2005 Wisconsin Act 388

388,25 Section 25. 46.90 (1) (g) of the statutes is amended to read:

46.90 (1) (g) "Self-neglect" means a significant danger to an elder person's individual's physical or mental health because the elder person individual is responsible for his or her own care but is unable fails to provide obtain adequate care, including food, shelter, clothing, or medical or dental care.

388,26 Section 26. 46.90 (1) (gd) of the statutes is created to read:

46.90 (1) (gd) "Sexual abuse" means a violation of s. 940.225 (1), (2), (3), or (3m).

388,27 Section 27. 46.90 (1) (gf) of the statutes is created to read:

46.90 (1) (gf) "State governmental agency" has the meaning given for "agency" in s. 16.417 (1) (a).

388,28 Section 28. 46.90 (1) (gr) of the statutes is created to read:

46.90 (1) (gr) "State official" means any law enforcement officer employed by the state or an employee of one of the following:

1. The department of health and family services.

2. The department of justice.

3. The department of regulation and licensing.

4. The board on aging and long-term care.

5. A state governmental agency other than those specified in subds. 1. to 4. with functions relating to protecting health and safety.

388,29 Section 29. 46.90 (1) (h) of the statutes is created to read:

46.90 (1) (h) "Treatment without consent" means the administration of medication to an individual who has not provided informed consent, or the performance of psychosurgery, electroconvulsive therapy, or experimental research on an individual who has not provided informed consent, with the knowledge that no lawful authority exists for the administration or performance.

388,30 Section 30. 46.90 (1) (i) of the statutes is created to read:

46.90 (1) (i) "Unreasonable confinement or restraint" includes the intentional and unreasonable confinement of an individual in a locked room, involuntary separation of an individual from his or her living area, use on an individual of physical restraining devices, or the provision of unnecessary or excessive medication to an individual, but does not include the use of these methods or devices in entities regulated by the department if the methods or devices are employed in conformance with state and federal standards governing confinement and restraint.

388,31 Section 31. 46.90 (2) of the statutes is amended to read:

46.90 (2) County Elder-adult-at-risk agency designation. Each county board shall designate an agency in the county as the county elder-adult-at-risk agency for the purposes of this section.

388,32 Section 32. 46.90 (3) (title) of the statutes is amended to read:

46.90 (3) (title) County Elder-adult-at-risk agency duties.

388,33 Section 33. 46.90 (3) (a), (b) and (c) of the statutes are amended to read:

46.90 (3) (a) Each county elder-adult-at-risk agency shall develop a policy for notifying other investigative agencies, including law enforcement officials in appropriate cases, and shall establish an elder abuse reporting system to carry out the purposes of this section. Each county elder-adult-at-risk agency shall enter into a memorandum of understanding regarding the operation of the system with the county department under s. 46.215 or 46.22 and with any private or public agency, including a county department under s. 51.42 or 51.437, within the county that is participating in the elder abuse reporting system. The memorandum of understanding shall, at a minimum, identify the agencies that are responsible for the investigation of reports of abuse, material abuse financial exploitation, neglect, or self-neglect of elder adults at risk and for the provision of specific direct services.

(b) Each county elder-adult-at-risk agency shall receive reports of abuse, material abuse financial exploitation, neglect, or self-neglect of elder persons adults at risk.

(c) Each county elder-adult-at-risk agency shall publicize the existence of an elder abuse reporting system in the county and shall provide a publicized telephone number which that can be used by persons wishing to report suspected cases of abuse, material abuse financial exploitation, neglect, or self-neglect of elder adults at risk. Each elder-adult-at-risk agency shall also provide a telephone number that can be used to make reports after the elder-adult-at-risk agency's regular business hours.

388,34 Section 34. 46.90 (4) (a) 1. of the statutes is renumbered 46.90 (4) (ar) and amended to read:

46.90 (4) (ar) Any person, including an attorney or a person working under the supervision of an attorney, may report to the county agency or to any state official, including any representative of the office of the long-term care ombudsman under s. 16.009 (4), department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care that he or she believes that abuse, material abuse or financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred if the person is aware of facts or circumstances that would lead a reasonable person to believe or suspect that abuse, material abuse or financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred. The person shall indicate the facts and circumstances of the situation as part of the report.

388,35 Section 35. 46.90 (4) (a) 2. of the statutes is repealed.

388,36 Section 36. 46.90 (4) (ab) of the statutes is created to read:

46.90 (4) (ab) The following persons shall file reports as specified in par. (ad):

1. An employee of any entity that is licensed, certified, or approved by or registered with the department.

3. A health care provider, as defined in s. 155.01 (7).

4. A social worker, professional counselor, or marriage and family therapist certified under ch. 457.

388,37 Section 37. 46.90 (4) (ad) of the statutes is created to read:

46.90 (4) (ad) Except as provided in par. (ae), a person specified in par. (ab) who has seen an elder adult at risk in the course of the person's professional duties shall file a report with the county department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care if the elder adult at risk has requested the person to make the report, or if the person has reasonable cause to believe that any of the following situations exist:

1. The elder adult at risk is at imminent risk of serious bodily harm, death, sexual assault, or significant property loss and is unable to make an informed judgment about whether to report the risk.

2. An elder adult at risk other than the subject of the report is at risk of serious bodily harm, death, sexual assault, or significant property loss inflicted by a suspected perpetrator.

388,38 Section 38. 46.90 (4) (ae) of the statutes is created to read:

46.90 (4) (ae) A person specified in par. (ab) to whom any of the following applies is not required to file a report as provided in par. (ad):

1. If the person believes that filing a report would not be in the best interest of the elder adult at risk. If the person so believes, the person shall document the reasons for this belief in the case file that the person maintains on the elder adult at risk.

2. If a health care provider provides treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition and his or her communications with patients are required by his or her religious denomination to be held confidential.

388,39 Section 39. 46.90 (4) (b) 1. b. of the statutes is amended to read:

46.90 (4) (b) 1. b. No person may discharge or otherwise retaliate or discriminate against any person individual on whose behalf another person has reported in good faith under this subsection.

388,40 Section 40. 46.90 (4) (b) 1. c. of the statutes is renumbered 46.90 (9) (d) and amended to read:

46.90 (9) (d) Any person who violates this subdivision sub. (4) (b) 1. may be fined not more than $1,000 $10,000 or imprisoned for not more than 6 months or both.

388,41 Section 41. 46.90 (4) (b) 1. cm. of the statutes is created to read:

46.90 (4) (b) 1. cm. Any discharge of a person or act of retaliation or discrimination that is taken against a person who makes a report under this subsection, within 120 days after the report is made, establishes a rebuttable presumption that the discharge or act is made in response to the report. This presumption may be rebutted by a preponderance of evidence that the discharge or act was not made in response to the report.

388,42 Section 42. 46.90 (4) (b) 2. c. of the statutes is amended to read:

46.90 (4) (b) 2. c. Any person not described in subd. 2. b. who is retaliated or discriminated against in violation of subd. 1. a. or b. may commence an action in circuit court for damages incurred as a result of the violation.

388,43 Section 43. 46.90 (4) (c) of the statutes is amended to read:

46.90 (4) (c) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for reporting in good faith under this subsection and within the scope of his or her authority, or for filing a report with an agency not listed in par. (ad) (intro.) or (ar) if the person had a good faith belief that the report was filed correctly with one of the listed agencies.

388,44 Section 44. 46.90 (4) (d) of the statutes is amended to read:

46.90 (4) (d) If a report under par. (a) (ad) or (ar) is made to a state official, the state official shall refer the report to the appropriate county elder-adult-at-risk agency. The requirement under this paragraph does not apply to an employee of the board on aging and long-term care who determines that his or her referral would be in violation of 42 USC 3058g (d).

388,45 Section 45. 46.90 (4) (e) of the statutes is created to read:

46.90 (4) (e) Any person making a report under this subsection is presumed to have reported in good faith.

388,46 Section 46. 46.90 (5) (title) of the statutes is repealed and recreated to read:

46.90 (5) (title) Response and investigation.

388,47 Section 47. 46.90 (5) (a) of the statutes is renumbered 46.90 (5) (a) 1. and amended to read:

46.90 (5) (a) 1. Except as otherwise provided, upon receiving a report of alleged abuse, material abuse financial exploitation, neglect, or self-neglect of an elder adult at risk, the county elder-adult-at-risk agency shall either investigate respond to the report including, if necessary, by conducting an investigation, or refer the report to another agency for investigation. Upon receiving a report of alleged abuse, material abuse financial exploitation, neglect, or self-neglect of an elder person who resides in a community-based residential facility or a nursing home licensed under s. 50.03 or of an elder person who receives services from a home health agency licensed under s. 50.49 and the person suspected of abusing or neglecting the person is an employee of the home health agency a client, as defined in s. 50.065 (1) (b), of an entity, as defined in s. 50.065 (1) (c), if the person suspected of perpetrating the alleged abuse, financial exploitation, or neglect is a caregiver or a nonclient resident of the entity, the county elder-adult-at-risk agency may not investigate the report but it shall refer the report within 24 hours after the report is received, excluding Saturdays, Sundays and legal holidays, to the department for investigation. An investigation The department shall coordinate its investigatory efforts with other investigative agencies or authorities as appropriate. An elder-adult-at-risk agency's response to or another investigative agency's investigation of a report of alleged abuse, financial exploitation, neglect, or self-neglect that is not referred to the department shall be commenced within 24 hours after a report is received, excluding Saturdays, Sundays and legal holidays. An investigation of a report of material abuse shall be commenced within 5 days after a report is received, excluding Saturdays, Sundays and legal holidays. If a report is referred to the department, pars. (b) to (g) and sub. (6) do not apply to the department.

388,48 Section 48. 46.90 (5) (a) 2. of the statutes is created to read:

46.90 (5) (a) 2. If an agent or employee of an elder-adult-at-risk agency required to respond under this subsection is the subject of a report, or if the elder-adult-at-risk agency or an agency under contract with the county department determines that the relationship between the elder-adult-at-risk agency and the agency under contract with the county department would not allow for an unbiased response, the elder-adult-at-risk agency shall, after taking any action necessary to protect the elder adult at risk, notify the department. Upon receipt of the notice, the department or a county department under s. 46.215, 46.22, 51.42, or 51.437 designated by the department shall conduct an independent investigation. The powers and duties of a county department making an independent investigation are those given to an elder-adult-at-risk agency under pars. (b) to (f) and sub. (6).

388,49 Section 49. 46.90 (5) (b) (intro.) and 1. to 5. of the statutes are amended to read:

46.90 (5) (b) (intro.) The scope of the elder-adult-at-risk agency's response or another investigative agency's investigation is at the discretion of the investigating agency and may include one or more of the following:

1. A visit to the elder person's residence of the elder adult at risk.

2. Observation of the elder person adult at risk, with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.

3. An interview with the elder person. To the extent practicable, this interview shall be private adult at risk, in private to the extent practicable, and with or without the consent of his or her guardian or agent under an activated power of attorney for health care, if any.

4. An interview with the guardian or agent under an activated power of attorney for health care, if any, and with any person who takes care caregiver of the elder person adult at risk.

5. A review of the treatment and patient health care records of the elder adult at risk.

388,50 Section 50. 46.90 (5) (b) 6. of the statutes is created to read:

46.90 (5) (b) 6. A review of any financial records of the elder adult at risk that are maintained by a financial institution, as defined in s. 705.01 (3); by an entity, as defined in s. 50.065; by any caregiver of the elder adult at risk; or by a member of the immediate family of the elder adult at risk or caregiver. The records shall be released without informed consent in either of the following circumstances:

a. To an elder-adult-at-risk agency or other investigative agency under this section. The financial record holder may release financial record information by initiating contact with the elder-adult-at-risk agency or other investigative agency without first receiving a request for release of the information from the elder-adult-at-risk agency or other investigative agency.

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

388,51 Section 51. 46.90 (5) (br) of the statutes is created to read:

46.90 (5) (br) The elder-adult-at-risk agency or other investigative agency may transport the elder adult at risk for performance of a medical examination by a physician if any of the following applies:

1. The elder adult at risk or his or her guardian or agent under an activated power of attorney for health care, if any, consents to the examination.

2. The elder adult at risk is incapable of consenting to the examination and one of the following applies:

a. The elder adult at risk has no guardian or agent under an activated power of attorney for health care.

b. The elder adult at risk has a guardian or an agent under an activated power of attorney for health care, but that guardian or agent is the person suspected of abusing, neglecting, or financially exploiting the elder adult at risk.

c. The examination is authorized by order of a court.

388,52 Section 52. 46.90 (5) (c) of the statutes is amended to read:

46.90 (5) (c) If an investigator so requests, The elder-adult-at-risk agency may request a sheriff or police officer shall to accompany the elder-adult-at-risk agency investigator or worker during visits to the elder person's residence and shall provide of the elder adult at risk or request other assistance as needed. If the request is made, a sheriff or police officer shall accompany the elder-adult-at-risk agency investigator or worker to the residence of the elder adult at risk and shall provide other assistance as requested or necessary.

388,53 Section 53. 46.90 (5) (d) 1. of the statutes is renumbered 46.90 (5) (d) and amended to read:

46.90 (5) (d) If any a person except the elder person in question interferes with the response or investigation under this subsection or interferes with the delivery of protective services under ch. 55 to the elder adult at risk, the elder-adult-at-risk agency investigator or worker may apply for an order under ch. 813 s. 813.123 prohibiting the interference.

388,54 Section 54. 46.90 (5) (d) 2. of the statutes is repealed.

388,55 Section 55. 46.90 (5) (f) of the statutes is amended to read:

46.90 (5) (f) If the investigator elder-adult-at-risk agency worker or investigator or other agency investigator has reason to believe that substantial physical harm, irreparable injury, or death may occur to an elder person adult at risk, the worker or investigator shall immediately notify the protective services agency designated under s. 55.02 request immediate assistance in either initiating a protective services action under ch. 55 or contact law enforcement or another public agency, as appropriate.

388,56 Section 56. 46.90 (5) (g) of the statutes is repealed.

388,57 Section 57. 46.90 (5) (h) of the statutes is created to read:

46.90 (5) (h) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for responding to a report or for participating in or conducting an investigation under this subsection, including the taking of photographs or the conducting of a medical examination, if the response or investigation was performed in good faith and within the scope of his or her authority.