The court is required to appoint a guardian ad litem after it receives the report from
the county described above. The guardian ad litem is required to do all of the following:
1. Review the report filed by the county, the annual report of the guardian, and any
other relevant reports on the individual's condition and placement.
2. Meet with the individual and contact the individual's guardian and orally
explain to the individual and guardian all of the following:
a. The procedure for review of protective placement.
b. The right to appointment of legal counsel.
c. The right to request performance of an independent evaluation.
d. The contents of the report submitted to the court by the county.
e. That a change in or termination of protective placement may be ordered by the
court.
f. The right to a hearing and an explanation that the individual or the individual's
guardian may request a full due process hearing.
The guardian ad litem must provide all of the information described above to the
individual and the individual's guardian in writing.
3. Review the individual's condition, placement, and rights with the individual's
guardian.
4. Ascertain whether the individual wishes to exercise any of his or her rights (the
right to appointment of legal counsel, to request an independent evaluation, and to a full
due process hearing).
5. File a written report with the court within 30 days after appointment that
includes a discussion of whether the individual appears to continue to meet the standards
for protective placement and whether the protective placement is in the least restrictive
environment that is consistent with the individual's needs. The report must also state
whether any of the following applies:
a. The guardian ad litem, the individual, or the individual's guardian request an
independent evaluation.
b. The individual or the individual's guardian requests modification or
termination of the protective placement.
c. The individual or the individual's guardian requests, or the guardian ad litem
recommends, that legal counsel be appointed for the individual.
d. The individual or his or her guardian or guardian ad litem requests a full due
process hearing.
6. Certify to the court that he or she has complied with the requirements described
under items 1., 2., 3., and 4., above.
Court Review of Reports, Hearing, and Order
The bill requires the court that orders protective placement for an individual to
review, not more than 12 months after the initial order for protective placement and
annually thereafter, the reports of the county and the guardian ad litem, described above,
and the annual report filed by the guardian under s. 880.38 (3). In its review, the court
must determine whether any of the following is necessary:
1. Performance of an independent evaluation of the physical, mental, and social
condition of the individual, and the individual's service needs. If the court determines
that an independent evaluation is necessary, the evaluation shall be performed at the
expense of the individual unless the individual is indigent. If the individual is indigent,
the evaluation is performed at the expense of the responsible county department. The
court must order the performance of an independent evaluation if any of the following
applies:
a. The report submitted by the county is not timely filed or the court determines
that the report fails to meet the statutory requirements.
b. Following review of the guardian ad litem's report, the court determines that
independent evaluation is necessary.
c. The individual or the individual's guardian or guardian ad litem requests an
independent evaluation.
2. Obtaining any other information with respect to the individual.
3. Appointment of legal counsel. If the court appoints legal counsel and it appears
that the individual is indigent, the court shall refer the individual to the authority for
indigency determinations under s. 977.07 (1). The court must order legal counsel for an
individual if any of the following applies:
a. Following review of the guardian ad litem's report, the court determines that
legal counsel for the individual is necessary.
b. The individual or the individual's guardian or guardian ad litem requests
appointment of legal counsel.
4. Holding of a full due process hearing.
Upon completion of its review, the court must order either a summary hearing or
a full due process hearing. A summary hearing may be held in court or may be held by
other means such as by telephone or by a videoconference. The court must hold a full due
process hearing if any of the following applies:
a. The individual or the individual's guardian or guardian ad litem requests a full
due process hearing.
b. The report of the guardian ad litem indicates that the individual no longer meets
standards for protective placement.
c. The report of the guardian ad litem indicates that the current placement is not
in the least restrictive environment consistent with the individual's needs.
d. The report of the guardian ad litem indicates that the individual objects to the
current placement.
Following the summary hearing or the full due process hearing, the court must do
one of the following:
1. Order the continuation of the individual's protective placement in the facility
in which he or she resides at the time of the hearing. The court shall make this order if
it finds that the individual continues to meet the standards for protective placement, and
the individual's protective placement is in the least restrictive environment that is
consistent with his or her needs and with factors under current s. 55.06 (9) (a). The court
must include the information relied upon as a basis for the order and make findings based
on the factors set forth in s. 55.06 (2) in support of the need for continuation of protective
placement.
2. Order transfer of protective placement to a less restrictive residential facility
or order the county department of residency to develop or recommend a less restrictive
protective placement. If the court makes such an order, it shall order the county
department of residency to arrange for the individual's transfer to the new protective
placement within 60 days after the court's order unless the court extends the period to
permit development of a protective placement. The court shall make this order if it finds
that the individual continues to meet the standards for protective placement and the
protective placement of the individual is not in the least restrictive environment that is
consistent with the individual's needs and with the factors under current s. 55.06 (9) (a).
The court may order protective services along with transfer of placement.
3. Terminate the protective placement. The court shall make this order if it
determines that the individual no longer meets the standards for protective placement.
If the court terminates a protective placement, it must review the needs of the individual
with respect to protective services and order protective services if it determines the
individual meets the standards for protective services. If the court determines that the
individual does not meet the standards for protective services, and the individual is being
transferred or discharged from his or her current residential facility, the county
department must assist the residential facility with discharge planning for the
individual, including planning for a proper residential living arrangement and the
necessary support services for the individual.
The bill provides that any individual whose protective placement is terminated
pursuant to an annual review may reside in his or her current residential facility for up
to 60 days after the termination in order to arrange for alternative living. If the
residential facility has fewer than 16 beds, the individual may remain in the residential
facility as long as the requirements of current s. 55.05 (5) are met. The bill specifies that
admission of the individual, if an adult, to another residential facility, must be under s.
55.05 (5).
The bill requires the court to provide a copy of its order to the individual, the
individual's guardian, guardian ad litem and legal counsel, the residential facility in
which the individual is protectively placed, and the county department.
Establishment of County Policy
This bill requires each county protective services agency to ensure that no later
than 180 days after the bill's effective date, the county establishes a written policy that
specifies procedures to be followed in the county which are designed to ensure that
reviews of all protectively placed persons residing in the county are conducted annually.
The county protective services agency must maintain a copy of the written policy and
must make the policy available for public inspection.
Statement Required
The bill also requires the register in probate to file with the chief judge of the
judicial administrative district a statement indicating whether the county has filed a
petition and a report for each annual review required to be undertaken for protectively
placed persons in the county that year. The statement must include an explanation of the
reasons that any required report or petition has not been filed.
Appointment of Legal Counsel in Protective Placement Proceedings
Under current law, s. 55.06 (6), relating to procedures in protective placement
proceedings, provides that s. 880.33 (2) applies to all hearings under ch. 55 except for
transfers of protective placements. Section 880.33 (2) (a) 1. provides that the proposed
ward has the right to counsel in incompetency proceedings. Section 880.33 (2) (a) 2.
further provides that if the person requests, but is unable to obtain legal counsel, the
court shall appoint legal counsel. The statutes also provide that if the person is
represented by counsel appointed under s. 977.08 in a proceeding for a protective
placement under s. 55.06, the court shall order the counsel appointed under s. 977.08 to
represent the person.
Although ch. 55 does not explicitly provide for counsel appointed under s. 977.08
in case of an indigent subject, the language in s. 880.33 (2) (a) 2. implies that counsel
should be appointed. Further, s. 55.06 (11), relating to emergency protective placements,
clearly provides for counsel appointed under s. 977.08 in the case of an indigent subject.
Finally, it is the practice in this state to appoint counsel under s. 977.08 in the case of an
indigent subject of a ch. 55 petition.
This bill amends the public defender statute that sets forth to whom the state
public defender must provide legal services by clearly setting forth the requirement that
the state public defender provide legal services in cases involving persons who are subject
to petitions for protective placement under ch. 55. This codifies current practice.
The remainder of this
prefatory note consists of a table of contents for reorganized
ch. 55:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
AB785, s. 1
1Section
1. 20.435 (2) (gk) of the statutes is amended to read:
AB785,25,132
20.435
(2) (gk)
Institutional operations and charges. The amounts in the
3schedule for care, other than under s. 51.06 (1r), provided by the centers for the
4developmentally disabled, to reimburse the cost of providing the services and to
5remit any credit balances to county departments that occur on and after
6July 1, 1978, in accordance with s. 51.437 (4rm) (c); for care, other than under s.
746.043, provided by the mental health institutes, to reimburse the cost of providing
8the services and to remit any credit balances to county departments that occur on and
9after January 1, 1979, in accordance with s. 51.42 (3) (as) 2.; for maintenance of
10state-owned housing at centers for the developmentally disabled and mental health
11institutes; for repair or replacement of property damaged at the mental health
12institutes or at centers for the developmentally disabled; and for reimbursing the
13total cost of using, producing, and providing services, products, and care. All moneys
14received as payments from medical assistance on and after August 1, 1978; as
15payments from all other sources including other payments under s. 46.10 and
16payments under s. 51.437 (4rm) (c) received on and after July 1, 1978; as medical
17assistance payments, other payments under s. 46.10, and payments under s. 51.42
18(3) (as) 2. received on and after January 1, 1979; as payments for the rental of
19state-owned housing and other institutional facilities at centers for the
20developmentally disabled and mental health institutes; for the sale of electricity,
1steam, or chilled water; as payments in restitution of property damaged at the
2mental health institutes or at centers for the developmentally disabled; for the sale
3of surplus property, including vehicles, at the mental health institutes or at centers
4for the developmentally disabled; and for other services, products, and care shall be
5credited to this appropriation, except that any payment under s. 46.10 received for
6the care or treatment of patients admitted under s. 51.10, 51.15, or 51.20 for which
7the state is liable under s. 51.05 (3),
of patients admitted under s. 55.06 (9) (d) or (e)
8for which the state is liable under s. 55.05 (1), of forensic patients committed under
9ch. 971 or 975, admitted under ch. 975, or transferred under s. 51.35 (3), or of patients
10transferred from a state prison under s. 51.37 (5), to the Mendota Mental Health
11Institute or the Winnebago Mental Health Institute shall be treated as general
12purpose revenue — earned, as defined under s. 20.001 (4); and except that moneys
13received under s. 51.06 (6) may be expended only as provided in s. 13.101 (17).
Note: Deletes cross-references to s. 55.06 (9) (d) and (e), which are repealed by the
bill.
AB785, s. 2
14Section
2. 46.011 (2) of the statutes is amended to read:
AB785,25,2015
46.011
(2) "Prisoner" means any person who is either arrested, incarcerated,
16imprisoned or otherwise detained in excess of 12 hours by any law enforcement
17agency of this state, except when detention is pursuant to s. 51.15, 51.20, 51.45 (11)
18(b) or
55.06 (11) (a) 55.135 (1) or ch. 980. "Prisoner" does not include any person who
19is serving a sentence of detention under s. 973.03 (4) unless the person is in the
20county jail under s. 973.03 (4) (c).
Note: Changes a cross-reference to emergency protective placement, the
provisions of which are renumbered under this bill.
AB785, s. 3
21Section
3. 46.10 (2) of the statutes is amended to read:
AB785,27,3
146.10
(2) Except as provided in subs. (2m) and (14) (b) and (c), any person,
2including but not limited to a person admitted, committed
, protected, or placed under
3s. 975.01, 1977 stats., s. 975.02, 1977 stats.,
and s. 975.17, 1977 stats.,
s. 55.05 (5),
42003 stats., and 55.06, 2003 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37
5(5), 51.45 (10), (11), (12) and (13), 55.05,
55.06
55.055, 55.12, 55.13, 55.135, 971.14
6(2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services and
7supplies provided by any institution in this state including University of Wisconsin
8Hospitals and Clinics, in which the state is chargeable with all or part of the person's
9care, maintenance, services and supplies, any person receiving care and services
10from a county department established under s. 51.42 or 51.437 or from a facility
11established under s. 49.73, and any person receiving treatment and services from a
12public or private agency under s. 980.06 (2) (c), 1997 stats., or s. 971.17 (3) (d) or (4)
13(e) or 980.08 (5) and the person's property and estate, including the homestead, and
14the spouse of the person, and the spouse's property and estate, including the
15homestead, and, in the case of a minor child, the parents of the person, and their
16property and estates, including their homestead, and, in the case of a foreign child
17described in s. 48.839 (1) who became dependent on public funds for his or her
18primary support before an order granting his or her adoption, the resident of this
19state appointed guardian of the child by a foreign court who brought the child into
20this state for the purpose of adoption, and his or her property and estate, including
21his or her homestead, shall be liable for the cost of the care, maintenance, services
22and supplies in accordance with the fee schedule established by the department
23under s. 46.03 (18). If a spouse, widow or minor, or an incapacitated person may be
24lawfully dependent upon the property for their support, the court shall release all or
25such part of the property and estate from the charges that may be necessary to
1provide for those persons. The department shall make every reasonable effort to
2notify the liable persons as soon as possible after the beginning of the maintenance,
3but the notice or the receipt thereof is not a condition of liability.
Note: Changes cross-references to protective placement, which is renumbered in
this bill.
AB785, s. 4
4Section
4
. 46.21 (2m) (c) of the statutes is amended to read:
AB785,27,165
46.21
(2m) (c)
Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78
6(2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a),
55.06 (17) (c) 55.22 (3), 146.82, 252.11
7(7) and 253.07 (3) (c), any subunit of the county department of human services acting
8under this subsection may exchange confidential information about a client, without
9the informed consent of the client, with any other subunit of the same county
10department of human services, with a resource center, care management
11organization or family care district, or with any person providing services to the
12client under a purchase of services contract with the county department of human
13services or with a resource center, care management organization or family care
14district, if necessary to enable an employee or service provider to perform his or her
15duties, or to enable the county department of human services to coordinate the
16delivery of services to the client.
AB785, s. 5
17Section
5. 46.215 (1m) of the statutes is amended to read:
AB785,28,618
46.215
(1m) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78
19(2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a),
55.06 (17) (c) 55.22 (3), 146.82, 252.11
20(7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of the county department of social
21services acting under this section may exchange confidential information about a
22client, without the informed consent of the client, with any other subunit of the same
23county department of social services, with a resource center, care management
1organization or family care district, or with any person providing services to the
2client under a purchase of services contract with the county department of social
3services or with a resource center, care management organization or family care
4district, if necessary to enable an employee or service provider to perform his or her
5duties, or to enable the county department of social services to coordinate the
6delivery of services to the client.
AB785, s. 6
7Section
6. 46.22 (1) (dm) of the statutes is amended to read:
AB785,28,198
46.22
(1) (dm)
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) 55.22 (3), 146.82, 252.11
10(7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of the county department of social
11services acting under this subsection may exchange confidential information about
12a client, without the informed consent of the client, with any other subunit of the
13same county department of social services, with a resource center, care management
14organization or family care district, or with any person providing services to the
15client under a purchase of services contract with the county department of social
16services or with a resource center, care management organization or family care
17district, if necessary to enable an employee or service provider to perform his or her
18duties, or to enable the county department of social services to coordinate the
19delivery of services to the client.
AB785, s. 7
20Section
7
. 46.23 (3) (e) of the statutes is amended to read:
AB785,29,721
46.23
(3) (e)
Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78
22(2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a),
55.06 (17) (c) 55.22 (3), 146.82, 252.11
23(7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of a county department of human
24services acting under this section may exchange confidential information about a
25client, without the informed consent of the client, with any other subunit of the same
1county department of human services, with a resource center, care management
2organization or family care district, or with any person providing services to the
3client under a purchase of services contract with the county department of human
4services or with a resource center, care management organization or family care
5district, if necessary to enable an employee or service provider to perform his or her
6duties, or to enable the county department of human services to coordinate the
7delivery of services to the client.
Note: Sections 4 to 7 change a cross-reference to provisions relating to
confidentiality of treatment and service records for persons who are protected under
chapter 55. These provisions are renumbered in this bill.
AB785, s. 8
8Section
8. 46.27 (6r) (b) 2. of the statutes is amended to read:
AB785,29,129
46.27
(6r) (b) 2. The person has
chronic serious and persistent mental illness,
10as defined under s. 51.01
(3g) (14t), affecting mental health to the extent that
11long-term or repeated hospitalization is likely unless the person receives long-term
12community support services.
Note: Deletes a reference to the term "chronic mental illness", which is eliminated
in this bill, and replaces it with the updated term "serious and persistent mental illness".
AB785, s. 9
13Section
9. 46.275 (4) (b) 1. of the statutes is amended to read:
AB785,29,1914
46.275
(4) (b) 1. Consent for participation is given either by the person's parent,
15guardian or legal custodian, if the person is under age 18, or by the person or the
16person's guardian, if the person is age 18 or over, except that this subdivision does
17not limit the authority of the circuit court to enter, change, revise or extend a
18dispositional order under subch. VI of ch. 48 or subch. VI of ch. 938 or to order a
19protective placement
or protective services under s.
55.06 55.12.
Note: Amends language in medical assistance waiver program language to reflect
the bill's clarification that protective services, as well as protective placement, may be
court ordered.
AB785, s. 10
1Section
10
. 46.279 (2) of the statutes, as affected by 2005 Wisconsin Act ....
2(Assembly Bill 296), is amended to read:
AB785,30,193
46.279
(2) Placements and admissions to intermediate facilities. Except as
4provided in sub. (5), no person may protectively place or continue protective
5placement of an individual with a developmental disability in an intermediate
6facility and no intermediate facility may admit or continue service for such an
7individual unless, before the protective placement, continued placement following
8review under s.
55.06 (10) 55.18, or admission and after having considered a plan
9developed under sub. (4), a court under s.
55.06 (9) (a) or (10) (a) 2. 55.12 or 55.18 (1)
10(ar) finds that protective placement in the intermediate facility is the most
11integrated setting that is appropriate to the needs of the individual or that the county
12of residence of the individual would not reasonably be able to provide
13community-based care in accordance with the plan within the limits of available
14state and federal funds and county funds required to be appropriated to match state
15funds, taking into account information presented by all affected parties. An
16intermediate facility to which an individual who has a developmental disability
17applies for admission shall, within 5 days after receiving the application, notify the
18county department that is participating in the program under s. 46.278 of the county
19of residence of the individual who is seeking admission concerning the application.
AB785, s. 11
20Section
11
. 46.279 (3) of the statutes, as affected by 2005 Wisconsin Act ....
21(Assembly Bill 296), is amended to read:
AB785,31,822
46.279
(3) Placements and admissions to nursing facilities. Except as
23provided in sub. (5), if the department or an entity determines from a screening
24under s. 49.45 (6c) (b) that an individual requires active treatment for developmental
25disability, no individual may be protectively placed in a nursing facility or have
1protective placement in a nursing facility continued following review under s.
55.06
2(10) 55.18, and no nursing facility may admit or continue service for the individual,
3unless the department or entity that conducts the screening determines that the
4individual's need for care cannot fully be met in an intermediate facility or under a
5plan under sub. (4) or that the county of residence of the individual would not
6reasonably be able to provide community-based care in accordance with the plan
7within the limits of available state and federal funds and county funds required to
8be appropriated to match state funds.
Note: Sections 10 and 11 change a cross-reference to orders for protective
placement, the provisions of which are renumbered in this bill.
AB785, s. 12
9Section
12. 46.279 (4) (c) of the statutes is amended to read:
AB785,31,1210
46.279
(4) (c) Within 120 days after a proposal is made under s.
55.06 (9) (a) 1155.12 (6) to
place provide protective placement to the individual in an intermediate
12facility or a nursing facility.
Note: Changes a cross-reference to the annual review of protective placements,
the provisions of which are renumbered in this bill.
AB785, s. 13
13Section
13. 46.279 (4) (d) of the statutes is amended to read:
AB785,31,1614
46.279
(4) (d) Within 120 days after receiving written notice under s.
55.06 (10)
15(a) 2. 55.18 (1) (ar) of the
protective placement of the individual in a nursing facility
16or an intermediate facility.
Note: Changes a cross-reference to the annual review of protective placement, the
provisions of which are renumbered in this bill.
AB785, s. 14
17Section
14. 46.279 (4) (e) of the statutes is amended to read:
AB785,31,1918
46.279
(4) (e) Within 90 days after extension of a temporary
protective 19placement order by the court under s.
55.06 (11) (c)
55.135 (5).
Note: Changes a cross-reference to temporary protective placement, the
provisions of which are renumbered in this bill.
AB785, s. 15
20Section
15. 46.279 (5) of the statutes is amended to read:
AB785,32,3
146.279
(5) Exceptions. Subsections (2) and (3) do not apply to an emergency
2protective placement under s.
55.06 (11) (a) 55.135 or to a temporary
protective 3placement under s.
55.06 (11) (c) or (12) 55.135 (5) or 55.055 (5).