2005 Wisconsin Act 264

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

This bill requires each county protective services agency to ensure that no later than 180 days after the bill's effective date, the county establishes a written policy that specifies procedures to be followed in the county which are designed to ensure that reviews of all protectively placed persons residing in the county are conducted annually. The county protective services agency must maintain a copy of the written policy and must make the policy available for public inspection.

Statement Required

The bill also requires the register in probate to file with the chief judge of the judicial administrative district a statement indicating whether the county has filed a petition and a report for each annual review required to be undertaken for protectively placed persons in the county that year. The statement must include an explanation of the reasons that any required report or petition has not been filed.

Appointment of Legal Counsel in Protective Placement Proceedings

Under current law, s. 55.06 (6), relating to procedures in protective placement proceedings, provides that s. 880.33 (2) applies to all hearings under ch. 55 except for transfers of protective placements. Section 880.33 (2) (a) 1. provides that the proposed ward has the right to counsel in incompetency proceedings. Section 880.33 (2) (a) 2. further provides that if the person requests, but is unable to obtain legal counsel, the court shall appoint legal counsel. The statutes also provide that if the person is represented by counsel appointed under s. 977.08 in a proceeding for a protective placement under s. 55.06, the court shall order the counsel appointed under s. 977.08 to represent the person.

Although ch. 55 does not explicitly provide for counsel appointed under s. 977.08 in case of an indigent subject, the language in s. 880.33 (2) (a) 2. implies that counsel should be appointed. Further, s. 55.06 (11), relating to emergency protective placements, clearly provides for counsel appointed under s. 977.08 in the case of an indigent subject. Finally, it is the practice in this state to appoint counsel under s. 977.08 in the case of an indigent subject of a ch. 55 petition.

This bill amends the public defender statute that sets forth to whom the state public defender must provide legal services by clearly setting forth the requirement that the state public defender provide legal services in cases involving persons who are subject to petitions for protective placement under ch. 55. This codifies current practice.

The remainder of this prefatory note consists of a table of contents for reorganized ch. 55: - See PDF for table

264,1 Section 1. 20.435 (2) (gk) of the statutes is amended to read:

20.435 (2) (gk) Institutional operations and charges. The amounts in the schedule for care, other than under s. 51.06 (1r), provided by the centers for the developmentally disabled, to reimburse the cost of providing the services and to remit any credit balances to county departments that occur on and after July 1, 1978, in accordance with s. 51.437 (4rm) (c); for care, other than under s. 46.043, provided by the mental health institutes, to reimburse the cost of providing the services and to remit any credit balances to county departments that occur on and after January 1, 1979, in accordance with s. 51.42 (3) (as) 2.; for maintenance of state-owned housing at centers for the developmentally disabled and mental health institutes; for repair or replacement of property damaged at the mental health institutes or at centers for the developmentally disabled; and for reimbursing the total cost of using, producing, and providing services, products, and care. All moneys received as payments from medical assistance on and after August 1, 1978; as payments from all other sources including other payments under s. 46.10 and payments under s. 51.437 (4rm) (c) received on and after July 1, 1978; as medical assistance payments, other payments under s. 46.10, and payments under s. 51.42 (3) (as) 2. received on and after January 1, 1979; as payments for the rental of state-owned housing and other institutional facilities at centers for the developmentally disabled and mental health institutes; for the sale of electricity, steam, or chilled water; as payments in restitution of property damaged at the mental health institutes or at centers for the developmentally disabled; for the sale of surplus property, including vehicles, at the mental health institutes or at centers for the developmentally disabled; and for other services, products, and care shall be credited to this appropriation, except that any payment under s. 46.10 received for the care or treatment of patients admitted under s. 51.10, 51.15, or 51.20 for which the state is liable under s. 51.05 (3), of patients admitted under s. 55.06 (9) (d) or (e) for which the state is liable under s. 55.05 (1), of forensic patients committed under ch. 971 or 975, admitted under ch. 975, or transferred under s. 51.35 (3), or of patients transferred from a state prison under s. 51.37 (5), to the Mendota Mental Health Institute or the Winnebago Mental Health Institute shall be treated as general purpose revenue — earned, as defined under s. 20.001 (4); and except that moneys received under s. 51.06 (6) may be expended only as provided in s. 13.101 (17).

Note: Deletes cross-references to s. 55.06 (9) (d) and (e), which are repealed by the bill.

264,2 Section 2. 46.011 (2) of the statutes is amended to read:

46.011 (2) "Prisoner" means any person who is either arrested, incarcerated, imprisoned or otherwise detained in excess of 12 hours by any law enforcement agency of this state, except when detention is pursuant to s. 51.15, 51.20, 51.45 (11) (b) or 55.06 (11) (a) 55.135 (1) or ch. 980. "Prisoner" does not include any person who is serving a sentence of detention under s. 973.03 (4) unless the person is in the county jail under s. 973.03 (4) (c).

Note: Changes a cross-reference to emergency protective placement, the provisions of which are renumbered under this bill.

264,3 Section 3. 46.10 (2) of the statutes is amended to read:

46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed, protected, or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., and s. 975.17, 1977 stats., s. 55.05 (5), 2003 stats., and 55.06, 2003 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12) and (13), 55.05, 55.06 55.055, 55.12, 55.13, 55.135, 971.14 (2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (5) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

Note: Changes cross-references to protective placement, which is renumbered in this bill.

264,4 Section 4 . 46.21 (2m) (c) of the statutes is amended to read:

46.21 (2m) (c) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c) 55.22 (3), 146.82, 252.11 (7) and 253.07 (3) (c), any subunit of the county department of human services acting under this subsection may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of human services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of human services or with a resource center, care management organization or family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of human services to coordinate the delivery of services to the client.

264,5 Section 5. 46.215 (1m) of the statutes is amended to read:

46.215 (1m) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of the county department of social services acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of social services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of social services or with a resource center, care management organization or family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of social services to coordinate the delivery of services to the client.

264,6 Section 6. 46.22 (1) (dm) of the statutes is amended to read:

46.22 (1) (dm) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of the county department of social services acting under this subsection may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of social services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of social services or with a resource center, care management organization or family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of social services to coordinate the delivery of services to the client.

264,7 Section 7 . 46.23 (3) (e) of the statutes is amended to read:

46.23 (3) (e) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of a county department of human services acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of human services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of human services or with a resource center, care management organization or family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of human services to coordinate the delivery of services to the client.

Note: Sections 4 to 7 change a cross-reference to provisions relating to confidentiality of treatment and service records for persons who are protected under chapter 55. These provisions are renumbered in this bill.

264,8 Section 8. 46.27 (6r) (b) 2. of the statutes is amended to read:

46.27 (6r) (b) 2. The person has chronic serious and persistent mental illness, as defined under s. 51.01 (3g) (14t), affecting mental health to the extent that long-term or repeated hospitalization is likely unless the person receives long-term community support services.

Note: Deletes a reference to the term "chronic mental illness", which is eliminated in this bill, and replaces it with the updated term "serious and persistent mental illness".

264,9 Section 9. 46.275 (4) (b) 1. of the statutes is amended to read:

46.275 (4) (b) 1. Consent for participation is given either by the person's parent, guardian or legal custodian, if the person is under age 18, or by the person or the person's guardian, if the person is age 18 or over, except that this subdivision does not limit the authority of the circuit court to enter, change, revise or extend a dispositional order under subch. VI of ch. 48 or subch. VI of ch. 938 or to order a protective placement or protective services under s. 55.06 55.12.

Note: Amends language in medical assistance waiver program language to reflect the bill's clarification that protective services, as well as protective placement, may be court ordered.

264,10 Section 10 . 46.279 (2) of the statutes, as affected by 2005 Wisconsin Act .... (Assembly Bill 296), is amended to read:

46.279 (2) Placements and admissions to intermediate facilities. Except as provided in sub. (5), no person may protectively place or continue protective placement of an individual with a developmental disability in an intermediate facility and no intermediate facility may admit or continue service for such an individual unless, before the protective placement, continued placement following review under s. 55.06 (10) 55.18, or admission and after having considered a plan developed under sub. (4), a court under s. 55.06 (9) (a) or (10) (a) 2. 55.12 or 55.18 (1) (ar) finds that protective placement in the intermediate facility is the most integrated setting that is appropriate to the needs of the individual or that the county of residence of the individual would not reasonably be able to provide community-based care in accordance with the plan within the limits of available state and federal funds and county funds required to be appropriated to match state funds, taking into account information presented by all affected parties. An intermediate facility to which an individual who has a developmental disability applies for admission shall, within 5 days after receiving the application, notify the county department that is participating in the program under s. 46.278 of the county of residence of the individual who is seeking admission concerning the application.

264,11 Section 11 . 46.279 (3) of the statutes, as affected by 2005 Wisconsin Act .... (Assembly Bill 296), is amended to read:

46.279 (3) Placements and admissions to nursing facilities. Except as provided in sub. (5), if the department or an entity determines from a screening under s. 49.45 (6c) (b) that an individual requires active treatment for developmental disability, no individual may be protectively placed in a nursing facility or have protective placement in a nursing facility continued following review under s. 55.06 (10) 55.18, and no nursing facility may admit or continue service for the individual, unless the department or entity that conducts the screening determines that the individual's need for care cannot fully be met in an intermediate facility or under a plan under sub. (4) or that the county of residence of the individual would not reasonably be able to provide community-based care in accordance with the plan within the limits of available state and federal funds and county funds required to be appropriated to match state funds.

Note: Sections 10 and 11 change a cross-reference to orders for protective placement, the provisions of which are renumbered in this bill.

264,12 Section 12. 46.279 (4) (c) of the statutes is amended to read: