Waivers, Approvals, Variances, and Exceptions: Assisted Living

Wisconsin Admin. Code § DHS 88.01(2)(b) explains a licensing agency may grant an exception to any requirement in the chapter except for those that may interfere with a resident's rights under Wis. Admin. Code § DHS 88.10.

• A licensee request will be in writing, using a form provided by the department. The licensee must make 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 will 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 limits on an exception. If the licensee violates a condition under which the exception is granted, the licensee is then in violation of this chapter.

Requirements for waiver or variance are identified in Wis. Admin. Code § DHS 83.03. Additional references include:

• Admission and retention limitations: Wis. Admin. Code § DHS 83.27(2)(d).
• Freedom from physical restraints: Wis. Admin. Code § DHS 83.32(3)(g).
• License capacity: Wis. Admin. Code § DHS 83.27(1)(b).

Definitions

• Variance: An alternate means of meeting a requirement in Chapter DHS 83.
• Waiver: An exemption from a requirement of Chapter DHS 83.

Delayed egress

Requirements for approval are identified in Wis. Admin. Code § DHS 83.59(4).

Effective June 1, 2014, CBRFs are required to submit an application to the Division of Quality Assurance (DQA) Office of Plan Review and Inspection (OPRI) for delayed egress installation approval. CBRFs with delayed egress requests that were approved before June 1, 2014, do not have to resubmit an application under the new process.

Approval: For approval to install delayed egress systems, submit the Assisted Living Facility Waiver, Approval, Variance or Exception Request, F-62548 to the appropriate Bureau of Assisted Living Regional Office. The regional director will review the request for compliance with Wis. Admin. Code § DHS 83.59(4)(f). Approved requests may progress to plan review.

Plan review applications submitted to OPRI must include:

• The appropriate plan review application form.
• Documentation of approval from the BAL regional director.
• Necessary fees.
• Plans.
• Location(s) of installation.
• Hardware specifications.
• Delayed egress door markings.
• Any other information related to the installation.

Facilities with capacity of nine or more residents must have plans rendered by a design professional. The application will be assigned to an OPRI architect/engineer for review. Plan review can take up to 45 business days. Submitters should plan accordingly. Upon completion of the review, the plan review surveyor will email and post a response letter to the facility.

Change of ownership: If a change of ownership of a CBRF occurs and a facility with delayed egress has received approval after June 1, 2014, the new owner does not have to submit a new waiver application. However, any changes, additions, or upgrades to an existing delayed egress system will require plan review regardless of the previous approval date.

Historically, Wis. Admin. Code ch. DHS 89 has limited DHS's ability to grant variances. Residential care apartment complex requirements were considered minimal and gave flexibility for providers in their abilities to meet requirements. As such, variances will not be approved unless the rule specifies that a variance is permitted.

Wisconsin Admin. Code § DHS 89.295 addresses variances for demonstration projects in Family Care pilots. This subchapter applied to the original five county pilots and is no longer applicable due to the expansion of Family Care within the state.

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

Refer to Wis. Admin. Code § DHS 94.10 for information on isolation, seclusion, and physical restraints.

The code states that any service provider using isolation, seclusion, or physical restraint will 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 will 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 will 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.

A restrictive measure is 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 any Wisconsin resident in adult family homes or community-based residential facilities require department approval by the BAL. Use of restrictive measures is not allowed in residential care apartment complexes. 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 may be used in an emergency to protect against injury/harm, as long as emergency assistance is requested as soon as possible, and the incident is reported to BAL the next business day with all required information.
• Wisconsin Admin. Code § DHS 83.27(2)(g): The community-based residential facility may not admit or retain a person who requires a chemical or physical restraint except as authorized under s. 50.09(1)(k), Stats. which states that "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 need input and approval from the managed care organization before submitting a WAVE request to the BAL regional office. The request must include:

• Assisted Living Facility Waiver, Approval, Variance, or Exception Request, F-62548.
• Individual service plan—medical authorization.
• Behavior assessment, charting, and notes.
• Division of Medicaid Services (DMS) approval, if applicable.
• Approval from the managed care organization, if applicable.

Medicaid-funded programs

Medicaid-funded, adult long-term care programs have separate guidelines and application processes for approval and use of physical or mechanical restraints, seclusion, isolation, and protective equipment for individuals living in community settings.

This application process must be approved by DMS prior to submitting the request to the BAL regional office for WAVE determination.

Medicaid-funded programs include:

• Family Care.
• Family Care Partnership.
• IRIS (Include, Respect, I Self-Direct).
• PACE (Program of All-Inclusive Care for the Elderly).

Refer to Restrictive Measures Guidelines and Standards, P-02572 (PDF) for more information.

Standard of practice strategies

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

• Develop the submission with the cooperation and approval of the team, including authorization by the managed care organization, providers, and the resident or guardian as applicable.
• Include 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 using the medical restraint. Include documentation of less restrictive strategies and interventions tried previously that were not effective (includes Standards of Practice).
• Identify potential triggers or antecedents of the resident's behaviors and provide less restrictive measures/approaches/interventions toward deescalating the resident's agitation.
• Detail the use of the measures only when the resident's behavior presents an immediate danger to self or other persons. The restrictive measures proposed should be the least restrictive approach available to keep the resident safe. This applies to each measure proposed and to the interactive effects, if any, of all such measures.
• Include a detailed description and/or pictures of each requested restrictive measure. New requests require pictures. Renewal requests can have detailed written descriptions instead of pictures.
• Specify how often a resident will be monitored during use of a restrictive measure for signs and symptoms of adverse effects on their health and well-being.
• The selection of the frequency of monitoring depends on the resident, current standards of practice, and manufacturer's recommendations. In addition, the measure used must not be less than once every 30 minutes and must be clearly indicated in the restrictive measures plan.
• Outline the maximum duration of continuous application of the restrictive measure for each instance of use to ensure least restrictive environment.
• Do not use the restrictive measures in place of adequate staffing or for staff convenience.
• Ensure the safety, welfare, dignity, and other rights of the resident and other residents while the restrictive measure is in use.
• Ensure all staff who use or monitor the restrictive measure receive training before it is implemented to ensure proper use. Have ongoing training at least once a year.
• Make sure the provider's supervision, monitoring plan, and back-up arrangements are adequate to ensure effective response to any unanticipated reactions to the measure.
• Include a reasonable plan for reducing or eliminating the need for using the measure in a reasonable length of time. Use a measurable benchmark that allows the team to determine whether the plan is effective.
• Include a written assessment that shows how the proposed use of any mechanical restraint, protective equipment, or other type of device is safe for the individual. Check the items regularly to ensure they remain in good working condition.

Training of involved staff

All staff involved in using restraints and seclusion must receive adequate training. Training must take place before implementing any restrictive measure, and ongoing training must occur at least once a year. The team is responsible for ensuring that all individuals involved in using restrictive measures receive training.

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.
• How to inspect the device or equipment.

DHS does not require a specific training curriculum, but we may request information from service providers about training curriculum and trainer qualifications to determine how teams are addressing this need.

Restrictive measures definitions

Community-based residential facilities:

Wisconsin Admin. Code ch. DHS 83

Resident rights include:

• Freedom from seclusion: Be free from seclusion (Wis. Admin. Code § DHS 83.32(3)(e))
• Freedom from chemical restraints. Be free from all chemical restraints (Wis. Admin. Code § DHS 83.32(3)(f))
• 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)(g))
• 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)(L))
• Safe environment: Live in a safe environment. The CBRF shall keep residents from being exposed to environmental hazards, including both conditions that are hazardous to anyone and conditions that are hazardous to the resident because of the resident's conditions or disabilities (Wis. Admin. Code § DHS 83.32(3)(n))

Definitions listed in Wis. Admin. Code § DHS 83.02 include:

• Chemical restraint: A psychotropic medication used for discipline or convenience, and not required to treat medical symptoms.
• Involuntary administration of psychotropic medication: Any one of the following: (a) Placing psychotropic medication in a resident's food or drink with knowledge that the individual protests taking 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: 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: 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

Resident rights include freedom from seclusion and restraints. Wis. Admin. Code § DHS 88.10(3)(n)

• 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.
• 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.

Definitions listed in Wis. Admin. Code § DHS 88.02 include:

• Chemical restraint: A psychopharmacologic drug that is used for discipline or convenience and not required to treat medical symptoms.
• Involuntary administration of psychotropic medication: Any of the following: (a) Placing psychotropic medication in an individual's food or drink with knowledge that the individual doesn't want to take 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: 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: 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.

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.

Refer to the Client Rights Office for further guidance.

A waiver, approval, variance or exception may be requested to utilize technology or various remote support devices in assisted living facilities (when the use of the system or device is an alternate means of meeting a requirement or the licensee wishes to be exempt from a requirement of licensure). To receive approval of the system or device, the licensee should complete the Assisted Living Facility Waiver, Approval, Variance, or Exception Request, F-62548.

The request must include:

• Name of and information about the facility.
• Name of the resident, if applicable.
• Administrative or statutory code requirement for which action is requested.
  • Adult Family Home (exception):
    • Wisconsin Admin. Code § DHS 88.01(2)(b)
  • Community Based Residential Facility (waiver or variance):
    • Wisconsin Admin. Code § DHS 83.03
• All information supporting the request.
• Specific information as indicated in the applicable regulations.
• Enough information for the Department to determine that the proposed action will not adversely affect the health, safety, or welfare of residents.

Additional information the request may or may not include:

• Specific information regarding consent of the resident and/or guardian.
• Information regarding resident privacy.
• Information regarding the level of supervision necessary to utilize the system or device
• Information regarding changes to the resident or residents' Individual Service Plan (ISP) relative to the implementation of system or device.
• Information regarding any data collection by the system or device, who will have access to the data, and how that data is utilized and stored.
• Photos of the system or device.
• Floor plan(s) to assist in describing the facility layout as it relates to the system or device.
• Information to describe who will install the system or device and how it will be installed.
• Manufacturer's guidance for the safe use and installation of the system or device.
• Training to be provided to staff on the system or device.

Email the completed request form to the appropriate BAL Regional Office. If you have questions regarding this process or wish to discuss your request prior to submission, the Regional Director for the region the facility is located in can be contacted.