2005 Wisconsin Act 388

55.043 (4) (title) Offer of services and referral of cases.

388,149 Section 149. 55.043 (4) (intro.) of the statutes is renumbered 55.043 (4) (b) (intro.) and amended to read:

55.043 (4) (b) (intro.) If upon investigation, after responding to a report, the county protective services adult-at-risk agency finds misappropriation of property or has reason to believe that the adult at risk has been the subject of abuse, financial exploitation, neglect or abuse of a vulnerable adult, or self-neglect, the county protective services adult-at-risk agency may do one or more any of the following:

388,150 Section 150. 55.043 (4) (a) of the statutes is renumbered 55.043 (4) (b) 1. and amended to read:

55.043 (4) (b) 1. Offer services, including Initiate a protective services under s. 55.05, a protective placement under s. 55.06, relocation assistance or other services action or contact an investigative agency, as appropriate.

388,151 Section 151. 55.043 (4) (am) of the statutes is created to read:

55.043 (4) (am) Upon responding to a report, the adult-at-risk agency or the investigative agency shall determine whether the adult at risk or any other individual involved in the alleged abuse, financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 46, 47, 59, 51, or 880. If provided, direct services shall be rendered under the least restrictive conditions necessary to achieve their objective.

388,152 Section 152. 55.043 (4) (b) of the statutes is renumbered 55.043 (4) (b) 2. and amended to read:

55.043 (4) (b) 2. Take appropriate emergency action, including emergency protective placement under s. 55.06, if the county protective services adult-at-risk agency considers that the emergency action is in the vulnerable adult's best interests of the adult at risk and the emergency action is the least restrictive appropriate intervention.

388,153 Section 153. 55.043 (4) (c) of the statutes is renumbered 55.043 (4) (b) 3. and amended to read:

55.043 (4) (b) 3. Refer the case to local law enforcement officials under, as specified in sub. (2), for further investigation or to the district attorney, if the county protective services adult-at-risk agency has reason to believe that a violation of chs. 939 to 951 has occurred crime has been committed.

388,154 Section 154. 55.043 (4) (d) of the statutes is renumbered 55.043 (4) (b) 4. and amended to read:

55.043 (4) (b) 4. Refer the case to the licensing permitting, registration, or certification authorities of the department or to other regulatory bodies if the residence, facility, or program for the vulnerable adult at risk is or should be licensed, permitted, registered, or certified or is otherwise regulated.

388,155 Section 155. 55.043 (4) (e) of the statutes is renumbered 55.043 (4) (b) 5. and amended to read:

55.043 (4) (b) 5. Refer the case to the department of regulation and licensing if the misappropriation of property or financial exploitation, neglect, self-neglect, or abuse involves an individual who is required to hold a credential, as defined in s. 440.01 (2) (a), under chs. 440 to 460.

388,156 Section 156. 55.043 (4) (f) of the statutes is renumbered 55.043 (4) (b) 6. and amended to read:

55.043 (4) (b) 6. Bring or refer for action to bring a petition for a guardianship and protective service services or protective placement or a review of an existing guardianship if necessary to prevent misappropriation of property or financial exploitation, neglect, self-neglect, or abuse and if the vulnerable adult at risk would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter and, or services.

388,157 Section 157. 55.043 (5) of the statutes is repealed.

388,158 Section 158. 55.043 (5g) of the statutes is created to read:

55.043 (5g) Refusal of services. An adult at risk may refuse to accept services unless a guardian authorizes the services. The adult-at-risk agency or other provider agency shall notify the adult at risk of this right to refuse before providing services.

388,159 Section 159. 55.043 (6) of the statutes is created to read:

55.043 (6) Records; confidentiality. (a) In this subsection:

1. "Departmental report form" includes documentation of an adult-at-risk agency's response to or investigation of a report made under sub. (1r) and is the information required to be submitted to the department.

2. "Record" includes any document relating to the response, investigation, assessment, and disposition of a report made under sub. (1r).

(am) The adult-at-risk agency shall prepare a departmental report form on its response under sub. (1r) to a report of suspected abuse, financial exploitation, neglect, or self-neglect. If the adult-at-risk agency refers the report to an investigative agency, the investigative agency shall advise the adult-at-risk agency in writing of its response to the report. The adult-at-risk agency shall maintain records of suspected abuse, financial exploitation, neglect, or self-neglect.

(b) Departmental report forms are confidential and may not be released by the adult-at-risk agency or other investigative agency, except under the following circumstances:

1. To the adult at risk, any person named in a departmental report form who is suspected of abusing, neglecting, or financially exploiting an adult-at-risk, and the suspect's attorney. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

2. To the agency or other entity contacted under sub. (2) (b). Information obtained under this subdivision shall remain confidential.

3. To an individual, organization, or agency designated by the department or as required by law for the purposes of management audits or program monitoring and evaluation. Information obtained under this subdivision shall remain confidential and may not be used in any way that discloses the names of or other identifying information about the individuals involved.

4. For purposes of research, if the research project has been approved by the department or the adult-at-risk agency and the researcher has provided assurances that the information will be used only for the purposes for which it was provided to the researcher, the information will not be released to a person not connected with the study under consideration, and the final product of the research will not reveal information that may serve to identify the individuals involved. The information shall remain confidential. In approving the use of information under this subdivision, the department shall impose any additional safeguards needed to prevent unwarranted disclosure of information.

5. Under lawful order of a court of record.

6. To any agency or individual that provides direct services under sub. (4), including an attending physician for purposes of diagnosis, examination, and treatment, and within the department to coordinate treatment for mental illness, developmental disabilities, alcoholism, or drug abuse of individuals committed to or under the supervision of the department. Information obtained under this subdivision shall remain confidential.

7. To the guardian of the adult at risk or the guardian of any person named in a report who is suspected of abusing, neglecting, or financially exploiting an adult at risk. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

8. To law enforcement officials in accordance with the policy developed under sub. (1g) (a).

9. To a federal agency, state governmental agency, agency of any other state, or local unit of government in this state or any other state that has a need for a departmental report form in order to carry out its responsibility to protect adults at risk from abuse, financial exploitation, neglect, or self-neglect.

10. To the reporter who made a report in his or her professional capacity, regarding action taken to protect or provide services to the alleged victim of abuse, financial exploitation, neglect, or self-neglect.

(bd) If a person requesting a departmental report form is not one of the persons or entities specified in par. (b), the adult-at-risk agency may release information indicating only whether or not a report was received and whether or not statutory responsibility was fulfilled.

(br) Notwithstanding par. (b) 1. to 10., an adult-at-risk agency or an investigative agency may not release departmental report forms under this section, if any of the following applies:

1. The adult-at-risk agency determines that release would be contrary to the best interests of the adult at risk who is the subject of the departmental report form or of a minor residing with the subject of the departmental report form, or the release is likely to cause mental, emotional, or physical harm to the subject of the departmental report form or to any other individual.

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 adult-at-risk agency determines that disclosure would jeopardize ongoing or future civil investigations or proceedings or would jeopardize the fairness of such a legal proceeding.

(bt) Subject to pars. (b), (bd), (br), (bv) and (bw), records under this subsection are confidential and may not be released by the adult-at-risk agency or other investigative agency, except under the following circumstances, upon request:

1. To the adult at risk who is the alleged victim named in the record.

2. To the legal guardian, conservator, or other legal representative of the adult at risk who is the alleged victim named in the record, if the legal guardian, conservator, or other legal representative of the alleged victim is not the alleged perpetrator of the abuse, financial exploitation, or neglect.

3. To law enforcement officials and agencies in accordance with the policy developed under sub. (1g) (a) or with investigations conducted under sub. (1r), or a district attorney, for purposes of investigation or prosecution.

4. To the department, under s. 51.03 (2), or for death investigations under s. 50.04 (2t) or 50.035 (5); or to a sheriff, police department, or district attorney for death investigations under s. 51.64 (2) (a).

5. To an employee of the county department under s. 51.42 or 51.437 that is providing services to an adult at risk who is the alleged victim named in the record, or to the alleged perpetrator of abuse, to determine whether the alleged victim should be transferred to a less restrictive or more appropriate treatment modality or facility.

6. To a court, tribal court, or state governmental agency for a proceeding relating to the licensure or regulation of an individual or entity regulated or licensed by the state governmental agency, that was an alleged perpetrator of abuse, financial exploitation, or neglect.

7. To the department, for management, audit, program monitoring, evaluation, billing, or collection purposes.

8. To the attorney or guardian ad litem for the adult at risk who is the alleged victim named in the record, to assist in preparing for any proceeding under ch. 48, 51, 55, 813, 880, 971, or 975 pertaining to the alleged victim.

9. To a coroner, medical examiner, pathologist, or other physician investigating the cause of death of an adult at risk that is unexplained or unusual or is associated with unexplained or suspicious circumstances.

10. To staff members of the protection and advocacy agency designated under s. 51.62 and the board on aging and long-term care under s. 16.009.

11. To an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of abuse, neglect, or financial exploitation of an adult at risk.

12. To a grand jury, if it determines that access to specified records is necessary for the conduct of its official business.

13. Under a lawful order of a court of record.

(bv) The identity of a person making a report of alleged abuse, neglect, self-neglect, or financial exploitation shall be deleted from any record prior to its release under par. (bt) or from any departmental report form prior to its release under par. (b). The identity of any reporter may only be released with the written consent of the reporter or under a lawful order of a court of record.

(bw) A person to whom a departmental report form or a record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this subsection.

(by) A custodian of records or departmental report forms incurs no civil or criminal liability under this subsection and may not be found guilty of unprofessional conduct for the release or nonrelease of records or departmental report forms in accordance with this subsection while acting in good faith and within the scope of his or her authority.

388,160 Section 160. 55.043 (7) of the statutes is created to read:

55.043 (7) Exception. Nothing in this section may be construed to mean that a person is abused, financially exploited, neglected, or in need of direct or protective services solely because he or she consistently relies upon treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition.

388,161 Section 161. 55.043 (8) of the statutes is created to read:

55.043 (8) Department duties. (a) The department shall develop a plan to assist adult-at-risk agencies in determining appropriate responses to reports of abuse, financial exploitation, neglect, or self-neglect.

(b) The department shall prepare and distribute sample departmental report forms for use by adult-at-risk agencies.

(c) The department shall collect statistical information from each county pertaining to each reported case of abuse, financial exploitation, neglect, or self-neglect. The department may require adult-at-risk agency workers or investigators to submit departmental report forms to the department that summarize the information being reported. These departmental report forms may not name or otherwise identify individuals. The department shall use this information to review the effectiveness of this section, to plan program changes, and to formulate reports.

(d) The department shall develop and disseminate information on adult-at-risk abuse and the adult-at-risk reporting system under this section. The department shall also develop informational materials to be used by adult-at-risk agencies regarding abuse of adults at risk and regarding the adult-at-risk abuse reporting system. The department shall solicit contributions of labor, materials, and expertise from private sources to assist in developing the informational materials.

388,162 Section 162. 55.043 (9) of the statutes is repealed.

388,163 Section 163. 55.043 (9m) of the statutes is created to read:

55.043 (9m) Penalties. (a) Any person, including the state or any political subdivision of the state, violating sub. (6) is liable to any person damaged as a result of the violation for such damages as may be proved, together with exemplary damages of not less than $100 nor more than $500 for each violation and the costs and reasonable actual attorney fees that are incurred by the person damaged.

(b) In any action brought under par. (a) in which the court determines that the violator acted in a manner that was knowing and willful, the violator shall be liable for such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees as may be incurred. It is not a prerequisite to an action under par. (a) that the plaintiff suffer or be threatened with actual damages.

(c) An individual may bring an action to enjoin any violation of sub. (6) or to compel compliance with sub. (6), and may in the same action seek damages as provided in this subsection. The individual may recover costs and reasonable actual attorney fees incurred in the action, if he or she prevails.

(d) Whoever violates sub. (1m) (c) 1. may be fined not more than $10,000 or imprisoned for not more than 6 months or both.

(e) Whoever intentionally violates sub. (1m) (b) by failure to report as required may be fined not more than $500 or imprisoned not more than 6 months or both.

388,164 Section 164. 55.06 (2) (c) of the statutes is amended to read:

55.06 (2) (c) As a result of developmental disabilities, infirmities of aging degenerative brain disorder, chronic mental illness, or other like incapacities, is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to oneself himself, herself, or others. Serious harm may be occasioned by overt acts or acts of omission; and

388,165 Section 165. 55.06 (11) (a) of the statutes is amended to read:

55.06 (11) (a) If, upon a credible report to or from personal observation of a sheriff, police officer, fire fighter, guardian, if any, or authorized representative of a board designated under s. 55.02 or an agency designated by it, it appears probable that an individual will suffer irreparable injury or death or will present a substantial risk of serious physical harm to others as a result of developmental disabilities, infirmities of aging degenerative brain disorder, chronic mental illness or other like incapacities if not immediately placed, the person making individual under this paragraph who received the credible report or who personally made the observation may take into custody and transport the individual to an appropriate medical or protective placement facility. The person making placement shall prepare a statement at the time of detention providing specific factual information concerning the person's observations and the basis for emergency placement. The statement shall be filed with the director of the facility and shall also be filed with any petition under sub. (2). At the time of placement the individual shall be informed by the director of the facility or the director's designee, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family and the right to have an attorney provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is a child or is indigent. The director or designee shall also provide the individual with a copy of the statement by the person making emergency placement.

388,166 Section 166. 106.54 (5) of the statutes is amended to read:

106.54 (5) The division shall receive complaints of discharge, retaliation or discrimination under s. 16.009 (5) (d), 46.90 (4) (b) or, 50.07 (3) (b), or 55.043 (1m) (c) and shall process the complaints in the same manner that employment discrimination complaints are processed under s. 111.39.

388,175 Section 175. 146.82 (2) (a) 7. of the statutes is amended to read:

146.82 (2) (a) 7. To a county an elder-adult-at-risk agency designated under s. 46.90 (2) or other investigating agency under s. 46.90 for purposes of s. 46.90 (4) (a) and (5) or to the county protective services an adult-at-risk agency designated under s. 55.02 for purposes of s. 55.043. The health care provider may release information by initiating contact with the county elder-adult-at-risk agency or county protective services adult-at-risk agency without receiving a request for release of the information from the county elder-adult-at-risk agency or county protective services adult-at-risk agency.

388,176 Section 176. 813.123 (title) of the statutes is amended to read:

813.123 (title) Vulnerable adult restraining Restraining orders and injunctions for individuals at risk.

388,177 Section 177. 813.123 (1) (a) of the statutes is amended to read:

813.123 (1) (a) "Abuse" has the meaning given in s. 55.01 46.90 (1) (a).

388,178 Section 178. 813.123 (1) (ae) of the statutes is created to read:

813.123 (1) (ae) "Adult at risk" has the meaning given in s. 55.01 (1e).

388,179 Section 179. 813.123 (1) (am) of the statutes is created to read:

813.123 (1) (am) "Adult-at-risk agency" has the meaning given in s. 55.01 (1f).

388,180 Section 180. 813.123 (1) (b) of the statutes is amended to read: