Amendment CSA1-SB40

SB40-CSA1,1475,8 949.18 Report by the department. (intro.) The department's biennial report under s. 15.04 (1) (d) shall include a report of its activities under this chapter subchapter including:

SB40-CSA1, s. 3857 Section 3857. 949.18 (1) of the statutes is amended to read:

SB40-CSA1,1475,11 949.18 (1) An explanation of the procedures for filing and processing claims under this chapter subchapter.

SB40-CSA1, s. 3858 Section 3858. 949.18 (4) of the statutes is amended to read:

SB40-CSA1,1475,13 949.18 (4) A copy of the forms utilized under this chapter subchapter.

SB40-CSA1, s. 3859 Section 3859. 949.18 (5) (intro.) of the statutes is amended to read:

SB40-CSA1,1475,16 949.18 (5) (intro.) A complete statistical analysis of the cases handled under this chapter subchapter, including:

SB40-CSA1, s. 3860 Section 3860. 949.18 (5) (e) of the statutes is amended to read:

SB40-CSA1,1475,18 949.18 (5) (e) A summary of cases handled under this chapter subchapter.

SB40-CSA1, s. 3861 Section 3861. Subchapter II of chapter 949 [precedes 949.20] of the statutes is created to read:

SB40-CSA1,1475,21 Chapter 949

SB40-CSA1,1475,24 Subchapter II sexual assault forensic examination compensation

SB40-CSA1,1475,25 949.20 Definitions. In this subchapter:

SB40-CSA1,1476,3 (1) "Cooperate with a law enforcement agency" means to report a sex offense to a law enforcement agency or to aid a law enforcement agency in the investigation of a sex offense.

SB40-CSA1,1476,4 (2) "Department" means the department of justice.

SB40-CSA1,1476,12 (3) "Examination costs" means the costs of an examination that is done to gather evidence regarding a sex offense, any procedure during that examination process that tests for or prevents a sexually transmitted disease, and any medication provided or prescribed, during that examination process, that prevents or treats a sexually transmitted disease that the person performing the examination or procedure believes could be a consequence of the sex offense. "Examination costs" does not include any processing or administrative costs, attorney fees, or other expenses.

SB40-CSA1,1476,13 (4) "Guardian of the victim" means one of the following:

SB40-CSA1,1476,15 1. If the victim is under 18 years of age, the parent, guardian, or legal custodian of the victim.

SB40-CSA1,1476,17 2. If the victim has been determined to be incompetent under ch. 54, the guardian of the victim.

SB40-CSA1,1476,18 (5) "Health care provider" means any person providing health care services.

SB40-CSA1,1476,19 (6) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

SB40-CSA1,1476,22 (7) "Sex offense" means an act committed in the state that, if committed by a competent adult, would be a violation, or an attempted violation, of s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.08, or 948.09.

SB40-CSA1,1476,23 (8) "Sexually transmitted disease" has the meaning given in s. 252.11 (1).

SB40-CSA1,1476,24 (9) "Victim" means a person against whom a sex offense has been committed.

SB40-CSA1,1477,5 949.22 Administration. The department shall administer this subchapter. The department shall appoint a program director to assist in administering this subchapter. The department shall promulgate rules for the implementation and operation of this subchapter. The rules shall include procedures to ensure that any limitation of an award is calculated in a fair and equitable manner.

SB40-CSA1,1477,8 949.24 Application for award. (1) Eligibility. Any health care provider who conducts an examination to gather evidence regarding a sex offense may apply for an award under this subchapter.

SB40-CSA1,1477,10 (2) Forms. The department shall prescribe application forms for awards under this subchapter and shall furnish health care providers with the forms.

SB40-CSA1,1477,18 (3) Medical records. An applicant shall submit to the department reports from any physician, physician's assistant, or nurse who treated or examined the victim to gather evidence regarding a sex offense, performed any procedure during that treatment or examination that tests for or prevents a sexually transmitted disease, or provided or prescribed any medication to prevent or treat a sexually transmitted disease. The applicant may not submit to the department any other records than those pertaining to the examination, treatment, procedure, or medication for which the applicant is seeking an award.

SB40-CSA1,1477,22 949.26 Computation of awards. (1) Except as provided in sub. (1m), the department shall make an award under this section to a health care provider who conducts an examination to gather evidence regarding a sex offense to reimburse the health care provider only for the examination costs, as follows:

SB40-CSA1,1478,2 (a) If, under sub. (2) (b), the health care provider is not authorized to seek payment from insurance or another available source of payment, the award shall be the examination costs, regardless of whether the victim, or any guardian of the victim, cooperates with a law enforcement agency regarding the sex offense.

SB40-CSA1,1478,7 (b) If, under sub. (2) (b), the health care provider is authorized to seek payment from insurance or another available source of payment and the victim, or any guardian of the victim, does not cooperate with a law enforcement agency regarding the sex offense, the award shall be the examination costs, reduced by any payment to be received as a result of the authorization under sub. (2) (b).

SB40-CSA1,1478,10 (1m) The department may not make an award under this section if, under sub. (2) (b), the health care provider is authorized to seek payment and the victim, or any guardian of the victim, cooperates with a law enforcement agency.

SB40-CSA1,1478,12 (2) (a) A health care provider seeking an award under this section may not seek payment for any examination costs from the victim or any guardian of the victim.

SB40-CSA1,1478,16 (b) A health care provider seeking an award under this section may not seek payment for any examination costs from insurance or another available source of payment unless the victim or any guardian of the victim authorizes the health care provider to seek payment.

SB40-CSA1,1478,20 (3) The department may not refuse to make an award under this section because the victim or the guardian of the victim does not cooperate with a law enforcement agency regarding the sex offense, or due to lack of an investigation or prosecution of the sex offense.

SB40-CSA1,1478,24 949.28 Limitations on awards. (1) No order for the payment of an award under this subchapter may be made unless the application was made within one year after the date of the examination. The department may waive the one-year requirement under this subsection in the interest of justice.

SB40-CSA1,1479,2 (2) The department may not make an award under this subchapter that exceeds the examination costs of the victim.

SB40-CSA1,1479,5 (3) The department may not make an award under this subchapter for any part of the examination costs of the victim for which the health care provider seeking the award has received compensation from any other source.

SB40-CSA1,1479,8 949.31 Hearings. (1) The procedure of ch. 227 for contested cases applies to hearings under this subchapter except as otherwise provided in this section and s. 949.32.

SB40-CSA1,1479,11 (2) The division of hearings and appeals in the department of administration shall appoint hearing examiners to make findings and orders under s. 227.46 and this subchapter.

SB40-CSA1,1479,15 (3) All hearings shall be open to the public unless in a particular case the examiner determines that the hearing, or a portion of the hearing, shall be held in private having regard to the fact that the offender has not been convicted or to the interest of the victim.

SB40-CSA1,1479,19 949.315 Subpoenas. The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this subchapter and may enforce compliance with such subpoenas as provided in s. 885.12.

SB40-CSA1,1479,23 949.32 Condition of victim. There is no privilege, except privileges arising from the attorney-client relationship, as to communications or records relevant to an issue of the physical condition of the victim in a proceeding under this subchapter in which that condition is an element.

SB40-CSA1,1480,3 949.33 Agency cooperation. Upon request by the department, any state or local agency, including a district attorney or law enforcement agency, shall make available all reports, files, and other appropriate information which the department requests in order to make a determination that a health care provider is eligible for an award under this subchapter.

SB40-CSA1,1480,8 949.36 Confidentiality. If a health care provider seeks an award under this subchapter, any personally identifiable information, as defined in s. 19.62 (5), of the victim who received the examination shall remain confidential unless written consent for the release of any personally identifiable information is provided by one of the following:

SB40-CSA1,1480,9 (1) Except as provided under sub. (2), the victim.

SB40-CSA1,1480,10 (2) If there is a guardian of the victim, the guardian of the victim.

SB40-CSA1,1480,12 949.37 Offenses. (1) Prohibition. In connection with an award under this subchapter, no person may do any of the following:

SB40-CSA1,1480,13 (a) Submit a fraudulent application or claim for an award.

SB40-CSA1,1480,15 (b) Intentionally make or cause to be made any false statement or representation of a material fact.

SB40-CSA1,1480,18 (c) Intentionally conceal or fail to disclose information affecting the amount of or the initial or continued right to any such award when reasonably requested to provide such information by the department.

SB40-CSA1,1480,21 (2) Penalties. Any person who violates this section shall be fined not more than $500 or imprisoned not more than 6 months or both. The person shall forfeit any benefit received and shall reimburse the state for payments received.

SB40-CSA1,1481,2 (3) Damages. The state has a civil cause of action for relief against any person who violates this section for the amount of damages that the state sustained by reason of the violation and, in addition, for punitive damages not more than double the amount of damages that the state may have sustained, together with interest, and the cost of the suit.

SB40-CSA1,1481,4 (4) Action. The attorney general may bring any action and has such powers as may be necessary to enforce this section.

SB40-CSA1,1481,7 949.38 Report by the department. The department's biennial report under s. 15.04 (1) (d) shall include a report of its activities under this subchapter including all of the following:

SB40-CSA1,1481,9 (1) An explanation of the procedures for filing and processing claims under this subchapter.

SB40-CSA1,1481,11 (2) A description of the programs and policies instituted to promote awareness about the awards under this subchapter.

SB40-CSA1,1481,12 (3) An analysis of future needs and suggested program improvements.

SB40-CSA1,1481,13 (4) A copy of the forms used under this subchapter.

SB40-CSA1,1481,15 (5) A complete statistical analysis of the cases handled under this subchapter, including all of the following:

SB40-CSA1,1481,16 (a) The number of claims filed.

SB40-CSA1,1481,17 (b) The number of claims approved and the amount of each award.

SB40-CSA1,1481,18 (c) The number of claims denied and the reasons for rejection.

SB40-CSA1,1481,19 (d) A breakdown of claims by geographic area and month.

SB40-CSA1, s. 3863 Section 3863. 950.04 (1v) (rm) of the statutes is amended to read:

SB40-CSA1,1481,21 950.04 (1v) (rm) To compensation, as provided under subch. I of ch. 949.

SB40-CSA1, s. 3864 Section 3864. 950.08 (2g) (b) of the statutes is amended to read:

SB40-CSA1,1481,25 950.08 (2g) (b) The availability of compensation under subch. I of ch. 949 and the address and telephone number at which to contact the department for information concerning compensation under subch. I of ch. 949.

SB40-CSA1, s. 3865 Section 3865. 950.08 (2r) (d) of the statutes is amended to read:

SB40-CSA1,1482,4 950.08 (2r) (d) The availability of compensation under subch. I of ch. 949, including information concerning eligibility for compensation and the procedure for applying for compensation.

SB40-CSA1, s. 3866 Section 3866. 961.41 (5) (c) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB40-CSA1,1482,9 961.41 (5) (c) 1. Two-thirds The first $850,000 plus two-thirds of all moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.435 (6) (gb).

SB40-CSA1,1482,13 2. One-third of all All moneys in excess of $850,000 and up to $1,275,000 plus one-third of moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.505 (6) (ku).

SB40-CSA1, s. 3869 Section 3869. 967.06 of the statutes is renumbered 967.06 (1) and amended to read:

SB40-CSA1,1482,21 967.06 (1) As soon as practicable after a person has been detained or arrested in connection with any offense which that is punishable by incarceration, or in connection with any civil commitment proceeding, or in any other situation in which a person is entitled to counsel regardless of ability to pay under the constitution or laws of the United States or this state, the person shall be informed of his or her right to counsel. Persons

SB40-CSA1,1483,4 (2) (a) Except as provided in par. (b), a person entitled to counsel under sub. (1) who indicate indicates at any time that they wish he or she wants to be represented by a lawyer, and who claim that they are claims that he or she is not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations specified under s. 977.07 (1). The authority for indigency determination in each county shall have daily telephone access to the county jail in order to identify all persons who are being held in the jail. The jail personnel shall provide by phone information requested by the authority.

SB40-CSA1,1483,10 (3) In any case in which the state public defender provides representation to an indigent person, the public defender may request that the applicable court reporter or clerk of circuit court prepare and transmit any transcript or court record. The request shall be complied with. The state public defender shall, from the appropriation under s. 20.550 (1) (f), compensate the court reporter or clerk of circuit court for the cost of preparing, handling, duplicating, and mailing the documents.

SB40-CSA1, s. 3870 Section 3870. 967.06 (2) (b) of the statutes is created to read:

SB40-CSA1,1483,15 967.06 (2) (b) If the person indicating that he or she wants to be represented by a lawyer is detained under ch. 48, 51, 55, or 938, the person shall be referred for appointment of counsel as provided under s. 48.23 (4), 51.60, 55.105, or 938.23 (4), whichever is applicable.

SB40-CSA1, s. 3871 Section 3871. 971.14 (3) (d) of the statutes is amended to read:

SB40-CSA1,1483,24 971.14 (3) (d) If the examiner reports that the defendant lacks competency, the examiner's opinion regarding the likelihood that the defendant, if provided treatment, may be restored to competency within the time period permitted under sub. (5) (a). The examiner shall provide an opinion as to whether the individual's treatment should occur in an inpatient facility designated by the department of health and family services, or should be conducted in a jail or a locked unit of a facility that has entered into a voluntary agreement with the state to serve as a location for treatment, or as a condition of bail or bond.

SB40-CSA1, s. 3872 Section 3872. 971.14 (5) (a) of the statutes is amended to read:

SB40-CSA1,1484,16 971.14 (5) (a) If the court determines that the defendant is not competent but is likely to become competent within the period specified in this paragraph if provided with appropriate treatment, the court shall suspend the proceedings and commit the defendant to the custody of the department of health and family services for placement in an appropriate institution for the department to determine whether treatment shall occur in an appropriate institution designated by the department, or in a community-based treatment conducted in a jail or a locked unit of a facility that has entered into a voluntary agreement with the state to serve as a location for treatment, or as a condition of bail or bond, for a period of time not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less. Under this subsection, the department of health and family services may commence services to a person in jail but shall, as soon as possible, transfer that person to an institution or provide services to the person in a nonjail setting consistent with this subsection. Days spent in commitment under this paragraph are considered days spent in custody under s. 973.155.

SB40-CSA1, s. 3873 Section 3873. 971.14 (5) (b) of the statutes is amended to read:

SB40-CSA1,1485,4 971.14 (5) (b) The defendant shall be periodically reexamined by the treatment facility department of health and family services examiners. Written reports of examination shall be furnished to the court 3 months after commitment, 6 months after commitment, 9 months after commitment and within 30 days prior to the expiration of commitment. Each report shall indicate either that the defendant has become competent, that the defendant remains incompetent but that attainment of competency is likely within the remaining commitment period, or that the defendant has not made such progress that attainment of competency is likely within the remaining commitment period. Any report indicating such a lack of sufficient progress shall include the examiner's opinion regarding whether the defendant is mentally ill, alcoholic, drug dependent, developmentally disabled or infirm because of aging or other like incapacities.

SB40-CSA1, s. 3874 Section 3874. 971.14 (5) (c) of the statutes is amended to read:

SB40-CSA1,1485,13 971.14 (5) (c) Upon receiving a report under par. (b), indicating the defendant has regained competency or is not competent and unlikely to become competent in the remaining commitment period, the court shall hold a hearing within 14 days of receipt of the report and the court shall proceed under sub. (4). If the court determines that the defendant has become competent, the defendant shall be discharged from commitment and the criminal proceeding shall be resumed. If the court determines that the defendant is making sufficient progress toward becoming competent, the commitment shall continue.

SB40-CSA1, s. 3875 Section 3875. 971.17 (3) (e) of the statutes is amended to read:

SB40-CSA1,1486,17 971.17 (3) (e) An order for conditional release places the person in the custody and control of the department of health and family services. A conditionally released person is subject to the conditions set by the court and to the rules of the department of health and family services. Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health and family services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health and family services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department of health and family services may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.