AB933: Bill Text

LRB-4849/1

DAK&TAY:jlg:ijs

1997 - 1998 LEGISLATURE

1997 Assembly BILL 933

March 19, 1998 - Introduced by Joint Legislative Council. Referred to Committee on Children and Families.

AB933,2,2 An Act to renumber 55.06 (6); to amend 49.155 (1m) (a) (intro.), 55.06 (9) (b), 55.06 (10) (b), 880.331 (5) (a) and 880.331 (5) (b); and to create 49.155 (1) (ad), 49.155 (1) (d), 49.45 (8g), 49.45 (39) (d), 55.06 (6) (b), 55.06 (10) (am) and 118.125 (2) (hr) of the statutes; relating to: modifying eligibility standards for child care funding to permit parents of a child under the age of 18 with a special need or a child under the age of 22 with a special need who is receiving special education to receive child care funding; regulating medical assistance private duty nursing services for children; consent for release of information from a pupil's behavioral records or pupil physical health records for claiming reimbursement for school medical services; providing notice of protective placement transfers; guardian involvement in proceedings related to the ordering, review, transfer, modification or termination of a protective placement; a study of the cost of authorizing the provision of personal care services under the medical assistance program at locations other than in the recipient's home; and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the joint legislative council in the bill.

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:

Prefatory note: This bill was developed by the joint legislative council's special committee on programs for developmentally disabled persons. The provisions of the bill are described below.

1. Modifying Eligibility Standards for Child Care Funding to Permit Parents of a Child Age 13 to 17 With a Special Need or a Child Age 13 to 21 With a Special Need Who is Receiving Special Education to Receive Child Care Funding. [Sections 1 to 3 of the bill.]

Under current law, the state of Wisconsin provides child care funding assistance to several categories of eligible individuals. These categories include: persons who are low income (who have a family income equal to or less than 165% of the federal poverty level); and persons who are participants in the Wisconsin works (W-2) program. All of these categories of individuals must meet further eligibility requirements for child care funding assistance; one of the criteria is that the person is the parent of a child under age 13 or a person providing care or maintenance of a child under age 13 under the kinship care program.

This bill modifies the criteria for eligibility for various forms of child care assistance. The bill provides that a parent or other caretaker of a child under the age of 18 with a special need or the parent or other caretaker of a child under the age of 22 with a special need who is receiving special education as defined in s. 115.76 (10) may also be eligible for assistance. A "special need" is defined as an emotional, behavioral, physical or personal need of a person with a developmental disability, which requires more than the usual amount of care and supervision for that person's age.

2. Medical Assistance Rules Regulating Private Duty Nursing Services for Children. [Section 4 of the bill.]

Wisconsin's department of health and family services (DHFS) has promulgated chs. HFS 101 to 108, Wis. adm. code, for the purpose of administering the medical assistance (MA) program, which finances necessary health care services for qualified persons, including developmentally disabled children, whose financial resources are inadequate to provide for their health care needs. Among other things, the rules govern procedures for the issuance of prior authorizations to provide medically necessary private duty nursing services for recipients with medical conditions requiring more continuous skilled care than can be provided on a part-time intermittent basis. [ss. 101.03 (96m), 107.02 (3) and 107.12, Wis. adm. code.]

This bill requires DHFS to promulgate administrative rules that: (a) establish the length of time of a prior authorization period for providing private duty nursing services for children, which may not be less than one month nor more than one year; (b) establish the availability of private duty nursing services for children for periods of not less than one hour nor more than 24 hours per day; (c) do not require a parent, relative or household member to provide nursing services for a child in lieu of care provided by a registered or practical nurse, unless the parent, relative or household member volunteers to provide nursing services and receives adequate training to provide such services; (d) allow the retention and carry-over of authorized but unused private duty nursing hours for a period of 8 weeks; (e) require adequate advance written notice to parents or other appropriate family members whenever a service provider initiates a change in the number of hours that private duty nursing services are being provided; and (f) maintain the current or prior level of authorized private duty nursing hours for a child pending the final resolution of an appeal by a parent or family member of any determination or decision by the department that reduces the number of hours that such services were being authorized and provided.

3. Consent for Release of Information From Student Education Records of Claiming Reimbursement for School Medical Services. [Sections 5 and 11 of the bill.]

This bill provides that personally identifiable information from a pupil's behavioral records or pupil physical health records that relates to MA reimbursement for school medical services shall be made available to the service provider if that provider provides a consent form issued by the DHFS that is signed and dated by the parent or guardian of a minor pupil or by an adult pupil or the adult pupil's guardian, if any. The bill specifically provides that signature by a parent, guardian or adult pupil of an application for MA does not constitute consent for release of such information.

This bill requires the DHFS to develop and issue, upon request, this consent form. The consent form must clearly indicate that the consent of the parent, guardian or adult pupil is requested in order to disclose personally identifiable information from the pupil's behavioral or physical health records for the provider of school medical services to claim MA reimbursement for these services. In addition, the form must advise the person signing the form that he or she may wish to determine, prior to signing the form, whether claiming reimbursement for school medical services may increase the rate of any insurance coverage that the pupil may have, and whether the reimbursement may adversely affect the pupil's ability to obtain services under the MA program from providers who are not school medical services providers.

4. Providing Notice of Protective Placement Transfers. [Section 8 of the bill.]

Under current law, ch. 55 provides for the protective placement of an individual who is determined to be incompetent and has a primary need for residential care and custody, is incapable of providing for his or her own care so as to create a substantial risk of harm to the person or others and has a disability which is permanent or likely to be permanent.

Currently, transfer of a protectively placed person between placement facilities is governed by s. 55.06 (9) (b). Transfer may be made between placement units by a guardian or a placement facility without approval by a court. When transfer is made by a placement facility, the law requires that 24 hours' prior written notice of the transfer be provided to the guardian, when feasible. The statute provides that if it is not feasible to notify the guardian in advance, written notice must be provided immediately upon the transfer, and notice must also be provided to the court and to the board which ordered the placement within a reasonable time, not to exceed 48 hours from the time of the transfer. The guardian, ward or other interested person may petition a court to object to the transfer and a court must order a hearing within 96 hours after filing of the petition to determine if the transfer meets the requirements in s. 55.06 (9) (a) and is necessary for the best interests of the ward.

This bill amends s. 55.06 (9) (b), the statute relating to transfers of placements, to clarify that counties and DHFS, in addition to guardians and placement facilities, may also initiate changes in placement. Further, the bill provides that nonemergency transfers may only be made with written guardian consent. Ten days' advance written notice must be provided to the guardian of proposed nonemergency transfers. The guardian may consent, in writing, to the proposed transfer or request a hearing on the proposed transfer. Where guardian consent for the transfer is refused, the bill provides for a full court review, if requested by any interested person within 10 days after filing the petition requesting the hearing, to determine if the proposed placement meets placement standards in s. 55.06 (9) (a) and is in the person's best interests.

If an emergency transfer is made and the guardian's prior written consent is not obtained, the hearing on the transfer must be held within 96 hours after the petition for hearing is filed. The purpose of that hearing is to determine whether probable cause exists to believe that the transfer is consistent with s. 55.06 (9) (a) and is necessary for the best interests of the ward.

5. Guardian Involvement in Proceedings Related to the Review, Transfer, Modification or Termination of a Protective Placement. [Sections 6, 7 , 9, 10 , 12 and 13 of the bill.]

Under current law, ch. 55 provides for the protective placement of an individual who is determined to be incompetent, in a long-term care facility in order to provide for the care and custody of that person.

An "incompetent person" is defined as an individual adjudged by a court to be substantially incapable of managing his or her property or engaging in self-care due to infirmities of aging, developmental disabilities or a condition incurred at any age resulting from an accident, organic brain damage, mental or physical disability or the continued consumption or absorption of substances. A physical disability without accompanying mental incapacity is insufficient to establish incompetency. [ss. 55.01 (5) and 880.01 (4).]

An incompetent person must have a guardian appointed prior to an order for protective placement. [s. 55.06 (4).]

Subsequent to an order for a protective placement, current law provides for periodic review of the placement, as well as for transfer, modification or termination of a protective placement.

This bill provides for notification and involvement of the guardian of a person who is the subject of a protective placement, in proceedings which relate to the initial ordering of a protective placement or to the review, transfer, modification or termination of a protective placement. The bill provides that if a person sought to be protectively placed is under guardianship of the person prior to any hearing under ch. 55, the guardian shall have the right to receive prior written notice of the hearing, to participate in the hearing as a party, to be represented by counsel, and to present and cross-examine witnesses.

If a transfer of a protective placement is ordered or approved by a court, and the proposed placement plan is not specified at the hearing or in the reports on which the transfer is based, the bill provides that notice of the proposed placement plan must be given to the guardian at least 10 days before the proposed transfer is scheduled to occur. A guardian may request court review of the proposed transfer; if this request is made, the transfer may not occur until the court review has been completed.

Under current law, the DHFS, an agency responsible for a protective placement, a guardian or ward, or any other interested person may, at any time, petition the court for modification or termination of a protective placement. The petition must be heard within 21 days of its receipt by the court. This bill provides that notice of any hearing to modify or terminate a protective placement, including any hearing resulting from an annual review of protective placement under s. 880.331 (5), must be given to the guardian at least 10 days before the hearing.

Under current law, s. 880.331 sets forth the duties of guardians ad litem in incompetency cases. In periodic reviews of protective placements under s. 880.331 (5), the guardian ad litem is charged with several responsibilities, including interviewing the ward and explaining to the ward the review procedure, the right to an independent evaluation, the right to counsel and the right to a hearing. This bill requires the guardian ad litem to also interview the ward's guardian and provide the same explanations to the guardian which are provided to the ward. The bill requires this information to be provided to the guardian in writing.

6. Studies to be Conducted by the DHFS. [Section 14 of the bill.]

Under current law, the Wisconsin MA program provides reimbursement for personal care services provided to eligible recipients by certified providers. Pursuant to administrative rule, personal care services must be provided in the recipient's home, under s. HSS 107.112, Wis. adm. code.

However, under federal law, states have the option of reimbursing providers who provide personal care services to MA recipients in settings other than the recipient's home. [PL 103-66, s. 13601.]

This bill requires DHFS to conduct a study of the cost of authorizing personal care services to persons with developmental disabilities under the state's MA program to be provided at locations other than at the recipient's home. The department shall submit a report of its findings to the governor and the legislature on or before January 1, 1999.

Section 9132 (1xyg) of 1997 Wisconsin Act 27, the 1997-99 budget act, requires DHFS to conduct a study on the future of the state centers for the developmentally disabled to be completed by September 1, 1998. This bill requires the department, as part of that study, to examine and consider the economic impact that downsizing or closing a state center would have on the local community and region, and to examine and consider the actual cost of community placement for each resident of a state center subject to downsizing and closure. Furthermore, the department shall establish a pilot project for state-operated community residences for persons with developmental disabilities located near each state center which utilizes 4- to 6-bed group homes or intermediate care facilities for the mentally retarded (ICF-MRs) to be staffed by state employes.

Finally, the bill requires DHFS, as part of its study for the redesign of the state's long-term community support services and institutional and residential care systems for persons with disabilities, to also study the quality and effectiveness of existing community support services and institutional and residential care for persons with developmental disabilities. The study shall be predominantly based on appropriate measurements and assessments of the quality of life of individuals receiving care and services and the level of consumer satisfaction of those persons and their families. The study further requires the department to:

a. Identify the nature and extent of the unmet needs of developmentally disabled persons currently receiving services and care, as well as those on waiting lists, and the cost of meeting those needs;

b. Evaluate the adequacy and quality of current staffing for community-based programs for the developmentally disabled and the oversight mechanisms that currently monitor those programs; and

c. Address the total cost of both institutional and community placements based on the amounts needed to support specific individuals in the community and in institutions.

The bill requires the department to contract with an independent entity to conduct the study, which must have knowledge of and experience with persons with developmental disabilities. If the cost of the study cannot be conducted within the department's budget, it must seek to obtain funding through a foundation grant or other private source before requesting any state funding from the joint finance committee.

AB933, s. 1 Section 1 . 49.155 (1) (ad) of the statutes is created to read:

AB933,5,2 49.155 (1) (ad) "Child" means a person who is any of the following:

AB933,5,3 1. A person under the age of 13.

AB933,6,1 2. A person under the age of 18 who has a special need.

AB933,6,3 3. A person under the age of 22 who has a special need and who is receiving special education, as defined in s. 115.76 (10).