2005 Wisconsin Act 388

1. The elder adult at risk or his or her guardian or agent under an activated power of attorney for health care, if any, consents to the examination.

2. The elder adult at risk is incapable of consenting to the examination and one of the following applies:

a. The elder adult at risk has no guardian or agent under an activated power of attorney for health care.

b. The elder adult at risk has a guardian or an agent under an activated power of attorney for health care, but that guardian or agent is the person suspected of abusing, neglecting, or financially exploiting the elder adult at risk.

c. The examination is authorized by order of a court.

388,52 Section 52. 46.90 (5) (c) of the statutes is amended to read:

46.90 (5) (c) If an investigator so requests, The elder-adult-at-risk agency may request a sheriff or police officer shall to accompany the elder-adult-at-risk agency investigator or worker during visits to the elder person's residence and shall provide of the elder adult at risk or request other assistance as needed. If the request is made, a sheriff or police officer shall accompany the elder-adult-at-risk agency investigator or worker to the residence of the elder adult at risk and shall provide other assistance as requested or necessary.

388,53 Section 53. 46.90 (5) (d) 1. of the statutes is renumbered 46.90 (5) (d) and amended to read:

46.90 (5) (d) If any a person except the elder person in question interferes with the response or investigation under this subsection or interferes with the delivery of protective services under ch. 55 to the elder adult at risk, the elder-adult-at-risk agency investigator or worker may apply for an order under ch. 813 s. 813.123 prohibiting the interference.

388,54 Section 54. 46.90 (5) (d) 2. of the statutes is repealed.

388,55 Section 55. 46.90 (5) (f) of the statutes is amended to read:

46.90 (5) (f) If the investigator elder-adult-at-risk agency worker or investigator or other agency investigator has reason to believe that substantial physical harm, irreparable injury, or death may occur to an elder person adult at risk, the worker or investigator shall immediately notify the protective services agency designated under s. 55.02 request immediate assistance in either initiating a protective services action under ch. 55 or contact law enforcement or another public agency, as appropriate.

388,56 Section 56. 46.90 (5) (g) of the statutes is repealed.

388,57 Section 57. 46.90 (5) (h) of the statutes is created to read:

46.90 (5) (h) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for responding to a report or for participating in or conducting an investigation under this subsection, including the taking of photographs or the conducting of a medical examination, if the response or investigation was performed in good faith and within the scope of his or her authority.

388,58 Section 58. 46.90 (5m) (title) and (a) of the statutes are amended to read:

46.90 (5m) (title) Provision Offer of services and referral of cases. (a) After the investigation is completed Upon responding to a report, the county elder-adult-at-risk agency or the investigating investigative agency shall determine if whether the elder person adult at risk or any other individual involved in the alleged abuse, material abuse financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 47, 49, 51 or, 55 or 880. From the appropriation under s. 20.435 (7) (dh), the department shall allocate to selected counties not less than $25,000 in each fiscal year, and within the limits of these funds and of available state and federal funds and of county funds appropriated to match the state and federal funds, the county elder-adult-at-risk agency shall provide the necessary direct services to the elder person adult at risk or other individual or arrange for the provision of the direct services with other agencies or individuals. Those direct services provided shall be rendered under the least restrictive conditions necessary to achieve their objective.

388,59 Section 59. 46.90 (5m) (b) of the statutes is amended to read:

46.90 (5m) (b) If the county agency designated under sub. (2) elder-adult-at-risk agency is not the aging unit, the county elder-adult-at-risk agency in each county shall consult with and accept advice from the aging unit with respect to the distribution of the funds for direct services that are allocated under par. (a).

388,60 Section 60. 46.90 (5m) (br) of the statutes is created to read:

46.90 (5m) (br) If, after responding to a report, the elder-adult-at-risk agency has reason to believe that the elder adult at risk has been the subject of abuse, financial exploitation, neglect, or self-neglect, the elder-adult-at-risk agency may do any of the following:

1. Request immediate assistance in initiating a protective services action under ch. 55 or contact an investigative agency, as appropriate.

2. Take appropriate emergency action, including emergency protective placement under s. 55.06, if the elder-adult-at-risk agency determines that the emergency action is in the best interests of the elder adult at risk and the emergency action is the least restrictive appropriate intervention.

3. Refer the case to law enforcement officials, as specified in sub. (3) (a), for further investigation or to the district attorney, if the elder-adult-at-risk agency has reason to believe that a crime has been committed.

4. Refer the case to the licensing, permitting, registration, or certification authorities of the department or to other regulatory bodies if the residence, facility, or program for the elder adult at risk is or should be licensed, permitted, registered, or certified or is otherwise regulated.

5. Refer the case to the department of regulation and licensing if the financial exploitation, neglect, self-neglect, or abuse involves an individual who is required to hold a credential, as defined in s. 440.01 (2) (a), under chs. 440 to 460.

6. Bring a petition for a guardianship and protective services or protective placement under ch. 55 or a review of an existing guardianship if necessary to prevent financial exploitation, neglect, self-neglect, or abuse and if the elder adult at risk would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter, or services.

388,61 Section 61. 46.90 (5m) (c) of the statutes is amended to read:

46.90 (5m) (c) An elder person adult at risk may refuse to accept services unless a guardian authorizes the services. The county elder-adult-at-risk agency or other provider agency shall notify the elder person adult at risk of this right to refuse before providing services.

388,62 Section 62. 46.90 (6) (a) of the statutes is renumbered 46.90 (6) (am) and amended to read:

46.90 (6) (am) The county elder-adult-at-risk agency or other investigating agency shall prepare a departmental report on each investigation it conducts unless the agency finds, at the conclusion of the investigation, that the report of alleged abuse, material abuse, neglect or self-neglect is without foundation form of its response under sub. (5) to a report of suspected abuse, financial exploitation, neglect, or self-neglect. If an agency other than the county agency conducts the investigation, it the elder-adult-at-risk agency refers the report to an investigative agency, the investigative agency shall submit a copy of the investigation report to the county agency advise the elder-adult-at-risk agency in writing of its response to the report. The elder-adult-at-risk agency shall maintain records of suspected abuse, financial exploitation, neglect, or self-neglect.

388,63 Section 63. 46.90 (6) (ac) of the statutes is created to read:

46.90 (6) (ac) In this subsection:

1. "Departmental report form" includes documentation of an elder-adult-at-risk agency's response to or investigation of a report made under sub. (5) and is the information required to be submitted to the department.

2. "Record" includes any document relating to the response, investigation, assessment, and disposition of a report made under this section.

388,64 Section 64. 46.90 (6) (b) (intro.) of the statutes is amended to read:

46.90 (6) (b) (intro.) Reports of suspected abuse, material abuse, neglect or self-neglect and investigation reports under this section Departmental report forms are confidential and may not be released by the county elder-adult-at-risk agency or other investigating investigative agency, except under the following circumstances they may be released:

388,65 Section 65. 46.90 (6) (b) 1. of the statutes is amended to read:

46.90 (6) (b) 1. To the elder person and adult at risk, any person named in a departmental report form who is suspected of abusing or, neglecting, or financially exploiting an elder person adult at risk, and the suspect's attorney. These persons may inspect the departmental report on the investigation form, except that information identifying the person who initially reported the suspected abuse, material abuse financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

388,66 Section 66. 46.90 (6) (b) 2. of the statutes is amended to read:

46.90 (6) (b) 2. To the protective services agency notified or other entity from which assistance is requested under sub. (5) (f). Information obtained under this subdivision shall remain confidential.

388,67 Section 67. 46.90 (6) (b) 3. of the statutes is amended to read:

46.90 (6) (b) 3. To an individual, organization, or agency designated by the department or as required by law for the purposes of management audits or program monitoring and evaluation. Information obtained under this subdivision shall remain confidential and shall may not be used in any way that discloses the names of or other identifying information about the individuals involved.

388,68 Section 68. 46.90 (6) (b) 4. of the statutes is amended to read:

46.90 (6) (b) 4. For purposes of research, if the research project has been approved by the department or the county elder-adult-at-risk agency and the researcher has provided assurances that the information will be used only for the purposes for which it was provided to the researcher, the information will not be released to a person not connected with the study under consideration, and the final product of the research will not reveal information that may serve to identify the individuals involved. Such The information shall remain confidential. In approving research projects the use of information under this subdivision, the department shall impose any additional safeguards needed to prevent unwarranted disclosure of information.

388,69 Section 69. 46.90 (6) (b) 5. of the statutes is amended to read:

46.90 (6) (b) 5. Pursuant to Under a lawful order of a court of record.

388,70 Section 70. 46.90 (6) (b) 6. of the statutes is amended to read:

46.90 (6) (b) 6. To any agency or individual that provides direct services under sub. (5m), including an attending physician for purposes of diagnosis and treatment, and within the department to coordinate treatment for mental illness, developmental disabilities, alcoholism, or drug abuse of individuals committed to or under the supervision of the department. Information obtained under this subdivision shall remain confidential.

388,71 Section 71. 46.90 (6) (b) 7. of the statutes is amended to read:

46.90 (6) (b) 7. To the guardian of the elder person adult at risk or the guardian of any person named in a report who is suspected of abusing or, neglecting, or financially exploiting an elder person adult at risk. These persons may inspect the departmental report on the investigation form, except that information identifying the person who initially reported the suspected abuse, material abuse financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

388,72 Section 72. 46.90 (6) (b) 9. and 10. of the statutes are created to read:

46.90 (6) (b) 9. To a federal agency, state governmental agency, agency of any other state, or local governmental unit in this state or any other state that has a need for a departmental report form in order to carry out its responsibility to protect elder adults at risk from abuse, financial exploitation, neglect, or self-neglect.

10. To the reporter who made a report in his or her professional capacity, regarding action to be taken to protect or provide services to the alleged victim of abuse, financial exploitation, neglect, or self-neglect.

388,73 Section 73. 46.90 (6) (bd) of the statutes is created to read:

46.90 (6) (bd) If a person requesting a departmental report form is not one of the persons or entities specified in par. (b), the elder-adult-at-risk agency may release information indicating only whether or not a report was received and whether or not statutory responsibility was fulfilled.

388,74 Section 74. 46.90 (6) (br) of the statutes is created to read:

46.90 (6) (br) Notwithstanding par. (b) 1. to 10., an elder-adult-at-risk agency or an investigative agency may not release departmental report forms under this section if any of the following applies:

1. The elder-adult-at-risk agency determines that the release would be contrary to the best interests of the elder adult at risk who is the subject of the departmental report form or of another person residing with the subject of the departmental report form, or the release is likely to cause mental, emotional, or physical harm to the subject of the departmental report form or to any other individual.

2. The district attorney determines that disclosure of the information would jeopardize any ongoing or future criminal investigation or prosecution or would jeopardize a defendant's right to a fair trial.

3. The elder-adult-at-risk agency determines that disclosure would jeopardize ongoing or future civil investigations or proceedings or would jeopardize the fairness of such a legal proceeding.

388,75 Section 75. 46.90 (6) (bt) of the statutes is created to read:

46.90 (6) (bt) Subject to pars. (b), (bd), (br), (bv), and (bw), records under this subsection are confidential and may not be released by the elder-adult-at-risk agency or other investigative agency, except under the following circumstances, upon request:

1. To the elder adult at risk who is the alleged victim named in the record.

2. To the legal guardian, conservator, or other legal representative of the elder adult at risk who is the alleged victim named in the record, if the legal guardian, conservator, or other legal representative of the alleged victim is not the alleged perpetrator of the abuse, financial exploitation, or neglect.

3. To law enforcement officials and agencies in accordance with the policy developed under sub. (3) (a) or with investigations conducted under sub. (5), or a district attorney, for purposes of investigation or prosecution.

4. To the department, under s. 51.03 (2), or for death investigations under s. 50.04 (2t) or 50.035 (5); or to a sheriff, police department, or district attorney for death investigations under s. 51.64 (2) (a).

5. To an employee of a county department under s. 51.42 or 51.437 that is providing services either to the elder adult at risk who is the alleged victim named in the record or to the alleged perpetrator of abuse, to determine whether the alleged victim should be transferred to a less restrictive or more appropriate treatment modality or facility.

6. To a court, tribal court, or state governmental agency for a proceeding relating to the licensure or regulation of an individual or entity regulated or licensed by the state governmental agency, that was an alleged perpetrator of abuse, financial exploitation, or neglect.

7. To the department, for management, audit, program monitoring, evaluation, billing, or collection purposes.

8. To the attorney or guardian ad litem for the elder adult at risk who is the alleged victim named in the record, to assist in preparing for any proceeding under ch. 48, 51, 55, 813, 880, 971, or 975 pertaining to the alleged victim.

9. To a coroner, medical examiner, pathologist, or other physician investigating the cause of death of an elder adult at risk that is unexplained or unusual or is associated with unexplained or suspicious circumstances.

10. To staff members of the protection and advocacy agency designated under s. 51.62 and the board on aging and long-term care under s. 16.009.

11. To an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of abuse, neglect, or financial exploitation of an elder adult at risk.

12. To a grand jury, if it determines that access to specified records is necessary for the conduct of its official business.

13. Under a lawful order of a court of record.

388,76 Section 76. 46.90 (6) (bv), (bw) and (by) of the statutes are created to read:

46.90 (6) (bv) The identity of a person making a report of alleged abuse, neglect, self-neglect, or financial exploitation shall be deleted from any record prior to its release under par. (bt) or from any departmental report form prior to its release under par. (b). The identity of any reporter may only be released with the written consent of the reporter or under a lawful order of a court of record.

(bw) A person to whom a departmental report form or a record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this subsection.

(by) A custodian of records or departmental report forms incurs no civil or criminal liability under this subsection and may not be found guilty of unprofessional conduct for the release or nonrelease of records or departmental report forms in accordance with this subsection while acting in good faith and within the scope of his or her authority.

388,77 Section 77. 46.90 (6) (c) 1. of the statutes is renumbered 46.90 (9) (a) and amended to read:

46.90 (9) (a) Any person, including the state or any political subdivision of the state, violating this subsection shall be sub. (6) is liable to any person damaged as a result of the violation for such damages as may be proved, together with exemplary damages of not less than $100 nor more than $500 for each violation and such the costs and reasonable actual attorney fees as may be that are incurred by the person damaged. A custodian of records incurs no liability under this subdivision for the release of records in accordance with this subsection while acting in good faith.

388,78 Section 78. 46.90 (6) (c) 2. of the statutes is renumbered 46.90 (9) (b) and amended to read:

46.90 (9) (b) In any action brought under subd. 1. par. (a) in which the court determines that the violator acted in a manner that was knowing and willful, the violator shall be liable for such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees as may be incurred. It is not a prerequisite to an action under this paragraph par. (a) that the plaintiff suffer or be threatened with actual damages.

388,79 Section 79. 46.90 (6) (c) 3. of the statutes is renumbered 46.90 (9) (c) and amended to read:

46.90 (9) (c) An individual may bring an action to enjoin any violation of this subsection sub. (6) or to compel compliance with this subsection sub. (6), and may in the same action seek damages as provided in this paragraph subsection. The individual may recover costs and reasonable actual attorney fees as may be incurred in the action, if he or she prevails.

388,80 Section 80. 46.90 (7) of the statutes is amended to read:

46.90 (7) Exception. Nothing in this section shall may be construed to mean that a person is abused, financially exploited, neglected or in need of direct or protective services solely because he or she consistently relies upon treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition.

388,81 Section 81. 46.90 (8) (a) of the statutes is amended to read: