AB895: Bill Text

LRB-4465/2

DAK/ISR/GMM:kmg:jf

1999 - 2000 LEGISLATURE

1999 Assembly BILL 895

March 20, 2000 - Introduced by Representative Underheim, by request of Department of Health and Family Services. Referred to Committee on Health.

AB895,2,13 An Act to repeal 252.15 (7) (c) 2.; to renumber 252.15 (7) (c) 1.; to renumber and amend 20.435 (4) (bs) and 252.15 (7) (c) (intro.); to amend 46.27 (11) (c) 5m. (intro.), 46.27 (11) (c) 5n. (intro.), 46.27 (11) (c) 6. (intro.), 46.277 (5) (d) 1m. (intro.), 46.277 (5) (d) 1n. (intro.), 46.277 (5) (d) 2. (intro.), 46.286 (1) (a) 2. (intro.), 46.286 (1m), 46.286 (3) (a) (intro.), 46.289, 46.99 (2) (a) (intro.), 46.995 (1m), 46.995 (4m) (b) (intro.), 48.833, 48.981 (3) (cm), 48.981 (7) (cm), 48.981 (7) (d), 49.45 (46) (a), 50.033 (2s) (intro.), 50.034 (5n) (intro.), 50.035 (4n) (intro.) and 153.50 (6) (c) 1.; to repeal and recreate 46.27 (11) (c) 6. a. and 46.277 (5) (d) 2. a.; to create 46.27 (11) (c) 6g., 46.277 (5) (d) 4., 46.286 (3) (a) 6., 48.78 (3), 48.981 (3) (c) 5m., 48.981 (7) (a) 15g., 48.981 (7) (cr) and 938.78 (4) of the statutes; and to affect 1999 Wisconsin Act 9, section 402, 1999 Wisconsin Act 9, section 9423 (7) and 1999 Wisconsin Act 9, section 9423 (8); relating to: appeals of substantiated child abuse or neglect findings; public disclosure of certain child abuse and neglect information when there is a child fatality or near fatality; access to child abuse and neglect information by a citizen review panel established or designated by the department of health and family services or a county department of human services or social services; the disclosure of records relating to a substitute care parent; the placement of a child for adoption outside of the county where the child is located; the allocation of funding for tribal adolescent services and the brighter futures initiative; reporting an individual's positive HIV test to the state epidemiologist; family care eligibility and referral; use of community options program and community integration program funds in a community-based residential facility; medical assistance alcohol and other drug abuse services in a facility; use of seclusion or restraints in state-operated mental health institutes; collection of health care information; the effective date for appropriations for relief block grants to tribes; and making appropriations.

Analysis by the Legislative Reference Bureau

health and human services

Children

Introduction

Recent changes to the Child Abuse Prevention and Treatment Act (CAPTA) and to Title IV-E of the federal Social Security Act (Title IV-E) impose additional requirements on the states as a condition for receiving funding under CAPTA and Title IV-E. Specifically, CAPTA requires a state that is applying for a grant under CAPTA to provide assurances that the state has a law by which an individual who disagrees with an official finding of child abuse or neglect can appeal such a finding and a law that allows for the public disclosure of information about a case of child abuse or neglect that has resulted in a child fatality or near fatality. CAPTA also requires a state that receives a grant under CAPTA to establish not less than three citizen review panels to evaluate the extent to which local agencies that are responsible for child protection are effectively discharging their responsibilities and to provide those citizen review panels with otherwise confidential child abuse and neglect reports and records as necessary for those panels to carry out their functions. In addition, the Adoption and Safe Families Act of 1997 (ASFA) amended Title IV-E to provide that a state is not eligible for the receipt of funding under Title IV-E (IV-E funding) if the state denies or delays the placement of a child for adoption when an approved family is available outside of the jurisdiction that is responsible for handling the case of the child. Title IV-E also requires a state, as a condition of eligibility for IV-E funding, to provide safeguards that restrict the disclosure of information relating to individuals who are assisted by the state's foster care program, including a foster parent. This bill changes the laws of this state to bring those laws into conformity with CAPTA and Title IV-E, as amended by ASFA. The bill also reallocates certain funding between the brighter initiatives program and the tribal adolescent services program.

Child abuse or neglect appeal procedure

Under current law, a county department of human services or social services (county department) or, in Milwaukee County, the department of health and family services (DHFS) or a child welfare agency under contract with DHFS must determine, within 60 days after receipt of a report of suspected or threatened child abuse or neglect, whether abuse or neglect has occurred or is likely to occur. Currently, an appeal of such a determination made by a county department may be made under the municipal administrative procedure law or, if the county of the county department has elected not to be governed by that law, under a county ordinance that provides a procedure for an appeal of such a determination, and an appeal of such a determination made by DHFS may be made under the state administrative procedure and review law. Current law does not provide a procedure for appealing such a determination by a child welfare agency.

This bill requires DHFS to establish procedures for conducting an appeal of a determination that a specific person has abused or neglected a child and to include in those procedures a procedure permitting such an appeal to be held in abeyance pending the outcome of any criminal or child in need of protection or services (CHIPS) proceeding based on the alleged abuse or neglect or any investigation that may lead to the filing of a criminal complaint or a CHIPS petition based on the alleged abuse or neglect. Under the bill, if a county department, DHFS or a child welfare agency determines that a specific person has abused or neglected a child, the county department, DHFS or child welfare agency must notify the person of the determination, the person's right to appeal the determination and the procedure by which the person may appeal the determination, and the person may appeal the determination in accordance with the procedures established by DHFS.

Public disclosure of information about child fatalities and near fatalities

Under current law, a county department, DHFS or a child welfare agency that is responsible for investigating reports of suspected or threatened child abuse or neglect (agency) must keep its records confidential and may disclose those records only under certain exceptions. This bill permits an agency to disclose to the public a written summary of certain information relating to any child who has died or been placed in serious or critical condition as a result of suspected abuse or neglect that has been reported to the agency (child fatality or near fatality) if certain circumstances apply and certain other circumstances do not apply.

Specifically, an agency may disclose all of the information from its records specified in the next paragraph if a person has been charged with a crime for causing the death or serious or critical condition of a child as a result of suspected abuse or neglect or if a person who is deceased would have been so charged, but for the fact that the person is deceased; if a judge, district attorney, law enforcement officer or agency or any other officer or agency whose official duties include the investigation or prosecution of crime has previously disclosed to the public that the suspected abuse or neglect has been investigated or that child welfare services have been provided to the child or the child's family; or if a parent, guardian or legal custodian of the child or the child, if 14 years of age or over, has previously disclosed or authorized the disclosure of the information. An agency may not, however, disclose that information if any of the following circumstances applies:

1. The agency determines that disclosure of the information would be contrary to the best interests of the child, the child's siblings or any other child residing in the same dwelling as the child who is the subject of the report of suspected abuse or neglect or that disclosure of the information is likely to cause mental, emotional or physical harm or danger to the child, the child's siblings, any other child residing in the same dwelling as the child who is the subject of the report or any other person.

2. The district attorney determines that disclosure of the information would jeopardize any ongoing or future criminal investigation or prosecution or would jeopardize a defendant's right to a fair trial.

3. The agency determines that disclosure of the information would jeopardize any ongoing or future civil investigation or proceeding or would jeopardize the fairness of such a proceeding.

4. Disclosure of the information is not authorized by state law or rule or federal law or regulation.

5. The investigation of the abuse or neglect report has not been completed, in which case the agency may only disclose that the report is under investigation.

6. Disclosure of the information would reveal the identity of the child who is the subject of the report, the child's siblings, the child's parent, guardian or legal custodian or any other person residing in the same dwelling as the child, and information that would reveal the identity of those persons has not previously been disclosed to the public.

7. Disclosure of the information would reveal the identity of the person who reported the suspected abuse or neglect or any other person who provides information relating to the suspected abuse or neglect of the child.

The information from an agency's records that may be disclosed in the case of a child fatality or near fatality is as follows:

1. A description of any investigation made by the agency in response to the report of suspected abuse or neglect, a statement of the determination of the agency as to whether abuse or neglect occurred and the basis for that determination, a statement of whether any services were offered or provided to the child, the child's family or the person suspected of the abuse or neglect and a statement of whether any other action was taken by the agency to protect the child or any other child residing in the child's dwelling.

2. Whether any previous report of suspected or threatened abuse or neglect of the child has been made to the agency and the date of that report, a statement of the determination of the agency as to whether abuse or neglect occurred and the basis for that determination, a statement of whether any services were offered or provided to the child, the child's family or the person suspected of the abuse or neglect and a statement of whether any other action was taken by the agency to protect the child or any other child residing in the child's dwelling.

3. Whether the child or the child's family has received any child welfare services prior to the report of the suspected abuse or neglect that caused the child fatality or near fatality or prior to any previous report of suspected or threatened abuse or neglect.

Citizen review panel access to child abuse and neglect reports and records

Finally, the bill conforms state law to CAPTA by permitting a citizen review panel established or designated by DHFS or a county department to have access to otherwise confidential child abuse and neglect reports and records.

Jurisdictional barriers to adoption

Under current law, DHFS, a county department or a child welfare agency may place a child for adoption in a licensed foster home without a court order if DHFS, the county department or the child welfare agency is the guardian of the child or makes the placement at the request of another agency that is the guardian of the child. Current law requires DHFS, a county department or a child welfare agency, before placing a child for adoption, to consider the availability of a placement for adoption with a relative of the child. This bill prohibits DHFS, a county department or a child welfare agency from denying or delaying the placement of a child for adoption when a family that has been approved as an adoptive placement for the child is available outside the county where the child is located.

Substitute care parent record confidentiality

Under current law, subject to certain exceptions, DHFS, the department of corrections (DOC), a county department or a child welfare agency may not make available for inspection or disclose the contents of any record kept or information received about an individual in the care or legal custody of DHFS, DOC, the county department or the child welfare agency except by order of the court assigned to exercise jurisdiction under the children's code and the juvenile justice code (juvenile court). Current law, however, is silent as to the confidentiality of records kept and information received relating to a foster parent, treatment foster parent or family-operated group home parent (substitute care parent). This bill prohibits DHFS, DOC, a county department or a child welfare agency from making available for inspection or disclosing the contents of any record kept or information received relating to a substitute care parent or a family member of a substitute care parent without first receiving the written permission of the substitute care parent, except by order of the juvenile court. The bill, however, does not apply to the confidential exchange of information between DHFS, DOC, a county department or a child welfare agency and another social welfare agency, a law enforcement agency, a public school, a private school, the victim-witness coordinator or a fire investigator regarding an individual in the care or legal custody of DHFS, DOC, the county department or the child welfare agency. The bill also does not prohibit DHFS, DOC, a county department or a child welfare agency from making available for inspection or disclosing the contents of a record as permitted under the child abuse and neglect reporting law, from disclosing to the child's parent, guardian or legal custodian the name and address of the substitute care parent or from including the location of the child's placement in the child's permanency plan.

Tribal adolescent services program and brighter futures initiative

Under current law, DHFS may provide a grant in the amount of $30,000 annually to an American Indian tribe or band for the provision of information to the members of the tribe or band in order to increase community knowledge about the problems of adolescents and the provision of information to, and activities for, adolescents, particularly female adolescents, in order to enable the adolescents to develop skills relating to reducing adolescent pregnancy and high school dropout rates; increasing economic self-sufficiency and expanding career options; enhancing self-esteem, interpersonal skills and responsible decision-making; and neutralizing sex-role stereotyping and bias (tribal adolescent services). Also under current law, DHFS is required to distribute $1,229,300 in each fiscal year to applying county departments operating in counties other than Milwaukee County to provide programs to prevent and reduce the incidence of youth violence and other delinquent behaviors, prevent and reduce the incidence of youth alcohol and other drug abuse, prevent and reduce the incidence of child abuse and neglect and increase adolescent self-sufficiency by encouraging high school graduation, vocational preparedness, improved social and other interpersonal skills and responsible decision-making (brighter futures initiative). This bill reduces the amount that DHFS is required to distribute in each fiscal year to county departments operating in counties other than Milwaukee County under the brighter futures initiative by $30,000 and increases the amount that DHFS may distribute for tribal adolescent services by $30,000.

Public health

Reporting an individual's positive HIV test

Under current law, a health care provider, blood bank, blood center or plasma center that obtains a positive result from a test given to an individual for the presence of the immunodeficiency virus (HIV) is required to report the positive test results to the state epidemiologist. The report made to the state epidemiologist must include the name, address, telephone number, age or date of birth, race or ethnicity, sex and county of residence of the test subject, if known, the date of the test and the test results. The report may not, however, contain any information with respect to the sexual orientation of the test subject or the identity of individuals with whom the test subject may have had sexual contact.

This bill eliminates the prohibition against reporting the sexual orientation of an individual who tests positive for HIV to the state epidemiologist and requires the report to include information regarding an individual's sexual orientation.

Funding for relief block grants to tribes

Under 1999 Wisconsin Act 9 (the biennial budget act), the tribal medical relief block grant program and the cooperative American Indian health projects grant program are funded with moneys received pursuant to Indian gaming compacts. This bill makes various technical changes to the funding provisions.

Long-term care

Family care eligibility and referral

The biennial budget act created numerous provisions related to establishment of family care, a program of financial assistance in providing long-term care and support items. Under the program, persons are entitled to and may receive the family care benefit if they are at least 18 years of age, have a physical disability or infirmities of aging, meet financial criteria, and fulfill any applicable cost-sharing requirements. They must also meet any of several functionality criteria and criteria related to eligibility for medical assistance, being in need of protective services or protective placement or having chronic or terminal conditions. Other persons may be eligible for, but are not necessarily entitled to, the family care benefit if they are at least 18 years of age, have a physical disability or infirmities of aging, meet financial criteria, fulfill any applicable cost-sharing requirements and meet any of several criteria relating to functionality. Persons with developmental disability in an initial family care county are both eligible and entitled. One of the criteria for functionality for both entitled and eligible persons is that the person must have a condition that is expected to last at least 90 days or result in death within 12 months after the date of application and, on the date that the family care benefit became available in the person's county of residence, the person was a nursing home resident or had been receiving care under long-term medical assistance, the Alzheimer's family caregiver support program, community aids, or county funding. This bill changes that criterion to apply it to persons who do not meet other functionality criteria and requires that persons seeking a determination of functional eligibility under the criterion first apply for eligibility for the family care benefit within 36 months after the date on which the family care benefit is initially available in the person's county of residence. Further, for persons who are entitled to the family care benefit, the bill creates a criterion that is similar but under which a person qualifies only if he or she does meet another specific functionality criterion. The bill clarifies that a person who is 18 years of age, has a primary disabling condition of developmental disability and meets financial and functionality criteria is both eligible for and entitled to the family care benefit, if the person is a resident of an initial family care county.

Under the family care provisions, if the secretary of health and family services has certified that a resource center is available, adult family homes, residential care apartment complexes, community-based residential facilities (C-BRFs), hospitals and nursing homes must, unless certain exceptions apply, refer persons who are aged at least 65 or have a physical disability that is expected to last at least 90 days to the resource center for services and determinations of eligibility for the family care benefit and for other programs. In addition, nursing homes and hospitals must so refer persons with developmental disability. This bill clarifies that referral by adult family homes, residential care apartment complexes and C-BRFs must also be made for persons with developmental disability.

Use of community options program waiver and community integration program funds in a community-based residential facility

Under current law, COP provides assessments of functionality and home and community-based care to, among others, elderly and disabled persons as an alternative to institutionalized care; one part of COP (commonly referred to as "COP-Regular") is funded by state moneys and the other part (commonly referred to as "COP-Waiver") is funded under a joint federal-state program under a waiver of federal medicaid laws. A community integration program (commonly referred to as CIP II) provides home and community-based services and continuity of care for persons who meet medical assistance eligibility requirements and are relocated from certain institutions or meet requirements for medical assistance reimbursement in nursing homes. Use of COP-Regular funds to provide services in C-BRFs is restricted to eight-bed facilities, unless DHFS approves service provision in a C-BRF licensed on July 29, 1995, that meets certain standards, in a C-BRF that entirely consists of independent apartments or in a C-BRF licensed after July 29, 1995, that is licensed for 20 or fewer beds and that meets certain standards. Use of COP-Waiver and CIP II funds to provide services in C-BRFs is restricted to four-bed facilities, unless DHFS approves service provision in a C-BRF of up to eight beds or that entirely consists of independent apartments. This bill changes the standard for use of COP-Waiver and CIP II funds to provide services in a C-BRF to the standard that exists in current law for use of COP-Regular funds to provide services in a C-BRF.

Public assistance

Medical assistance alcohol and other drug abuse services; size of facility

The biennial budget act creates a medical assistance benefit related to alcohol and other drug abuse residential treatment services in facilities with fewer than 16 beds that is available if a county, city, town or village agrees to pay the state share of the benefit. Current federal law, however, prohibits medical assistance payment for alcohol and other drug abuse treatment in facilities with more than 16 beds and thus permits the benefit in facilities with only 16 beds. This bill changes to 16 beds the size of a residential facility in which a medical assistance recipient may obtain alcohol and drug abuse treatment services if a county , city, village or town agrees to pay the state share of that medical assistance benefit.