541 RETALIATION FOR REPORTS TO BOARD OF AGING AND LONG-TERM CARE (Sec. 16.009(5), Stats.)

[Ed. note: Pursuant to sec. 16.009(5), Stats., it is unlawful to retaliate against employees for contacting, providing information to or otherwise cooperating with any representative of the Board On Aging And Long-Term Care. An employee who is discharged or otherwise retaliated or discriminated against in violation of this provision may file a complaint with the Equal Rights Division under sec. 106.54(5), Stats. Such complaints are processed in the same manner that employment discrimination complaints are processed under the Wisconsin Fair Employment Act. Decisions of the Equal Rights Division under this law are appealable to LIRC.]

The Respondent, a non-medical home-care business that provides services to those who need assistance with basic tasks such as bathing, bathroom assistance, light housekeeping and food preparation, is not a long-term care facility subject to sec. 16.009(5). In particular, it is not a facility as defined in sec. 647(10), which is one kind of facility made subject to sec. 16.009(5). A facility under sec. 647.10 may include one that provides the kind of personal care services performed by the Respondent, but to be a facility under sec. 647.10, the facility must provide its services under a continuing care contract conditioned on payment of an entrance fee or transfer of at least $10,000 or 50% of a person’s estate. The Respondent does not provide its services under a continuing care contract. Kuzmanovic v. Petra Living Assistance, LLC (LIRC, 08/22/2018), aff'd Kuzmanovic v. LIRC (Waukesha Co. Cir. Ct. 03/17/2019).

A complaint was dismissed for failure to state a claim under either sec. 16.009(5), 46.90(4) or 50.07(30), Wis. Stats. Those statute sections are contained within statutory provisions relating to long-term care facilities, to elder abuse and other care and service residential facilities. They afford persons protection against being discharged or otherwise retaliated or discriminated against: 1) for “contacting, providing information to or otherwise cooperating with any representative of the Board (on aging and long-term care),” 2) for “reporting in good faith to the county agency or to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .that he or she believes that abuse, managerial abuse or neglect has occurred. . .” and 3) for “contacting or providing information to any State official, including any representative of the Office of the Long-Term Care Ombudsman. . .or for initiating, participating in, or testifying in an action for any remedy authorized under (subchapter 1 of Ch. 50, Wis. Stats.).” The common thread through all of these statutory provisions is that the protective report must be made before the alleged discriminatory or retaliatory conduct takes place in order for the protections of the statutes to be in effect. In this case, the Complainant did not allege that he contacted, provided information to or cooperated with any representative of the Board on Long-Term Care, that he reported suspected abuse to the county agency or any State official, or that he had initiated, participated in or testified in an action for any remedy under Ch. 50 before the discriminatory or retaliatory conduct complained of had occurred. DeGroot v. Parkview Adult Family Home (LIRC, 07/17/00).