This bill 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 department that placed the individual or the 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 department, the department, and the placement facility.
Further, this bill requires that the county department, the department, or a 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.
Also, the bill requires an entity who seeks a transfer of a protective placement to obtain the prior written consent of the county department if the transfer is to a facility that is more costly to the county. This requirement does not apply in the case of an emergency transfer.
Under the bill, if an individual under protective placement, the individual's guardian 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.
For transfers, the purpose of the hearing is to determine whether the proposed placement meets the standards of s. 55.12; is in the least restrictive environment consistent with the person's needs and with the factors in 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; and is in the best interests of the ward.
The bill also sets forth the options for a court order on a transfer petition.
Modification and Termination of Protective Placements
Current law, under s. 55.06 (10) (b), sets forth limited procedures for modification and termination of a protective placement. That statute allows the department, an agency, a guardian or ward, or any other interested person to petition the court for modification or termination of a protective placement at any time. The petition must be heard if a hearing has not been held within the previous 6 months but a hearing may be held at any time in the discretion of the court. The petition must be heard within 21 days of its receipt by the court.
This bill provides more detailed procedures for modification or termination of a protective placement or an order for protective services.
The bill requires the following:
Modification of Protective Placement
1. 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 or guardian ad litem; the DHFS; the county department that placed the individual; a contractual agency; or any interested person.
2. 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.
3. The petition must contain specific allegations, depending on whether the individual is under a protective placement order or court-ordered protective services.
4. 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.
5. The hearing must comply with the requirements of s. 55.10 (4), which sets forth rights in a protective placement proceeding.
6. The order must contain specific findings regarding whether the person currently meets the standard for protective placement or court-ordered protective services.
7. If the person continues to meet the standard for protective placement or court-ordered protective services, the court must either continue the order or modify the order so that the placement or services are consistent with the person's needs if the person's needs have changed.
8. Orders for continuation or modification of protective services must be consistent with the factors in s. 55.12 (3), (4), and (5).
9. If the person does not meet the standard for protective placement or protective services, the order must require termination of the protective placement or court-ordered protective services.
10. 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.
11. The transfer provisions may be used if the modification sought is a 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 under s. 55.15.
Termination of Protective Placement or Court-Ordered Protective Services
The provisions described above pertaining to who may petition, the contents of the petition, service of the petition, and requirement for conducting the hearing for modification of protective placement or court-ordered protective services apply to petitions for 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 standards under s. 55.08 (1) and the placement is in the least restrictive environment consistent with the person's needs and with the factors under s. 55.12 (3), (4), and (5), order continuation of the person's protective placement in the same facility.
2. If the individual continues to meet the standards under s. 55.08 (1) but the placement is not in an environment consistent with the person's needs and with the factors under s. 55.12 (3), (4), and (5), 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 current s. 55.12 (3), (4), and (5). In addition to this option, the court may also order protective services.
3. If the individual no longer meets the standard in current s. 55.06 (2), 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 standard under s. 55.08 (2); 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 under s. 55.08 (2).
Annual Reviews of Protective Placements
This bill establishes the requirements and procedures for annual reviews of protective placements as required by State ex rel. Watts v. Combined Community Services, 122 Wis. 2d 65, 365 N.W.2d 104 (1985) and County of Dunn v. Goldie H., 245 Wis. 2d 538, 629 N.W.2d 189 (2001).
County Department Review and Report
The bill requires the county department of the county of residence of any individual who is protectively placed to annually review the status of the individual. If, in an annual review, the individual or his or her guardian or guardian ad litem request modification or termination of the placement and the court provides a full due process hearing, or a full due process hearing is provided pursuant to a petition for modification or termination of the protective placement, the county is not required to review the status of the individual until one year after the court issues a final order after the full due process hearing.
The county of residence of an individual whose placement is in a different county may enter into an agreement under which the county of placement performs all or a part of the county duties specified in the bill.
The county review must include a written evaluation of the physical, mental, and social condition of the individual and the service needs of the individual. The review must be made part of the individual's permanent record. The county department must inform the individual's guardian of the review and invite the individual and his or her guardian to submit comments concerning the individual's need for protective placement or protective services. In performing the review, the county department or contractual agency staff member performing the review must visit the individual and must contact the individual's guardian. The review may not be conducted by a person who is an employee of the facility in which the individual resides.
By the first day of the 11th month after the initial order is made for protective placement for an individual, and annually thereafter, the county must do all of the following:
1. File a report of the review with the court that ordered the protective placement.
2. File with the court a petition for annual review of the protective placement.
3. Provide the report to the individual and the individual's guardian.
The report must contain information on all of the following:
1. 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.
2. The ability of community services to provide adequate support for the individual's needs.
3. The ability of the individual to live in a less restrictive setting.
4. 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 such services, including the use of county funds.
5. Whether the protective placement order should be terminated or the individual should be placed in another residential 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 department with respect to termination of the protective placement or placement of the individual in another residential facility.
6. A summary of the comments of the individual and the individual's guardian and the county's response to those comments.
7. The comments, if any, of any staff member at the facility in which the individual is placed which are relevant to the review of the individual's placement.
Responsibilities of the Guardian Ad Litem
The court is required to appoint a guardian ad litem after it receives the report from the county described above. The guardian ad litem is required to do all of the following:
1. Review the report filed by the county, the annual report of the guardian, and any other relevant reports on the individual's condition and placement.
2. Meet with the individual and contact the individual's guardian and orally explain to the individual and guardian all of the following:
a. The procedure for review of protective placement.
b. The right to appointment of legal counsel.
c. The right to request performance of an independent evaluation.
d. The contents of the report submitted to the court by the county.
e. That a change in or termination of protective placement may be ordered by the court.
f. The right to a hearing and an explanation that the individual or the individual's guardian may request a full due process hearing.
The guardian ad litem must provide all of the information described above to the individual and the individual's guardian in writing.
3. Review the individual's condition, placement, and rights with the individual's guardian.
4. Ascertain whether the individual wishes to exercise any of his or her rights (the right to appointment of legal counsel, to request an independent evaluation, and to a full due process hearing).
5. File a written report with the court within 30 days after appointment that includes a discussion of whether the individual appears to continue to meet the standards for protective placement and whether the protective placement is in the least restrictive environment that is consistent with the individual's needs. The report must also state whether any of the following applies:
a. The guardian ad litem, the individual, or the individual's guardian request an independent evaluation.
b. The individual or the individual's guardian requests modification or termination of the protective placement.
c. The individual or the individual's guardian requests, or the guardian ad litem recommends, that legal counsel be appointed for the individual.
d. The individual or his or her guardian or guardian ad litem requests a full due process hearing.
6. Certify to the court that he or she has complied with the requirements described under items 1., 2., 3., and 4., above.
Court Review of Reports, Hearing, and Order
The bill requires the court that orders protective placement for an individual to review, not more than 12 months after the initial order for protective placement and annually thereafter, the reports of the county and the guardian ad litem, described above, and the annual report filed by the guardian under s. 880.38 (3). In its review, the court must determine whether any of the following is necessary:
1. Performance of an independent evaluation of the physical, mental, and social condition of the individual, and the individual's service needs. If the court determines that an independent evaluation is necessary, the evaluation shall be performed at the expense of the individual unless the individual is indigent. If the individual is indigent, the evaluation is performed at the expense of the responsible county department. The court must order the performance of an independent evaluation if any of the following applies:
a. The report submitted by the county is not timely filed or the court determines that the report fails to meet the statutory requirements.
b. Following review of the guardian ad litem's report, the court determines that independent evaluation is necessary.
c. The individual or the individual's guardian or guardian ad litem requests an independent evaluation.
2. Obtaining any other information with respect to the individual.
3. Appointment of legal counsel. If the court appoints legal counsel and it appears that the individual is indigent, the court shall refer the individual to the authority for indigency determinations under s. 977.07 (1). The court must order legal counsel for an individual if any of the following applies:
a. Following review of the guardian ad litem's report, the court determines that legal counsel for the individual is necessary.
b. The individual or the individual's guardian or guardian ad litem requests appointment of legal counsel.
4. Holding of a full due process hearing.
Upon completion of its review, the court must order either a summary hearing or a full due process hearing. A summary hearing may be held in court or may be held by other means such as by telephone or by a videoconference. The court must hold a full due process hearing if any of the following applies:
a. The individual or the individual's guardian or guardian ad litem requests a full due process hearing.
b. The report of the guardian ad litem indicates that the individual no longer meets standards for protective placement.
c. The report of the guardian ad litem indicates that the current placement is not in the least restrictive environment consistent with the individual's needs.
d. The report of the guardian ad litem indicates that the individual objects to the current placement.
Following the summary hearing or the full due process hearing, the court must do one of the following:
1. Order the continuation of the individual's protective placement in the facility in which he or she resides at the time of the hearing. The court shall make this order if it finds that the individual continues to meet the standards for protective placement, and the individual's protective placement is in the least restrictive environment that is consistent with his or her needs and with factors under current s. 55.06 (9) (a). The court must include the information relied upon as a basis for the order and make findings based on the factors set forth in s. 55.06 (2) in support of the need for continuation of protective placement.
2. Order transfer of protective placement to a less restrictive residential facility or order the county department of residency to develop or recommend a less restrictive protective placement. If the court makes such an order, it shall order the county department of residency to arrange for the individual's transfer to the new protective placement within 60 days after the court's order unless the court extends the period to permit development of a protective placement. The court shall make this order if it finds that the individual continues to meet the standards for protective placement and the protective placement of the individual is not in the least restrictive environment that is consistent with the individual's needs and with the factors under current s. 55.06 (9) (a). The court may order protective services along with transfer of placement.
3. Terminate the protective placement. The court shall make this order if it determines that the individual no longer meets the standards for protective placement. If the court terminates a protective placement, it must review the needs of the individual with respect to protective services and order protective services if it determines the individual meets the standards for protective services. If the court determines that the individual does not meet the standards for protective services, and the individual is being transferred or discharged from his or her current residential facility, the county department must 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.
The bill provides that any individual whose protective placement is terminated pursuant to an annual review may reside in his or her current residential facility for up to 60 days after the termination in order to arrange for alternative living. If the residential facility has fewer than 16 beds, the individual may remain in the residential facility as long as the requirements of current s. 55.05 (5) are met. The bill specifies that admission of the individual, if an adult, to another residential facility, must be under s. 55.05 (5).
The bill requires the court to provide a copy of its order to the individual, the individual's guardian, guardian ad litem and legal counsel, the residential facility in which the individual is protectively placed, and the county department.
Establishment of County Policy
