LRB-2339/1
DAK:wlj:jf
2005 - 2006 LEGISLATURE
March 14, 2006 - Introduced by Joint Legislative Council. Referred to
Committee on Health.
AB1114,1,11
1An Act to renumber and amend 51.40 (2) (b) 2. a., 51.40 (2) (b) 2. b., 51.40 (2)
2(b) 2. c. and 51.40 (2) (b) 2. d.;
to amend 46.266 (4) (b), 46.27 (6g) (c), 51.01 (14),
351.05 (2), 51.13 (4) (h) 2., 51.20 (1) (c), 51.20 (9) (a) 3., 51.20 (18) (d), 51.22 (4),
451.37 (5) (c), 51.40 (1) (e), 51.40 (2) (intro.), 51.40 (2) (a), 51.40 (2) (b) (intro.),
551.40 (2) (b) 1., 51.40 (2) (b) 2. (intro.), 51.40 (2) (g) 1., 55.06 (1) (a), 55.06 (3) (c),
655.06 (8) (intro.), 880.06 (1) and 880.33 (2) (a) 3.;
to repeal and recreate 51.40
7(title), 51.40 (2) (f) and 880.06 (2); and
to create 51.01 (4g), 51.01 (4r), 51.01
8(14t), 51.20 (13) (g) 4., 51.40 (1) (em), 51.40 (1) (hm), 51.40 (1) (k), 51.40 (2) (b)
93., 51.40 (2) (g) 6. and 55.06 (3) (d) of the statutes;
relating to: venue, county
10of responsibility, and determination of county of residence for certain services,
11commitments, protective placements, and protective services.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note:
Residency, Venue, and County of Responsibility
Current law sets forth criteria to determine which county is responsible for the
costs of services provided to an individual under chs. 46, 51, and 55.
The current criteria apply only to persons with a developmental disability or
chronic mental illness. The bill replaces the term "chronic mental illness" with "serious
and persistent mental illness," to correspond to similar changes elsewhere in the bill. The
bill also expands applicability of the criteria to individuals with "degenerative brain
disorder" or "other like incapacity."
The current criteria apply only to individuals in state facilities or nursing homes.
The bill expands applicability of the criteria to individuals in any facility licensed or
registered under ch. 50 of the statutes.
The bill specifies that the criteria apply to individuals receiving court-ordered
protective services as well as placement; current law refers only to protective placement.
The bill specifies that for purposes of s. 51.40, "residence" has the meaning
specified in s. 49.001 (6): "the voluntary concurrence of physical presence with intent to
remain in a place of fixed habitation. Physical presence is prima facie evidence of intent
to remain."
The bill further specifies that for purposes of s. 51.40, "voluntary" has the meaning
specified in s. 49.001 (8).
The bill authorizes the court to make a specific finding of county of residence of a
person who is under a court order of commitment under ch. 51 or an order for protective
placement or services after notice and an opportunity to be heard has been given to all
affected counties and parties, if there is no objection. Notice must be sent to the
corporation counsel of each affected county by certified mail. If there is an objection to
the proposed finding of a county of residence, the county or a party may request the
department to make a determination of county of responsibility. Any transfer of venue
must be suspended until the determination of county of responsibility is final.
Current law sets forth criteria to determine the residency of a person living in a
nursing home. The bill specifies that determinations made pursuant to those criteria are
presumptions that may be overcome by substantial evidence that clearly establishes
residence in another county.
The bill specifies that placement of an individual by a county department or an
agency of a county department into a facility outside the jurisdiction of the county does
not transfer the individual's legal residency to the county of the facility's location. If a
person is present in a county while being a resident of another county and is in need of
immediate care, a county of appropriate venue may provide for the immediate needs of
a person without being declared the person's county of residence.
The bill specifies that if it is not contrary to the other statutory criteria concerning
residency, an individual residing in a facility who is incapable of indicating intent is a
resident of the county in which he or she last resided before entering the facility.
Current law provides that a ward in a state facility or nursing home whose parent
or sibling serves as his or her guardian is a resident of the guardian's county of residence
if the state facility or nursing home is located in that county or if the guardian states in
writing that the ward is expected to return to the guardian's county of residence when the
purpose of entering the state facility or nursing home has been accomplished or when
needed care and services can be obtained in that county.
The bill substantially amends this provision as follows:
1. Amends the title of the provision to "Guardian's authority to declare county of
residence."
2. Makes the provisions applicable to all guardians (not just guardians who are a
parent or sibling of a ward) of wards in any facility (not just a state facility or nursing
home).
3. Provides that if other criteria to determine residency do not apply, a guardian
may declare a ward's county of residence to be the county where the ward is physically
present if all of the following apply:
The ward's presence in the county is voluntary.
There is no ch. 55 order in effect and the ward is not under an involuntary
commitment to the county, other than the county where the ward is physically present,
or to the Department of Corrections.
The ward is living in a place of fixed habitation.
The guardian states in writing that it is the ward's intent to remain in the county
for the foreseeable future.
The bill also provides that a guardian may, for good cause shown, if in the ward's
best interests, clarify or change a ward's county of residence by filing with the probate
court having jurisdiction of the guardianship and protective placement a written
statement declaring the ward's domiciliary intent, subject to court approval, with notice
and opportunity to appear by potentially affected counties and parties.
Current law provides a procedure for the department to make a determination of
county of responsibility of an individual upon request. The bill specifies that any pending
motion for change of venue shall be stayed until the department's determination is final.
The bill also expands notice requirements pertaining to the residency determination
procedure.
The bill provides that the county found to be responsible for providing services
ordered under ch. 46, 51, or 55 to an individual must reimburse any other county that
provided services to the individual for all services provided to the individual beginning
on the date of the initial order under ch. 46, 51, or 55. Full reimbursement by the
responsible county must be made within 120 days of the department's responsibility
determination, or of the outcome of any appeal by the department's determination that
is brought under ch. 227, or on a date or pursuant to a schedule of two or more payments
agreed to by both counties.
The bill specifies that to be eligible for protective placement or services, a person
must be a resident of Wisconsin or be present in Wisconsin having a need for protective
placement or services until such time as appropriate protective services can be
established in the person's place of residence.
Current law specifies that a petition under ch. 55 must be filed in the county of
residence of the person sought to be protected. The bill provides that the petition may
be filed in the county in which the person sought to be protected is physically present
under extraordinary circumstances requiring medical aid or the prevention of harm to
the person or others.
The bill provides that the court in which a petition under ch. 55 or 880 is filed must
determine venue. The court must direct that proper notice be given to any potentially
responsible or affected county. After all potentially responsible or affected counties and
parties have been given an opportunity to be heard, if it is determined that venue lies in
another county, the court must order the entire record certified to the proper court. A
court in which a subsequent petition is filed must, upon being satisfied of an earlier filing
in another court, summarily dismiss such petition. If any county or party objects to the
court's finding of venue, the issue must be referred to the department and the department
must make a determination of county of responsibility pursuant to the procedure under
current law. The court must suspend ruling on the motion for change of venue until the
department's determination is final.
The bill provides that the county department under s. 51.42 or 51.437 to which an
individual is involuntarily committed for treatment under ch. 51 retains responsibility
for the person when the person voluntarily moves to another county until venue for the
person is transferred to the county where the person is residing or until the person is no
longer a proper subject of continued commitment.
The bill specifies that the residence of a person who is committed under ch. 51 and
who is placed in a facility in another county by a county developmental disabilities board
does not transfer to the county of the facility's location while the person is under
commitment.
AB1114, s. 1
1Section
1. 46.266 (4) (b) of the statutes is amended to read:
AB1114,4,52
46.266
(4) (b)
If Notwithstanding s. 51.40 (2), if the department is unable to
3determine the county of residence under par. (a), the county department of the county
4in which is located the facility where the person resided on the date of the finding by
5the federal health care financing administration or the department.
AB1114, s. 2
6Section
2. 46.27 (6g) (c) of the statutes is amended to read:
AB1114,4,107
46.27
(6g) (c) For a person living in a nursing home
, except a state-operated
8long-term care facility, whose legal residence is established in another county, the
9county
in which the legal of residence
is established is the county of for purposes of 10fiscal responsibility
is determined under s. 51.40.
AB1114, s. 3
11Section
3. 51.01 (4g) of the statutes is created to read:
AB1114,4,1312
51.01
(4g) "County of residence" means the county that is determined under
13s. 51.40 to be the county of residence.
AB1114, s. 4
14Section
4. 51.01 (4r) of the statutes is created to read:
AB1114,4,1815
51.01
(4r) "Degenerative brain disorder" means the loss or dysfunction of brain
16cells to the extent that the individual is substantially impaired in his or her ability
17to provide adequately for his or her own care or custody or to manage adequately his
18or her property or financial affairs.
AB1114, s. 5
19Section
5. 51.01 (14) of the statutes is amended to read:
AB1114,5,2
151.01
(14) "Residence"
, "legal residency" or "county of residence" has the
2meaning given under s. 49.001 (6).
AB1114, s. 6
3Section
6. 51.01 (14t) of the statutes is created to read:
AB1114,5,124
51.01
(14t) "Serious and persistent mental illness" means a mental illness that
5is severe in degree and persistent in duration, that causes a substantially diminished
6level of functioning in the primary aspects of daily living and an inability to cope with
7the ordinary demands of life, that may lead to an inability to maintain stable
8adjustment and independent functioning without long-term treatment and support,
9and that may be of lifelong duration. "Serious and persistent mental illness" includes
10schizophrenia as well as a wide spectrum of psychotic and other severely disabling
11psychiatric diagnostic categories, but does not include degenerative brain disorder
12or a primary diagnosis of a developmental disability or of alcohol or drug dependence.
AB1114, s. 7
13Section
7. 51.05 (2) of the statutes is amended to read:
AB1114,5,2314
51.05
(2) Admissions authorized by counties. The department may not accept
15for admission to a mental health institute any resident person, except in an
16emergency, unless the county department under s. 51.42 in the county
where the
17person has legal residency of residence authorizes the care, as provided in s. 51.42
18(3) (as). Patients who are committed to the department under s. 975.01, 1977 stats.,
19or s. 975.02, 1977 stats., or s. 971.14, 971.17, 975.06 or 980.06, admitted by the
20department under s. 975.17, 1977 stats., or are transferred from a secured
21correctional facility, a secured child caring institution or a secured group home to a
22state treatment facility under s. 51.35 (3) or from a jail or prison to a state treatment
23facility under s. 51.37 (5) are not subject to this section.
AB1114, s. 8
24Section
8. 51.13 (4) (h) 2. of the statutes is amended to read:
AB1114,6,7
151.13
(4) (h) 2. Order the petition to be treated as a petition for involuntary
2commitment and refer it to the court where the review under this section was held,
3or if it was not held in the county of
legal residence of the subject individual's parent
4or guardian and hardship would otherwise occur and if the best interests of the
5subject individual would be served thereby, to the court assigned to exercise
6jurisdiction under chs. 48 and 938 in such county for a hearing under s. 51.20 or 51.45
7(13).
AB1114, s. 9
8Section
9. 51.20 (1) (c) of the statutes is amended to read:
AB1114,7,29
51.20
(1) (c) The petition shall contain the names and mailing addresses of the
10petitioners and their relation to the subject individual, and shall also contain the
11names and mailing addresses of the individual's spouse, adult children, parents or
12guardian, custodian, brothers, sisters, person in the place of a parent and person
13with whom the individual resides or lives. If this information is unknown to the
14petitioners or inapplicable, the petition shall so state. The petition may be filed in
15the court assigned to exercise probate jurisdiction for the county where the subject
16individual is present or the county of
the individual's legal residence
of the
17individual. If the judge of the court or a circuit court commissioner who handles
18probate matters is not available, the petition may be filed and the hearing under sub.
19(7) may be held before a judge or circuit court commissioner of any circuit court for
20the county. For the purposes of this chapter, duties to be performed by a court shall
21be carried out by the judge of the court or a circuit court commissioner of the court
22who is designated by the chief judge to so act, in all matters prior to a final hearing
23under this section. The petition shall contain a clear and concise statement of the
24facts which constitute probable cause to believe the allegations of the petition. The
25petition shall be sworn to be true. If a petitioner is not a petitioner having personal
1knowledge as provided in par. (b), the petition shall contain a statement providing
2the basis for his or her belief.
AB1114, s. 10
3Section
10. 51.20 (9) (a) 3. of the statutes is amended to read:
AB1114,7,94
51.20
(9) (a) 3. If requested by the subject individual, the individual's attorney,
5or any other interested party with court permission, the individual has a right at his
6or her own expense or, if indigent and with approval of the court hearing the petition,
7at the reasonable expense of the individual's county of
legal residence, to secure an
8additional medical or psychological examination and to offer the evaluator's personal
9testimony as evidence at the hearing.
AB1114, s. 11
10Section
11. 51.20 (13) (g) 4. of the statutes is created to read:
AB1114,7,1511
51.20
(13) (g) 4. The county department under s. 51.42 or 51.437 to which an
12individual is committed under par. (a) 3. retains financial responsibility for the
13individual when the individual voluntarily moves to another county until venue for
14the individual is transferred to the county where the individual is residing or until
15the individual is no longer a proper subject of continued commitment.
AB1114, s. 12
16Section
12. 51.20 (18) (d) of the statutes is amended to read:
AB1114,8,217
51.20
(18) (d) If the subject
individual has a legal residence in a county 18individual's county of residence is other than the county from which he or she is
19detained, committed or discharged, that county shall reimburse the county from
20which the individual was detained, committed or discharged for all expenses under
21pars. (a) to (c). The county clerk on each July 1 shall submit evidences of payments
22of all such proceedings on nonresident payments to the department, which shall
23certify such expenses for reimbursement in the form of giving credits to the
24detaining, committing or discharging county and assessing such costs against the
1county of
legal residence or against the state at the time of the next apportionment
2of charges and credits under s. 70.60.
AB1114, s. 13
3Section
13. 51.22 (4) of the statutes is amended to read:
AB1114,8,94
51.22
(4) If a patient is placed
under involuntary commitment or protectively
5placed in a facility authorized by a county department under s. 51.42
or 51.437 and
6such the placement
or protective placement is outside the jurisdiction of that county
7department under s. 51.42
or 51.437, the placement
or protective placement does not
8transfer the patient's
legal residence to the county of the facility's location while
such 9the patient is under
involuntary commitment
or protective placement.
AB1114, s. 14
10Section
14. 51.37 (5) (c) of the statutes is amended to read:
AB1114,8,1611
51.37
(5) (c) No state treatment facility may accept for admission an individual
12who is being transferred from a county jail under par. (a) or (b) without the approval
13of the county department under s. 51.42 or 51.437 of the county in which the jail is
14located. No state treatment facility may retain such an individual beyond 72 hours
15without the approval of the county department under s. 51.42 or 51.437 of the county
16where of residence of the transferred individual
has legal residence.
AB1114, s. 15
17Section
15. 51.40 (title) of the statutes is repealed and recreated to read:
AB1114,8,19
1851.40 (title)
Determination of residence for certain adults; county of
19responsibility.
AB1114, s. 16
20Section
16. 51.40 (1) (e) of the statutes is amended to read:
AB1114,8,2321
51.40
(1) (e) "County of responsibility" means the county responsible for
22funding the provision of
care, treatment, or services under
this chapter or ch. 46 or
2355 to an individual.
AB1114, s. 17
24Section
17. 51.40 (1) (em) of the statutes is created to read:
AB1114,9,2
151.40
(1) (em) "Facility" means a place, other than a hospital, that is licensed,
2registered, certified, or approved by the department or a county under ch. 50 or 51.
AB1114, s. 18
3Section
18. 51.40 (1) (hm) of the statutes is created to read:
AB1114,9,84
51.40
(1) (hm) "Other like incapacities" means those conditions incurred at any
5age that are the result of accident, organic brain damage, mental or physical
6disability, or continued consumption or absorption of substances, producing a
7condition that substantially impairs an individual from adequately providing for his
8or her care or custody.
AB1114, s. 19
9Section
19. 51.40 (1) (k) of the statutes is created to read:
AB1114,9,1010
51.40
(1) (k) "Voluntary" has the meaning specified under s. 49.001 (8).
AB1114, s. 20
11Section
20. 51.40 (2) (intro.) of the statutes is amended to read: