Waivers and variances

Waivers and variances.

(1) Definitions. In this section:

(a) “Variance” means the approval of an alternate requirement in place of a requirement of this chapter.

(b) “Waiver” means the granting of an exemption from a requirement of this chapter.

(2) Requirements for waivers or variances. The department may grant a waiver or variance if the department finds that the waiver or variance will not adversely affect the health, safety or welfare of residents, taking into account the size of the facility and the condition of the residents, and that:

(a) Strict enforcement of a requirement would result in unreasonable hardship on the facility or a resident; or

(b) An alternative to a rule which may involve introducing a new concept, method, procedure or technique, using new equipment, modifying personnel qualifications or providing for the conduct of pilot projects, is in the interests of better care or management.

(3) Procedures.

(a) Applications.

1. All applications for a waiver or variance shall be made in writing to the department, specifying the following:

a. The rule from which the waiver or variance is requested;

b. The time period for which the waiver or variance is requested;

c. If the request is for a variance, the specific alternative action which the facility proposes;

d. The reasons for the request; and

e. Assurances that sub. (2) would be satisfied.

2. A request for a waiver or variance may be made at any time.

3. The department may require additional information from the facility before acting on the request.

period for which the waiver or variance is requested;

c. If the request is for a variance, the specific alternative action which the facility proposes;

d. The reasons for the request; and

e. Assurances that sub. (2) would be satisfied.

2. A request for a waiver or variance may be made at any time.

3. The department may require additional information from the facility before acting on the request.

(b) Grants and denials.

1. The department shall grant or deny each request for waiver or variance in writing. Notice of denial shall contain the reasons for denial. If a notice of a denial is not issued within 60 days after the receipt of a complete request, the waiver or variance shall be automatically approved.

2. The department may impose whatever conditions on the granting of a waiver or variance that it deems necessary.

3. The department and a facility may agree to modify the terms of a requested variance.

4. The department may limit the duration of any waiver or variance.

(c) Appeal.

1. A facility may ask the administrator of the department’s division of long term care to review the reasonableness of the denial of a request for a waiver or variance. The administrator shall make that review and notify the facility of his or her decision within 20 days following receipt of the appeal.

2.

a. A denial of a waiver or variance may be contested by requesting a hearing as provided by ch. 227 , Stats.

b. The licensee shall sustain the burden of proving that the denial of a waiver or variance was unreasonable.

(d) Revocation. The department may revoke a waiver or variance if:

1. The department determines that the waiver or variance is adversely affecting the health, safety or welfare of the residents;

2. The department determines that the facility has failed to comply with a variance as granted;

3. The licensee notifies the department in writing that he or she wishes to relinquish the waiver or variance and be subject to the rule previously waived or varied; or

4. Revocation is necessary because of a change in the law.