AB539: Bill Text

LRB-0025/1

DAK:jld:pg

2005 - 2006 LEGISLATURE

2005 Assembly BILL 539

July 7, 2005 - Introduced by Joint Legislative Council. Referred to Committee on Aging and Long-Term Care.

AB539,3,15 An Act to repeal 46.90 (1) (b), 46.90 (1) (c), 46.90 (1) (d), 46.90 (1) (e), 46.90 (4) (a) 2., 46.90 (5) (d) 2., 46.90 (5) (g), 55.01 (1t), 55.01 (3), 55.01 (4p), 55.01 (7), 55.043 (1) (title), 55.043 (5), 55.043 (9), 813.123 (1) (c), 813.123 (1) (f), 813.123 (1) (h), 813.123 (11), 940.285 (1) (a), 940.285 (1) (b), (bm), (c) and (d), 940.285 (1) (e), 940.295 (1) (cm), 940.295 (1) (hm), 940.295 (1) (j), 940.295 (1) (jm), 940.295 (1) (kp), 940.295 (1) (n), 940.295 (1) (t) and 943.20 (2) (e); to renumber 940.225 (5) (ab), 940.295 (1) (a) and 943.20 (2) (a); to renumber and amend 46.90 (4) (a) 1., 46.90 (4) (b) 1. c., 46.90 (5) (a), 46.90 (5) (d) 1., 46.90 (6) (a), 46.90 (6) (c) 1., 46.90 (6) (c) 2., 46.90 (6) (c) 3., 55.043 (1) (a) (intro.), 55.043 (1) (a) 1., 55.043 (1) (a) 2., 55.043 (1) (a) 3., 55.043 (1) (a) 4., 55.043 (1) (a) 5., 55.043 (1) (b) (intro.), 55.043 (1) (b) 1., 55.043 (1) (b) 2. (intro.), 55.043 (1) (b) 2. a., 55.043 (1) (b) 2. b., 55.043 (2), 55.043 (4) (intro.), 55.043 (4) (a), 55.043 (4) (b), 55.043 (4) (c), 55.043 (4) (d), 55.043 (4) (e), 55.043 (4) (f), 813.123 (2), 813.123 (3) (b) 2. and 3., 813.123 (4) (a) 2. and 880.01 (5); to consolidate, renumber and amend 813.123 (3) (b) (intro.) and 1.; to amend 20.435 (7) (dh), 46.21 (2m) (c), 46.215 (1m), 46.22 (1) (dm), 46.23 (3) (e), 46.283 (4) (h), 46.286 (1) (intro.), 46.286 (3) (a) (intro.), 46.286 (3) (a) 3., 46.90 (1) (g), 46.90 (2), 46.90 (3) (title), 46.90 (3) (a), (b) and (c), 46.90 (4) (b) 1. b., 46.90 (4) (b) 2. c., 46.90 (4) (c), 46.90 (4) (d), 46.90 (5) (b) (intro.) and 1. to 5., 46.90 (5) (c), 46.90 (5) (f), 46.90 (5m) (title) and (a), 46.90 (5m) (b), 46.90 (5m) (c), 46.90 (6) (b) (intro.), 46.90 (6) (b) 1., 46.90 (6) (b) 2., 46.90 (6) (b) 3., 46.90 (6) (b) 4., 46.90 (6) (b) 5., 46.90 (6) (b) 6., 46.90 (6) (b) 7., 46.90 (7), 46.90 (8) (a), 46.90 (8) (b), 46.90 (8) (c) and (d), 49.498 (3) (b) 1., 50.065 (1) (br), 50.065 (4m) (a) 3., 50.065 (4m) (b) 3., 50.065 (7) (c), 50.09 (1) (k), 51.01 (2g) (b), 51.01 (3g), 51.01 (5) (a), 51.30 (4) (b) 17., 51.42 (3) (e), 51.437 (4r) (b), 51.62 (3) (a) 2m., 55.001, 55.01 (1m), 55.01 (2), 55.02, 55.043 (title), 55.043 (3), 55.043 (4) (title), 55.06 (2) (c), 55.06 (11) (a), 106.54 (5), 146.40 (4g) (a) 3., 146.40 (4r) (a), 146.40 (4r) (am) 1., 146.40 (4r) (am) 2., 146.40 (4r) (am) 3., 146.40 (4r) (b), 146.82 (2) (a) 7., 813.123 (title), 813.123 (1) (a), 813.123 (1) (b), 813.123 (1) (g), 813.123 (4) (a) (intro.), 813.123 (5) (a) (intro.), 813.123 (5) (a) 3. a., 813.123 (5) (a) 3. b., 813.123 (5) (c) 1., 2. and 3., 813.123 (6) (a), 813.123 (6) (c), 813.123 (7), 813.123 (9) (intro.), 880.01 (2), 880.01 (4), 895.85 (2), 940.285 (title), 940.285 (2) (title) and (a) 1. to 3., 940.295 (1) (b), 940.295 (1) (o), 940.295 (3) (a) 3., 940.295 (3) (b) 1g., 940.295 (3) (b) 1m. and 943.20 (3) (d) 6.; to repeal and recreate 46.90 (1) (a), 46.90 (1) (f), 46.90 (5) (title), 51.62 (1) (ag), 51.62 (1) (br), 55.01 (1), 55.01 (1p), 55.01 (4r), 940.295 (1) (k) and 940.295 (1) (km); and to create 46.90 (1) (aj), 46.90 (1) (an), 46.90 (1) (br), 46.90 (1) (bt), 46.90 (1) (cm), 46.90 (1) (ed), 46.90 (1) (eg), 46.90 (1) (er), 46.90 (1) (fg), 46.90 (1) (gd), 46.90 (1) (gf), 46.90 (1) (gr), 46.90 (1) (h), 46.90 (1) (i), 46.90 (4) (ab), 46.90 (4) (ad), 46.90 (4) (ae), 46.90 (4) (b) 1. cm., 46.90 (4) (e), 46.90 (5) (a) 2., 46.90 (5) (b) 6., 46.90 (5) (br), 46.90 (5) (h), 46.90 (5m) (br), 46.90 (6) (ac), 46.90 (6) (b) 9. and 10., 46.90 (6) (bd), 46.90 (6) (br), 46.90 (6) (bt), 46.90 (6) (bv), (bw) and (by), 46.90 (9) (title) and (e), 50.065 (1) (cg), 51.62 (1) (ar), 55.01 (1e), 55.01 (1f), 55.01 (1v), 55.01 (2s), 55.01 (4g), 55.01 (6), 55.01 (6d), 55.01 (6g), 55.043 (1d), 55.043 (1g), 55.043 (1m), 55.043 (1r) (title), 55.043 (1r) (a) 2., 55.043 (1r) (b) (intro.), 55.043 (1r) (b) 3., 55.043 (1r) (b) 6. a., 55.043 (1r) (b) 6. b., 55.043 (1r) (c) 2. b., 55.043 (1r) (d), 55.043 (2) (b), 55.043 (4) (am), 55.043 (5g), 55.043 (6), 55.043 (7), 55.043 (8), 55.043 (9m), 146.40 (1) (ab), 146.40 (1) (aw), 813.123 (1) (ae), 813.123 (1) (am), 813.123 (1) (br), 813.123 (1) (cg), 813.123 (1) (dm), 813.123 (1) (eg), 813.123 (1) (ep), 813.123 (1) (fm), 813.123 (1) (gr), 813.123 (1) (gs), 813.123 (2) (b), 813.123 (3) (c) (intro.), 813.123 (4) (a) 2. b., 813.123 (4) (ar), 813.123 (5) (a) 3. c., 813.123 (5) (ar), 940.225 (2) (j), 940.225 (5) (abm) and (ak), 940.285 (1) (ag), 940.285 (1) (am), 940.285 (1) (dc), 940.285 (1) (dg), 940.295 (1) (ad), 940.295 (1) (ag), 943.20 (2) (ac), 943.20 (2) (ad) and 943.20 (2) (ae) of the statutes; relating to: adult protective services and providing penalties.

Analysis by the Legislative Reference Bureau

This bill is explained in the Prefatory note provided by the Joint Legislative Council in the bill.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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: This bill was prepared for the Joint Legislative Council's special committee on the recodification of chapter 55, placement and services for persons with disabilities.

Scope and Definitions

Under current law, Wisconsin's elder abuse law, s. 46.90, stats., establishes a system in each county for the reporting and investigation of suspected elder abuse, and the provision of services to elder persons who are being abused or neglected or experiencing material abuse. The elder abuse reporting and services system set forth in s. 46.90, stats., addresses creating public awareness of elder abuse; who is responsible for receiving and responding to reports of suspected abuse and neglect; how services are provided once abuse or neglect is documented; and how information is exchanged among providers of services.

Currently, vulnerable adults who are under the age of 60 may also be victims of abuse, neglect, or misappropriation of property. However, under current law, Milwaukee county is the only county with the explicit authority to investigate suspected abuse, neglect, or misappropriation of property of a vulnerable adult under the age of 60, to determine if there is a need for protective services. A "vulnerable adult" is defined in s. 940.285 (1) (e) as any person 18 years of age or older who either is a developmentally disabled person or has infirmities of aging, mental illness, or other like incapacities and who is either: (1) substantially mentally incapable of providing for his or her needs for food, shelter, clothing, or personal or health care; or (2) unable to report cruel maltreatment without assistance.

Currently, the statutes inconsistently define abuse, material abuse, misappropriation of property, neglect, and self-neglect, when these conditions are experienced by elder or vulnerable adults. For example, the term "material abuse" is used in s. 46.90, stats., when referring to the misuse of an elder person's property or financial resources. In ch. 55, however, the term "misappropriation of property" is used to refer to misuse of a vulnerable adult's property or financial resources.

This bill revises the current statutory provisions of Wisconsin's elder abuse law. The bill revises terminology, elder abuse reporting provisions, investigation provisions, and confidentiality of elder abuse reports and records. The bill also deletes reference to the term "elder person." Under current law, an "elder person" who could receive services under the "elder abuse system" was defined as a person who is age 60 or older or subject to the infirmities of aging. The bill instead refers to an "elder adult-at-risk," who is defined as "a person age 60 or older who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, or financial exploitation."

The bill also permits counties to assist persons who are at risk of experiencing abuse, neglect, or financial exploitation who are under age 60 (currently, only Milwaukee County has this authority). These persons, who are at risk due to a physical or mental condition are defined as "adults-at-risk" in ch. 55. An "adult-at-risk" is defined as "any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, or financial exploitation." In addition, the draft creates parallel provisions in ch. 55 to the elder abuse system in ch. 46 to permit abuse investigations and follow-up services to be provided on behalf of these adults-at-risk.

The bill revises definitions of several terms in current law, including the terms abuse, neglect, and self-neglect. The term "material abuse" is redefined as "financial exploitation" and made more precise with regard to what constitutes financial exploitation. Some new definitions are created, including "emotional abuse," "state official" (to whom reports of suspected abuse or neglect may also be made), and "investigative agency."

Reports

Under current law, Wisconsin requires the reporting of suspected child abuse and neglect. However, there is no similar requirement for reporting the abuse of vulnerable adults, even in the most egregious cases of suspected abuse or neglect where the elder or vulnerable adult's life may be in danger. Wisconsin's elder abuse system is based on voluntary reporting of suspected abuse, neglect and material abuse.

Once a report of suspected abuse, neglect, or material abuse is made, the county agency must investigate the report and, if it is found that the person is being abused or neglected, services must be offered to the individual. The individual has the option of refusing to accept the services. The services must be offered in the least restrictive manner necessary to achieve the objective of protecting the individual.

This bill retains the voluntary system of reporting for the majority of situations of suspected abuse or neglect. However, the bill creates a provision requiring certain categories of persons to file reports in situations where the elder person is facing a serious risk of harm or even death.

Under the bill, the following persons must file a report of suspected abuse or neglect if there is reasonable cause to believe that the elder adult-at-risk or 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; or other adults-at-risk, are at risk of serious bodily harm, death, sexual assault, or significant property loss inflicted by the suspected perpetrator:

•An employee of any entity that is licensed, certified, or approved by, or registered with the department of health and family services (DHFS).

• An employee of a financial institution.

• A health care provider.

• A social worker, professional counselor, or marriage and family therapist.

These persons are not required to file a report, however, if the person believes that filing the report would not be in the best interest of the elder adult-at-risk or adult-at-risk. If the person believes this, the person must document the reasons for this belief in the case file of the person who is the suspected victim. There is a penalty for not complying with this requirement, which is a fine of not more than $500, imprisonment not more than six months, or both.

The bill applies the immunity protections in current law to the new category of required reporters created in the bill. Therefore, a person required to file a report under the bill may not be discharged or retaliated against for doing so. The person found guilty of retaliating against a reporter is subject to a fine of not more than $1,000, imprisonment not more than six months, or both. In addition, a person is immune from civil or criminal liability for filing a report.

The bill also increases the penalties for retaliating against a reporter, by increasing the maximum fine to $10,000. In addition, the bill creates a rebuttable presumption that any discharge of a person or act of retaliation or discrimination that is taken against a person who makes a report, within 120 days after the report is made, establishes a rebuttable presumption that the discharge or act is retaliatory.

Investigations

Under current law, upon receiving a report of abuse, material abuse, neglect or self-neglect, the county agency must either investigate the report or refer the report to another agency for investigation. If the report concerns abuse of a person who resides in a nursing home, community based residential facility, or receives services from a licensed home health agency, the county agency must refer the report to DHFS for investigation. An investigation of a report must 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. The scope of the investigation is at the discretion of the investigating agency and may include a visit to the elder person's residence; observation of the elder person; an interview with the elder person, or the elder person's caretaker, if any; and a review of treatment and health care records.

The bill creates new provisions regarding referral of an investigation to another agency, if the county department, or agency under contract with the county department, determines that there are circumstances that would prevent conducting an independent investigation. In that case, the bill permits the DHFS or another county department to conduct the investigation. In addition, additional investigative tools are provided to investigative agencies, including the ability to interview the elder adult-at-risk or adult-at-risk, with or without the consent of the person's guardian; an interview of the guardian; transporting the person for a medical examination; and a review of the financial records of an elder adult-at-risk or adult-at-risk in cases of suspected financial exploitation. The bill also provides immunity from civil or criminal liability or a finding of unprofessional conduct if any element of an investigation was performed in good faith and under lawful authority.

Services

Currently, a county agency or investigating agency must determine whether the person who is the subject of the alleged abuse or neglect is in need of services. If the department so determines, the agency must provide the necessary direct services to the person, within the limits of available funds.

The bill provides more specificity with regard to what types of services and responses may be made by an agency if a person is found to be the subject of abuse or neglect or financial exploitation. These responses include:

• Requesting immediate assistance in either initiating a protective services action or contacting law enforcement or another public agency as appropriate.

•Taking appropriate emergency action, including emergency protective placement under s. 55.06.

• Referring the case to local law enforcement for further investigation or to the district attorney, if the elder adult-at-risk agency has reason to believe that a crime has been committed.

• Referring the case to the licensing or certification authorities of the department or to other regulatory bodies if the residence, facility, or program for the elder adult-at-risk is or should be licensed or certified or is otherwise regulated.

• Referring the case to the department of regulation and licensing if the abuse, financial exploitation, neglect or self-neglect involves an individual who is required to hold a credential under chs. 440 to 460, stats.

• Bringing or referring for a petition for a guardianship and protective services or placement, if necessary.

Records and Reports; Confidentiality

Under current law, the county agency or other investigating agency must prepare a report on each investigation it conducts unless the agency finds, at the conclusion of the investigation, that the report of alleged abuse, material abuse, neglect or self-neglect is without foundation. If an agency other than the county agency conducts the investigation, it must submit a copy of the investigation report to the county agency.

Reports of suspected abuse, material abuse, neglect or self-neglect and investigation reports under this section are confidential and may not be released by the county agency or other investigating agency, except under the following circumstances:

• To the elder person and any person named in a report who is suspected of abusing or neglecting an elder person.

•To the protective services agency that is notified when an elder adult at risk is believed to be at risk of substantial physical harm, irreparable injury, or death.

• To an individual, organization or agency designated by the DHFS or as required by law for the purposes of management audits or program monitoring and evaluation.

• For purposes of research if the research project has been approved by the department or the county 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.

• Pursuant to lawful order of a court of record.

• To any agency or individual that provides direct services after an elder abuse investigation has been completed.

• To the guardian of the elder person or the guardian of any person named in a report who is suspected of abusing or neglecting an elder person.

• To law enforcement officials in accordance with the policy for notifying these officials in appropriate cases, under the elder abuse reporting system.

Current law provides penalties for violating these confidentiality requirements. Any person who violates these provisions is liable to any person damaged as a result of the violation, together with exemplary damages of not less than $100 nor more than $500 for each violation, plus costs and reasonable actual attorney fees. If the violation was willful, exemplary damages of not less than $500 nor more than $1000 may be awarded. In addition, an individual may bring an action to enjoin a violation of the confidentiality requirements, or to compel compliance with the requirements.

Any person who requests or obtains confidential information under this subsection under false pretenses may be fined not more than $500 or imprisoned not more than one year in the county jail or both.

The bill creates a distinction between records and departmental report forms prepared pursuant to investigations of abuse, neglect and financial exploitation. "Record" is defined as including any document relating to the response, investigation, assessment, and disposition of a report. A "departmental report form" is defined as including documentation of an agency's response to a report and the investigation of reported suspected abuse, financial exploitation, neglect, or self-neglect that provides a summary of the case, including the report form submitted to the state.

Reports may be released under the same circumstances as they may be released under current law, with two additions:

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

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

The bill also provides the agency with the ability to not release reports in certain cases, such as when the agency determines the release might be contrary to the interests of the victim or might cause harm to the victim, or the release might jeopardize an ongoing criminal or civil investigation.

Under the bill, records are confidential, and may not be released except under the following circumstances:

• To the elder adult-at-risk or adult-at-risk who is the victim named in the record.

• To the legal guardian, conservator, or other legal representative of the elder adult-at-risk or adult-at-risk who is the victim named in the record, provided that the legal representative of the victim is not the alleged perpetrator of the abuse, financial exploitation, or neglect.

• To law enforcement officials and agencies or a district attorney, for purposes of investigation or prosecution.

• To the DHFS, under s. 51.03 (2); or to the DHFS, a sheriff, police department, or district attorney for certain statutory death investigations

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

• To a court, tribal court, or administrative agency for a proceeding relating to the licensure or regulation of an individual or entity regulated or licensed by the department, that was an alleged perpetrator of abuse, financial exploitation, or neglect, and the board on aging and long term care.

• To the DHFS, for management, audit, program monitoring, evaluation, billing, or collection purposes.

• To the attorney or guardian ad litem for the elder adult-at-risk or adult-at-risk who is the victim named in the record, to assist in preparing for certain court proceedings pertaining to the victim.

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

• To staff members of the state-designated protection and advocacy agency, for the purposes of protecting and advocating for the rights of persons with developmental disabilities and mental illness.

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

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

• To a judge, tribal court, or administrative agency conducting proceedings under s. 968.26.

• Pursuant to a lawful order of a court of record.