LRB-4849/1
DAK&TAY:jlg:ijs
1997 - 1998 LEGISLATURE
March 19, 1998 - Introduced by
Joint Legislative Council. Referred to
Committee on Children and Families.
AB933,2,2
1An Act to renumber 55.06 (6);
to amend 49.155 (1m) (a) (intro.), 55.06 (9) (b),
255.06 (10) (b), 880.331 (5) (a) and 880.331 (5) (b); and
to create 49.155 (1) (ad),
349.155 (1) (d), 49.45 (8g), 49.45 (39) (d), 55.06 (6) (b), 55.06 (10) (am) and 118.125
4(2) (hr) of the statutes;
relating to: modifying eligibility standards for child
5care funding to permit parents of a child under the age of 18 with a special need
6or a child under the age of 22 with a special need who is receiving special
7education to receive child care funding; regulating medical assistance private
8duty nursing services for children; consent for release of information from a
9pupil's behavioral records or pupil physical health records for claiming
10reimbursement for school medical services; providing notice of protective
11placement transfers; guardian involvement in proceedings related to the
12ordering, review, transfer, modification or termination of a protective
13placement; a study of the cost of authorizing the provision of personal care
1services under the medical assistance program at locations other than in the
2recipient'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
1Section
1
. 49.155 (1) (ad) of the statutes is created to read:
AB933,5,22
49.155
(1) (ad) "Child" means a person who is any of the following:
AB933,5,33
1. A person under the age of 13.
AB933,6,1
12. A person under the age of 18 who has a special need.
AB933,6,32
3. A person under the age of 22 who has a special need and who is receiving
3special education, as defined in s. 115.76 (10).
AB933, s. 2
4Section
2. 49.155 (1) (d) of the statutes is created to read:
AB933,6,85
49.155
(1) (d) "Special need" means an emotional, physical or personal need of
6a person with a developmental disability, requiring more than the usual amount of
7care and supervision for the person's age, as documented by a physician,
8psychologist, special educator or other qualified professional.
Note: This Section creates a definition of "special need" in the Wisconsin works
program child care subsidy statute.
AB933,6,1411
49.155
(1m) (a) (intro.) The individual is a parent of a child
who is under the
12age of 13, or is a person who, under s. 48.57 (3m), is providing care and maintenance
13for a child
who is under the age of 13, and child care services for that child are needed
14in 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
15Section
4
. 49.45 (8g) of the statutes is created to read:
AB933,6,1716
49.45
(8g) Rules governing private duty nursing services for children. The
17department shall promulgate rules that do all of the following:
AB933,6,2018
(a) Establish the length of time of a prior authorization period for providing
19private duty nursing services for children, which may not be less than one month nor
20more than one year.
AB933,7,2
1(b) Establish the availability of private duty nursing services for children for
2periods of not less than one hour nor more than 24 hours per day.
AB933,7,63
(c) Require a parent, relative or household member to provide nursing services
4for a child in lieu of care provided by a registered or licensed practical nurse, only if
5the parent, relative or household member volunteers to provide nursing services and
6receives adequate training to provide the services.
AB933,7,87
(d) Authorize the retention and carry-over of authorized but unused private
8duty nursing hours for a period of 8 weeks.
AB933,7,119
(e) Require adequate advance written notice to parents or other appropriate
10family members whenever a service provider initiates a change in the number of
11hours that private duty nursing services are provided.
AB933,7,1512
(f) 1. Maintain the current level of authorized private duty nursing hours for
13a child pending the final resolution of an appeal by a parent or family member of any
14determination or decision by the department that would reduce the number of hours
15for which the services were authorized and provided.
AB933,7,1916
2. Maintain the former level of authorized private duty nursing hours for a
17child pending the final resolution of an appeal by a parent or family member of any
18determination or decision by the department that reduced the number of hours for
19which the services were authorized and provided.
Note: See item 2. of the Prefatory note for an explanation of this Section.
AB933, s. 5
20Section
5
. 49.45 (39) (d) of the statutes is created to read:
AB933,8,1021
49.45
(39) (d)
Consent for information for provider reimbursement. The
22department shall develop and issue, upon request, a consent form, to be signed and
23dated by a parent or guardian of a minor pupil or by an adult pupil or the guardian
24of an adult pupil, if any, that may be used under s. 118.125 (2) (hr). The form shall
1clearly indicate that the consent of the parent, guardian or adult pupil is requested
2in order to disclose personally identifiable information from the pupil's behavioral
3records or pupil physical health records for the provider of school medical services
4for the pupil to claim reimbursement under this subsection from the department.
5The form shall also advise the person signing the form that he or she may wish to
6determine, prior to signing the form, whether claiming reimbursement for school
7medical services may increase the rate of any insurance coverage that the pupil may
8have, and whether the reimbursement may adversely affect the pupil's ability to
9obtain services under the medical assistance program from providers who are not
10school medical services providers.
Note: See item 3. of the Prefatory note for an explanation of this Section.
AB933, s. 6
11Section
6
. 55.06 (6) of the statutes is renumbered 55.06 (6) (a).
AB933, s. 7
12Section
7
. 55.06 (6) (b) of the statutes is created to read:
AB933,8,1613
55.06
(6) (b) If the person sought to be placed is under a guardianship of the
14person prior to any hearing under this chapter, the guardian shall receive prior
15written notice of the hearing and may participate in the hearing as a party, be
16represented 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
17Section
8
. 55.06 (9) (b) of the statutes is amended to read:
AB933,9,2518
55.06
(9) (b) Transfer may be made between placement units or from a
19placement unit to a medical facility other than those specified in pars. (c) to (e) by a
20county, the department, a guardian or placement facility without approval by a court.
21When If transfer is made by a
county, the department or a placement facility,
24
22hours' the county, department or facility shall provide 10 days' prior written notice
1of the transfer
shall be provided to the guardian
, when feasible. If it is not feasible
2to notify the guardian in advance, and shall obtain the guardian's prior written
3consent to the transfer, unless an emergency precludes the prior written notice and
4consent. The notice of transfer shall include notice of the right of the guardian, ward
5or attorney or other interested person to petition the court for a hearing on the
6transfer. If an emergency precludes providing prior written notice to and obtaining
7the prior written consent of the guardian, written notice shall be provided
8immediately upon transfer, and notice shall also be provided to the court and to the
9board designated under s. 55.02 or an agency designated by it within a reasonable
10time, not to exceed 48 hours from the time of the transfer. Upon petition to a court
11by a guardian, ward, or attorney, or other interested person specifying objections to
12a transfer, the court shall order a hearing
, within 10 days after filing of the petition,
13or within 96 hours after filing of the petition
,
in the case of an emergency transfer
14made without prior written notice to and written consent of the guardian. For
15nonemergency transfers, the purpose of the hearing is to determine whether the
16proposed placement meets the standards of par. (a) and is in the best interests of the
17ward. For emergency transfers made without prior written notice to and written
18consent of the guardian, the purpose of the hearing is to determine whether there is
19probable cause to believe that the transfer is consistent with the requirements
20specified in par. (a) and is necessary for the best interests of the ward. The court shall
21notify the ward, guardian and petitioner of the time and place of the hearing, and a
22guardian ad litem shall be appointed to represent the ward. If the person is indigent,
23the county of legal settlement shall be liable for guardian ad litem fees. The
24petitioner, ward and guardian shall have the right to attend, and to present and
25cross-examine witnesses.
Note: See item 4. of the Prefatory note for an explanation of this Section.
AB933, s. 9
1Section
9
. 55.06 (10) (am) of the statutes is created to read:
AB933,10,102
55.06
(10) (am) Except in an emergency, if the court orders or approves a
3transfer of a protective placement, and the proposed placement or service plan is not
4specified at the hearing or in the reports on which the transfer is based, the
5department or the agency that is responsible for the protective placement shall
6provide notice of the proposed placement or service plan to the guardian at least 10
7days before the proposed transfer. If the guardian requests court review of the
8proposed transfer under sub. (9) (b) or (c) within 10 days of receiving the notice
9required by this paragraph, the transfer may not occur until the court review has
10been 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
11Section
10
. 55.06 (10) (b) of the statutes is amended to read: