AB933: Bill Text

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).

AB933, s. 2 Section 2. 49.155 (1) (d) of the statutes is created to read:

AB933,6,8 49.155 (1) (d) "Special need" means an emotional, physical or personal need of a person with a developmental disability, requiring more than the usual amount of care and supervision for the person's age, as documented by a physician, psychologist, special educator or other qualified professional.

Note: This Section creates a definition of "special need" in the Wisconsin works program child care subsidy statute.

AB933, s. 3 Section 3 . 49.155 (1m) (a) (intro.) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

AB933,6,14 49.155 (1m) (a) (intro.) The individual is a parent of a child who is under the age of 13, or is a person who, under s. 48.57 (3m), is providing care and maintenance for a child who is under the age of 13, and child care services for that child are needed in order for the individual to do any of the following:

Note: This Section provides that an individual who is the custodial parent of a child or a person who, under the kinship care program, is providing care and maintenance for a child is eligible for a child care subsidy, if the parent or person meets educational criteria. The term "child" is defined in s. 49.155 (1) (ad), as created in this bill.

AB933, s. 4 Section 4 . 49.45 (8g) of the statutes is created to read:

AB933,6,17 49.45 (8g) Rules governing private duty nursing services for children. The department shall promulgate rules that do all of the following:

AB933,6,20 (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.

AB933,7,2 (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.

AB933,7,6 (c) Require a parent, relative or household member to provide nursing services for a child in lieu of care provided by a registered or licensed practical nurse, only if the parent, relative or household member volunteers to provide nursing services and receives adequate training to provide the services.

AB933,7,8 (d) Authorize the retention and carry-over of authorized but unused private duty nursing hours for a period of 8 weeks.

AB933,7,11 (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 provided.

AB933,7,15 (f) 1. Maintain the current 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 would reduce the number of hours for which the services were authorized and provided.

AB933,7,19 2. Maintain the former 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 reduced the number of hours for which the services were authorized and provided.

Note: See item 2. of the Prefatory note for an explanation of this Section.

AB933, s. 5 Section 5 . 49.45 (39) (d) of the statutes is created to read:

AB933,8,10 49.45 (39) (d) Consent for information for provider reimbursement. The department shall develop and issue, upon request, a consent form, to be signed and dated by a parent or guardian of a minor pupil or by an adult pupil or the guardian of an adult pupil, if any, that may be used under s. 118.125 (2) (hr). The form shall 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 records or pupil physical health records for the provider of school medical services for the pupil to claim reimbursement under this subsection from the department. The form shall also 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 medical assistance program from providers who are not school medical services providers.

Note: See item 3. of the Prefatory note for an explanation of this Section.

AB933, s. 6 Section 6 . 55.06 (6) of the statutes is renumbered 55.06 (6) (a).

AB933, s. 7 Section 7 . 55.06 (6) (b) of the statutes is created to read:

AB933,8,16 55.06 (6) (b) If the person sought to be placed is under a guardianship of the person prior to any hearing under this chapter, the guardian shall receive prior written notice of the hearing and may participate in the hearing as a party, be represented by counsel and present and cross-examine witnesses.

Note: This Section provides that the guardian of a person sought to be protectively placed has the right to receive prior written notice of any hearing under ch. 55, to be represented by counsel, and to cross-examine witnesses.

AB933, s. 8 Section 8 . 55.06 (9) (b) of the statutes is amended to read:

AB933,9,25 55.06 (9) (b) Transfer may be made between placement units or from a placement unit to a medical facility other than those specified in pars. (c) to (e) by a county, the department, a guardian or placement facility without approval by a court. When If transfer is made by a county, the department or a placement facility, 24 hours' the county, department or facility shall provide 10 days' prior written notice of the transfer shall be provided to the guardian, when feasible. If it is not feasible to notify the guardian in advance, and shall obtain the guardian's prior written consent to the transfer, unless an emergency precludes the prior written notice and consent. The notice of transfer shall include notice of the right of the guardian, ward or attorney or other interested person to petition the court for a hearing on the transfer. If an emergency precludes providing prior written notice to and obtaining the prior written consent of the guardian, written notice shall be provided immediately upon transfer, and notice shall also be provided to the court and to the board designated under s. 55.02 or an agency designated by it within a reasonable time, not to exceed 48 hours from the time of the transfer. Upon petition to a court by a guardian, ward, or attorney, or other interested person specifying objections to a transfer, the court shall order a hearing, within 10 days after filing of the petition, or within 96 hours after filing of the petition, in the case of an emergency transfer made without prior written notice to and written consent of the guardian. For nonemergency transfers, the purpose of the hearing is to determine whether the proposed placement meets the standards of par. (a) and is in the best interests of the ward. For emergency transfers made without prior written notice to and written consent of the guardian, the purpose of the hearing is to determine whether there is probable cause to believe that the transfer is consistent with the requirements specified in par. (a) and is necessary for the best interests of the ward. The court shall notify the ward, guardian and petitioner of the time and place of the hearing, and a guardian ad litem shall be appointed to represent the ward. If the person is indigent, the county of legal settlement shall be liable for guardian ad litem fees. The petitioner, ward and guardian shall have the right to attend, and to present and cross-examine witnesses.

Note: See item 4. of the Prefatory note for an explanation of this Section.

AB933, s. 9 Section 9 . 55.06 (10) (am) of the statutes is created to read:

AB933,10,10 55.06 (10) (am) Except in an emergency, if the court orders or approves a transfer of a protective placement, and the proposed placement or service plan is not specified at the hearing or in the reports on which the transfer is based, the department or the agency that is responsible for the protective placement shall provide notice of the proposed placement or service plan to the guardian at least 10 days before the proposed transfer. If the guardian requests court review of the proposed transfer under sub. (9) (b) or (c) within 10 days of receiving the notice required by this paragraph, the transfer may not occur until the court review has been completed.

Note: This Section requires that a guardian of a subject of a protective placement proceeding must receive at least a 10-day advance notice of the proposed protective placement or protective services plan. Further, this Section provides that if a guardian requests a court review of the proposed transfer, the transfer may not occur until the court review has been completed.

AB933, s. 10 Section 10 . 55.06 (10) (b) of the statutes is amended to read:

AB933,11,2 55.06 (10) (b) The department, an agency, a guardian or a ward, or any other interested person may at any time petition the court for modification or termination of a protective placement. A petition to terminate a protective placement shall allege that the conditions which warranted placement as specified in sub. (2) are no longer present. A petition shall be heard if a hearing has not been held within the previous 6 months but a hearing may be held at any time in the discretion of the court. The petition shall be heard within 21 days of its receipt by the court. The department or the agency that is responsible for the protective placement shall give notice of any hearing to modify or terminate a protective placement, including any hearing resulting from a review under s. 880.331 (5), to the guardian at least 10 days prior to the hearing.

Note: This Section requires that notice of any hearing to modify or terminate a protective placement must be given to the guardian at least 10 days prior to the hearing.

AB933, s. 11 Section 11 . 118.125 (2) (hr) of the statutes is created to read:

AB933,11,11 118.125 (2) (hr) Notwithstanding par. (e), personally identifiable information from a pupil's behavioral records or pupil physical health records that relates to reimbursement from medical assistance for school medical services provided under s. 49.45 (39) shall be made available to the service provider if that provider provides a consent form issued under s. 49.45 (39) (d) that is signed and dated by the parent or guardian of a minor pupil or by an adult pupil or an adult pupil's guardian, if any. Signature by a parent, guardian or adult pupil of an application for medical assistance does not constitute consent under this paragraph.

Note: Section 11 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 provided under s. 49.45 (39) must 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 adult pupil's guardian, if any. The parent's, guardian's or adult pupil's signature of an application for MA does not constitute this required consent.

AB933, s. 12 Section 12 . 880.331 (5) (a) of the statutes is amended to read:

AB933,11,17 880.331 (5) (a) Interview the ward to and the guardian and explain to the ward and the guardian the review procedure, the right to an independent evaluation, the right to counsel and the right to a hearing. If it is not possible to interview the guardian in person due to traveling distance, the guardian ad litem may conduct the interview with the guardian by telephone.

AB933, s. 13 Section 13 . 880.331 (5) (b) of the statutes is amended to read:

AB933,11,20 880.331 (5) (b) Provide the information under par. (a) to the ward and to the guardian in writing.

Note: Sections 12 and 13 require a guardian ad litem appointed pursuant to a review of a protective placement proceeding to interview the guardian of the subject of the proceeding, explain certain rights to the guardian, and provide information on the rights and on the review procedure in writing. This interview may be conducted by telephone if it is not possible to meet with the guardian in person due to traveling distance.

AB933, s. 14 Section 14 . Nonstatutory provisions; health and family services.

AB933,12,8 (1) The department of health and family services shall conduct a study of the cost under the medical assistance program of authorizing, for persons with developmental disabilities, the provision of personal care services at locations other than in the recipient's home, subject to the limitations under section 49.45 (42) of the statutes. The department shall submit a report of its findings to the governor, and to the legislature in the manner provided under section 13.172 (2) of the statutes on or before January 1, 1999.

AB933,12,12 (2) (a ) In conjunction with the study on the future of the state centers for the developmentally disabled as required under 1997 Wisconsin Act 27, section 9132 (1xyg) the department of health and family services shall examine and consider all of the following:

AB933,12,15 1. The economic impact that any downsizing or closure of a state center for the developmentally disabled would have on the surrounding local community and region.

AB933,12,19 2. The actual cost of community placement for each resident of a state center for the developmentally disabled subject to downsizing or closure, including all medical assistance card services and services provided by volunteers and nonprofit organizations.

AB933,13,2 (b) As part of the study under paragraph (a ), the department of health and family services shall also establish a pilot project of state-operated and state employe-staffed community residences for persons with developmental disabilities located near each state center for the developmentally disabled that utilizes 4-bed to 6-bed group homes or intermediate care facilities for the mentally retarded.

AB933,13,11 (3) (a) As part of its study for the redesign of the state's long-term community support services and long-term institutional and residential care systems for persons with physical, mental and developmental disabilities, the department of health and family services shall conduct a study of the quality and effectiveness of existing community support services and institutional and residential care for persons with developmental disabilities based predominantly 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 shall also do all of the following:

AB933,13,14 1. Identify the nature and extent of the unmet needs of developmentally disabled persons presently receiving services and care, as well as those on waiting lists, and the cost of meeting those needs.

AB933,13,18 2. Evaluate the adequacy and quality of current staffing for community-based programs that provide services and institutional and residential care for developmentally disabled persons and the oversight mechanisms that currently monitor the services and care.

AB933,13,21 3. Address the total cost of both institutional and community placements based on amounts needed to support specific individuals in the community and in institutions.

AB933,14,3 (b) The department of health and family services shall contract with an independent entity having knowledge of and experience with persons with developmental disabilities to conduct the study. If the cost of the study under this subsection cannot be paid under existing appropriation accounts of the department of health and family services, the department shall seek to obtain funding through a foundation grant or other private source prior to requesting funding from the joint committee on finance of the legislature.

Note: See item 6. of the Prefatory note for an explanation of this Section.

AB933,14,4 (End)