AB861: Bill Text

AB861, s. 1 Section 1. 20.435 (2) (bj) of the statutes, as affected by 2003 Wisconsin Act 33, is amended to read:

AB861,4,9 20.435 (2) (bj) Competency examinations and conditional and supervised release services. Biennially, the amounts in the schedule for outpatient competency examinations and for payment by the department of costs for treatment and services for persons released under s. 980.06 (2) (c), 1997 stats., s. 980.08 (5), 2001 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (5) (6) (c) 3., for which the department has contracted with county departments under s. 51.42 (3) (aw) 1. d., with other public agencies, or with private agencies to provide the treatment and services.

AB861, s. 2 Section 2. 46.03 (1) of the statutes is amended to read:

AB861,4,13 46.03 (1) Institutions governed. Maintain and govern the Mendota and the Winnebago mental health institutes; the secure mental health facility established under s. 46.055 (1); and the centers for the developmentally disabled.

AB861, s. 3 Section 3. 46.055 (title) of the statutes is amended to read:

AB861,4,16 46.055 (title) Secure mental health facility Facilities for sexually violent persons.

AB861, s. 4 Section 4. 46.055 of the statutes is renumbered 46.055 (1).

AB861, s. 5 Section 5. 46.055 (2) of the statutes is created to read:

AB861,4,24 46.055 (2) The department shall submit a report each February 1 to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), regarding the effectiveness of its efforts to find and maintain appropriate placements for persons on supervised release under s. 980.06, 1997 stats., or s. 980.08 and its anticipated need for finding additional placements in the 5 years following the date of the report.

AB861, s. 6 Section 6. 46.058 (2m) of the statutes is amended to read:

AB861,5,11 46.058 (2m) The superintendents of the secure mental health facility established under s. 46.055 (1), the Wisconsin resource center established under s. 46.056 and any secure mental health unit or facility provided by the department of corrections under s. 980.065 (2) shall adopt proper means to prevent escapes of persons detained or committed to the facility, center or unit under ch. 980 and may adopt proper means to pursue and capture persons detained or committed to the facility, center or unit under ch. 980 who have escaped. In adopting means under this subsection to prevent escape and pursue and capture persons who have escaped, a superintendent may delegate to designated staff members of the facility, center or unit the power to use necessary and appropriate force, as defined by the department by rule, to prevent escapes and capture escaped persons.

AB861, s. 7 Section 7. 46.10 (2) of the statutes is amended to read:

AB861,6,14 46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., and s. 975.17, 1977 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12) and (13), 55.05, 55.06, 971.14 (2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (5) (6m) (a) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

AB861, s. 8 Section 8. 51.42 (3) (aw) 1. d. of the statutes is amended to read:

AB861,6,23 51.42 (3) (aw) 1. d. Provide treatment and services that are specified in a conditional release plan approved by a court for a person who is a county resident and is conditionally released under s. 971.17 (3) or (4) or that are specified in a supervised release plan approved by a court under s. 980.06 (2) (c), 1997 stats., or s. 980.08 (5), 2001 stats., or s. 980.08 (6) (c) 3. If the county department provides treatment and services under this subdivision, the department of health and family services shall, from the appropriation under s. 20.435 (2) (bj), pay the county department for the costs of the treatment and services.

AB861, s. 9 Section 9. 980.01 (1m) of the statutes is created to read:

AB861,6,25 980.01 (1m) "Likely" means more likely than not.

AB861, s. 10 Section 10. 980.01 (7) of the statutes is amended to read:

AB861,7,7 980.01 (7) "Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable likely that the person will engage in acts of sexual violence.

AB861, s. 11 Section 11. 980.065 (1m) of the statutes is amended to read:

AB861,7,12 980.065 (1m) The department shall place a person committed under s. 980.06 at the secure mental health facility established under s. 46.055 (1), the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2).

AB861, s. 12 Section 12. 980.08 (3) of the statutes is amended to read:

AB861,7,25 980.08 (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If any such examiner believes that the person is appropriate for supervised release under the criterion criteria specified in sub. (4) (b), the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection as provided under s. 51.20 (18) (a).

AB861, s. 13 Section 13. 980.08 (4) of the statutes is renumbered 980.08 (4) (a) and amended to read:

AB861,8,6 980.08 (4) (a) The court, without a jury, shall hear the petition proceed under par. (b) within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d).

AB861,8,9 (b) The court shall grant deny the petition unless if the state proves any of the following by clear and convincing evidence that the person is still a sexually violent person and that:

AB861,8,11 1. That it is still substantially probable likely that the person will engage in acts of sexual violence if the person is not continued in institutional care.

AB861,8,19 (c) In making a decision under this subsection par. (b), the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, where the person will might live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender.

AB861,8,25 (6g) A decision under this subsection sub. (4) (b) or (6) (c) on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

AB861, s. 14 Section 14. 980.08 (4) (b) 2. to 6., (d) and (e) of the statutes are created to read:

AB861,9,3 980.08 (4) (b) 2. That the person has not demonstrated significant or satisfactory progress in his or her treatment or the person has refused treatment.

AB861,9,5 3. That there is no treatment reasonably available in the community that meets all of the following requirements:

AB861,9,6 a. The treatment will meet the person's ongoing treatment needs.

AB861,9,7 b. The treatment will be provided by a department-approved provider.

AB861,9,11 c. The treatment provider has presented a specific course of treatment to the department, has agreed to provide the treatment, will report progress to the department on a regular basis, and will report violations immediately to the department, consistent with the treatment and supervision needs of the person.

AB861,9,15 4. That the person has not agreed to comply with the conditions of, or department rules regarding, supervised release or the requirements of the treatment provider, or the person is likely to violate such conditions, rules, or requirements.

AB861,9,17 5. That a major discipline report was issued regarding the person during the 6 months immediately preceding the hearing.

AB861,9,18 6. That supervised release is not in the best interest of the person.

AB861,9,21 (d) The court may defer hearing evidence or making a finding regarding whether the state has met its burden under par. (b) 1., 3., or 6. until it conducts a hearing under sub. (6) (b).

AB861,9,23 (e) If the court does not deny the petition under par. (b), the court shall notify the department and proceed under sub. (6).

AB861, s. 15 Section 15. 980.08 (5) of the statutes is renumbered 980.08 (5) (a) and amended to read:

AB861,10,8 980.08 (5) (a) If the court finds that the person is appropriate for supervised release does not deny the petition under sub. (4) (b), the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and, except as provided in par. (c), the county department under s. 51.42 in the person's county of residence of the person shall make its best effort to prepare a supervised release plan that identifies for the person that does all of the following:

AB861,10,10 1. Identifies the treatment and services, if any, that the person will receive in the community. The plan shall address

AB861,10,19 2. Addresses the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). If the person is a serious child sex offender, the plan shall address

AB861,10,24 3. Addresses the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify if the person is a serious child sex offender.

AB861,11,5 4. Specifies who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan.

AB861,11,17 (c) The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, and order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.

AB861, s. 16 Section 16. 980.08 (5) (a) 5. and 6. and (b) and (6) of the statutes are created to read:

AB861,11,20 980.08 (5) (a) 5. Identifies where the person shall live.

AB861,11,25 6. Includes a written agreement from the person providing the housing described in subd. 5. to accept the person who will reside there, to provide the level of security required by the court, and to immediately report to the department if the person leaves the housing without authorization. This subdivision does not apply to a person to whom s. 980.085 applies.

AB861,12,3 (b) Before submitting a supervised release plan to the court under sub. (6) (a) for a person other than one to whom s. 980.085 applies, the department and county department shall do all of the following in the order specified:

AB861,12,6 1. Identify a proposed placement. In identifying any proposed placement, the department and the county department shall consider the proximity of the placement to all of the following:

AB861,12,7 a. The residence of other persons on supervised release.

AB861,12,10 b. The residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am).

AB861,12,12 c. Any facility for children described in subd. 2. of which the department or the county department is aware.

AB861,12,13 d. Any residential subdivision.

AB861,12,23 2. Prepare a list and a map of all public or private schools, group homes, as defined in s. 48.02 (7), residential care centers for children and youth, as defined in s. 48.02 (15d), shelter care facilities, as defined in s. 48.02 (17), foster homes, as defined in s. 48.02 (6), treatment foster homes, as defined in s. 48.02 (17q), day care centers licensed under s. 48.65, day care programs established under s. 120.13 (14), day care providers certified under s. 48.651, youth centers, as defined in s. 961.01 (22), and residential subdivisions that are located within one mile of any proposed residence. The department and the county department shall work with the municipality in which the residence is located and each municipality within one mile of the residence in preparing the list and the map.

AB861,13,6 3. Submit the address of the proposed placement, the list, and the map to the common council or the village or town board for the municipality in which the residence is located and each municipality within one mile of the residence. Each such common council or village or town board shall review the list and map and may provide the department and the county department comments regarding the risks that the use of the proposed placement might entail for the community based on its proximity to any residential subdivision or any facility for children described in subd. 2. included in the list.

AB861,13,7 4. Consider any comments that it receives under subd. 3.

AB861,13,23 (6) (a) The department and the county department shall present the plan for supervised release prepared under sub. (5) and, unless s. 980.085 (1) applies, the list and map of facilities for children and residential subdivisions prepared under sub. (5) (b) 2. and the comments submitted under sub. (5) (b) 3. to the court no less than 90 days after the notification under sub. (4) (e), unless the department, county department, and person to be released request additional time to develop the plan. When the department and county department submit the plan to the court, the department and county department shall notify the individuals identified under par. (b) 1. to 3. of the residence identified in the plan. Unless s. 980.085 (1) applies, the department and the county department shall also provide those individuals copies of the list and map of facilities for children and residential subdivisions compiled under sub. (5) (b) 2. and the comments submitted under sub. (5) (b) 3. If any of those individuals receiving the list notifies the department in writing of a facility or residential subdivision that the department and county department are required to include on the list, but that is not on the list, the department shall notify the court of the additional facility or residential subdivision before the hearing under par. (b).

AB861,14,3 (b) After receiving the plan, the court shall hold a hearing regarding the plan. The court shall notify all of the following of the hearing at least 5 days before the hearing:

AB861,14,5 1. The sheriff for the county in which the residence identified under sub. (5) (a) 5. is located.

AB861,14,7 2. The police chief for the municipality in which the residence identified under sub. (5) (a) 5. is located.

AB861,14,9 3. The chief elected official, as defined in s. 229.821 (3), of the municipality in which the residence identified under sub. (5) (a) 5. is located.

AB861,14,10 (c) After conducting the hearing, the court shall do one of the following:

AB861,14,11 1. Order the department and county department to modify the plan.

AB861,14,14 2. Deny the petition, but only if the state proves, by clear and convincing evidence, that the plan does not provide sufficient security to protect the community or that sub. (4) (b) 1., 3., or 6. applies.

AB861,14,16 3. Subject to s. 980.085, approve the supervised release plan and grant the petition.

AB861, s. 17 Section 17. 980.08 (6m) of the statutes is renumbered 980.08 (6m) (a) and amended to read:

AB861,15,2 980.08 (6m) (a) An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and, except as provided in s. 980.085 (2), in accordance with the plan for supervised release approved by the court under sub. (5). (6) (c) 3. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency, or with a private agency to provide the treatment and services identified in the plan.

AB861,15,5 (b) 1. A person on supervised release is subject to the conditions set by the court and to, the rules of the department, and the conditions specified in subd. 2. and s. 980.085 (2).

AB861,15,11 (c) Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified.

AB861,16,5 (d) If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section.

AB861, s. 18 Section 18. 980.08 (6m) (b) 2. of the statutes is created to read:

AB861,16,8 980.08 (6m) (b) 2. A person on supervised release shall actively participate in treatment as a condition of supervised release.

AB861, s. 19 Section 19. 980.085 of the statutes is created to read:

AB861,16,16 980.085 Placements in transitional facilities. (1) If a court, on or after the effective date of this subsection .... [revisor inserts date], places a person on supervised release in a county in which the department has a vacancy in a transitional facility for the placement of such persons, including the facility enumerated in 2001 Wisconsin Act 16, section 9107 (1) (d) 1., the court may not approve a supervised release plan for the person unless the plan requires that the person reside in the facility.

AB861,16,23 (2) If, on or after the effective date of this subsection .... [revisor inserts date], a person is on supervised release in a county in which the department has a vacancy in a transitional facility for the placement of such persons, including the facility enumerated in 2001 Wisconsin Act 16, section 9107 (1) (d) 1., the department, after allowing the person a reasonable amount of time to move there, shall require the person to reside in the facility as a condition of supervised release, notwithstanding what the person's supervised release plan provides under s. 980.08 (5) (a) 5.

AB861, s. 20 Section 20. 980.09 (1) (c) of the statutes is amended to read:

AB861,17,6 980.09 (1) (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the petitioner shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criterion criteria specified in s. 980.08 (4) (b), whether to modify the petitioner's existing commitment order by authorizing supervised release.

AB861, s. 21 Section 21. 980.09 (2) (c) of the statutes is amended to read:

AB861,17,13 980.09 (2) (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criterion criteria specified in s. 980.08 (4) (b), whether to modify the person's existing commitment order by authorizing supervised release.

AB861, s. 22 Section 22. Nonstatutory provisions.

AB861,17,18 (1) (a) There is created a committee to assist the state in determining the location for the facility enumerated in 2001 Wisconsin Act 16, section 9107 (1) (d) 1., that will be a transitional facility for the housing of persons committed to the custody of the department of health and family services under chapter 980 of the statutes.

AB861,17,20 (b) The departments of corrections and health and family services shall provide necessary administrative support services to the committee.

AB861,17,24 (c) The department of administration shall reimburse members of the committee for their actual and necessary expenses incurred in carrying out their functions, from the appropriation under section 20.505 (4) (ba) of the statutes, within the budget authorized under section 16.40 (14) of the statutes.

AB861,17,25 (d) The members of the committee shall be:

AB861,18,2 1. The chairperson of the Milwaukee County board of supervisors or his or her designee.

AB861,18,3 2. The chief of police of the city of Milwaukee or his or her designee.