LRB-4465/2
DAK/ISR/GMM:kmg:jf
1999 - 2000 LEGISLATURE
March 20, 2000 - Introduced by Representative Underheim, by request of
Department of Health and Family Services. Referred to Committee on Health.
AB895,2,13
1An Act to repeal 252.15 (7) (c) 2.;
to renumber 252.15 (7) (c) 1.;
to renumber
2and amend 20.435 (4) (bs) and 252.15 (7) (c) (intro.);
to amend 46.27 (11) (c)
35m. (intro.), 46.27 (11) (c) 5n. (intro.), 46.27 (11) (c) 6. (intro.), 46.277 (5) (d) 1m.
4(intro.), 46.277 (5) (d) 1n. (intro.), 46.277 (5) (d) 2. (intro.), 46.286 (1) (a) 2.
5(intro.), 46.286 (1m), 46.286 (3) (a) (intro.), 46.289, 46.99 (2) (a) (intro.), 46.995
6(1m), 46.995 (4m) (b) (intro.), 48.833, 48.981 (3) (cm), 48.981 (7) (cm), 48.981 (7)
7(d), 49.45 (46) (a), 50.033 (2s) (intro.), 50.034 (5n) (intro.), 50.035 (4n) (intro.)
8and 153.50 (6) (c) 1.;
to repeal and recreate 46.27 (11) (c) 6. a. and 46.277 (5)
9(d) 2. a.;
to create 46.27 (11) (c) 6g., 46.277 (5) (d) 4., 46.286 (3) (a) 6., 48.78 (3),
1048.981 (3) (c) 5m., 48.981 (7) (a) 15g., 48.981 (7) (cr) and 938.78 (4) of the
11statutes; and
to affect 1999 Wisconsin Act 9, section
402,
1999 Wisconsin Act
129, section
9423 (7) and
1999 Wisconsin Act 9, section
9423 (8);
relating to:
13appeals of substantiated child abuse or neglect findings; public disclosure of
14certain child abuse and neglect information when there is a child fatality or
1near fatality; access to child abuse and neglect information by a citizen review
2panel established or designated by the department of health and family
3services or a county department of human services or social services; the
4disclosure of records relating to a substitute care parent; the placement of a
5child for adoption outside of the county where the child is located; the allocation
6of funding for tribal adolescent services and the brighter futures initiative;
7reporting an individual's positive HIV test to the state epidemiologist; family
8care eligibility and referral; use of community options program and community
9integration program funds in a community-based residential facility; medical
10assistance alcohol and other drug abuse services in a facility; use of seclusion
11or restraints in state-operated mental health institutes; collection of health
12care information; the effective date for appropriations for relief block grants to
13tribes; and making appropriations.
Analysis by the Legislative Reference Bureau
health and human services
Children
Introduction
Recent changes to the Child Abuse Prevention and Treatment Act (CAPTA) and
to Title IV-E of the federal Social Security Act (Title IV-E) impose additional
requirements on the states as a condition for receiving funding under CAPTA and
Title IV-E. Specifically, CAPTA requires a state that is applying for a grant under
CAPTA to provide assurances that the state has a law by which an individual who
disagrees with an official finding of child abuse or neglect can appeal such a finding
and a law that allows for the public disclosure of information about a case of child
abuse or neglect that has resulted in a child fatality or near fatality. CAPTA also
requires a state that receives a grant under CAPTA to establish not less than three
citizen review panels to evaluate the extent to which local agencies that are
responsible for child protection are effectively discharging their responsibilities and
to provide those citizen review panels with otherwise confidential child abuse and
neglect reports and records as necessary for those panels to carry out their functions.
In addition, the Adoption and Safe Families Act of 1997 (ASFA) amended Title IV-E
to provide that a state is not eligible for the receipt of funding under Title IV-E (IV-E
funding) if the state denies or delays the placement of a child for adoption when an
approved family is available outside of the jurisdiction that is responsible for
handling the case of the child. Title IV-E also requires a state, as a condition of
eligibility for IV-E funding, to provide safeguards that restrict the disclosure of
information relating to individuals who are assisted by the state's foster care
program, including a foster parent. This bill changes the laws of this state to bring
those laws into conformity with CAPTA and Title IV-E, as amended by ASFA. The
bill also reallocates certain funding between the brighter initiatives program and the
tribal adolescent services program.
Child abuse or neglect appeal procedure
Under current law, a county department of human services or social services
(county department) or, in Milwaukee County, the department of health and family
services (DHFS) or a child welfare agency under contract with DHFS must
determine, within 60 days after receipt of a report of suspected or threatened child
abuse or neglect, whether abuse or neglect has occurred or is likely to occur.
Currently, an appeal of such a determination made by a county department may be
made under the municipal administrative procedure law or, if the county of the
county department has elected not to be governed by that law, under a county
ordinance that provides a procedure for an appeal of such a determination, and an
appeal of such a determination made by DHFS may be made under the state
administrative procedure and review law. Current law does not provide a procedure
for appealing such a determination by a child welfare agency.
This bill requires DHFS to establish procedures for conducting an appeal of a
determination that a specific person has abused or neglected a child and to include
in those procedures a procedure permitting such an appeal to be held in abeyance
pending the outcome of any criminal or child in need of protection or services
(CHIPS) proceeding based on the alleged abuse or neglect or any investigation that
may lead to the filing of a criminal complaint or a CHIPS petition based on the
alleged abuse or neglect. Under the bill, if a county department, DHFS or a child
welfare agency determines that a specific person has abused or neglected a child, the
county department, DHFS or child welfare agency must notify the person of the
determination, the person's right to appeal the determination and the procedure by
which the person may appeal the determination, and the person may appeal the
determination in accordance with the procedures established by DHFS.
Public disclosure of information about child fatalities and near fatalities
Under current law, a county department, DHFS or a child welfare agency that
is responsible for investigating reports of suspected or threatened child abuse or
neglect (agency) must keep its records confidential and may disclose those records
only under certain exceptions. This bill permits an agency to disclose to the public
a written summary of certain information relating to any child who has died or been
placed in serious or critical condition as a result of suspected abuse or neglect that
has been reported to the agency (child fatality or near fatality) if certain
circumstances apply and certain other circumstances do not apply.
Specifically, an agency may disclose all of the information from its records
specified in the next paragraph if a person has been charged with a crime for causing
the death or serious or critical condition of a child as a result of suspected abuse or
neglect or if a person who is deceased would have been so charged, but for the fact
that the person is deceased; if a judge, district attorney, law enforcement officer or
agency or any other officer or agency whose official duties include the investigation
or prosecution of crime has previously disclosed to the public that the suspected
abuse or neglect has been investigated or that child welfare services have been
provided to the child or the child's family; or if a parent, guardian or legal custodian
of the child or the child, if 14 years of age or over, has previously disclosed or
authorized the disclosure of the information. An agency may not, however, disclose
that information if any of the following circumstances applies:
1. The agency determines that disclosure of the information would be contrary
to the best interests of the child, the child's siblings or any other child residing in the
same dwelling as the child who is the subject of the report of suspected abuse or
neglect or that disclosure of the information is likely to cause mental, emotional or
physical harm or danger to the child, the child's siblings, any other child residing in
the same dwelling as the child who is the subject of the report or any other person.
2. The district attorney determines that disclosure of the information would
jeopardize any ongoing or future criminal investigation or prosecution or would
jeopardize a defendant's right to a fair trial.
3. The agency determines that disclosure of the information would jeopardize
any ongoing or future civil investigation or proceeding or would jeopardize the
fairness of such a proceeding.
4. Disclosure of the information is not authorized by state law or rule or federal
law or regulation.
5. The investigation of the abuse or neglect report has not been completed, in
which case the agency may only disclose that the report is under investigation.
6. Disclosure of the information would reveal the identity of the child who is
the subject of the report, the child's siblings, the child's parent, guardian or legal
custodian or any other person residing in the same dwelling as the child, and
information that would reveal the identity of those persons has not previously been
disclosed to the public.
7. Disclosure of the information would reveal the identity of the person who
reported the suspected abuse or neglect or any other person who provides
information relating to the suspected abuse or neglect of the child.
The information from an agency's records that may be disclosed in the case of
a child fatality or near fatality is as follows:
1. A description of any investigation made by the agency in response to the
report of suspected abuse or neglect, a statement of the determination of the agency
as to whether abuse or neglect occurred and the basis for that determination, a
statement of whether any services were offered or provided to the child, the child's
family or the person suspected of the abuse or neglect and a statement of whether
any other action was taken by the agency to protect the child or any other child
residing in the child's dwelling.
2. Whether any previous report of suspected or threatened abuse or neglect of
the child has been made to the agency and the date of that report, a statement of the
determination of the agency as to whether abuse or neglect occurred and the basis
for that determination, a statement of whether any services were offered or provided
to the child, the child's family or the person suspected of the abuse or neglect and a
statement of whether any other action was taken by the agency to protect the child
or any other child residing in the child's dwelling.
3. Whether the child or the child's family has received any child welfare services
prior to the report of the suspected abuse or neglect that caused the child fatality or
near fatality or prior to any previous report of suspected or threatened abuse or
neglect.
Citizen review panel access to child abuse and neglect reports and records
Finally, the bill conforms state law to CAPTA by permitting a citizen review
panel established or designated by DHFS or a county department to have access to
otherwise confidential child abuse and neglect reports and records.
Jurisdictional barriers to adoption
Under current law, DHFS, a county department or a child welfare agency may
place a child for adoption in a licensed foster home without a court order if DHFS,
the county department or the child welfare agency is the guardian of the child or
makes the placement at the request of another agency that is the guardian of the
child. Current law requires DHFS, a county department or a child welfare agency,
before placing a child for adoption, to consider the availability of a placement for
adoption with a relative of the child. This bill prohibits DHFS, a county department
or a child welfare agency from denying or delaying the placement of a child for
adoption when a family that has been approved as an adoptive placement for the
child is available outside the county where the child is located.
Substitute care parent record confidentiality
Under current law, subject to certain exceptions, DHFS, the department of
corrections (DOC), a county department or a child welfare agency may not make
available for inspection or disclose the contents of any record kept or information
received about an individual in the care or legal custody of DHFS, DOC, the county
department or the child welfare agency except by order of the court assigned to
exercise jurisdiction under the children's code and the juvenile justice code (juvenile
court). Current law, however, is silent as to the confidentiality of records kept and
information received relating to a foster parent, treatment foster parent or
family-operated group home parent (substitute care parent). This bill prohibits
DHFS, DOC, a county department or a child welfare agency from making available
for inspection or disclosing the contents of any record kept or information received
relating to a substitute care parent or a family member of a substitute care parent
without first receiving the written permission of the substitute care parent, except
by order of the juvenile court. The bill, however, does not apply to the confidential
exchange of information between DHFS, DOC, a county department or a child
welfare agency and another social welfare agency, a law enforcement agency, a public
school, a private school, the victim-witness coordinator or a fire investigator
regarding an individual in the care or legal custody of DHFS, DOC, the county
department or the child welfare agency. The bill also does not prohibit DHFS, DOC,
a county department or a child welfare agency from making available for inspection
or disclosing the contents of a record as permitted under the child abuse and neglect
reporting law, from disclosing to the child's parent, guardian or legal custodian the
name and address of the substitute care parent or from including the location of the
child's placement in the child's permanency plan.
Tribal adolescent services program and brighter futures initiative
Under current law, DHFS may provide a grant in the amount of $30,000
annually to an American Indian tribe or band for the provision of information to the
members of the tribe or band in order to increase community knowledge about the
problems of adolescents and the provision of information to, and activities for,
adolescents, particularly female adolescents, in order to enable the adolescents to
develop skills relating to reducing adolescent pregnancy and high school dropout
rates; increasing economic self-sufficiency and expanding career options; enhancing
self-esteem, interpersonal skills and responsible decision-making; and neutralizing
sex-role stereotyping and bias (tribal adolescent services). Also under current law,
DHFS is required to distribute $1,229,300 in each fiscal year to applying county
departments operating in counties other than Milwaukee County to provide
programs to prevent and reduce the incidence of youth violence and other delinquent
behaviors, prevent and reduce the incidence of youth alcohol and other drug abuse,
prevent and reduce the incidence of child abuse and neglect and increase adolescent
self-sufficiency by encouraging high school graduation, vocational preparedness,
improved social and other interpersonal skills and responsible decision-making
(brighter futures initiative). This bill reduces the amount that DHFS is required to
distribute in each fiscal year to county departments operating in counties other than
Milwaukee County under the brighter futures initiative by $30,000 and increases
the amount that DHFS may distribute for tribal adolescent services by $30,000.
Public health
Reporting an individual's positive HIV test
Under current law, a health care provider, blood bank, blood center or plasma
center that obtains a positive result from a test given to an individual for the presence
of the immunodeficiency virus (HIV) is required to report the positive test results to
the state epidemiologist. The report made to the state epidemiologist must include
the name, address, telephone number, age or date of birth, race or ethnicity, sex and
county of residence of the test subject, if known, the date of the test and the test
results. The report may not, however, contain any information with respect to the
sexual orientation of the test subject or the identity of individuals with whom the test
subject may have had sexual contact.
This bill eliminates the prohibition against reporting the sexual orientation of
an individual who tests positive for HIV to the state epidemiologist and requires the
report to include information regarding an individual's sexual orientation.
Funding for relief block grants to tribes
Under
1999 Wisconsin Act 9 (the biennial budget act), the tribal medical relief
block grant program and the cooperative American Indian health projects grant
program are funded with moneys received pursuant to Indian gaming compacts.
This bill makes various technical changes to the funding provisions.
Long-term care
Family care eligibility and referral
The biennial budget act created numerous provisions related to establishment
of family care, a program of financial assistance in providing long-term care and
support items. Under the program, persons are entitled to and may receive the
family care benefit if they are at least 18 years of age, have a physical disability or
infirmities of aging, meet financial criteria, and fulfill any applicable cost-sharing
requirements. They must also meet any of several functionality criteria and criteria
related to eligibility for medical assistance, being in need of protective services or
protective placement or having chronic or terminal conditions. Other persons may
be eligible for, but are not necessarily entitled to, the family care benefit if they are
at least 18 years of age, have a physical disability or infirmities of aging, meet
financial criteria, fulfill any applicable cost-sharing requirements and meet any of
several criteria relating to functionality. Persons with developmental disability in
an initial family care county are both eligible and entitled. One of the criteria for
functionality for both entitled and eligible persons is that the person must have a
condition that is expected to last at least 90 days or result in death within 12 months
after the date of application and, on the date that the family care benefit became
available in the person's county of residence, the person was a nursing home resident
or had been receiving care under long-term medical assistance, the Alzheimer's
family caregiver support program, community aids, or county funding. This bill
changes that criterion to apply it to persons who do not meet other functionality
criteria and requires that persons seeking a determination of functional eligibility
under the criterion first apply for eligibility for the family care benefit within 36
months after the date on which the family care benefit is initially available in the
person's county of residence. Further, for persons who are entitled to the family care
benefit, the bill creates a criterion that is similar but under which a person qualifies
only if he or she does meet another specific functionality criterion. The bill clarifies
that a person who is 18 years of age, has a primary disabling condition of
developmental disability and meets financial and functionality criteria is both
eligible for and entitled to the family care benefit, if the person is a resident of an
initial family care county.
Under the family care provisions, if the secretary of health and family services
has certified that a resource center is available, adult family homes, residential care
apartment complexes, community-based residential facilities (C-BRFs), hospitals
and nursing homes must, unless certain exceptions apply, refer persons who are aged
at least 65 or have a physical disability that is expected to last at least 90 days to the
resource center for services and determinations of eligibility for the family care
benefit and for other programs. In addition, nursing homes and hospitals must so
refer persons with developmental disability. This bill clarifies that referral by adult
family homes, residential care apartment complexes and C-BRFs must also be made
for persons with developmental disability.
Use of community options program waiver and community integration
program funds in a community-based residential facility
Under current law, COP provides assessments of functionality and home and
community-based care to, among others, elderly and disabled persons as an
alternative to institutionalized care; one part of COP (commonly referred to as
"COP-Regular") is funded by state moneys and the other part (commonly referred
to as "COP-Waiver") is funded under a joint federal-state program under a waiver
of federal medicaid laws. A community integration program (commonly referred to
as CIP II) provides home and community-based services and continuity of care for
persons who meet medical assistance eligibility requirements and are relocated from
certain institutions or meet requirements for medical assistance reimbursement in
nursing homes. Use of COP-Regular funds to provide services in C-BRFs is
restricted to eight-bed facilities, unless DHFS approves service provision in a
C-BRF licensed on July 29, 1995, that meets certain standards, in a C-BRF that
entirely consists of independent apartments or in a C-BRF licensed after July 29,
1995, that is licensed for 20 or fewer beds and that meets certain standards. Use of
COP-Waiver and CIP II funds to provide services in C-BRFs is restricted to four-bed
facilities, unless DHFS approves service provision in a C-BRF of up to eight beds or
that entirely consists of independent apartments. This bill changes the standard for
use of COP-Waiver and CIP II funds to provide services in a C-BRF to the standard
that exists in current law for use of COP-Regular funds to provide services in a
C-BRF.
Public assistance
Medical assistance alcohol and other drug abuse services; size of facility
The biennial budget act creates a medical assistance benefit related to alcohol
and other drug abuse residential treatment services in facilities with fewer than 16
beds that is available if a county, city, town or village agrees to pay the state share
of the benefit. Current federal law, however, prohibits medical assistance payment
for alcohol and other drug abuse treatment in facilities with more than 16 beds and
thus permits the benefit in facilities with only 16 beds. This bill changes to 16 beds
the size of a residential facility in which a medical assistance recipient may obtain
alcohol and drug abuse treatment services if a county , city, village or town agrees
to pay the state share of that medical assistance benefit.
Other health and mental health
Use of seclusion or restraints in state-operated mental health institutes
Under current law, the Mendota Mental Health Institute and the Winnebago
Mental Health Institute provide mental health treatment services to persons with
mental illness or drug dependency. Current federal regulations permit the use of
seclusion or restraint of patients in psychiatric hospitals that participate in the
medicare program only when less restrictive measures have been found to be
ineffective to protect the patient or others from harm. This bill increases general
purpose revenues to provide increased services and care in the state-operated
mental health institutes that will permit alternatives to the use of restraint and
seclusion for patients, in order to comply with standards specified in federal
regulations.
Collection of health care information
Under the biennial budget act, health care providers that are not hospitals and
ambulatory surgery centers are required to submit certain data to DHFS for partial
release as reports and prohibited from submitting certain other data, including the
patient's account number. However, under the biennial budget act, DHFS is also
required to receive a patient account number and, after verification of the
information, to remove and destroy the patient's account number. This bill clarifies
that DHFS may receive a patient's account number, but must destroy the number
after information verification.
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:
AB895,9,63
20.435
(4) (kb)
Relief block grants to tribal governing bodies. The amounts in
4the schedule for relief block grants under s. 49.029 to tribal governing bodies.
All
5moneys transferred from the appropriation account under s. 20.505 (8) (hm) 18. shall
6be credited to this appropriation account.
AB895, s. 2
7Section
2. 46.27 (11) (c) 5m. (intro.) of the statutes is amended to read:
AB895,9,118
46.27
(11) (c) 5m. (intro.) No county may use funds received under this
9subsection to provide services to a person who does not live in his or her own home
10or apartment unless, subject to the limitations under subds. 6.,
6g., 7. and 8., one of
11the following applies:
AB895, s. 3
12Section
3. 46.27 (11) (c) 5n. (intro.) of the statutes is amended to read:
AB895,9,1413
46.27
(11) (c) 5n. (intro.) A county may also use funds received under this
14subsection, subject to the limitations under subds. 6.,
6g., 7. and 8., to provide
1services to a person who does not live in his or her own home or apartment if the
2services are provided to the person in a community-based residential facility and the
3county department or aging unit has determined that all of the following conditions
4have been met:
AB895, s. 4
5Section
4. 46.27 (11) (c) 6. (intro.) of the statutes is amended to read:
AB895,10,96
46.27
(11) (c) 6. (intro.) No county, private nonprofit agency or aging unit may
7use funds received under this subsection to provide residential services in any
8community-based residential facility, as defined in s. 50.01 (1g),
or group home, as
9defined in s. 48.02 (7), that has more than 4 beds, unless one of the following applies:
AB895, s. 5
10Section
5. 46.27 (11) (c) 6. a. of the statutes is repealed and recreated to read:
AB895,10,1111
46.27
(11) (c) 6. a. The requirements of sub. (7) (cm) 1. a. or c. are met.
AB895, s. 6
12Section
6. 46.27 (11) (c) 6g. of the statutes is created to read:
AB895,10,1613
46.27
(11) (c) 6g. No county, private nonprofit agency or aging unit may use
14funds received under this subsection to provide residential services in a group home,
15as defined in s. 48.02 (7), that has more than 5 beds, unless the department approves
16the provision of services in a group home that has 6 to 8 beds.
AB895, s. 7
17Section
7. 46.277 (5) (d) 1m. (intro.) of the statutes is amended to read:
AB895,10,2118
46.277
(5) (d) 1m. (intro.) No county may use funds received under this section
19to provide services to a person who does not live in his or her own home or apartment
20unless, subject to the limitations under subds. 2.
and
, 3.
and 4. and par. (e), one of
21the following applies:
AB895, s. 8
22Section
8. 46.277 (5) (d) 1n. (intro.) of the statutes is amended to read:
AB895,11,323
46.277
(5) (d) 1n. (intro.) A county may also use funds received under this
24section, subject to the limitations under subds. 2.
and
, 3.
and 4. and par. (e), to provide
25services to a person who does not live in his or her own home or apartment if the
1services are provided to the person in a community-based residential facility and the
2county department or aging unit has determined that all of the following conditions
3have been met: