal governmental agencies or concerning noncompliance with or improper administration of federal statutes or regulations or state statutes or rules related to long-term care for persons who are 60 years of age or older.
2. Serve as mediator or advocate to resolve any problem or dispute relating to long-term care for persons who are 60 years of age or older.
3. Comply with the requirements of 42 USC 3058f to 3058h and 45 CFR 1321 and 1324.
(d) Promote public education, planning, and voluntary acts to resolve problems and improve conditions involving long-term care for persons who are 60 years of age or older.
(e) Monitor, evaluate, and make recommendations concerning the development and implementation of federal, state, and local laws, regulations, rules, ordinances, and policies that relate to long-term care facilities and programs for persons who are 60 years of age or older.
(em) Monitor, evaluate, and make recommendations concerning long-term community support services received by clients of the self-directed services option, the family care program, the Family Care Partnership Program, and the program of all-inclusive care for the elderly.
(f) As a result of information received while investigating complaints and resolving problems or disputes, collect and publish materials that assess existing inadequacies in federal and state laws, regulations, and rules concerning long-term care for persons who are 60 years of age or older. The board shall collaborate with appropriate state agencies on efforts to resolve systemic concerns and shall recommend to the governor and the legislature legislation to remedy these inadequacies.
(g) Stimulate resident, client and provider participation in the development of programs and procedures involving resident rights and facility responsibilities, by establishing resident councils and by other means.
(h) Conduct statewide hearings on issues of concern to persons who are 60 years of age or older and who are receiving or may receive long-term care.
(i) Report annually to the governor and the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3). The report shall set forth the scope of the programs for providing long-term care for persons who are 60 years of age or older developed in the state, the findings regarding the state's activities in the field of long-term care for persons who are 60 years of age or older, any recommendations for a more effective and efficient total program, and the actions taken by the agencies of the state to carry out the board's recommendations.
(j) Provide information and counseling to consumers regarding insurance policies available to supplement federal medicare insurance coverage, including long-term care insurance, and the eligibility requirements for medical assistance under s. 49.46 (1), 49.468 or 49.47 (4). To implement this responsibility, the board shall provide training, educational materials and technical assistance to volunteer organizations and private businesses willing and able to provide insurance and medical assistance eligibility information and counseling, in order that these organizations and businesses may provide the information and counseling to consumers.
(p) Employ staff within the classified service to provide advocacy services to potential or actual enrollees of the family care program, the Family Care Partnership Program, or the program of all-inclusive care for the elderly or potential or actual recipients of the self-directed services option. The board under this paragraph shall assist these persons in protecting their rights under all applicable federal statutes and regulations and state statutes and rules. For potential or actual recipients of the self-directed services option who are 60 years of age or older and for enrollees of the family care program who are 60 years of age or older, advocacy services required under this paragraph shall include all of the following:
1. Providing information, technical assistance and training about how to obtain needed services or support items.
2. Providing advice and assistance in preparing and filing complaints, grievances and appeals of complaints or grievances.
3. Providing negotiation and mediation.
4. Providing individual case advocacy assistance regarding the appropriate interpretation of statutes, rules or regulations.
5. Providing individual case advocacy services in administrative hearings regarding self-directed services option or family care services or benefits.
(3) The board shall:
(a) Carry out the board's long-term care ombudsman activities, as described in 42 USC 3058g (a) (2) and 45 CFR 1321 and 1324, and the activities of the Medigap Helpline program as specified in sub. (2) (j).
(bm) Employ an attorney for provision of legal services in accordance with requirements of the long-term care ombudsman program under 42 USC 3027 (a) (12) and 42 USC 3058g (g), as specified in 45 CFR 1324.15 (j).
(4)
(a) The board shall operate the office in order to carry out the requirements of the long-term care ombudsman program, as defined in 42 USC 3058g (a) (2), under 42 USC 3027 (a) (12) (A) and 42 USC 3058f to 3058h and in compliance with 42 CFR 1321 and 1324. The executive director appointed by the board shall serve as the state long-term care ombudsman. The executive director may delegate operation of the office to the staff employed under sub. (2) (a), as designated representatives of the ombudsman.
(b) The ombudsman or his or her designated representative may have the following access to clients, residents, enrollees, and long-term care facilities:
1. The ombudsman or designated representative may:
a. At any time without notice, enter, and have immediate access to a client or resident in, a long-term care facility.
b. Communicate in private, without restriction, with a client or resident.
c. Except as provided in subd. 1. d., have access to and review records that pertain to the care of the resident if the resident or his or her guardian has consented or if the resident has no guardian and is unable to consent.
d. With the consent of a resident or his or her legal counsel, have access to and review records that pertain to the care of the resident, as specified in s. 49.498 (5) (e).
e. Have access to and review records of a long-term care facility as necessary to investigate a complaint if the resident's guardian refuses to consent; if the ombudsman or designated representative has reason to believe that the guardian is not acting in the best interests of the resident; and, for investigation only by a designated representative, if the designated representative obtains the approval of the ombudsman.
f. Have access to those administrative records, policies and documents of a long-term care facility to which the resident or public has access.
g. Have access to and, on request, be furnished copies of all licensing or certification records maintained by the department of health services with respect to regulation of a long-term care facility.
2. The ombudsman shall receive, upon request to a long-term care facility, the name, address and telephone number of the guardian, legal counsel or immediate family member of any resident.
(d) An ombudsman acting as specified under 45 CFR 1324.11 (e) (2) (vii) is not subject to the provisions of the federal privacy rule under 45 CFR 160.101 to 164.534. A long-term care facility or personnel of a long-term care facility that make a disclosure as authorized under this subsection are not liable for that disclosure.
(e) A disclosure of information of the office relating to a client, complaints, or investigations under the program may be made only at the discretion of the ombudsman or his or her designated representative. A disclosure of information relating to a client or named witness or of a resident who is not a client may be made under this paragraph only if one of the following conditions is met:
1. Under written authorization by the client, witness or resident or his or her guardian, if any.
2. Under the lawful order of a court of competent jurisdiction.
(5)
(a) No person may do any of the following:
1. Discharge or otherwise retaliate or discriminate against any person for contacting, providing information to or otherwise cooperating with any representative of the board.
2. Discharge or otherwise retaliate or discriminate against any person on whose behalf another person has contacted, provided information to or otherwise cooperated with any representative of the board.
3. Willfully interfere with the actions of an ombudsman by acting or attempting to act to intentionally prevent, interfere with, or impede the ombudsman from performing any of the functions or responsibilities under this section.
(b) Any person who violates par. (a) may be fined not more than $1,000 or imprisoned for not more than 6 months or both.
(d) Any employee who is discharged or otherwise retaliated or discriminated against in violation of par. (a) may file a complaint with the department of workforce development under s. 106.54 (5).
(e) Any person not described in par. (d) who is retaliated or discriminated against in violation of par. (a) may commence an action in circuit court for damages incurred as a result of the violation.
History: 1981 c. 20; 1983 a. 524; 1985 a. 29; 1987 a. 27; 1989 a. 31, 294; 1991 a. 39, 232; 1993 a. 16, 205; 1995 a. 27 s. 9126 (19); 1997 a. 131; 1999 a. 9, 82, 86, 186; 2003 a. 33; 2007 a. 20 ss. 74, 9121 (6) (a); 2009 a. 28; 2011 a. 32; 2013 a. 165 s. 114; 2017 a. 59; 2019 a. 9.