AB575: Bill Text

The Bill. Under the bill, if the individual has dementia, the physician statement must also state that a physician has determined and documented in writing that there is a reasonable probability that the behavior for which treatment with psychotropic medication is sought is not caused by a physical condition or illness that could be treated successfully by means other than psychotropic medication.

Requirement Applicable to Certain Long-Term Care Facilities

Current Law. Current law authorizing IAPM as a protective service does not contain any requirements regarding efforts made by a long-term care facility to address behaviors by means other than psychotropic medication.

The Bill. Under the bill, if the individual who is the subject of a petition for IAPM has dementia and resides in a nursing home, a community-based residential facility, an adult family home, or a residential care apartment complex, the petition must allege that reasonable efforts have been made to address or accommodate the behavior or condition for which treatment with psychotropic medication is sought. Evidence of the facility's response to the individual's behavior or condition, as documented in records maintained by the facility, must be attached to the petition.

Emergency Protective Placement of an Individual With Dementia in an Dementia Crisis Unit

Current Law

Under current law, an individual may be placed in a protective placement facility (but not a dementia crisis unit) without a court order if it appears probable that an individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious physical harm to himself or herself or others as a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities if not immediately placed. This is referred to as an "emergency protective placement".

The person making the emergency protective placement must file a petition for permanent protective placement, and a probable cause hearing must be held within 72 hours. If probable cause for permanent protective placement is found, the court may order temporary protective placement in the dementia crisis unit for up to 30 days pending the final hearing on permanent placement.

Under current law, emergency protective placement may not be made to a unit for the acutely mentally ill, and no individual who is subject to an order for protective placement or services may be involuntarily transferred to, detained in, or committed to a treatment facility for care except under s. 51.15 or 51.20.

The Bill

The bill allows a sheriff, police officer, fire fighter, guardian, or authorized representative of a county department or an agency with which it contracts to take an individual into custody and transport them to a medical facility or a dementia crisis unit if it appears probable that the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious physical harm to himself or herself or others as a result of dementia, mental illness, or a psychiatric condition if not immediately placed and, in addition, all of the following are true:

(a) The individual has dementia, or based on observation and currently available information, appears to have dementia.

(b) The individual has engaged in behavior that creates a substantial risk of serious physical harm to himself or herself or others as manifested by recent acts or omissions.

(c) It appears probable that unless the individual is admitted to a dementia crisis unit for behavioral or psychiatric evaluation, diagnosis, services, or treatment, the individual will incur a substantial probability of physical harm, impairment, injury, or debilitation or will present a substantial probability of physical harm to others. The substantial probability shall be shown by evidence of recent acts, attempts, or behavior of the individual, a pattern of recent acts or omissions by the individual, or by evidence that the individual or others are placed at substantial risk of serious physical harm to them, as evidenced by a recent overt act, attempt, or threat to do serious physical harm by the individual.

An individual who has been detained as described above may be admitted to a dementia crisis unit as an emergency protective placement if both of the following are true:

(d) A physician has conducted a physical examination of the individual and determined and documented in writing that there is a reasonable probability that the behavior is not caused by a physical condition or illness that could be treated safely and appropriately in a setting other than a dementia crisis unit and the physician recommends that the individual be placed in a dementia crisis unit for behavioral or psychiatric evaluation, diagnosis, services, or treatment.

(e) The placement is in an environment that is appropriate for the individual.

The person who takes an individual into custody must prepare a statement at the time of detention providing specific factual information concerning the person's observations, or reports made to the person, and the basis for emergency placement. If the individual is admitted to a dementia crisis unit, the statement must be filed with the director of the dementia crisis unit. The director or designee must provide the individual with a copy of the statement by the person making emergency protective placement.

If the individual was detained at a facility other than the dementia crisis unit to which they are admitted, an individual who is authorized to detain the individual may transport them to the dementia crisis unit.

At the time of admission, the director of the dementia crisis unit, or the director's designee, must inform the individual, orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family and the right to have an attorney provided at public expense.

False Statements; Liability. The bill provides that whoever signs a statement, described above, while knowing the information in the statement is false, is guilty of a Class H felony. The bill also provides that a person who acts in accordance with any of the provisions pertaining to emergency protective placement is not liable for any actions performed in good faith.

Petition. The person making the emergency protective placement must file a petition for protective placement that alleges that the individual meets the grounds for protective placement and that all of the items listed in items (a) through (e), above, are true.

Probable Cause Hearing. A probable cause hearing must be held within 96 hours of detention, excluding Saturdays, Sundays, and legal holidays. An individual is considered to be detained when he or she is taken into custody for the purpose of emergency protective placement. At the request of the subject individual, or his or her counsel or guardian ad litem, the probable cause hearing may be postponed, but in no case may the postponement exceed 7 days from the date of emergency protective placement. If the individual is not under guardianship, a petition for guardianship must accompany the petition for protective placement. The bill provides that if the court finds that the individual has dementia but is not likely to be found incompetent or that protective placement is otherwise not appropriate, the court may elect to treat the petition as a petition for involuntary commitment under ch. 51.

Order for Temporary Protective Placement in a Dementia Crisis Unit. The court may, at the probable cause hearing, order temporary protective placement of the individual in a dementia crisis unit for up to 45 days, pending the hearing on the petition for permanent protective placement. The court may make this order if it finds probable cause to believe that the grounds for emergency protective placement exist and all of the allegations listed in items (a) through (e), above, are true. The court may order protective services as may be required. If the court does not find probable cause for placement in a dementia crisis unit but does find probable cause for placement in a protective placement facility other than a dementia crisis unit, it shall so order.

Transportation Upon Discharge. The order, and any subsequent extension of the order, must state that the county in which the original order for protective placement of the individual was issued is responsible for transportation of the individual to any facility to which placement of the individual is ordered upon discharge of the individual from the dementia crisis unit.

Final Hearing on Protective Placement. The hearing on permanent protective placement must be held within 45 days after the emergency protective placement in a dementia crisis unit. At the hearing on the permanent protective placement petition, the court may order placement in a protective placement facility, but not a dementia crisis unit. If continued placement in the dementia crisis unit is desired, a petition for extension of the order for temporary placement must be filed, as described below. Current law provides the right to a jury trial if demanded by the individual sought to be protected or his or her attorney or guardian ad litem. The court must require a comprehensive evaluation of the individual, and the individual has the right to secure an independent evaluation as provided in s. 55.11 (2).

Extension of Temporary Protective Placement in a Dementia Crisis Unit

Under the bill, the order for temporary placement in the dementia crisis unit may be extended for 60 days beyond the initial 45-day temporary placement period if certain requirements are met. A petition for extension of the temporary placement must be filed prior to the hearing on the petition for permanent protective placement. If the court orders permanent protective placement of the individual, the hearing on the petition for extension is held immediately after that order is issued. If the court does not order permanent protective placement of the individual, the petition for extension must be dismissed. If requested, a jury trial must be held. Allegations similar to those required to be proven at the probable cause hearing must be proven. The court must also appoint 2 examiners, as is required for involuntary commitments under ch. 51, to examine the individual and provide a report to the court before the hearing or trial. The court may order an extension for a period of not more than 60 days.

Subsequent Extensions of Temporary Protective Placement in an Dementia Crisis Unit

Temporary placement in the dementia crisis unit may be extended in subsequent increments of no more than 60 days each. For each such extension, a petition alleging that the individual meets the standards for temporary placement in the dementia crisis unit must be filed no later than 10 days prior to the expiration of the most-recently issued order for temporary placement. If an emergency makes it impossible to file a petition sooner, a petition may be filed up to 72 hours prior to expiration of the period of temporary protective placement. The petition must be served on the individual, the individual's guardian, the individual's legal counsel and guardian ad litem, if any, and the county department. Examination by 2 experts must be conducted and a hearing must be held. A trial by a jury must be provided if demanded by the individual or his or her attorney or guardian ad litem. After the hearing, if grounds for continued placement of the individual are proven, the court may issue an order extending the temporary placement for up to 60 days.

Temporary Transfer of a Protectively Placed Individual With Dementia to a Dementia Crisis Unit

Current Law

Under current law, an individual under a protective placement order may not be transferred to any facility for which commitment procedures are required under ch. 51.

The Bill

The bill authorizes the court to order the transfer of an individual with dementia who is under a protective placement order to a dementia crisis unit for behavioral or psychiatric evaluation, diagnosis, services, or treatment, for a period not to exceed 45 days, as described below.

Petition. The bill provides that any of the following may file a petition for transfer of an individual to a dementia crisis unit: the individual's guardian, a county department (or agency with which it contracts), DHS, or any interested person.

A petition for transfer of an individual who is under a protective placement order to a dementia crisis unit must allege all of the following:

(a) The individual has been diagnosed with dementia or appears to have dementia.

(b) The individual has engaged in behavior that creates a substantial risk of serious physical harm to himself or herself or others as manifested by recent acts or omissions.

(c) A physician who has personal knowledge of the individual has conducted a physical examination of the individual within the past 7 days and, based on that examination, the following are true:

1. The physician has determined and documented in writing that there is a reasonable probability that the behavior is not caused by a physical condition or illness that could be treated safely and appropriately in a setting other than a dementia crisis unit.

2. The physician has determined that there is a reasonable probability that the individual's behavior or condition may be improved by transfer to a dementia crisis unit for behavioral or psychiatric evaluation, diagnosis, services, or treatment.

(d) Unless the individual is temporarily transferred to a dementia crisis unit for behavioral or psychiatric evaluation, diagnosis, services, or treatment, the individual will incur a substantial probability of being subject to a change in permanent placement to a more restrictive setting due to the inability of the current placement facility to provide for the safety of the individual or others due to the behavior of the individual. The substantial probability of a change in placement to a more restrictive setting must be shown by the following:

1. Evidence of recent acts, attempts, or behavior of the individual, a pattern of recent acts or omissions by the individual, or by evidence that the individual or others are placed at substantial risk of serious physical harm to them, as evidenced by a recent overt act, attempt, or threat to do serious physical harm by the individual.

2. Evidence of the facility's response to the individual's acts, attempts, omissions, or threats described above, as documented in records maintained by the facility.

(e) The protective placement facility has made reasonable efforts to address or accommodate the behavior or condition for which behavioral or psychiatric evaluation, diagnosis, services, or treatment in a dementia crisis unit is sought and these steps are documented in the individual's plan of care.

(f) The proposed placement is in an environment that is appropriate for the individual.

(g) The protective placement facility has prepared detailed documentation of the behaviors or condition of the individual that necessitate inpatient behavioral or psychiatric evaluation, diagnosis, services, or treatment, including detailed information regarding the physical examination conducted and efforts taken by the facility to address or accommodate the individual's behavior, and provides this documentation to the dementia crisis unit.

(h) One of the following is true:

1. The protective placement facility has a plan in place for the orderly return of the individual upon discharge from the dementia crisis unit, which specifies the conditions under which the individual will be readmitted to the facility, and a copy of the plan is included with the petition.

2. The protective placement facility has determined that readmission of the individual to the facility upon discharge from the dementia crisis unit is not in the best interests of the individual, and includes, with the petition, specific factual information supporting this conclusion.

Consent of Guardian and County Department Required. Under the bill, the written consent of the individual's guardian and the county department are required in order to carry out a transfer to a dementia crisis unit, except in the case of an emergency transfer, as described below.

Hearing; Order to Transfer. The court must hold a hearing within 72 hours after the filing of a petition for transfer. At the request of the individual, or his or her counsel or guardian ad litem, the hearing may be postponed for up to 7 days from the date of emergency transfer.

At the hearing, the court must consider whether the standards for transfer described above have been met and whether the proposed transfer to a dementia crisis unit is in the best interests of the person under protective placement.

Following the hearing, the court must do one of the following:

(a) If the court finds that the individual continues to meet the standards for protective placement and the proposed transfer to a dementia crisis unit does not meet the standards for transfer, the court must issue an order prohibiting the transfer. The court must include the information relied upon as a basis for the order and make findings based on those standards in support of the denial of the transfer.

(b) If the court finds that the individual continues to meet the standards for protective placement and the proposed transfer to a dementia crisis unit meets the standards for transfer, the court must order the transfer of the individual to a dementia crisis unit for a period not to exceed 45 days.

(c) If the court finds that the individual no longer meets the standards for protective placement the court must terminate the protective placement.

Emergency Transfer of Placement of an Individual With Dementia to Dementia Crisis Unit; Probable Cause Hearing; Order

If an emergency makes it impossible to file a petition prior to transfer to a dementia crisis unit or to obtain the prior written consent of the guardian, the individual may be transferred without the prior written consent of the guardian and without a prior court order. A petition containing all of the allegations required for temporary transfer to a dementia crisis unit, and identification of the specific facts and circumstances which made it impossible to carry out the transfer under the nonemergency procedures, must be filed immediately upon transfer.

The court must hold a hearing within 72 hours of the transfer. At the request of the subject individual, or his or her counsel or guardian ad litem, the probable cause hearing may be postponed for up to 7 days from the date of the emergency transfer.

After the hearing, the court must issue an order based upon its findings, as set forth above in the description of nonemergency temporary transfer procedures. In addition to the factors that must be considered for nonemergency transfers, the court must also consider whether there is probable cause to believe the allegations that an emergency made it impossible to file a petition and carry out the transfer as a nonemergency transfer.

Transportation Upon Discharge. The order for transfer to a dementia crisis unit, and any subsequent extension of the order, must state that the county in which the original order for protective placement of the individual was issued is responsible for transportation of the individual to any facility to which placement of the individual is ordered upon discharge of the individual from the dementia crisis unit.

Extension of Temporary Transfer to a Dementia Crisis Unit

The order for temporary transfer to a dementia crisis unit may be extended for 60 days beyond the initial 45-day period of transfer if a petition for extension of the temporary placement is filed before expiration of the order for temporary placement, and the court orders the extension after a hearing. If requested, a jury trial must be held. Allegations similar to those required to be proven at the probable cause hearing must be proven. The court must also appoint 2 examiners, as is required for involuntary commitments under ch. 51, to examine the individual and provide a report to the court before the hearing or trial.

Subsequent Extensions of Temporary Transfer to a Dementia Crisis Unit

Temporary transfer to a dementia crisis unit may be subsequently extended in increments of no more than 60 days. For each such extension, a petition alleging that the individual meets the standards for temporary transfer to the dementia crisis unit must be filed no later than 10 days prior to the expiration of the most-recently issued order for temporary transfer. If an emergency makes it impossible to file a petition sooner, a petition may be filed up to 72 hours prior to expiration of the period of temporary transfer.

The petition must be served on the individual, the individual's guardian, the individual's legal counsel, and guardian ad litem, if any, and the county department. Examination by 2 experts must be conducted and a hearing must be held. The examiner's reports must be made available 72 hours in advance of the hearing. A trial by a jury must be provided if demanded by the individual sought to be protected or his or her attorney or guardian ad litem. After the hearing, if grounds for continued transfer to the dementia crisis unit are proven, the court must issue an order extending the temporary placement for up to 60 days.

Medication and Treatment of an Individual With Dementia in a Dementia Crisis Unit

When an individual with dementia is placed or remains in a dementia crisis unit under any of the new procedures created in the bill, the director and staff of the dementia crisis unit may evaluate, diagnose and treat the individual if the individual consents. The individual has a right to refuse medication and treatment, except as provided in an order for involuntary administration of psychotropic medication as a protective service or an emergency protective service, or in a situation in which medication or treatment is necessary to prevent serious physical harm to the individual or others. The individual must be advised of these rights by the director of the dementia crisis unit or his or her designee.

Provisions Applicable to Dementia Crisis Units Used for Emergency or Temporary Protective Placements; Liability

Discharge

The bill provides that when, upon the advice of the treatment staff, the director of a dementia crisis unit to which an individual has been transferred or placed for emergency protective placement determines that the grounds for transfer or emergency placement no longer exist, he or she must notify the county department in order to arrange for transfer of the individual to a protective placement facility.

Liability

Any individual who acts in accordance with the provisions of the bill, including making a determination that an individual has or does not have dementia or evidences or does not evidence a substantial probability of harm, is not liable for any actions taken in good faith. The good faith of the actor shall be presumed in any civil action. The bill states that whomever asserts that the individual who acts in accordance with this section has not acted in good faith has the burden of proving that assertion by evidence that is clear, satisfactory, and convincing.

AB575,1 Section 1. 51.01 (4r) of the statutes is amended to read:

AB575,13,6 51.01 (4r) "Degenerative brain disorder" means the loss or dysfunction of brain cells to the extent that the individual is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs. "Degenerative brain disorder" includes dementia.

AB575,2 Section 2. 51.01 (4v) of the statutes is created to read:

AB575,14,5 51.01 (4v) "Dementia" means deterioration or loss of intellectual faculties, reasoning power, memory, and will due to organic brain disease characterized by confusion, disorientation, apathy, or stupor of varying degrees that is not capable of being reversed and from which recovery is impossible. "Dementia" includes Alzheimer's disease.

AB575,3 Section 3. 51.01 (13) (b) of the statutes is amended to read:

AB575,14,10 51.01 (13) (b) "Mental illness", for purposes of involuntary commitment, means a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but does not include dementia or alcoholism.

AB575,4 Section 4. 51.12 of the statutes is created to read:

AB575,14,14 51.12 Involuntary admissions under protective placement procedures. Admission to a dementia crisis unit as defined under s. 55.01 (1y) may be made under protective placement procedures under ss. 55.59 and 55.65.

AB575,5 Section 5. 51.15 (1) (a) (intro.) of the statutes is amended to read:

AB575,14,22 51.15 (1) (a) (intro.) A Except as provided in sub. (1m), a law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 may take an individual into custody if the officer or person has cause to believe that the individual is mentally ill, is drug dependent, or is developmentally disabled and, based on observation and currently available information, that the individual does not have or does not appear to have dementia, and that the individual evidences any of the following:

AB575,6 Section 6. 51.15 (1m) of the statutes is created to read:

AB575,15,5 51.15 (1m) Detention of individuals with dementia. An individual who has or, based on observation and currently available information, appears to have dementia may not be detained under this section. An individual who has or, based on observation and currently available information, appears to have dementia may be detained only as provided under s. 55.59 for purposes of emergency protective placement or as provided under s. 55.65 for purposes of transfer of protective placement.

AB575,7 Section 7. 51.20 (1) (a) 1m. of the statutes is created to read:

AB575,15,9 51.20 (1) (a) 1m. Based on observation and currently available information, the individual does not have or appear to have dementia or the individual has or appears to have dementia but is competent.