2005 Wisconsin Act 264

(2) Attendance. The petitioner shall ensure that the individual sought to be protected attends the hearing on the petition unless, after a personal interview, the guardian ad litem waives the attendance and so certifies in writing to the court the specific reasons why the individual is unable to attend. In determining whether to waive attendance by the individual, the guardian ad litem shall consider the ability of the individual to understand and meaningfully participate, the effect of the individual's attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the individual's expressed desires. If the individual is unable to attend a hearing only because of residency in a nursing home or other facility, physical inaccessibility, or lack of transportation, the court shall, if requested by the individual, the individual's guardian ad litem, the individual's counsel, or other interested person, hold the hearing in a place where the individual is able to attend.

(3) Hearing to be open. The hearing shall be open, unless the individual sought to be protected, or his or her attorney acting with the consent of the individual sought to be protected, requests that it be closed. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present.

(4) Rights. The following provisions apply to all hearings under this chapter except transfers of placement under s. 55.15 and summary hearings under ss. 55.18 (3) (d) and 55.19 (3) (d):

(a) Counsel; costs. The individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition. The court shall require representation by full legal counsel whenever the petition alleges that the individual is not competent to refuse psychotropic medication under s. 55.14, the individual sought to be protected requested such representation at least 72 hours before the hearing, the guardian ad litem or any other person states that the individual sought to be protected is opposed to the petition, or the court determines that the interests of justice require it. If the individual sought to be protected or any other person on his or her behalf requests but is unable to obtain legal counsel, the court shall appoint legal counsel. Counsel shall be provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is indigent. If the individual sought to be protected is an adult who is indigent, and if counsel was not appointed under s. 977.08, the county in which the hearing is held is liable for any fees due the individual's legal counsel. If the individual sought to be protected is represented by counsel appointed under s. 977.08 in a proceeding for the appointment of a guardian under s. 880.33, the court shall order the counsel appointed under s. 977.08 to represent under this section the individual sought to be protected.

(c) Trial by jury; right to cross examine witnesses. The individual sought to be protected has the right to a trial by a jury if demanded by the individual sought to be protected or his or her attorney or guardian ad litem. The number of jurors shall be determined under s. 756.06 (2) (b). The individual sought to be protected, and the individual's attorney and guardian ad litem have the right to present and cross-examine witnesses, including any person making an evaluation or review under s. 55.11.

(e) Independent evaluation. The individual sought to be protected has the right to secure an independent evaluation as provided in s. 55.11 (2).

Note: Creates a new section on hearing on the petition for protective placement or services, which incorporates and reorganizes provisions in current law. Also, modifies provision regarding attendance of the individual to be protected at the hearing. Specifies the rights that apply to all hearings under ch. 55. These rights are present under current law, but are contained in ch. 880 and only cross-referenced currently in ch. 55. This provisions specifies these rights within ch. 55 for easier reference.

264,161 Section 161. 55.11 of the statutes is created to read:

55.11 Comprehensive evaluation; recommendations; statements.

(2) If requested by the individual sought to be protected, or anyone on the individual's behalf, the individual sought to be protected has the right at his or her own expense, or, if indigent, at the expense of the county where the petition is filed, to secure an independent comprehensive evaluation, if an independent comprehensive evaluation has not already been made. The individual, or anyone on the individual's behalf, may present a report of this independent comprehensive evaluation or the evaluator's personal testimony as evidence at the hearing.

(3) A copy of the comprehensive evaluation and any independent comprehensive evaluation shall be provided to the individual's guardian, agent under any activated health care power of attorney, and guardian ad litem, and to the individual or the individual's attorney at least 96 hours in advance of the hearing to determine protective placement or protective services.

(4) Where applicable by reason of the particular disability, the county department or an agency with which it contracts under s. 55.02 (2) that has responsibility where the individual has legal residence shall make a recommendation for protective placement or protective services.

(5) If the court is considering protective placement of the individual in a center for the developmentally disabled, the court shall request a statement or testimony from the department regarding whether the protective placement is appropriate for the individual's needs and whether it is consistent with the purpose of the center under s. 51.06 (1).

(6) If the individual has a developmental disability and the court is considering protective placement of the individual in an intermediate facility or a nursing facility, the court shall request a statement or testimony from the county department of the individual's county of residence that is participating in the program under s. 46.278 as to whether the individual's needs could be met in a noninstitutional setting, except that, if s. 46.279 (4m) applies to the individual, the court shall request the statement or testimony from the department, rather than the county department.

Note: Creates a new section relating to a comprehensive evaluation in a protective placement or services proceeding, which incorporates and reorganizes provisions in current law. Also, creates a right to request an independent evaluation by a person who is the subject of a protective placement proceeding that is parallel to the right to request an independent evaluation in s. 880.33 (2) (b) when a person is the subject of a guardianship proceeding.

This right to an independent evaluation applies when such an evaluation has not already been made. For example, if a person who is the subject of both a guardianship and protective placement proceeding requested an independent evaluation under s. 880.33 (2) (b), the person would not also be able to request an independent evaluation under s. 55.11.

264,162 Section 162. 55.12 of the statutes is created to read:

55.12 Order for protective services or protective placement.

(7) If an individual to be protectively placed is a resident of a facility licensed for 16 or more beds, the court may consider whether moving the individual would create a serious risk of harm to that individual.

(8) The court may order protective services as an alternative to protective placement.

(9) The court may order psychotropic medication as a protective service only as provided in s. 55.14.

Note: Moves provisions in current s. 55.06 (9) (a), relating to orders for protective services or protective placements, to a newly created statutory section, s. 55.12. Also, creates additional provisions that clarify court orders relating to moving an individual who is a resident of a facility licensed for 16 or more beds; court orders for protective services as an alternative to placement; and court orders for psychotropic medication as a protective service.

264,163 Section 163. 55.13 (2) and (3) of the statutes are created to read:

55.13 (2) If the county department or agency with which the county department contracts under s. 55.02 (2) that is providing emergency protective services to an individual under sub. (1) has reason to believe that the individual meets the criteria for protective services under s. 55.08 (2), the county department or agency may file a petition under s. 55.075. If a petition is filed, a preliminary hearing shall be held within 72 hours, excluding Saturdays, Sundays, and legal holidays, to establish probable cause that the criteria under s. 55.08 (2) are present. The county department or agency shall provide the individual with written notice and orally inform the individual of the time and place of the preliminary hearing. If the individual is not under guardianship, a petition for guardianship shall accompany the petition under s. 55.08 (2), except in the case of a minor who is alleged to be developmentally disabled.

(3) Upon finding probable cause under sub. (2), the court may order emergency protective services to continue to be provided for up to 60 days pending the hearing on protective services under s. 55.10.

Note: Creates new provisions to provide direction to a county department that is providing emergency protective services to permit the department to file a petition for protective services for an individual who is receiving emergency protective services.

264,164 Section 164. 55.135 (title) of the statutes is created to read:

55.135 (title) Emergency and temporary protective placement.

Note: Creates a title for new statutory section on emergency and temporary protective placement.

264,165 Section 165. 55.14 of the statutes is created to read:

55.14 Involuntary administration of psychotropic medication. (1) In this section:

(a) "Involuntary administration of psychotropic medication" means any of the following:

1. Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication.

2. Forcibly restraining an individual to enable administration of psychotropic medication.

3. Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.

(c) "Protest" means make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of psychotropic medication. "Protest" does not mean a discernible negative response to a proposed method of administration of the psychotropic medication.

(d) "Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging behavior.

(2) Involuntary administration of psychotropic medication, with consent of a guardian, may be ordered as a protective service under the requirements of this section.

(3) In addition to the other requirements of this chapter pertaining to petitions for protective services, a petition under this section shall allege that all of the following are true:

(a) A physician has prescribed psychotropic medication for the individual.

(b) The individual is not competent to refuse psychotropic medication.

(c) The individual has refused to take the psychotropic medication voluntarily or attempting to administer psychotropic medication to the individual voluntarily is not feasible or is not in the best interests of the individual. If the petition alleges that the individual has refused to take psychotropic medication voluntarily, the petition shall identify the reasons, if known, for the individuals refusal to take psychotropic medication voluntarily. The petition also shall provide evidence showing that a reasonable number of documented attempts to administer psychotropic medication voluntarily using appropriate interventions that could reasonably be expected to increase the individual's willingness to take psychotropic medication voluntarily have been made and have been unsuccessful. If the petition alleges that attempting to administer psychotropic medications to the individual voluntarily is not feasible or is not in the best interests of the individual, the petition must identify specific reasons supporting that allegation.

(d) The individual's condition for which psychotropic medication has been prescribed is likely to be improved by administration of psychotropic medication and the individual is likely to respond positively to psychotropic medication.

(e) Unless psychotropic medication is administered involuntarily, the individual will incur an immediate or imminent substantial probability of physical harm, impairment, injury, or debilitation or will present a substantial probability of physical harm to others. The substantial probability of physical harm, impairment, injury, or debilitation shall be evidenced by one of the following:

1. The individual's history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act, or omissions that resulted from the individual's failure to participate in treatment, including psychotropic medication, and that resulted in a finding of probable cause for commitment under s. 51.20 (7), a settlement agreement approved by a court under s. 51.20 (8) (bg), or commitment ordered under s. 51.20 (13).

2. Evidence that the individual meets one of the dangerousness criteria set forth in s. 51.20 (1) (a) 2. a. to e.

(4) A petition under this section must include a written statement signed by a physician who has personal knowledge of the individual that provides general clinical information regarding the appropriate use of psychotropic medication for the individual's condition and specific data that indicates that the individual's current condition necessitates the use of psychotropic medication.

(5) The guardian ad litem appointed under s. 55.10 (4) (b) for an individual who is the subject of a petition under this section shall report to the court whether the allegations in the petition required under sub. (3) are true, and whether involuntary administration of psychotropic medication is in the best interests of the individual.

(6) If requested by an individual who is the subject of a petition under this section or anyone on his or her behalf, the individual has the right at his or her own expense, or if indigent at the expense of the county in which the petition is filed, to secure an independent medical or psychological examination relevant to the issues of whether the allegations in the petition required under sub. (3) are true, and whether involuntary administration of psychotropic medication is in the best interest of the individual, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.

(7) Upon the filing of a petition under this section, the court shall appoint counsel as required under s. 55.10 (4) (a). A petition under this section shall be heard within 30 days after it is filed.

(8) The court may issue an order authorizing an individual's guardian to consent to involuntary administration of psychotropic medication to the individual and may order involuntary administration of psychotropic medication to the individual as a protective service, with the guardian's consent, if the court or jury finds by clear and convincing evidence that the allegations in the petition required under sub. (3) are true, all other requirements for involuntary administration of psychotropic medication under this section have been met, psychotropic medication is necessary for treating the condition described in the statement under sub. (4), and all other requirements of this chapter for ordering protective services have been met. An order under this section shall do all of the following:

(a) Direct the development of a treatment plan for the individual specifying the protective services, including psychotropic medication as ordered by the treating physician, that the individual should receive. If the individual resides in a nursing home or hospital, the nursing home or hospital shall develop the treatment plan. If the individual resides elsewhere, the county department or an agency with which it contracts under s. 55.02 (2) shall develop the treatment plan. The treatment plan shall include a plan for the involuntary administration of psychotropic medication to the individual. The treatment plan is subject to the approval of the guardian and to review and approval by the court. If the court approves the plan, the court shall order the county department or an agency with which it contracts under s. 55.02 (2) to ensure that psychotropic medication is administered in accordance with the treatment plan.

(b) Order the individual to comply with the treatment plan under par. (a). The order shall provide that if the individual fails to comply with provisions of the treatment plan that require the individual to take psychotropic medications, the medications may be administered involuntarily with consent of the guardian. The order shall specify the methods of involuntary administration of psychotropic medication to which the guardian may consent. An order authorizing the forcible restraint of an individual shall specify that a person licensed under s. 441.06, 441.10, or 448.05 (2) or (5) shall be present at all times that psychotropic medication is administered in this manner and shall require the person or facility using forcible restraint to maintain records stating the date of each administration, the medication administered, and the method of forcible restraint utilized.

(9) If an individual who is subject to an order under this section is not in compliance with the order because he or she refuses to take psychotropic medication as ordered under the treatment plan, and it is necessary for the individual to be transported to an appropriate facility for forcible restraint for administration of psychotropic medication, the corporation counsel may file with the court a statement of the facts of the noncompliance of the individual. The statement shall be sworn to be true and shall be based upon the information and belief of the person filing the statement. The statement shall be signed by the individual's guardian and by the director or designee of the county department or an agency with which it contracts under s. 55.02 (2) to develop and administer the treatment plan. Upon receipt of the statement of noncompliance, if the court finds by clear and convincing evidence that the individual has substantially failed to comply with the administration of psychotropic medication as ordered under the treatment plan, the court may issue an order authorizing the sheriff or any other law enforcement agency in the county in which the individual is found or in which it is believed that the individual may be present to take the individual into custody and transport him or her to an appropriate facility for administration of psychotropic medication using forcible restraint, with consent of the guardian.

(10) Nothing in this section prohibits the involuntary administration of psychotropic medication as an emergency protective service under s. 55.13.

(11) The county department or an agency with which it contracts under s. 55.02 (2) shall provide to the department a copy of any order issued under this section that applies to any protectively placed individual in the county.

(12) The department shall annually submit to the legislature under s. 13.172 (2) a report regarding orders under this section.

(13) An order under this section is subject to annual review under s. 55.19.

Note: Establishes a procedure by which a court may order involuntary administration of psychotropic medication, with consent of a guardian, as a protective service, as described in detail in the prefatory note.

264,166 Section 166. 55.15 of the statutes is created to read:

55.15 Transfer of an individual under a protective placement order. (1) Transfers authorized. An individual under a protective placement order may be transferred between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility. The individual may not be transferred, under the protective placement order, to any facility for which commitment procedures are required under ch. 51.

(2) Who may transfer. A guardian, a county department or agency with which it contracts under s. 55.03 (2) that provided protective placement to the individual pursuant to the order of the court, the department, or a protective placement facility may transfer an individual under a protective placement order under the requirements of this section, notwithstanding the fact that a court order has named a specific facility for the protective placement of the individual.

(3) Consent of guardian required. No individual may be transferred under this section without the written consent of the individual's guardian, except in the case of an emergency transfer under sub. (5) (b).

(4) Consent of county department. No individual may be transferred under this section to a facility that is more costly to the county without the written consent of the county department, except in the case of an emergency transfer under sub. (5) (b).

(5) Notice of transfer. (a) Nonemergency transfer. A person or entity who initiates a transfer shall provide 10 days' prior written notice of a transfer to the court that ordered the protective placement and to each of the other persons and entities specified in sub. (2) who did not initiate the transfer. The notice of transfer shall include notice of the right of the individual under a protective placement, the individual's attorney, if any, or other interested person to petition the court for a hearing on the transfer.

(b) Emergency transfer. If an emergency makes it impossible to provide the notice specified in par. (a) or to obtain the prior written consent of the guardian specified in sub. (3), the individual may be transferred without the prior written consent of the guardian and without the notice specified in par. (a). Written notice shall be provided immediately upon transfer to each of the persons and entities specified under sub. (2) who did not initiate the transfer. Notice shall also be provided to the court that ordered the protective placement within a reasonable time, not to exceed 48 hours from the time of transfer. The notice shall include notice of the right to file with the court under sub. (6) a petition objecting to the emergency transfer.

(6) Petition. An individual under protective placement, the individual's guardian, the individual's attorney, if any, or any other interested person may file a petition with the court objecting to a proposed transfer or to an emergency transfer made under sub. (5) (b). The petition shall specify the reasons for the person's objection to the transfer.

(7) Hearing. (a) The court shall order a hearing within 10 days after the filing of a petition under sub. (6).

(b) The court shall notify the petitioner, the individual under protective placement, the individual's guardian, the individual's attorney, if any, and the county department of the time and place of the hearing.

(c) A guardian ad litem shall be appointed to represent the individual under protective placement at the hearing. If the individual is an adult who is indigent, the county in which the hearing is held shall be liable for guardian ad litem fees. If the individual is a minor, the individual's parents or the county in which the hearing is held shall be liable for guardian ad litem fees as provided in s. 48.235 (8).

(cm) The court shall appoint counsel for the individual under protective placement if the individual, the individual's guardian ad litem, or anyone on the individual's behalf requests that counsel be appointed for the individual

(d) The petitioner, individual under protective placement, the individual's guardian, the individual's guardian ad litem, and the individual's attorney, if any, have the right to attend the hearing and to present and cross-examine witnesses.

(8) Standard for transfer. In determining whether to approve a proposed transfer or an emergency transfer made under sub. (5) (b), the court shall consider all of the following:

(a) Whether the requirements of s. 55.12 (2) and (6) are met.

(b) Whether the protective placement is in the least restrictive environment consistent with the requirements of s. 55.12 (3), (4), and (5) or, if the transfer is to an intermediate facility or nursing facility, is in the most integrated setting, as defined in s. 46.279 (1) (bm).

(c) Whether the protective placement is in the best interests of the person under protective placement.

(9) Order relating to transfer. Following the hearing under sub. (7), the court shall do one of the following:

(a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's proposed protective placement does not meet the standards for transfer under sub. (8), the court shall issue an order prohibiting the transfer. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards under sub. (8) in support of the denial of the transfer.

(b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the proposed transfer meets the standard under sub. (8), the court shall approve the proposed transfer. The court may order protective services along with transfer of protective placement. The court shall include the information relied upon as a basis for the order and shall make findings based on the standards in s. 55.08 (1) in support of the need for continued protective placement.

(c) If the court finds that the individual no longer meets the standards under s. 55.08 (1), the court shall terminate the protective placement, as provided in s. 55.17.

Note: Revises the provisions in current law regarding transfers of protective placements. Provides that transfers between placement units, between placement facilities, or from a placement facility to a medical facility (provided that the medical facility is not a psychiatric facility), may be made by a county or the Department of Health and Family Services (DHFS), in addition to a guardian or placement facility. However, if such a transfer is made, 10 days' prior written notice must be given by the transferring entity to the guardian, the county, the department, and the placement facility. Further, this bill requires that a county, the department, or placement facility making such a transfer must obtain the prior written consent of the guardian. If an emergency precludes providing the required prior written notice, or precludes obtaining the guardian's prior written consent, written notice must be provided immediately upon transfer. Under the bill, if a guardian, ward or attorney, or other interested person files a petition specifying objections to a transfer, the court must order a hearing within 10 days after filing the petition, or within 96 hours after filing of the petition in the case of an emergency transfer made without the required prior written notice and prior written consent of the guardian.

For nonemergency transfers, the purpose of the hearing is to determine whether the proposed placement meets the standards of s. 55.12 (2) and (6), is in the least restrictive environment or most integrated setting, and is in the best interests of the ward.

264,167 Section 167. 55.16 of the statutes is created to read:

55.16 Modification of an order for protective placement or protective services. (1) Use of transfer provisions. If a petitioner is an entity authorized under s. 55.15 (2) to transfer an individual under a protective placement and the modification sought is a transfer of an individual between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility that is not a psychiatric facility, the petitioner may utilize the procedure in s. 55.15 in lieu of the procedure under this subsection.

(2) Petition. (a) Filing; services. An individual under protective placement or receiving protective services, the individual's guardian, the individual's legal counsel or guardian ad litem, if any, the department, the county department that placed the individual or provided the protective services under an order of the court, an agency with which the county department contracts under s. 55.02 (2), or any interested person may file a petition at any time for modification of an order for protective services or protective placement. The petition shall be served on the individual, the individual's guardian, the individual's legal counsel and guardian ad litem, if any, and the county department.

(b) Modification of an order for protective placement; allegations. A petition for modification of an order for protective placement shall make one of the following allegations:

1. That the protective placement is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3), (4), and (5).

2. That a protective placement in a facility with a higher level of restrictiveness would be more consistent with the requirements of s. 55.12 (3), (4), and (5).

3. That a protective placement in a different facility with the same level of restrictiveness as the current placement would be more consistent with the requirements of s. 55.12 (4) and (5) for reasons unrelated to the level of restrictiveness.