Section 13.03. Definitions.

  In this chapter:

(1)  

(a) "Abuse" means any of the following:

1. An act or repeated acts by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that, when contrary to the entity's policies and procedures, not a part of the client's treatment plan and done intentionally to cause harm, does any of the following:

a. Causes or could reasonably be expected to cause pain or injury to a client or the death of a client, and the act does not constitute self-defense as defined in s. 939.48 , Stats.

b. Substantially disregards a client's rights under ch. 50 or 51 , Stats., or a caregiver's duties and obligations to a client.

c. Causes or could reasonably be expected to cause mental or emotional damage to a client, including harm to the client's psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward aggressive behavior, agitation, or a fear of harm or death, or a combination of these behaviors. This subdivision does not apply to permissible restraint, isolation, or confinement implemented by order of a court or as permitted by statute.

2. An act or acts of sexual intercourse or sexual contact under s. 940.225 , Stats., by a caregiver and involving a client.

3. The forcible administration of medication to or the performance of psychosurgery, electroconvulsive therapy or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.

4. A course of conduct or repeated acts by a caregiver which serve no legitimate purpose and which, when done with intent to harass, intimidate, humiliate, threaten or frighten a client, causes or could reasonably be expected to cause the client to be harassed, intimidated, humiliated, threatened or frightened.

(b) "Abuse" does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

(2)  "Access," when used in reference to a person's access to clients, means that in the course of performing the person's expected duties for or functions with the entity, or as a nonclient resident of the entity, the person has or may have direct, regular contact with clients served by the entity.

(3)  

(a) "Caregiver" means a person who is all of the following:

1. A person who has received regulatory approval from an agency or is employed by or under contract with an entity.

2. A person who has access to the entity's clients.

3. A person who is under the entity's control.

(b) "Caregiver" does not include any of the following:

1. A person who performs solely clerical, administrative, maintenance or other support functions for the entity and is not expected to have regular, direct contact with clients or the personal property of clients.

2. A person who is employed by or under contract with an entity to provide infrequent or occasional services, such as delivering items to the facility, equipment maintenance, groundskeeping, construction or other similar services that are not directly related to the care of a client.

(4)  "Caregiver misconduct registry" means information collected and preserved in a database by the department on all caregivers who have been found to have abused or neglected a client or misappropriated a client's property, except for persons licensed, permitted, certified or registered under ch. 441 , 448 , 449 , 450 , 451 , 455 or 459 , Stats.

(5)  "Caregiver registry" means the registry required under s. 146.40 (4g) , Stats., which consists of 2 lists, the list under s. DHS 129.10 of nurse aides qualified by training and testing to work in a hospital or nursing home or for a home health agency or hospice program, and the caregiver misconduct registry, which includes nurse aides, under this chapter.

(6)  "Client" means a person who receives care or treatment from an entity.

(7)  "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.

(8)  "Credential" means a license, permit or certificate of certification or registration issued under chs. 440 to 480 , Stats.

(9)  "Department" means the Wisconsin department of health services.

(10)  "Employed by" means working for another for compensation on a full-time, part-time, temporary or per diem basis.

(11)  "Entity" has the meaning given in s. 50.065 (1) (c) , Stats.

(12)  "Misappropriation of property" means any of the following:

(a) The intentional taking, carrying away, using, transferring, concealing or retaining possession of a client's movable property without the client's consent and with the intent to deprive the client of possession of the property.

(b) Obtaining property of a client by intentionally deceiving the client with a false representation which is known to be false, made with the intent to defraud, and which does defraud the person to whom it is made. In this paragraph, "false representation" includes a promise made with the intent not to perform it if it is a part of a false and fraudulent scheme.

(c) By virtue of his or her office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally using, transferring, concealing, or retaining possession of the money, security, instrument, paper or writing without the owner's consent, contrary to his or her authority, and with the intent to convert it to his or her own use or to the use of any other person except the owner.

(d) Intentionally using or attempting to use personal identifying information as defined in s. 943.201 (1) (b) , Stats., or an individual's birth certificate or financial transaction card as defined in s. 943.41 (1) (em) , Stats., to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual.

(e) Violating s. 943.38 , Stats., involving the property of a client, or s. 943.41 , Stats., involving fraudulent use of a client's financial transaction card.

(13)  "Misconduct" means abuse or neglect of a client or misappropriation of a client's property.

(14)  

(a) "Neglect" means an intentional omission or intentional course of conduct by a caregiver or nonclient resident, including but not limited to restraint, isolation or confinement, that is contrary to the entity's policies and procedures, is not part of the client's treatment plan and, through substantial carelessness or negligence, does any of the following:

1. Causes or could reasonably be expected to cause pain or injury to a client or the death of a client.

2. Substantially disregards a client's rights under either ch. 50 or 51 , Stats., or a caregiver's duties and obligations to a client.

3. Causes or could reasonably be expected to cause mental or emotional damage to a client, including harm to the client's psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward behavior, agitation, fear of harm or death, or a combination of these behaviors. This paragraph does not apply to permissible restraint, isolation or confinement implemented by order of a court or as permitted by statute.

(b) "Neglect" does not include an act or acts of mere inefficiency, unsatisfactory conduct or failure in good performance as the result of inability, incapacity, inadvertency or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

(15)  "Nonclient resident" has the meaning specified in ss. 48.685 (1) (bm) and 50.065 (1) (cn) , Stats.

(16)  "Nurse aide" means a nurse's assistant as defined in s. DHS 129.03 (14) , a home health aide, as defined in s. DHS 129.03 (11) or a hospice aide, as defined in s. DHS 129.03 (11r) .

(17)  "Reasonable cause" means that the greater weight of evidence provides a reasonable ground for belief that the individual committed the act as alleged.

(18)  "Under the entity's control" means a person employed by or under contract with the entity for whom the entity does 2 or more of the following:

(a) Determines whether the person may provide care, treatment, support or similar services to clients served by the entity.

(b) Directs the policies or procedures the person must follow in performing his or her duties as a caregiver.

(c) Directs the conditions under which the person performs his or her duties as a caregiver.

(d) Directs the work assignments of or tasks performed by the caregiver.

(e) Determines the person's work schedule.

(f) Supervises or evaluates the person's work or job performance, including imposing discipline or awarding performance awards.

(g) Determines the compensation the person received for performing his or her duties as a caregiver.

(19)  "Without consent" has the meaning given in s. 939.22 (48) , Stats.

History: Cr. Register, June, 1999, No. 522 , eff. 7-1-99; reprinted to correct error in (1) (a) 1. (intro.), Register, August, 1999, No. 524 ; corrections in (5) and (16) made under s. 13.93 (2m) (b) 7., Stats., Register December 2003 No. 576 ; CR 04-040 : am. (15) Register November 2004 No. 587 , eff. 12-1-04; corrections in (5), (9) and (16) made under s. 13.92 (4) (b) 6. and 7., Stats., Register November 2008 No. 635 .

Note

Entities include those facilities, organizations or services that are licensed or certified by, approved by or registered with the department under the following chapters of the department's administrative rules:
  DHS 34   Emergency mental health service programs
  DHS 40   Mental health day treatment services for children
  DHS 61   Community mental health, alcoholism and other drug abuse
    (AODA) program
  DHS 63   Community support programs for chronically mentally ill persons
  DHS 75   Community Substance Abuse Standards
  DHS 82   Certified adult family homes
  DHS 83   Community-based residential facilities
  DHS 88   Licensed adult family homes
  DHS 89   Residential care apartment complexes
    (formerly, assisted living facilities)
  DHS 110   Ambulance service providers
  DHS 124   Hospitals
  DHS 127   Rural medical centers
  DHS 131   Hospices
  DHS 132   Nursing homes
  DHS 133   Home health agencies
  DHS 134   Facilities for the developmentally disabled Microsoft Windows NT 6.1.7601 Service Pack 1 Chapter DHS 129 was repealed and recreated effective 12-1-08. "Nurse aide" is now defined at s. DHS 129.03 (30). "Nurse's assistant", "home health aide" and "hospice aide" are not defined. Microsoft Windows NT 6.1.7601 Service Pack 1