Wisconsin Legislature: 264,166

(b) Order the individual to comply with the treatment plan under par. (a). The order shall provide that if the individual fails to comply with provisions of the treatment plan that require the individual to take psychotropic medications, the medications may be administered involuntarily with consent of the guardian. The order shall specify the methods of involuntary administration of psychotropic medication to which the guardian may consent. An order authorizing the forcible restraint of an individual shall specify that a person licensed under s. 441.06, 441.10, or 448.05 (2) or (5) shall be present at all times that psychotropic medication is administered in this manner and shall require the person or facility using forcible restraint to maintain records stating the date of each administration, the medication administered, and the method of forcible restraint utilized.

(9) If an individual who is subject to an order under this section is not in compliance with the order because he or she refuses to take psychotropic medication as ordered under the treatment plan, and it is necessary for the individual to be transported to an appropriate facility for forcible restraint for administration of psychotropic medication, the corporation counsel may file with the court a statement of the facts of the noncompliance of the individual. The statement shall be sworn to be true and shall be based upon the information and belief of the person filing the statement. The statement shall be signed by the individual's guardian and by the director or designee of the county department or an agency with which it contracts under s. 55.02 (2) to develop and administer the treatment plan. Upon receipt of the statement of noncompliance, if the court finds by clear and convincing evidence that the individual has substantially failed to comply with the administration of psychotropic medication as ordered under the treatment plan, the court may issue an order authorizing the sheriff or any other law enforcement agency in the county in which the individual is found or in which it is believed that the individual may be present to take the individual into custody and transport him or her to an appropriate facility for administration of psychotropic medication using forcible restraint, with consent of the guardian.

(10) Nothing in this section prohibits the involuntary administration of psychotropic medication as an emergency protective service under s. 55.13.

(11) The county department or an agency with which it contracts under s. 55.02 (2) shall provide to the department a copy of any order issued under this section that applies to any protectively placed individual in the county.

(12) The department shall annually submit to the legislature under s. 13.172 (2) a report regarding orders under this section.

(13) An order under this section is subject to annual review under s. 55.19.

Note: Establishes a procedure by which a court may order involuntary administration of psychotropic medication, with consent of a guardian, as a protective service, as described in detail in the prefatory note.

264,166 Section 166. 55.15 of the statutes is created to read:

55.15 Transfer of an individual under a protective placement order. (1) Transfers authorized. An individual under a protective placement order may be transferred between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility. The individual may not be transferred, under the protective placement order, to any facility for which commitment procedures are required under ch. 51.

(2) Who may transfer. A guardian, a county department or agency with which it contracts under s. 55.03 (2) that provided protective placement to the individual pursuant to the order of the court, the department, or a protective placement facility may transfer an individual under a protective placement order under the requirements of this section, notwithstanding the fact that a court order has named a specific facility for the protective placement of the individual.

(3) Consent of guardian required. No individual may be transferred under this section without the written consent of the individual's guardian, except in the case of an emergency transfer under sub. (5) (b).

(4) Consent of county department. No individual may be transferred under this section to a facility that is more costly to the county without the written consent of the county department, except in the case of an emergency transfer under sub. (5) (b).

(5) Notice of transfer. (a) Nonemergency transfer. A person or entity who initiates a transfer shall provide 10 days' prior written notice of a transfer to the court that ordered the protective placement and to each of the other persons and entities specified in sub. (2) who did not initiate the transfer. The notice of transfer shall include notice of the right of the individual under a protective placement, the individual's attorney, if any, or other interested person to petition the court for a hearing on the transfer.

(b) Emergency transfer. If an emergency makes it impossible to provide the notice specified in par. (a) or to obtain the prior written consent of the guardian specified in sub. (3), the individual may be transferred without the prior written consent of the guardian and without the notice specified in par. (a). Written notice shall be provided immediately upon transfer to each of the persons and entities specified under sub. (2) who did not initiate the transfer. Notice shall also be provided to the court that ordered the protective placement within a reasonable time, not to exceed 48 hours from the time of transfer. The notice shall include notice of the right to file with the court under sub. (6) a petition objecting to the emergency transfer.

(6) Petition. An individual under protective placement, the individual's guardian, the individual's attorney, if any, or any other interested person may file a petition with the court objecting to a proposed transfer or to an emergency transfer made under sub. (5) (b). The petition shall specify the reasons for the person's objection to the transfer.

(7) Hearing. (a) The court shall order a hearing within 10 days after the filing of a petition under sub. (6).

(b) The court shall notify the petitioner, the individual under protective placement, the individual's guardian, the individual's attorney, if any, and the county department of the time and place of the hearing.

(c) A guardian ad litem shall be appointed to represent the individual under protective placement at the hearing. If the individual is an adult who is indigent, the county in which the hearing is held shall be liable for guardian ad litem fees. If the individual is a minor, the individual's parents or the county in which the hearing is held shall be liable for guardian ad litem fees as provided in s. 48.235 (8).

(cm) The court shall appoint counsel for the individual under protective placement if the individual, the individual's guardian ad litem, or anyone on the individual's behalf requests that counsel be appointed for the individual

(d) The petitioner, individual under protective placement, the individual's guardian, the individual's guardian ad litem, and the individual's attorney, if any, have the right to attend the hearing and to present and cross-examine witnesses.

(8) Standard for transfer. In determining whether to approve a proposed transfer or an emergency transfer made under sub. (5) (b), the court shall consider all of the following:

(a) Whether the requirements of s. 55.12 (2) and (6) are met.

(b) Whether the protective placement is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5) or, if the transfer is to an intermediate facility or nursing facility, is in the most integrated setting, as defined in s. 46.279 (1) (bm).

(9) Order relating to transfer. Following the hearing under sub. (7), the court shall do one of the following:

(a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's proposed protective placement does not meet the standards for transfer under sub. (8), the court shall issue an order prohibiting the transfer. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards under sub. (8) in support of the denial of the transfer.

(b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the proposed transfer meets the standard under sub. (8), the court shall approve the proposed transfer. The court may order protective services along with transfer of protective placement. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards in s. 55.08 (1) in support of the need for continued protective placement.

(c) If the court finds that the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement, as provided in s. 55.17.

Note: Revises the provisions in current law regarding transfers of protective placements. Provides that transfers between placement units, between placement facilities, or from a placement facility to a medical facility (provided that the medical facility is not a psychiatric facility), may be made by a county or the Department of Health and Family Services (DHFS), in addition to a guardian or placement facility. However, if such a transfer is made, 10 days' prior written notice must be given by the transferring entity to the guardian, the county, the department, and the placement facility. Further, this bill requires that a county, the department, or placement facility making such a transfer must obtain the prior written consent of the guardian. If an emergency precludes providing the required prior written notice, or precludes obtaining the guardian's prior written consent, written notice must be provided immediately upon transfer. Under the bill, if a guardian, ward or attorney, or other interested person files a petition specifying objections to a transfer, the court must order a hearing within 10 days after filing the petition, or within 96 hours after filing of the petition in the case of an emergency transfer made without the required prior written notice and prior written consent of the guardian.

For nonemergency transfers, the purpose of the hearing is to determine whether the proposed placement meets the standards of s. 55.12 (2) and (6), is in the least restrictive environment or most integrated setting, and is in the best interests of the ward.

264,167 Section 167. 55.16 of the statutes is created to read:

55.16 Modification of an order for protective placement or protective services. (1) Use of transfer provisions. If a petitioner is an entity authorized under s. 55.15 (2) to transfer an individual under a protective placement and the modification sought is a transfer of an individual between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility that is not a psychiatric facility, the petitioner may utilize the procedure in s. 55.15 in lieu of the procedure under this subsection.

(2) Petition. (a) Filing; services. An individual under protective placement or receiving protective services, the individual's guardian, the individual's legal counsel or guardian ad litem, if any, the department, the county department that placed the individual or provided the protective services under an order of the court, an agency with which the county department contracts under s. 55.02 (2), or any interested person may file a petition at any time for modification of an order for protective services or protective placement. The petition shall be served on the individual, the individual's guardian, the individual's legal counsel and guardian ad litem, if any, and the county department.

(b) Modification of an order for protective placement; allegations. A petition for modification of an order for protective placement shall make one of the following allegations:

1. That the protective placement is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5).

2. That a protective placement in a facility with a higher level of restrictiveness would be more consistent with the requirements of s. 55.12 (3), (4), and (5).

3. That a protective placement in a different facility with the same level of restrictiveness as the current placement would be more consistent with the requirements of s. 55.12 (4) and (5) for reasons unrelated to the level of restrictiveness.

(c) Modification of an order for protective services; allegations. 1. A petition for modification of an order for protective services, other than an order under s. 55.14, shall allege that the protective services are not provided in the least restrictive environment or manner that is consistent with the requirements of s. 55.12 (3), (4), and (5).

2. A petition for modification of an order under s. 55.14 shall allege that modification of the order or the treatment plan for the individual would be in his or her best interests.

(3) Hearing. (a) The court shall order a hearing within 21 days after the filing of a petition under sub. (2), except that the court is not required to order a hearing if a hearing on a court-ordered protective placement for the individual or on a petition for court-ordered protective services or transfer of protective placement with respect to the individual has been held within the previous 6 months.

(b) The court may extend the 21-day limitation in par. (a) if requested by the individual or the individual's guardian, guardian ad litem, or legal counsel.

(4) Order modification for individual under protective placement. After a hearing under sub. (3) on a petition for modification of an order for protective placement, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

(a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's protective placement is in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order continuation of the protective placement in the facility in which the individual resides at the time of the hearing.

(b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the protective placement of the individual is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order transfer of the individual to a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5). In lieu of ordering transfer of the individual to a specific facility, the court may order the county department of the individual's residence to develop or recommend a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5), and arrange for the individual's transfer to that protective placement within 60 days after the court's order. The court may extend this time period to permit development of a protective placement. The court may order protective services along with transfer of protective placement.

(c) If the court finds that the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement, as provided in s. 55.17 (3) (c).

(5) Order modification for individual receiving court-ordered protective services. (a) After a hearing under sub. (3) on a petition for modification of an order for protective services, other than an order under s. 55.14, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

1. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the current protective services are provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall continue the order for protective services.

2. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are not provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order protective services that are more consistent with those requirements. The services shall be provided in the least restrictive manner consistent with the requirements of s. 55.12 (3), (4), and (5).

3. If the court finds that the individual no longer meets the standards for protective services under s. 55.08 (2), the court shall terminate the order for protective services, as provided in s. 55.17 (4) (a) 3.

(b) After a hearing under sub. (3) on a petition for modification of an order under s. 55.14, the court shall make one of the orders required under s. 55.19 (3) (e) and shall include in the order the information relied on as a basis for that order.

Note: Revises the limited provisions in current law regarding modification of an order for a protective placement. A petition for modification of an order for protective placement may be filed by an individual subject to a protective placement; the individual's guardian, legal counsel, or guardian ad litem; the DHFS; the county department that placed the individual; a contractual agency; or any interested person. The petition must be served on the individual; the individual's guardian; the individual's legal counsel and guardian ad litem, if any; and the county department. The petition must contain specific allegations, depending on whether the individual is under a protective placement order or court-ordered protective services. A hearing on the petition must be held within 21 days after the filing of the petition, if a hearing on a protective placement petition or transfer has not been held within the previous 6 months. The order must contain specific findings regarding whether the person currently meets the standard for protective placement or court-ordered protective services. If the person continues to meet the standard for protective placement or court-ordered protective services, the court must continue the order or modify the order so that the placement or service are consistent with the person's needs if the person's needs have changed. If the person does not currently meet the standard for protective placement or protective services, the order must require termination of the protective placement or court-ordered protective services. Notice of the order must be provided to the individual; the individual's guardian, guardian ad litem, and legal counsel, if any; and the residential facility, if the person receives services in such a facility. The transfer provisions may be used if the modification sought is transfer of an individual between placement units, between placement facilities, or from a placement unit to a medical facility, and if the petitioner is an entity authorized to initiate such a transfer.

264,168 Section 168. 55.17 of the statutes is created to read:

55.17 Termination of an order for protective placement or protective services.

(2) Hearing. A hearing under this section shall comply with s. 55.16 (3).

(3) Order for individual under protective placement. After a hearing under sub. (2) on a petition for termination of an order for protective placement, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

(a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's protective placement is in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall order continuation of the individual's protective placement in the facility in which he or she resides at the time of the hearing.

(c) If the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement. If the protective placement is terminated, all of the following shall apply:

1. The court shall review the needs of the individual with respect to protective services. If the court determines that the individual meets the standards for protective services under s. 55.08 (2), the court may order protective services. The services shall be provided in the least restrictive manner consistent with the requirements of s. 55.12 (3), (4), and (5).

2. If the court determines that the individual does not meet the standards for protective services under s. 55.08 (2), and the individual is being transferred or discharged from his or her current residential facility, the county department shall assist the residential facility with discharge planning for the individual, including planning for a proper residential living arrangement and the necessary support services for the individual.

3. Any individual whose protective placement is terminated under this paragraph may reside in his or her current protective placement facility for up to 60 days after a determination under subd. 1. or 2. in order to arrange for an alternative living arrangement. If the protective placement facility has fewer than 16 beds, the individual may remain in the protective placement facility as long as the requirements of s. 55.055 are met. Admission by the individual, if an adult, to another residential facility shall be made under s. 55.055.

(4) Order for individual receiving court-ordered protective services. (a) After a hearing under sub. (2) on a petition for termination of an order for protective services, other than an order under s. 55.14, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

1. If the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall continue the order for protective services.

2. If the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are not provided in the lease restrictive manner that is consistent with the requirements of s. 55.12 (3), (4), and (5), the court shall make an order for protective services as provided in s. 55.16 (5) (a) 2.

3. If the individual no longer meets the standards for protective services under s. 55.08 (2), the court shall terminate the order for protective services.

(b) After a hearing under sub. (2) on a petition for termination of an order under s. 55.14, the court shall make one of the orders required under s. 55.19 (3) (e) and shall include in the order the information relied on as a basis for that order.

Note: Establishes procedures for the termination of a protective placement or court order for protective services. The provisions pertaining to who may petition, the contents of the petition, service of the petition, and requirement for conducting the hearing for a modification of protective placement or court-ordered protective services apply to petitions for a termination of placement or services.

The court may make one of the following orders after a hearing on a petition for termination of protective placement or services:

1. If the individual continues to meet the statutory standards for protective placement and the placement is in the least restrictive environment consistent with the person's needs and with the statutory factors, order continuation of the person's protective placement in the same facility.

2. If the individual continues to meet the statutory standards for protective placement but the placement is not in an environment consistent with the person's needs and with the statutory factors, the court shall transfer the person to a facility that is in the least restrictive environment consistent with the person's needs and with the factors. In addition to this option, the court may also order protective services.

3. If the individual no longer meets the statutory standard for protective placement, the court shall terminate the protective placement. If the placement is terminated, the court must either order protective services or ensure the development of a proper living arrangement for the person if the individual is being transferred or discharged from his or her current residential facility. If the person who is the subject of the petition is under an order for protective services, the court may order continuation of the protective services order if the person continues to meet the statutory standard for court-ordered protective services; order that the protective services be provided in a manner more consistent with the person's needs; or terminate the order for protective services if the person no longer meets the standard.

264,169 Section 169. 55.18 of the statutes is created to read:

55.18 Annual review of protective placement. All of the following shall be performed with respect to any individual who is subject to an order for protective placement under s. 55.12 or to an order for protective placement initially issued under s. 55.06 (9) (a), 2003 stats.:

(1) County department performance of review. (a) 1. File a report of the review with the court that ordered the protective placement. The report shall include information on all of the following:

a. The functional abilities and disabilities of the individual at the time the review is made, including the needs of the individual for health, social, or rehabilitation services, and the level of supervision needed.

b. The ability of community services to provide adequate support for the individual's needs.

c. The ability of the individual to live in a less restrictive setting.

d. Whether sufficient services are available to support the individual and meet the individual's needs in the community and if so, an estimate of the cost of the services, including the use of county funds.

e. Whether the protective placement order should be terminated or whether the individual should be placed in another facility with adequate support services that places fewer restrictions on the individual's personal freedom, is closer to the individual's home community, or more adequately meets the individual's needs, including any recommendation that is made during the reporting period by the county department with respect to termination of the protective placement or placement of the individual in another facility.

f. The comments of the individual and the individual's guardian during the performance of the review, as summarized by the county department, and the response of the county department to the comments.

g. The comments, if any, of a staff member at the facility in which the individual is placed that are relevant to the review of the individual's placement.

2. File with the court under subd. 1. a petition for annual review by the court of the protective placement ordered for the individual.

3. Provide the report under subd. 1. to the individual and the guardian of the individual, and to the individual's agent under an activated power of attorney for health care, if any.

(b) If, following an annual review of an individual's status under par. (a), the individual or the individual's guardian or guardian ad litem requests modification or termination of the individual's protective placement and a hearing under the requirements of s. 55.10 (4) is provided, or if a hearing under the requirements of s. 55.10 (4) is provided pursuant to a petition for modification or termination of the protective placement, the county is not required to initiate a subsequent review of the individual's status under par. (a) until the first day of the 11th month after the date that the court issues a final order after the hearing.

(bm) If the individual is subject to an order for involuntary administration of psychotropic medication under s. 55.14, the review under par. (a) shall be conducted simultaneously with the review under s. 55.19.

(c) The review under par. (a) may not be conducted by a person who is an employee of the facility in which the individual resides.

(1m) County agreement. The county of residence of an individual whose placement is in a different county may enter into an agreement with that county under which the county of the individual's placement performs all or part of the duties of the county of residence under this section.

(2) Guardian ad litem appointment and report. After a county department has filed a report with a court under sub. (1) (a) 1., the court shall appoint a guardian ad litem in accordance with s. 757.48 (1). The guardian ad litem shall do all of the following: