AB203: Bill Text

LRB-2745/1

TAY&DAK:kaf:arm

1997 - 1998 LEGISLATURE

1997 Assembly BILL 203

March 20, 1997 - Introduced by Representatives Hahn, Zukowski, Schafer, Skindrud, Freese, Kreibich, Ladwig, Walker, Urban, Musser, Kelso, Huebsch, R. Potter, Underheim, Goetsch, Hanson, Ainsworth, La Fave, Lazich, Carpenter, Owens, Powers, Springer, Plale, Gunderson, Seratti, Kaufert and Wasserman, cosponsored by Senators Clausing, Rosenzweig and A. Lasee. Referred to Committee on Aging and Long-Term Care.

AB203,1,9 An Act to amend 49.498 (3) (b) 1., 55.043 (1) (a) (intro.), 55.043 (4) (intro.), 55.043 (4) (e), 55.043 (4) (f), 55.043 (5), 146.40 (4g) (a) 3., 146.40 (4r) (a), 146.40 (4r) (b) and 813.123 (5) (a) 3. a.; and to create 20.435 (6) (di), 46.90 (9m) and 50.065 of the statutes; relating to: requiring criminal history searches of certain persons hired or proposed to be hired by certain facilities or services, requiring conduct of an elder abuse awareness campaign, authorizing positions for the board on aging and long-term care, clarifying requirements for reporting the misappropriation of property, abuse or neglect of certain patients or facility residents, making appropriations and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, intentional abuse or intentional neglect and reckless abuse or reckless neglect of a patient or resident of an adult day care center, adult family home, community-based residential facility, foster home, group home, home health agency, hospital, inpatient health care facility and certain other facilities or programs is punishable as a felony, if performed under circumstances that are likely to cause great bodily harm. If the abuse or neglect is performed under circumstances not causing or likely to cause great bodily harm, the abuse or neglect is punishable as a misdemeanor. Currently, the department of justice (DOJ) performs criminal history searches and imposes fees for the searches that are for purposes unrelated to criminal justice.

This bill requires that any person who is engaged in the business of providing the services of an adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, nursing home or treatment facility request DOJ to perform a criminal history search on any individual who may have access to patients or residents of the facility or service whom the facility or agency proposes to hire. The bill prohibits such a facility or agency from intentionally hiring such an individual who has been convicted of intentional or reckless abuse and who has not been pardoned.

This bill creates an appropriation of general purpose revenues and requires that the department of health and family services (DHFS) conduct the elder abuse campaign. Under the campaign, DHFS must use mass media communication and develop, print and distribute brochures and posters to increase the general public's awareness of the problem of elder abuse.

This bill authorizes 2.0 additional full-time equivalent positions for the board on aging and long-term care, for treatment complaint investigations and service as mediators or advocates for the aged or disabled under the long-term care ombudsman program, and appropriates general purpose revenues for the positions.

Finally, this bill makes a change in the current law regarding the kind of abuse or neglect allegedly engaged in by a nurse's assistant that must be reported in the DHFS registry, in order to conform state law to federal law. Under current state law, an individual need only report to DHFS that he or she believes a nurse's assistant has neglected, abused or misappropriated the property of a resident or patient. The standard required under federal law includes not only the misappropriation of property, but also patient abuse or neglect. This bill incorporates this federal standard into state law.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB203, s. 1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB203, s. 2 Section 2. 20.435 (6) (di) of the statutes is created to read:

AB203,3,4 20.435 (6) (di) Elder abuse awareness campaign. The amounts in the schedule for the purpose of conducting a statewide elder abuse awareness campaign under s. 46.90 (9m).

AB203, s. 3 Section 3. 46.90 (9m) of the statutes is created to read:

AB203,3,11 46.90 (9m) Elder abuse awareness campaign. From the appropriation under s. 20.435 (6) (di), the department shall conduct a statewide elder abuse awareness campaign by use of mass media communication, including public service announcements, and by development, printing and distribution of informational brochures and posters, to increase the general public's awareness of the problem of elder abuse.

AB203, s. 4 Section 4. 49.498 (3) (b) 1. of the statutes is amended to read:

AB203,3,18 49.498 (3) (b) 1. Inform each resident, orally and in writing at the time of admission to the nursing facility, of the resident's legal rights during the stay at the nursing facility, including a description of the protection of personal funds under sub. (8) and a statement that a resident may file a complaint with the department under s. 146.40 (4r) (a) concerning neglect, abuse or misappropriation of property, neglect or abuse of a resident.

AB203, s. 5 Section 5. 50.065 of the statutes is created to read:

AB203,4,3 50.065 Prior convictions, employes of certain facilities or services. (1) In this section:

AB203,4,6 (a) "Adult day care center" means a facility that is operated by an adult day care provider that provides care and services to persons who are aged 60 or older for less than 24 hours a day.

AB203,4,7 (b) "Treatment facility" has the meaning given in s. 51.01 (19).

AB203,4,15 (2) Any person who is engaged in the business of providing the services of an adult day care center, an adult family home, an assisted living facility, a community-based residential facility, a home health agency, a hospice, a nursing home or a treatment facility shall request the department of justice to perform a criminal history search on any individual who may have access to patients or residents of the facility or service whom the adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, nursing home or treatment facility proposes to hire.

AB203,4,22 (3) No adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, nursing home or treatment facility may intentionally hire an individual who may have access to patients or residents of the facility or service who has been convicted of intentional abuse or intentional neglect under s. 940.295 (3) (a) 1. or reckless abuse or reckless neglect under s. 940.295 (3) (a) 2. and who has not been pardoned for the violation resulting in the conviction.

AB203,4,23 (4) Whoever violates sub. (3) may be required to forfeit not more than $1,000.

AB203, s. 6 Section 6. 55.043 (1) (a) (intro.) of the statutes is amended to read:

AB203,5,8 55.043 (1) (a) (intro.) If a county protective services agency has probable cause to believe that there is abuse, neglect or misappropriation of property, neglect or abuse, the county protective services agency may conduct an investigation in Milwaukee county to determine if the vulnerable adult in question is in need of protective services. The county protective services agency shall conduct the investigation in accordance with standards established by the department for conducting the investigations. The investigation shall include at least one of the following:

AB203, s. 7 Section 7. 55.043 (4) (intro.) of the statutes is amended to read:

AB203,5,13 55.043 (4) Offer of services. (intro.) If upon investigation the county protective services agency finds abuse, neglect or misappropriation of property, neglect or abuse, the county protective services agency may do one or more of the following:

AB203, s. 8 Section 8. 55.043 (4) (e) of the statutes is amended to read:

AB203,5,18 55.043 (4) (e) Refer the case to the department of regulation and licensing or the appropriate examining board if the abuse, neglect or misappropriation of property, neglect or abuse involves an individual who is required to be licensed, permitted, certified or registered under chs. 440 to 459.

AB203, s. 9 Section 9. 55.043 (4) (f) of the statutes is amended to read:

AB203,5,24 55.043 (4) (f) Bring a petition for a guardianship and protective service or protective placement if necessary to prevent abuse, neglect or misappropriation of property, neglect or abuse and if the vulnerable adult would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter and services.

AB203, s. 10 Section 10. 55.043 (5) of the statutes is amended to read:

AB203,6,6 55.043 (5) Applicability. This section does not apply to patients or residents of state-operated or county-operated inpatient institutions or hospitals issued certificates of approval under s. 50.35 unless the alleged abuse, neglect or misappropriation of property, neglect or abuse of such a patient or resident is alleged to have been done by a person other than an employe of the inpatient institution or hospital.

AB203, s. 11 Section 11. 146.40 (4g) (a) 3. of the statutes is amended to read:

AB203,6,10 146.40 (4g) (a) 3. Findings of the department under sub. (4r) (b) or of the hearing officer under sub. (4r) (d) concerning the neglect, abuse or misappropriation of property, neglect or abuse by an individual listed under subd. 2.

AB203, s. 12 Section 12. 146.40 (4r) (a) of the statutes is amended to read:

AB203,6,17 146.40 (4r) (a) Any individual may report to the department that he or she believes that a nurse's assistant has neglected, or abused a nursing home resident or a hospital patient or misappropriated the resident's or patient's property of a nursing home resident or a hospital patient or that a home health aide has neglected, or abused a home health agency patient or misappropriated the patient's property of a home health agency patient.

AB203, s. 13 Section 13. 146.40 (4r) (b) of the statutes is amended to read:

AB203,7,8 146.40 (4r) (b) The department shall review and investigate any report received under par. (a) and, if the allegation is substantiated, make specific, documented findings concerning the neglect, abuse or misappropriation of property, neglect or abuse. The department shall in writing by certified mail notify the nurse's assistant or home health aide specified in the report that his or her name and the department's findings about him or her shall be listed in the registry under sub. (4g) (a) 2. and 3. unless he or she contests the listings in a hearing before the department. The written notification shall describe the investigation conducted by the department, enumerate the findings alleging neglect, abuse or misappropriation of property, neglect or abuse of a nursing home resident or hospital or home health agency patient and explain the consequence to the nurse's assistant or home health aide of waiving a hearing to contest the findings. The nurse's assistant or home health aide named in the report shall have 30 days after receipt of the notification to indicate to the department in writing whether he or she intends to contest the listing or to waive the hearing.

AB203, s. 14 Section 14. 813.123 (5) (a) 3. a. of the statutes is amended to read:

AB203,7,14 813.123 (5) (a) 3. a. That the respondent has interfered with, or based upon prior conduct of the respondent may interfere with, an investigation of the vulnerable adult under s. 55.043 and that the interference complained of, if continued, would make it difficult to determine if abuse, neglect or misappropriation of property, neglect or abuse is occurring or may recur.

AB203, s. 15 Section 15. Nonstatutory provisions; department of justice.

AB203,7,20 (1) Criminal history searches. The authorized FTE positions for the department of justice are increased by 2.0 PR positions on July 1, 1997, to be funded from the appropriation under section 20.455 (2) (gm) of the statutes, for the purpose of performing criminal history searches as required under section 50.065 (2) of the statutes, as created by this act.

AB203, s. 16 Section 16. Appropriation changes; aging and long-term care board.