AB539: Bill Text

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 Section 1. 20.435 (7) (dh) of the statutes is amended to read:

AB539,9,2 20.435 (7) (dh) Programs for senior citizens; elder abuse services; benefit specialist program. The amounts in the schedule for the programs for senior citizens, including but not limited to the purpose of distributing funds under s. 46.80 (2m) (b) to supplement any federal foster grandparent project funds received under 42 USC 5011 (a) and the purposes of ss. 46.80 (5) and 46.85; for direct services for elder persons and other individuals adults at risk under s. 46.90 (5m); and for the benefit specialist program for older persons under s. 46.81. Notwithstanding ss. 20.001 (3) (a) and 20.002 (1), the department of health and family services may transfer funds between fiscal years under this paragraph. All funds allocated under ss. 46.80 (2m) (b) and (5), 46.81 (2) and 46.85 but not encumbered by December 31 of each year lapse to the general fund on the next January 1, unless transferred to the next calendar year by the joint committee on finance, but the department may carry forward funds allocated under s. 46.90 (5m) that are not encumbered by June 30 of each year for allocation under s. 46.90 (5m) in the following state fiscal year. For the purposes of this paragraph, funds are encumbered by December 31 if allocated for services received or for goods ordered by December 31.

AB539, s. 2 Section 2. 46.21 (2m) (c) of the statutes is amended to read:

AB539,9,20 46.21 (2m) (c) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7) and 253.07 (3) (c), any a subunit of the a county department of human services or tribal agency acting under this subsection may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of human services or tribal agency, with a resource center, a care management organization, or a family care district, with an elder-adult-at-risk agency, an adult-at-risk agency, or any agency to which referral for investigation is made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with any a person providing services to the client under a purchase of services contract with the county department of human services or tribal agency or with a resource center, a care management organization, or a family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of human services or tribal agency to coordinate the delivery of services to the client. An agency that releases information under this paragraph shall document that a request for information was received and what information was provided.

AB539, s. 3 Section 3. 46.215 (1m) of the statutes is amended to read:

AB539,9,25 46.215 (1m) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any a subunit of the a county department of social services or tribal agency acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of social services or tribal agency, with a resource center, a care management organization, or a family care district, with an elder-adult-at-risk agency, an adult-at-risk agency, or any agency to which referral for investigation is made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with any a person providing services to the client under a purchase of services contract with the county department of social services or tribal agency or with a resource center, a care management organization, or a family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of social services or tribal agency to coordinate the delivery of services to the client. An agency that releases information under this subsection shall document that a request for information was received and what information was provided.

AB539, s. 4 Section 4. 46.22 (1) (dm) of the statutes is amended to read:

AB539,11,6 46.22 (1) (dm) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any a subunit of the a county department of social services or tribal agency acting under this subsection may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of social services or tribal agency, with a resource center, a care management organization, or a family care district, with an elder-adult-at-risk agency, an adult-at-risk agency, or any agency to which referral for investigation is made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with any a person providing services to the client under a purchase of services contract with the county department of social services or tribal agency or with a resource center, a care management organization, or a family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of social services or tribal agency to coordinate the delivery of services to the client. An agency that releases information under this paragraph shall document that a request for information was received and what information was provided.

AB539, s. 5 Section 5. 46.23 (3) (e) of the statutes is amended to read:

AB539,11,24 46.23 (3) (e) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any a subunit of a county department of human services or tribal agency acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of human services or tribal agency, with a resource center, a care management organization, or a family care district, with an elder-adult-at-risk agency, an adult-at-risk agency, or any agency to which referral for investigation is made under s. 46.90 (5) (a) 1. or 55.043 (1r) (a) 1g., or with any a person providing services to the client under a purchase of services contract with the county department of human services or tribal agency or with a resource center, a care management organization, or a family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of human services or tribal agency to coordinate the delivery of services to the client. An agency that releases information under this paragraph shall document that a request for information was received and what information was provided.

AB539, s. 6 Section 6. 46.283 (4) (h) of the statutes is amended to read:

AB539,12,4 46.283 (4) (h) Provide access to services under s. 46.90 and ch. 55 to a person who is eligible for the services, through cooperation with the county elder-adult-at-risk agency or the adult-at-risk agency or agencies that provide provides the services.

AB539, s. 7 Section 7. 46.286 (1) (intro.) of the statutes is amended to read:

AB539,12,10 46.286 (1) Eligibility. (intro.) A person is eligible for, but not necessarily entitled to, the family care benefit if the person is at least 18 years of age; has a physical disability, as defined in s. 15.197 (4) (a) 2., a developmental disability, as defined in s. 51.01 (5) (a), or infirmities of aging degenerative brain disorder, as defined in s. 55.01 (3) (1v); and meets all of the following criteria:

AB539, s. 8 Section 8. 46.286 (3) (a) (intro.) of the statutes is amended to read:

AB539,12,18 46.286 (3) (a) (intro.) Subject to pars. (c) and (d), a person is entitled to and may receive the family care benefit through enrollment in a care management organization if he or she is at least 18 years of age, has a physical disability, as defined in s. 15.197 (4) (a) 2., a developmental disability, as defined in s. 51.01 (5) (a), or infirmities of aging degenerative brain disorder, as defined in s. 55.01 (3) (1v), is financially eligible, fulfills any applicable cost-sharing requirements and meets any of the following criteria:

AB539, s. 9 Section 9. 46.286 (3) (a) 3. of the statutes is amended to read:

AB539,12,23 46.286 (3) (a) 3. Is functionally eligible at the intermediate level and is determined by an elder-adult-at-risk agency under s. 46.90 (2) or specified in s. 55.01 (1t) an adult-at-risk agency designated under s. 55.02 to be in need of protective services under s. 55.05 or protective placement under s. 55.06.

AB539, s. 10 Section 10. 46.90 (1) (a) of the statutes is repealed and recreated to read:

AB539,12,25 46.90 (1) (a) "Abuse" means any of the following:

AB539,13,1 1. Physical abuse.

AB539,13,2 2. Emotional abuse.

AB539,13,3 3. Sexual abuse.

AB539,13,4 4. Treatment without consent.

AB539,13,5 5. Unreasonable confinement or restraint.

AB539, s. 11 Section 11. 46.90 (1) (aj) of the statutes is created to read:

AB539,13,8 46.90 (1) (aj) "Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.

AB539, s. 12 Section 12. 46.90 (1) (an) of the statutes is created to read:

AB539,13,12 46.90 (1) (an) "Caregiver" means a person who has assumed responsibility for all or a portion of an individual's care voluntarily, by contract, or by agreement, including a person acting or claiming to act as a legal guardian.

AB539, s. 13 Section 13. 46.90 (1) (b) of the statutes is repealed.

AB539, s. 14 Section 14. 46.90 (1) (br) of the statutes is created to read: