Amendment SSA1-AB244

LRBs0318/2

DAK:kmg:jlb

1995 - 1996 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, To 1995 ASSEMBLY BILL 244

November 15, 1995 - Offered by Senators Moore, Risser, Moen, Adelman and Burke.

AB244-SSA1,1,4 An Act to repeal 55.06 (9) (d) and (e) and 55.06 (13); to amend 20.435 (2) (gk), 55.001, 55.06 (6) and 55.06 (9) (a) to (c); and to create 55.01 (5m) and 55.045 of the statutes; relating to: funding and program responsibilities and limitations for protective placements.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB244-SSA1, s. 1 Section 1. 20.435 (2) (gk) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

AB244-SSA1,2,22 20.435 (2) (gk) Institutional operations and charges. The amounts in the schedule for care provided by the centers for the developmentally disabled to reimburse the cost of providing the services and to remit any credit balances to county departments that occur on and after July 1, 1978, in accordance with s. 51.437 (4rm) (c); for care provided by the mental health institutes, to reimburse the cost of providing the services and to remit any credit balances to county departments that occur on and after January 1, 1979, in accordance with s. 51.42 (3) (as) 2; for maintenance of state-owned housing at centers for the developmentally disabled and mental health institutes; for repair or replacement of property damaged at the mental health institutes or at centers for the developmentally disabled; and for reimbursing the total cost of using, producing and providing services, products and care. All moneys received as payments from medical assistance on and after August 1, 1978; as payments from all other sources including other payments under s. 46.10 and payments under s. 51.437 (4rm) (c) received on and after July 1, 1978; as medical assistance payments, other payments under s. 46.10 and payments under s. 51.42 (3) (as) 2 received on and after January 1, 1979; as payments for the rental of state-owned housing and other institutional facilities at centers for the developmentally disabled and mental health institutes; for the sale of electricity, steam or chilled water; as payments in restitution of property damaged at the mental health institutes or at centers for the developmentally disabled; for the sale of surplus property, including vehicles, at the mental health institutes or at centers for the developmentally disabled; and for other services, products and care shall be credited to this appropriation, except that any payment under s. 46.10 received for the care or treatment of patients admitted under s. 51.10, 51.15 or 51.20 for which the state is liable under s. 51.05 (3), of patients admitted under s. 55.06 (9) (d) or (e) for which the state is liable under s. 55.05 (1), of forensic patients committed under ch. 971 or 975, admitted under ch. 975 or transferred under s. 51.35 (3) or of patients transferred from a state prison under s. 51.37 (5), to Mendota mental health institute or Winnebago mental health institute shall be treated as general purpose revenue — earned, as defined under s. 20.001 (4).

AB244-SSA1, s. 2 Section 2. 55.001 of the statutes is amended to read:

AB244-SSA1,3,11 55.001 Declaration of policy. The legislature recognizes that many citizens of the state, because of the infirmities of aging, chronic mental illness, mental retardation, other developmental disabilities or like incapacities incurred at any age, are in need of protective services. These services should, to the maximum degree of feasibility under programs, services and resources that the county board of supervisors is reasonably able to provide within the limits of available state and federal funds and of county funds appropriated to match state funds, allow the individual the same rights as other citizens, and at the same time protect the individual from exploitation, abuse and degrading treatment. This chapter is designed to establish those services and assure their availability to all persons when in need of them, and to place the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, exploitation and neglect.

AB244-SSA1, s. 3 Section 3. 55.01 (5m) of the statutes is created to read:

AB244-SSA1,3,13 55.01 (5m) "Residence" has the meaning given in s. 51.01 (14).

AB244-SSA1, s. 4 Section 4. 55.045 of the statutes is created to read:

AB244-SSA1,4,2 55.045 Funding; limitations. (1) The appropriate county department in the county of residence of persons who are protectively placed or who receive protective services under this chapter shall, within the limits of available state and federal funds and of county funds appropriated to match state funds, provide for the reasonable program needs of those persons. Payment and collections for protective placement or services provided in public facilities specified in s. 46.10 shall be governed in accordance with s. 46.10. The appropriate county department shall be charged for the cost of care and custody resulting from placement under this chapter. The department may require that a person who is protectively placed or receives protective services under this chapter provide reimbursement for services or care and custody received based on the ability of the person to be protected to pay for such costs.

AB244-SSA1,4,5 (2) Reasonable expenses for establishing a protective placement and for periodic reviews of the protective placement may be charged to the subject of the protective placement. These expenses include:

AB244-SSA1,4,9 (a) The petitioner's expenses related to proceedings to establish a protective placement, including guardianship proceedings if applicable and the petitioner's attorney fees, unless the petitioner is represented by the district attorney or corporation counsel.

AB244-SSA1,4,10 (b) Guardian ad litem fees.

AB244-SSA1,4,11 (c) Fees of the subject's independent counsel, if any.

AB244-SSA1,4,12 (d) Charges for the evaluations required under s. 55.06 (8).

AB244-SSA1,4,22 (e) The expenses or charges of the appropriate county department making recommendations for establishing the protective placement and for periodic reviews of the protective placement, including the attorney fees of the county department or agency, unless it is represented in the proceedings by the district attorney or corporation counsel, and expenses for the evaluations required by s. 55.06 (8), for providing the testimony of the protective services staff of the county department or agency, for preparing reports for review of protective placement, for the examinations and reports required under s. 880.33 (1) and (2) (b), for similar examinations and reports in protective placement reviews and for obtaining records relevant to the protective placement.

AB244-SSA1,5,7 (3) The court shall, upon a request and upon its finding that expenses described in sub. (2) are reasonable, order reimbursement which may be available from federal, state or other sources. If reimbursement is not available, the court may order payment from the subject's estate, including income, according to the subject's ability to pay. The appropriate county department making recommendation for placement shall seek appropriate reimbursement for such expenses. To the extent that the subject's estate, including income, and available reimbursement are insufficient, these expenses shall be paid by the county department, within the limits of available state and federal funds and of county funds appropriated to match state funds, unless the court directs otherwise.

AB244-SSA1, s. 5 Section 5. 55.06 (6) of the statutes is amended to read:

AB244-SSA1,5,18 55.06 (6) Section 880.33 (2) applies to all hearings under this chapter except for transfers of placement under sub. (9) (b), and (c) and (e). A person to be protected shall have a guardian ad litem who is an attorney appointed in accordance with s. 757.48 (1) present at all hearings under this chapter if the person does not have full legal counsel. The court may, however, excuse a personal appearance by a guardian ad litem based on information contained in a written report by the guardian ad litem to the court. If the person is indigent, the county of legal settlement shall be liable for guardian ad litem fees. The subject individual, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including any person making an evaluation or review under sub. (8) (c).

AB244-SSA1, s. 6 Section 6. 55.06 (9) (a) to (c) of the statutes are amended to read:

AB244-SSA1,6,12 55.06 (9) (a) The court may order protective services under s. 55.05 (2) (d) as an alternative to placement. When ordering placement, the court, on the basis of the evaluation and other relevant evidence, shall order placement through the appropriate board designated under s. 55.02 or an agency designated by it county department in the individual's county of residence to protectively place the individual. Placement by the appropriate county department shall be made in the least restrictive environment consistent with the subject's needs of the person to be placed. The county department shall report to the court as to the initial plan of care or services for the subject. Factors to be considered by the county department in making protective placement shall include the needs of the person to be protected for health, social or rehabilitative services and; the level of supervision needed; the reasonableness of the placement given the cost and the actual benefits in the level of functioning to be realized by the individual; the limits of available state and federal funds and of county funds appropriated to match state funds; and the reasonableness of the placement given the number or projected number of individuals who will need protective placement and given the limited funds available. Placement under this section does not replace commitment of a person in need of acute psychiatric treatment under s. 51.20 or 51.45 (13).

AB244-SSA1,6,25 (am) The court shall designate the maximum level of restrictiveness of the facility or services, if any, that may be used for the individual. The county department shall have ongoing responsibility to review the subject's needs and transfer the subject to the least restrictive environment consistent with his or her needs. Placement may be made to such facilities as nursing homes, public medical institutions, centers for the developmentally disabled under the requirements of s. 51.06 (3), foster care services and other home placements, or to other appropriate facilities but may not be made to units for the acutely mentally ill. The prohibition of placements in units for the acutely mentally ill does not prevent placement by a court for short-term diagnostic procedures under par. (d). Placement in a locked unit shall require a specific finding of the court as to the need for such action. A county department or placement facility may transfer a patient from a locked unit to a less restrictive environment without court approval.

AB244-SSA1,7,21 (b) Transfer may be made between placement units or from a placement unit to a medical facility other than those in the circumstance specified in pars. par. (c) to (e) by a county department, guardian or placement facility without approval by a court. When transfer is made by a placement facility, 24 hours' prior written notice of the transfer shall be provided to the guardian and the county department, when feasible. If it is not feasible to notify the guardian or the county department in advance, the facility shall provide written notice shall be provided immediately upon transfer, and notice shall also be provided to the court and to the board designated under s. 55.02 or an agency designated by it within a reasonable time, not to exceed 48 hours from the time of the transfer. Upon petition to a court by a guardian, ward, or attorney, county department or other interested person specifying objections to a transfer, the court shall order a hearing, within 96 hours after filing of the petition, to determine whether there is probable cause to believe that the transfer is consistent with the requirements specified in par. pars. (a) and (am) and is necessary for the best interests of the ward. The court shall notify the ward, appropriate county department, guardian and petitioner of the time and place of the hearing, and a guardian ad litem shall be appointed to represent the ward. If the person is indigent, the county of legal settlement shall be liable for guardian Guardian ad litem fees shall be paid under s. 55.045. The petitioner, ward or attorney, county department and guardian shall have the right to attend, and to present and cross-examine witnesses.

AB244-SSA1,8,2 (c) Transfer to a more restrictive placement, including a locked unit, may be made with notice to the guardian, the court and appropriate board designated under s. 55.02 or an agency designated by it county department in the manner prescribed in par. (b). Upon petition by a guardian, ward or attorney, county department or other interested person specifying objections to the transfer, the court shall order a hearing as provided in par. (b).

AB244-SSA1, s. 7 Section 7. 55.06 (9) (d) and (e) of the statutes are repealed.

AB244-SSA1, s. 8 Section 8. 55.06 (13) of the statutes is repealed.

AB244-SSA1, s. 9 Section 9. Initial applicability.

AB244-SSA1,8,7 (1)  This act first applies to a cause of action that arises on the effective date of this subsection.

AB244-SSA1,8,8 (End)