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.
AB539, s. 1
1Section
1. 20.435 (7) (dh) of the statutes is amended to read:
AB539,9,22
20.435
(7) (dh)
Programs for senior citizens; elder abuse services; benefit
3specialist program. The amounts in the schedule for the programs for senior citizens,
4including but not limited to the purpose of distributing funds under s. 46.80 (2m) (b)
5to supplement any federal foster grandparent project funds received under
42 USC
65011 (a) and the purposes of ss. 46.80 (5) and 46.85; for direct services for elder
7persons and other individuals adults at risk under s. 46.90 (5m); and for the benefit
8specialist program for older persons under s. 46.81. Notwithstanding ss. 20.001 (3)
9(a) and 20.002 (1), the department of health and family services may transfer funds
10between fiscal years under this paragraph. All funds allocated under ss. 46.80 (2m)
11(b) and (5), 46.81 (2) and 46.85 but not encumbered by December 31 of each year lapse
12to the general fund on the next January 1, unless transferred to the next calendar
13year by the joint committee on finance, but the department may carry forward funds
14allocated under s. 46.90 (5m) that are not encumbered by June 30 of each year for
15allocation under s. 46.90 (5m) in the following state fiscal year. For the purposes of
1this paragraph, funds are encumbered by December 31 if allocated for services
2received or for goods ordered by December 31.
AB539, s. 2
3Section
2. 46.21 (2m) (c) of the statutes is amended to read:
AB539,9,204
46.21
(2m) (c)
Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78
5(2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7) and
6253.07 (3) (c),
any a subunit of
the a county department of human services
or tribal
7agency acting under this subsection may exchange confidential information about a
8client, without the informed consent of the client, with any other subunit of the same
9county department of human services
or tribal agency, with a resource center,
a care
10management organization
, or
a family care district,
with an elder-adult-at-risk
11agency, an adult-at-risk agency, or any agency to which referral for investigation is
12made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with
any a person providing
13services to the client under a purchase of services contract with the county
14department of human services
or tribal agency or with a resource center,
a care
15management organization
, or
a family care district, if necessary to enable an
16employee or service provider to perform his or her duties, or to enable the county
17department of human services
or tribal agency to coordinate the delivery of services
18to the client.
An agency that releases information under this paragraph shall
19document that a request for information was received and what information was
20provided.
AB539, s. 3
21Section
3. 46.215 (1m) of the statutes is amended to read:
AB539,9,2522
46.215
(1m) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78
23(2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07
24(3) (c) and 938.78 (2) (a),
any a subunit of
the a county department of social services
25or tribal agency acting under this section may exchange confidential information
1about a client, without the informed consent of the client, with any other subunit of
2the same county department of social services
or tribal agency, with a resource
3center,
a care management organization
, or
a family care district,
with an
4elder-adult-at-risk agency, an adult-at-risk agency, or any agency to which referral
5for investigation is made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with
any 6a person providing services to the client under a purchase of services contract with
7the county department of social services
or tribal agency or with a resource center,
8a care management organization
, or
a family care district, if necessary to enable an
9employee or service provider to perform his or her duties, or to enable the county
10department of social services
or tribal agency to coordinate the delivery of services
11to the client.
An agency that releases information under this subsection shall
12document that a request for information was received and what information was
13provided.
AB539, s. 4
14Section
4. 46.22 (1) (dm) of the statutes is amended to read:
AB539,11,615
46.22
(1) (dm)
Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78
16(2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07
17(3) (c) and 938.78 (2) (a),
any a subunit of
the a county department of social services
18or tribal agency acting under this subsection may exchange confidential information
19about a client, without the informed consent of the client, with any other subunit of
20the same county department of social services
or tribal agency, with a resource
21center,
a care management organization
, or
a family care district,
with an
22elder-adult-at-risk agency, an adult-at-risk agency, or any agency to which referral
23for investigation is made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with
any 24a person providing services to the client under a purchase of services contract with
25the county department of social services
or tribal agency or with a resource center,
1a care management organization
, or
a family care district, if necessary to enable an
2employee or service provider to perform his or her duties, or to enable the county
3department of social services
or tribal agency to coordinate the delivery of services
4to the client.
An agency that releases information under this paragraph shall
5document that a request for information was received and what information was
6provided.
AB539, s. 5
7Section
5. 46.23 (3) (e) of the statutes is amended to read:
AB539,11,248
46.23
(3) (e)
Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78
9(2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07
10(3) (c) and 938.78 (2) (a),
any a subunit of a county department of human services
or
11tribal agency acting under this section may exchange confidential information about
12a client, without the informed consent of the client, with any other subunit of the
13same county department of human services
or tribal agency, with a resource center,
14a care management organization
, or
a family care district,
with an
15elder-adult-at-risk agency, an adult-at-risk agency, or any agency to which referral
16for investigation is made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with
any 17a person providing services to the client under a purchase of services contract with
18the county department of human services
or tribal agency or with a resource center,
19a care management organization
, or
a family care district, if necessary to enable an
20employee or service provider to perform his or her duties, or to enable the county
21department of human services
or tribal agency to coordinate the delivery of services
22to the client.
An agency that releases information under this paragraph shall
23document that a request for information was received and what information was
24provided.
AB539, s. 6
25Section
6. 46.283 (4) (h) of the statutes is amended to read:
AB539,12,4
146.283
(4) (h) Provide access to services under s. 46.90 and ch. 55 to a person
2who is eligible for the services, through cooperation with the
county 3elder-adult-at-risk agency or the adult-at-risk agency
or agencies that
provide 4provides the services.
AB539, s. 7
5Section
7. 46.286 (1) (intro.) of the statutes is amended to read:
AB539,12,106
46.286
(1) Eligibility. (intro.) A person is eligible for, but not necessarily
7entitled to, the family care benefit if the person is at least 18 years of age; has a
8physical disability, as defined in s. 15.197 (4) (a) 2., a developmental disability, as
9defined in s. 51.01 (5) (a), or
infirmities of aging
degenerative brain disorder, as
10defined in s. 55.01
(3) (1v); and meets all of the following criteria:
AB539, s. 8
11Section
8. 46.286 (3) (a) (intro.) of the statutes is amended to read:
AB539,12,1812
46.286
(3) (a) (intro.) Subject to pars. (c) and (d), a person is entitled to and may
13receive the family care benefit through enrollment in a care management
14organization if he or she is at least 18 years of age, has a physical disability, as defined
15in s. 15.197 (4) (a) 2., a developmental disability, as defined in s. 51.01 (5) (a), or
16infirmities of aging degenerative brain disorder, as defined in s. 55.01
(3) (1v), is
17financially eligible, fulfills any applicable cost-sharing requirements and meets any
18of the following criteria: