81 Op. Att'y Gen. 156 (1994)

81 Op. Att'y Gen. 156, 164 (1994)
  5.   Mental health treatment and services.

81 Op. Att'y Gen. 156, 164 (1994)
  4.   Community service.

81 Op. Att'y Gen. 156, 164 (1994)
  5.   Restitution.

81 Op. Att'y Gen. 156, 164 (1994)
  6.   Other programs as prescribed by the department.

81 Op. Att'y Gen. 156, 164 (1994)
  (b)   . . . A participant is not entitled to a hearing regarding the department's exercise of authority under this subsection unless the department provides for a hearing by rule.

81 Op. Att'y Gen. 156, 164 (1994)
  (c)   The department may provide a participant with alcohol and other drug abuse outpatient treatment and services or mental health treatment and services.

81 Op. Att'y Gen. 156, 164 (1994)
  ....

81 Op. Att'y Gen. 156, 164 (1994)
  (4)   Status. (a) A participant is in the custody and under the control of the department, subject to its rules and discipline.

81 Op. Att'y Gen. 156, 164 (1994)
  ....

81 Op. Att'y Gen. 156, 164 (1994)
  (b)   The department shall operate the program as a correctional institution. The secretary may allocate and reallocate existing and future facilities as part of the institution. The institution is subject to s. 301.02 and is a state prison as defined in s. 302.01.

81 Op. Att'y Gen. 156, 164 (1994)
  ....

81 Op. Att'y Gen. 156, 165 (1994)
  (6)   Discharge. The department may discharge a participant from participation in the program and from departmental custody and control at any time.

81 Op. Att'y Gen. 156, 165 (1994)
  (7)   Reimbursement. The department shall provide reimbursement to counties and others for the actual costs incurred under sub. (3), as authorized by the department, from the appropriations under s. 20.410(1)(ab) and (ai) and (dt).

81 Op. Att'y Gen. 156, 165 (1994)
  Section 302.27, as amended by 1993 Wisconsin Act 437, provides:

81 Op. Att'y Gen. 156, 165 (1994)
  Contracts for temporary housing for or detention of prisoners. The department may contract with local governments for temporary housing or detention in county jails or county houses of correction for persons sentenced to imprisonment in state prisons or the intensive sanctions program. The rate under any such contract may not excess $60 per person per day. Nothing in this section limits the authority of the department to place persons in jails under s. 301.048(3)(a)1.

81 Op. Att'y Gen. 156, 165-166 (1994)
  Under section 301.03(2m), DOC is statutorily obligated to provide AODA services only at Type 1 prisons. That statute specifically relieves DOC of any responsibility for providing such services to persons in the intensive sanctions program or to persons in the community residential confinement program. DOC also is not required to provide mental health services to persons in the intensive sanctions program who are not in Type 1 prisons. Pursuant to section 301.03(6), DOC has statutory authority to "[d]irect the correctional psychiatric service in all state correctional institutions." Under the definition of "[s]tate correctional institution" contained in section 301.01(4), that authority extends to persons in the intensive sanctions program under section 301.048. See sec. 302.01, Stats. Although section 301.03(6) does not specifically mandate that DOC provide any particular form of psychiatric service in any state prison, section 302.386 does require DOC to provide medical and dental services to persons housed in prisons identified in s. 302.01 according to the standards prescribed in section 302.385. Section 302.386(5)(a) and (b) then provides that the state is not required to furnish any medical and dental services to persons in the community residential confinement program or to persons in the intensive sanctions program who are not in other Type 1 prisons.

81 Op. Att'y Gen. 156, 166 (1994)
  In my opinion, sections 301.03(2m) and 302.386(5) were controlling as to the provision of mental health and AODA services even prior to the deletion of those services by 1993 Wisconsin Act 79 from section 301.048(3)(a), because the term "shall" in the latter statute simply obligated DOC to provide a person in the intensive sanctions program with at least one of the items formerly enumerated as "sanctions." The Legislative Reference Bureau's analysis of 1993 Assembly Bill 373 provides in part:

81 Op. Att'y Gen. 156, 166 (1994)
  Under current law, DOC provides each intensive sanctions program participant with a series of component phases based on public safety considerations and the participant's need for punishment and treatment. The law lists a series of sanctions that may be provided as component phases, including alcohol and other drug abuse outpatient treatment services and mental health treatment and services. This bill retains DOC's authority to provide these kinds of treatment and services but no longer counts them as sanctions.

81 Op. Att'y Gen. 156, 166-167 (1994)
(Emphasis supplied). 1993 Assembly Bill 373 resulted in the passage of 1993 Wisconsin Act 79. Section 6 of the Act created section 301.048(3)(c) to clarify that mental health services and outpatient AODA services should not be considered "sanctions": "The department may provide a participant with alcohol or other drug abuse outpatient treatment and services or mental health treatment and services." The word "shall" is generally construed as mandatory and the word "may" is generally construed as permissive, especially where those terms appear in close proximity in different parts of the same statute. In Matter of Estate of Warner, 161 Wis. 2d 644, 652, 468 N.W.2d 736 (Ct. App. 1991). DOC never was statutorily required to provide inpatient and outpatient mental health and outpatient AODA services to all persons in the intensive sanctions program, but has always had discretionary authority to provide such services on a case-by-case basis. That discretionary authority is now found in section 301.048(3)(c).

81 Op. Att'y Gen. 156, 167 (1994)
  The requirements for the provision of all forms of health care services by DOC to persons in each type of state correctional institution are therefore the same. DOC is obligated to provide all forms of health care services, including psychiatric services and AODA services, to persons in Type 1 prisons other than the community residential confinement program. DOC is not required to provide any form of health care services to persons in the community residential confinement program or to persons in the intensive sanctions program who are not in other Type 1 prisons. Under section 301.048(3)(c), DOC does, however, possess discretionary authority to provide inpatient and outpatient mental health services and outpatient AODA services to persons in the intensive sanctions program.

81 Op. Att'y Gen. 156, 167-168 (1994)
  Section 301.048(7) also imposes a mandatory obligation upon DOC "to provide financial reimbursement to counties and others for the actual costs incurred under sub. (3), as authorized by the department, from the appropriations under s. 20.410(1)(ab) and (ai)." That obligation is limited by the fact that both appropriations are sum certain appropriations for specific purposes. The appropriation under section 20.410(1)(ab) authorizes DOC to pay not more than sixty dollars per person per day for "temporary housing or detention in county jails or houses of correction." The appropriation under section 20.410(1)(ai) authorizes expenditures by DOC to "administer the intensive sanctions program under s. 301.048, the community residential confinement program under s. 301.046 and intensive supervision programs." Other appropriations are available to DOC in connection with its discretionary authority to provide health care services. Section 20.410(1)(dd) authorizes DOC to "purchase... services, authorized under s. 301.08(1)(b)1, for community based residential facilities designated for correctional clients." In addition, section 20.410(1)(d) authorizes DOC to purchase care and services, other than services purchased from community based residential facilities under section 20.410(1)(dd), "for probationers, parolees and other offenders."

81 Op. Att'y Gen. 156, 168 (1994)
  Under section 302.386(5)(b), DOC ordinarily is not required to provide medical and dental services to persons in the intensive sanctions program who are not in Type 1 prisons. That provision would be meaningless if section 301.048(7) were construed to require reimbursement for all such services. Section 301.048(7), contemplates that all actual costs be reimbursed by DOC only when it has authorized the expenditures for which reimbursement is claimed. In my opinion, those circumstances ordinarily do not include situations involving intensive or other field supervision, electronic monitoring, community service or restitution under section 301.048(3)(a)2. through 5., since such activities usually do not involve health care placements or programs prescribed or selected by DOC.

81 Op. Att'y Gen. 156, 168-169 (1994)
  Under section 301.048(3)(a)1., DOC may choose to place persons who are in the intensive sanctions program in specific facilities, "jail[s], county reforestation camp[s], residential treatment facilit[ies] or community-based residential facilit[ies]," for a period not to exceed one year. Under section 301.048(3)(a)6., such persons may also be placed in "[o]ther programs as prescribed by the department." When such placements are made by DOC, section 301.048(7) requires reimbursement, within the purposes and limits of available appropriations, for all actual costs incurred by such facilities or programs, provided that the costs for which reimbursement is sought have been authorized by DOC. In most cases, authorization to incur such costs will be in the form of a contract or agreement between DOC and the county or the operator of the treatment or residential facility or program. In other situations, section 301.048(7) appears to permit DOC to require prior authorization before costs are incurred, if it chooses to do so. When the circumstances contained in section 301.048(7) are satisfied, DOC is required to make reimbursement for health care services, despite the limitations on state provision of medical and dental services contained in section 302.386(5).

81 Op. Att'y Gen. 156, 169 (1994)
  I therefore conclude that, except as provided in section 301.048(7), counties are financially responsible under sections 49.02 and 51.42 for the provision of medical and dental services, including psychiatric and AODA services, to persons in the community residential confinement program and to persons in the intensive sanctions program. DOC is under no statutory obligation to furnish treatment for inpatient or outpatient mental health and AODA services to persons in the intensive sanctions program unless they are in Type 1 prisons other than the community residential confinement program, but it is required to provide reimbursement for the actual cost of health care treatment furnished to persons in the intensive sanctions program who are placed by DOC in a facility or program pursuant to section 301.048(3)(a)1. and 6. when the cost of the treatment is authorized by DOC. DOC also possesses discretionary authority to provide inpatient and outpatient mental health services and outpatient AODA services to persons in the intensive sanctions program.

81 Op. Att'y Gen. 156, 169 (1994)
JED:FTC

81 Op. Att'y Gen. 156, 156 (1994) - Footnote

Destination-302   1 In Rolo v. Goers, 174 Wis. 2d 709, 717, 497 N.W.2d 724 (1994), the court held that DHSS was financially responsible for furnishing mental health services to persons on conditional release from involuntary criminal commitments. Although the primary purpose of criminal commitment is to provide care and treatment, the primary purpose of imprisonment is to prevent crime and rehabilitate offenders. See sec. 301.001, Stats. In Rolo, the court was also of the view that the provisions of section 51.42(3)(as)1. were not sufficiently clear so as to absolve DHSS from the obligation to provide mental health services to persons conditionally released into the community. The statutory language concerning the state's obligation in section 302.386(5)(a) and (b), is clearer and more specific than that contained in section 51.42(3)(as)1. It does not relate to financial reimbursement, but to the obligation to provide care in the first instance.

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Destination 1





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