Under current law, the W-2 health plan does not cover over-the-counter drugs,
except insulin. This bill provides that the W-2 health plan may cover an
over-the-counter drug if DHFS determines that the over-the-counter drug is more
cost-effective than the prescription equivalent.
Support, paternity and other family matters
Under current law, many state agencies and boards issue licenses, permits or
other credentials for professional or occupational purposes. In addition, the
department of natural resources (DNR) issues fish and game licenses for
recreational purposes. This bill requires an applicant for the issuance or renewal of
a professional or occupational license, if the applicant is an individual, to provide his
or her social security number. The issuing agency or board must refuse to issue or
renew the license if an applicant does not provide a social security number. For
recreational fish and game licenses issued by DNR, DNR must require an applicant
who is an individual to provide his or her driver's license number and must refuse
to issue or renew the fish and game license if the applicant does not do so, subject to
conditions which must be specified in a memorandum of understanding between
DNR and DILJD (see below). An agency or board that obtains an individual's social
security number from a license application may release the social security number
only to DILJD for purposes of DILJD's administration of the child and spousal
support and establishment of paternity and medical support liability program under
current law.
Under current law, if an individual who has been ordered by a court to pay child
or family support or spousal support (maintenance) fails to pay the amount ordered,
the court may enforce the judgment or order by any appropriate remedy, including
contempt of court, garnishment of the individual's wages and suspension of the
individual's operating privilege. Also under current law, if an individual fails to
make any court-ordered payments of child or family support, maintenance or other
support-related payments, DILJD may certify the delinquency to the department of
revenue (DOR) and DOR may withhold the delinquent amount from any income tax
that would be refunded to the individual.
This bill requires DILJD to establish a system under which operating privileges
and state occupational, professional and recreational licenses, permits or other
credentials (licenses) are withheld, nonrenewed, restricted or suspended by the state
agency or other entity that issues the operating privilege or license for failure to pay
court-ordered payments of child or family support, maintenance or other
support-related payments. The bill requires DILJD and each issuing agency or
other entity to enter into a memorandum of understanding related to the
requirements for withholding, nonrenewing, restricting or suspending operating
privileges or licenses, the procedures to be used and safeguards for keeping
information about individuals, including social security numbers, confidential. The
procedures must include adequate notice to the individual who owes the delinquent
payments, an opportunity to pay the delinquent amount or make alternative
payment arrangements before any action is taken with respect to the individual's
operating privilege or license, an opportunity for a hearing before a court or family
court commissioner on the issue of whether the individual owes the amount of
court-ordered payments that is, or will be, certified by DILJD and reinstatement of
the individual's operating privilege or license upon payment of the delinquent
amount or making satisfactory alternative payment arrangements.
Under current law, a petition in an action affecting the family, such as a divorce
or child support action, must include the social security numbers of the parties. This
bill requires that all written judgments in actions affecting the family include the
social security numbers of the parties and of any child of the parties.
Under current law, each clerk of circuit court must forward to the state registrar
on a biweekly basis a report of every divorce or annulment that was granted in the
clerk's court during that period. The clerk is also required to submit to the state
registrar a report of paternity determination within 30 days after entry of a paternity
judgment. The report must include the name and date and place of birth of the
adjudicated father. This bill requires the divorce and annulment report to include
the social security numbers of the parties to the divorce or annulment and of any
child of the parties and requires the paternity report to include the social security
numbers of the adjudicated father, the mother and the child. The bill also requires
that the social security numbers of persons signing a statement acknowledging
paternity (the mother of the child and the man acknowledging paternity) be included
on the statement form.
Under current law, an application for a marriage license and a marriage
document (which consists of the marriage license, the marriage certificate and
confidential information collected for statistical purposes) must contain any
information that DHFS directs. This bill requires that the social security numbers
of the parties be included on the application and on the marriage document.
Under current law, generally only after a man has been adjudicated to be the
father of a nonmarital child in a paternity action may any orders related to the child,
such as orders for the payment of child support or for custody or physical placement
rights, be made with respect to the man. However, if the man has signed and filed
with the state registrar a statement acknowledging paternity, a judge or family court
commissioner may order the man to pay child support in any action affecting the
family, such as an action for support. The action need not be a paternity action.
Within one year after signing a statement acknowledging paternity or one year after
attaining age 18, whichever is later, a person who signed the statement, which may
be either the man or the mother of the child, may request that the judge or family
court commissioner order genetic tests. If the results of the genetic tests exclude the
man as the father of the child, the court must dismiss any action for support, or
vacate any order for support, with respect to the man.
Under this bill, a statement acknowledging paternity that is signed and filed
with the state registrar on or after January 1, 1998, may be rescinded by either party
who signed the statement by filing a document prescribed by the state registrar for
that purpose before the earlier of the day on which a court makes an order in an
action affecting the family with respect to the man and child or 60 days after the
statement was filed. If either party who signed the statement was a minor when the
statement was filed, either party may rescind the statement before the earlier of the
day on which a court makes an order in an action affecting the family with respect
to the man and child or 60 days after the person who was a minor when the statement
was filed attains age 18. If the statement is not timely rescinded, the filed statement
becomes a conclusive determination of paternity with the same effect as a judgment
of paternity. A determination of paternity on the basis of a filed statement may be
voided by a court only upon a showing of fraud, duress or mistake of fact.
The bill provides that an action affecting the family that seeks to establish a
support obligation for, or custody, physical placement or visitation rights to, a child
may be brought with respect to parties who signed and filed a statement
acknowledging paternity with regard to the child. If the statement has not been
rescinded and the parties had notice of the hearing in the matter, the court or family
court commissioner may make the same orders that may be made in paternity
actions, including orders concerning child support, legal custody, physical placement
and the child's health care expenses.
Current law provides that in a paternity action, the mother of the child is to
have sole legal custody unless the court orders otherwise. This bill provides that, in
both paternity actions and actions based on a statement acknowledging paternity,
the mother of the child is to have sole legal custody if the father does not request legal
custody. If the father requests legal custody, the court or family court commissioner
must use the same factors in determining legal custody that are used in divorce
actions.
A party that signed and filed a statement before January 1, 1998, may sign and
file a new one on or after that date. In that case, the previous statement is
superseded, and the new statement becomes a conclusive determination of paternity
upon the expiration of the time during which the new statement may be rescinded.
This bill provides that, if a person fails to pay any amount of court-ordered child
support, family support, maintenance or medical or birth expenses, the amount is a
lien in favor of DILJD upon all property of the person. The lien is effective at the time
that the support is due. At least annually, DILJD must provide a statewide listing
of delinquent support obligations to each clerk of circuit court and to each state
agency that titles personal property. If a delinquent obligation is included in a listing
provided by DILJD, DILJD must provide notice to the obligor that a lien on the
obligor's property is in effect and that the obligor may, within a 20-day period,
request a court hearing on the issue.
The bill grants DILJD general power to levy against (seek to recover) property
of the obligor to enforce the lien. The procedures for levying against the obligor's
property vary depending upon whether the property is an account at a financial
institution, other personal property or real property:
1. Financial accounts. The bill creates a financial records matching program
to identify accounts of delinquent obligors (see Commerce and economic
development, commerce). To enforce a lien against an account at a financial
institution, DILJD must send notice to the institution instructing the institution to
"freeze" the obligor's accounts at the institution in an amount equal to the amount
of the delinquency, plus estimated levy fees and costs and financial institution fees.
DILJD must also send a notice to the obligor, stating the amount of owed support and
that one or more of the obligor's accounts at the financial institution named in the
notice have been frozen, and that, unless the obligor requests a hearing within 20
business days, DILJD will direct the financial institution to pay the support owed
from the accounts. If no hearing is requested or if it is determined, after hearing, that
the support is owed, DILJD may direct the financial institution to pay the amounts
owed from the obligor's accounts.
2. Other personal property. DILJD may levy against other personal property
by seizing the property. DILJD must immediately notify the obligor, and any person
known to have a lien on the property, that the property has been seized. The notice
must inform the obligor that he or she may, within 20 business days, request a
hearing on whether the support was owed and whether the property was wrongfully
seized. The hearing is with the court or family court commissioner issuing the order
to pay the support. If a hearing is not requested or if the issue is not decided in favor
of the person whose property was seized, DILJD must send a notice to the obligor of
the time and place where the property will be sold. The property may be redeemed
prior to the sale by paying the amount owed.
3. Real property. To levy against real property, DILJD must provide the obligor,
and any persons known to have liens on the property, with a notice of intent to levy.
The notice must include information on requesting a hearing concerning whether the
support is owed. The hearing is with the court or family court commissioner issuing
the order to pay support. Unless the support is paid or unless it is determined, after
hearing, that the support is not owed, DILJD may send a final notice of seizure,
stating the date on which the obligor must have vacated the premises and stating the
date of sale. DILJD must allow at least 60 days for the obligor to vacate the property
and 90 days before the sale. Notice of the sale must be published at least 30 days
before the sale and the obligor is entitled to redeem the property prior to the date of
sale by paying the full amount owed, together with any levy fees and costs.
The bill requires 3rd parties possessing property or rights to property subject
to a levy to surrender them to DILJD. If a person fails to surrender the property or
rights, the person is liable to DILJD for up to 25% of the support owed. A 3rd party
is entitled to a levy fee of $5 for each levy in any case where property is secured
through the levy and DILJD is authorized to recover its costs of levy. These costs may
be deducted from the proceeds of the levy after first paying any liens on the property
prior to the delinquent support lien and then paying the amount of the delinquent
support.
Under current law, all payments of child or family support and maintenance
(spousal support) must be made through the clerk of circuit court or a support
collection designee in counties that have designated an entity other than the clerk
to collect and disburse support and maintenance. Such payments are made by
employers of obligors through income withholding or by the obligors themselves if
income withholding is inappropriate, such as for a self-employed obligor. The clerk,
or support collection designee, disburses the payments received from the employers
and the obligors to the obligees of the support or maintenance and keeps a record of
the payments and arrearages in payments. Obligors are required to pay an annual
receiving and disbursing fee of up to $25 to the clerk, or support collection designee,
for these services.
Under this bill, DILJD, or an entity that DILJD designates to act for it, receives
and disburses child and family support payments, maintenance payments,
payments for health care expenses, payments for birth expenses and other
support-related expenses under a statewide automated receipt and disbursement
system that must begin operating no later than October 1, 1999. The payments are
received through income withholding, if appropriate, as under current law.
Although clerks of circuit court continue to file and maintain the orders and
judgments that require the payments, the electronic record of payments and
disbursements and arrearages in payments is kept by DILJD or its designee.
Obligors are required to pay an annual fee of $25 to DILJD or its designee, instead
of to the clerk, for receiving and disbursing the payments and for maintaining the
electronic payment and disbursement record.
The bill creates a segregated fund, called the support collections trust fund. All
support-related moneys received by DILJD or its designee are deposited in the fund.
Moneys from the fund are to be used for disbursements to obligees of child or family
support payments, maintenance payments, payments for health care expenses,
payments for birth expenses and other support-related expenses. Interest earned
on the fund is to be used for the costs associated with the receipt and disbursement
system, including contract costs paid to the designee, if any.
Currently, DILJD administers a child and spousal support and establishment
of paternity and medical liability support program. The main purposes of the
program are to establish, modify and enforce support obligations and to establish
paternity for the purpose of establishing a support obligation. County child support
agencies administer the program at the local level. This bill provides that DILJD and
county child support agencies may issue subpoenas in the administration of the
program to compel the production of financial information and other documentary
evidence. A person who provides access to records or who discloses information as
requested is not liable to any person for providing the access or disclosing the
information. A person who does not comply with a request for information or access
to records, however, may be required to pay a forfeiture (civil monetary penalty) to
be determined by DILJD by rule.
Under current law, all persons (including state agencies) are required to
provide to DILJD all information requested by DILJD if DILJD determines that the
information is appropriate and necessary for the administration of the child and
spousal support and establishment of paternity and medical liability program and
certain other state and federal public assistance and medical programs. This law
conflicts with certain other laws that authorize or require state agencies to maintain
the confidentiality of certain information contained in records of the agencies.
This bill reconciles those conflicts by giving precedence to DILJD's right of
access to certain records and information notwithstanding existing confidentiality
provisions. Among the records and information affected by the bill are information
from income tax and sales tax returns, information contained in marriage license
applications, certain records under the unemployment compensation and worker's
compensation programs, certain records of applicants for public positions, certain
information collected by the department of public instruction (DPI) for issuing,
renewing or revoking all of its licenses, records of background checks of prospective
handgun purchasers, certain records concerning crime victims, and information
provided by persons to the state public defender (SPD) that is used to determine
whether the person qualifies for representation due to indigency.
Under current law, a judge or family court commissioner may order the parties
to a paternity action to undergo genetic tests for the purpose of determining
paternity. If a party in a paternity action requests genetic tests, the judge or family
court commissioner must order them. This bill authorizes a county child support
agency to require a child, the child's mother and a male who is alleged, or who alleges
himself, to be the father of the child to submit to genetic tests if there is probable
cause to believe that the child's mother and the male had sexual intercourse during
a possible time of the child's conception. A sufficient affidavit from either the mother
or the alleged father may establish the necessary probable cause. The results of a
genetic test ordered by a county child support agency may be used in a paternity
action.
Under current law, a man is presumed to be the natural father of a child if he
was married to the child's mother when the child was conceived or born or if he and
the child's mother married after the child's birth but had a relationship during the
period of time within which the child was conceived. In a paternity action, if genetic
tests show that a man alleged to be the father is not excluded as the father and that
the probability that he is the father is 99.0% or more, that man is presumed to be the
father. This bill provides that a presumption of paternity that arises on the basis of
marriage is rebutted in a legal action or proceeding by results of a genetic test that
show that a man other than the one presumed to be the father on the basis of
marriage is not excluded as the father and that the statistical probability that the
man is the father is 99.0% or higher, even if the man who is presumed to be the father
on the basis of marriage is unavailable to submit to genetic tests.
Under current law, an order for child or family support or maintenance is an
automatic assignment of wages or other earnings to the clerk of circuit court. When
a support or maintenance order is entered, the court must send notice of the
assignment by regular mail to a payer's employer or other person who owes the payer
money, requiring withholding of the amount provided in the support order. The
support and withholding orders may be expressed as a fixed sum, as a percentage of
income or as both in the alternative, requiring payment of the greater or lesser
amount. If the payer is entitled to unemployment compensation, however, the order
to withhold benefits must be for a fixed sum.
This bill authorizes the court to send notice of assignment by facsimile machine
or other electronic means in addition to regular mail. Orders for the withholding of
unemployment compensation may be expressed as a fixed sum, as a percentage of
benefits payable or as both in the alternative, requiring payment of the greater or
lesser amount. Notices of assignment for withholding must include the information
that the maximum amount withheld may not exceed the maximum amount that is
subject to garnishment under federal law.
Under current law, if the petitioner in a paternity action fails to appear at a
pretrial hearing or at the trial, the court may dismiss the action. If the respondent
in a paternity action is the alleged father and he fails to appear for a court-ordered
genetic test or a hearing at which an appearance is required, the court must
adjudicate the respondent to be the father. This bill provides that, if the mother of
the child in a paternity action fails to appear for a court-ordered genetic test or a
hearing at which an appearance is required, the court may adjudicate the alleged
father, or the man who alleges that he is the father, to be the father of the child if there
is sufficient evidence for such a finding.
Under current law, if a child's birth occurs in or en route to a hospital and if the
child's parents are unmarried, the hospital administrator or his or her designee must
provide the child's mother with a voluntary paternity acknowledgment form and
with a pamphlet that has information about birth certificates, including how to add
to a birth certificate the name of the father of a child whose parents were not married.
The hospital must submit any completed forms to the state registrar. The fee for
making an alteration in a birth certificate is $10. Upon receipt of the voluntary
acknowledgement form and the fee, the state registrar must insert the name of the
father on the birth certificate.
This bill requires that trained, designated hospital staff provide to the child's
available unmarried parents written and oral information about the voluntary
paternity acknowledgment form and about the significance and benefits of
establishing paternity, before the parents sign the form. The bill provides immunity
from civil liability for trained, designated hospital staff who provide this information
in good faith. The staff must also provide an opportunity to complete the form and
to have the form notarized in the hospital. DILJD must provide to hospitals the
written information required to be provided to parents and must provide training to
hospital staff concerning the voluntary acknowledgment form and the significance
and benefits of establishing paternity. DILJD must pay the hospital, from federal
funds, a financial incentive for each form that is correctly filed within 60 days after
the birth and the $10 fee for altering a birth certificate.
This bill requires DILJD to establish and operate a hiring reporting system that
includes a state directory of new hires. With the exception of employers that employ
individuals in Wisconsin as well as in at least one other state (those employers must
designate for reporting just one of the states in which they employ individuals), all
employers in this state must supply information to DILJD about newly hired
employes. DILJD must specify the exact information that must be provided, how the
information may be provided and a timetable for providing the information.
Children
Under current law, the Milwaukee County department of social services
(Milwaukee County department) is responsible for providing child welfare services
in Milwaukee County. Those services include receiving and investigating child
abuse or neglect reports, referring children to the court assigned to exercise
jurisdiction under the children's code (juvenile court), providing court reports and
permanency plans to the juvenile court, providing appropriate protection or services
for children and their families, licensing foster homes, placing children for adoption
and providing kinship care payments. Current law requires the Milwaukee County
board of supervisors to operate a children's court center which is responsible for
providing intake and dispositional services for the juvenile court and for executing
judicial policy governing intake and juvenile court services.
This bill transfers the responsibility for providing child welfare services in
Milwaukee County, not including juvenile delinquency-related services, from the
Milwaukee County department to DHFS beginning on January 1, 1998. The bill also
transfers on that date the responsibility for providing intake and dispositional
services for children in need of protection or services and for executing judicial policy
governing intake and juvenile court services for those children from the children's
court center to DHFS. Under the bill, Milwaukee County must contribute to the cost
of providing child welfare services in that county an amount equal to the amount that
the county budgeted for those services in 1995.
Under current law, DHFS must establish community advisory committees for
each of the 5 neighborhood-based child welfare service delivery sites planned for
Milwaukee County. Each committee must provide a forum for communication for
those persons who are interested in the delivery of child welfare services in the
neighborhood to be served by the services delivery site and must make
recommendations to DHFS with respect to the delivery of those services in that
neighborhood. This bill eliminates those community advisory committees and
transfers the duties of those committees to the W-2 community steering committees
established by the W-2 agencies serving Milwaukee County.
Under current law, a county may establish a secure detention facility or a
shelter care facility, or both, for holding juveniles in custody. This bill permits a
county to establish a child caring institution, that is, a facility that provides care and
maintenance for 75 days in any consecutive 12-month period for 4 or more children
at any one time. Currently, no person may operate a child caring institution unless
that person obtains a license from DHFS to operate a child welfare agency. Public
agencies, however, are excluded from that licensing requirement. This bill requires
a county that establishes a child caring institution to obtain a license to operate a
child welfare agency.
Currently, the adolescent pregnancy prevention and pregnancy services board
that is attached to DHFS must award grants to organizations to provide adolescent
pregnancy prevention programs or pregnancy services that include health care,
education, counseling and vocational training. Currently, DHFS may award grants
for the provision of services in counties, or to an American Indian tribe or band, for
adolescent parents, emphasizing high school graduation and vocational preparation,
training and experience; these grants are known as "adolescent self-sufficiency
services" grants. DHFS is also authorized to provide grants for pregnancy and
parenthood prevention services to high-risk adolescents; these grants are known as
"adolescent pregnancy prevention services" grants. Lastly, DHFS must make grants
to provide information to communities in order to increase community knowledge
about adolescents' problems and information to and activities for adolescents; these
grants are known as "adolescent choices project grants".
This bill transfers to the adolescent pregnancy prevention and pregnancy
services board the responsibility for awarding adolescent self-sufficiency services
grants, adolescent pregnancy prevention services grants and adolescent choices
project grants.
Under current law, DHFS licenses child welfare agencies, group homes, day
care centers and shelter care facilities. Currently, those licenses are valid for 2 years
from the date of issuance and may be renewed upon their expiration. This bill
provides that those licenses are valid unless suspended or revoked. Under the bill,
DHFS must review each license every 2 years and must "continue" a license for an
additional 2-year period if the minimum requirements for licensure are met, the
applicable license fee is paid, any outstanding forfeitures (civil monetary penalties)
or other penalties are paid and, for a day care center, the criminal background
investigation fee is paid.
Under current law, DHFS may impose sanctions, including daily forfeitures, on
a child welfare agency, group home, day care center or shelter care facility licensee
who commits a violation relating to the child welfare agency, group home, day care
center or shelter care facility. Currently, a licensee who commits a violation must pay
all forfeitures within 10 days after receipt of the notice of assessment, or, if the
forfeiture is contested, within 10 days after receipt of a final administrative decision
ordering payment, unless the decision is appealed and the decision is stayed by a
court order. This bill permits a licensee who owes a forfeiture to DHFS to make an
arrangement acceptable to DHFS for the payment of the forfeiture. The bill also
requires DHFS to revoke a license if, on the date that the licensing fee is due, the
licensee has any forfeitures that are due and have not been paid. Current law does
not specifically authorize revocation under such circumstances.
Under current law, a child welfare agency that provides care and maintenance
for children must pay a biennial license fee of $100, plus $15 per child, based on
licensed capacity. This bill raises that fee to $110, plus $16.50 per child, based on
licensed capacity, beginning on the day on which the bill becomes law, and to $121,
plus $18.15 per child, based on licensed capacity, beginning on July 1, 1998.
Under current law, a child welfare agency that places children in foster homes
or group homes must pay a biennial license fee of $210. This bill raises that fee to
$231, beginning on the day on which the bill becomes law, and to $254.10, beginning
on July 1, 1998.
Under current law, a group home must pay a biennial license fee of $100, plus
$15 per child, based on licensed capacity. This bill raises that fee to $110, plus $16.50
per child, based on licensed capacity, beginning on the day on which the bill becomes
law, and to $121, plus $18.15 per child, based on licensed capacity, beginning on July
1, 1998.
Under current law, a day care center that provides care and supervision for 4
to 8 children must pay a biennial license fee of $50. This bill raises that fee to $55,
beginning on the day on which the bill becomes law, and to $60.50, beginning on July
1, 1998.
Under current law, a day care center that provides care and supervision for 9
or more children must pay a biennial license fee of $25, plus $7 per child, based on
licensed capacity. This bill raises that fee to $27.50, plus $7.70 per child, based on
licensed capacity, beginning on the day on which the bill becomes law, and to $30.25,
plus $8.47 per child, based on licensed capacity, beginning on July 1, 1998.
Under current law, a shelter care facility must pay a biennial license fee of $50,
plus $15 per juvenile, based on licensed capacity. This bill raises that fee to $55, plus
$16.50 per juvenile, based on licensed capacity, beginning on the day on which the
bill becomes law, and to $60.50, plus $18.15 per juvenile, based on licensed capacity,
beginning on July 1, 1998.
Under current law, the state receives federal foster care and adoption
assistance funding under Title IV-E of the federal social security act (generally
referred to as "IV-E funds") in reimbursement of moneys expended by the state or
the counties for activities relating to foster care and adoption of children. Currently,
IV-E funds are credited to the community aids appropriation account of DHFS and
distributed to counties to provide social services to children and families. Currently,
subject to certain exceptions, community aids moneys, including IV-E funds, that
are not spent or encumbered by December 31 of each year lapse to the general fund.
One of those exceptions permits DHFS to carry forward to the next year up to 3% of
the community aids funds allocated to a county in the current year.
This bill permits DHFS to distribute IV-E funds not only for services and
projects to assist children and families, but also for the operational requirements of
DHFS in administering programs to assist children and families. The bill also
provides that if, on December 31 of any year, there remains unspent or
unencumbered in the community aids allocation an amount that exceeds the amount
of IV-E funds allocated as community aids in that year ("excess moneys"), DHFS
must carry forward to the next year the excess moneys and distribute not less than
50% of the excess moneys to counties having a population of less than 500,000 for
services and projects to assist children and families. Under the bill, a county must
use not less than 50% of any excess moneys received by that county for services for
children who are at risk of abuse or neglect to prevent the need for child abuse and
neglect intervention services. A county may not use those excess moneys to supplant
any other moneys expended by the county for services and projects to assist children
and families in a base year determined by DHFS. Any excess moneys carried forward
by DHFS, but not distributed to counties, may be used for the operational
requirements of DHFS in administering programs for children and families.
Under current law, DHFS may establish a system of outpatient clinic services
in any mental health institute operated by DHFS. Currently, subject to certain
exceptions, DHFS may provide those outpatient services only to a patient contracted
for with a county department of community programs or developmental disabilities
services. This bill permits DHFS to provide outpatient services at the Winnebago
Mental Health Institute to a patient who is a pupil enrolled in a school district that
contracts with DHFS for the provision of those services.
Mental illness and developmental disabilities
Under current law, persons who receive treatment for mental illness,
developmental disabilities, alcoholism or drug dependency have the right to refuse
medication or treatment, except that this right does not apply to any of the following:
1. Certain persons who are detained or committed on the basis of mental illness
and certain incapability, lack of services and probability of suffering severe harm
(commonly known as the "5th standard" for mental health detention or
commitment).
2. Persons who a court has determined are incompetent to refuse medication
or treatment, either at or after the hearing to determine probable cause for
commitment or after a final commitment order.
3. Committed persons in a situation in which the medication or treatment is
necessary to prevent serious physical harm to the persons or others.
4. Persons who are found by a court to be both incompetent and incompetent
to refuse psychotropic medication and for whom guardians of the person have been
appointed to consent to or refuse psychotropic medication, including forcible
administration of psychotropic medication, on behalf of the persons.
5. Persons ordered by a court to take medication in order to maintain their
competence to proceed at trial.
This bill substantially modifies the right of patients receiving services for
mental illness, developmental disabilities, alcoholism or drug dependency to refuse
medication or treatment. First, for a patient who has been found by a court to be
incompetent to refuse medication or treatment, the bill establishes, as a standard,
that the medication or treatment may be involuntarily administered if the facility
staff who are primarily responsible for developing the patient's treatment plan
determine that the medication or treatment is appropriate for the purpose of
ameliorating the patient's condition and represents the exercise of treatment
techniques and procedures that are reasonable and appropriate to the patient and
that there would be a current risk of harm to the patient or others if not administered.
Second, for a patient who has not been found by a court to be incompetent to refuse
medication or treatment, the bill establishes the right to request review of the offered
medication or treatment. The review must be conducted by a 3-member panel of
treatment professionals. If the review panel determines that the offered medication
or treatment is appropriate for the purpose of ameliorating the patient's condition
and represents the exercise of treatment techniques and procedures that are
reasonable and appropriate to the patient, or if the patient did not timely request
panel review, the patient's treatment facility or treatment program may, for certain
patients, terminate the contractual agreement with the county department of
community programs or developmental disabilities services and return the patient
to the care and custody of the county department, request reexamination of the
patient or discharge the patient. For all mental health patients, the treatment
facility may transfer the patient to a nontreatment unit or facility until the patient
is released or discharged or consents to the medication or treatment that is offered
under a treatment plan. Patients who are transferred to a nontreatment unit or
facility may be locked in their rooms for certain periods of time and may be subjected
to unit-wide or facility-wide isolation under certain circumstances. These patients
are not entitled to conditions or facilities that are identical or substantially similar
to those in which patients who consent to treatment are housed. The rights under
transfers concerning a form of treatment that is least restrictive of the patient's
personal liberty do not apply to these patients. The bill also authorizes a person
operating a mental health institute or other inpatient facility to establish and
operate nontreatment units or facilities. Lastly, for all patients, the treatment
facility or treatment program may file a motion to request the court to enter an order
requiring administration to the patient of treatment (not including the
administration of psychotropic medication).
Under current state law, treatment records of an individual who is receiving or
has received services for mental illness, developmental disability, alcoholism or drug
dependence that are maintained by DHFS, by county departments of community
programs or developmental disabilities services or by treatment facilities are
confidential. Patient health care records that are prepared by or under the
supervision of a health care provider also are confidential. With certain exceptions,
the treatment records or patient health care records may be released only with the
informed written consent of the individual. One of the exceptions applies to staff
members of the protection and advocacy agency or to staff members of a private
nonprofit corporation with which the protection and advocacy agency has contracted.
(A protection and advocacy agency is an entity designated by the governor to
implement a system to protect and advocate the rights of persons with
developmental disabilities or mental illness, as authorized by federal law.)
Currently, however, if the individual for whom treatment records are sought has had
a guardian appointed for him or her on grounds of incompetence or is a minor with
developmental disability who has a parent or a guardian but not a guardian who was
appointed for him or her on grounds of incompetence, information about that
individual that the protection and advocacy agency, or the nonprofit corporation with
which it has contracted, may obtain is limited to the nature of an alleged rights
violation, if any; the name, birth date and county of residence of the individual;
information as to whether the individual was voluntarily admitted, involuntarily
committed or protectively placed and the date and place of the admission,
commitment or placement; and the name, address and telephone number of the
guardian and the date and place of the guardian's appointment or, for a minor with
developmental disability who has not had a guardian appointed on grounds of
incompetence, the name, address and telephone number of the minor's parent or
guardian. If the protection and advocacy agency or the nonprofit corporation with
which it has contracted wishes to obtain additional information, it must notify the
guardian or the parent in writing and may obtain the information only if the
guardian or parent does not object in writing within 15 days after the notice is
mailed. However, access to records of an individual may be provided to the agency
or corporation if:
1. The record custodian fails to promptly provide the name and address of the
parent or guardian.
2. A complaint is received by the agency or corporation about an individual, the
agency or corporation determines that there is probable cause to believe that the
health or safety of the individual is in serious and immediate jeopardy and the
agency or corporation has made a good-faith effort to contact the parent or guardian
and has either been unable to contact the parent or guardian or has offered
assistance to resolve the situation and the parent or guardian has failed or refused
to act on behalf of the individual.
3. A complaint is received by the agency or corporation about an individual or
there is otherwise probable cause to believe that the individual has been subject to
abuse or neglect by a parent or guardian.
4. The individual is a minor whose custody has been transferred to a legal
custodian or for whom a guardian, who is an agency of the state or a county, has been
appointed.
