AB341: Bill Text

AB341,2,2 An Act to renumber 146.40 (1) (a); to renumber and amend 71.07 (8) (a); to amend 49.498 (3) (b) 1., 50.065 (2) (intro.), 55.043 (1) (a) (intro.), (4) (intro.), (e) and (f) and (5), 146.40 (title), 146.40 (4g) (a) 2. (intro.), 146.40 (4g) (a) 2. b., 146.40 (4g) (a) 3., 146.40 (4r) (a), 146.40 (4r) (b), 146.40 (4r) (d) and 813.123 (5) (a) 3. a.; and to create 20.435 (6) (gu), 20.455 (2) (kt), 50.01 (1r), 50.065, 71.07 (8) (a) 1. to 3., 146.40 (1) (ad), 146.40 (1) (ag), 146.40 (1) (aj), 146.40 (1) (am), 146.40 (1) (em), 146.40 (1) (fm), 146.40 (1) (gm), 146.40 (1) (h), 146.40 (4r) (am), 146.40 (4t), 440.03 (3q) and 440.035 (5) of the statutes; relating to: requiring criminal history searches of certain persons hired or proposed to be hired by certain facilities or services, clarifying requirements for reporting the misappropriation of property, abuse or neglect of certain patients or facility residents, limiting the personal exemptions tax credit, granting rule-making authority, making appropriations and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, the department of health and family services (DHFS) is required to maintain a registry that includes a listing of all nurse's assistants, home health aides and hospice aides whom DHFS has found to have neglected or abused or misappropriated property of a nursing home resident or a hospital patient.

This bill requires that a home health agency, community-based residential facility, hospital, adult day care center, adult family home, assisted living facility, hospice, treatment facility, personal care worker agency, supportive home care service agency or nursing home report to DHFS for inclusion in the registry any instance of resident, patient or client neglect or abuse or misappropriation of the property of a resident, patient or client by any employe. The bill also requires DHFS to conduct a review and investigation of any such report that it receives and in certain cases to report its findings to the department of regulation and licensing (DORL) or to the appropriate examining board or affiliated credentialing board. The bill requires DORL or the examining board or affiliated credentialing board to conduct an investigation of any abuse report that it receives from DHFS.

The bill prohibits, with certain exceptions, a community-based residential facility, home health agency, adult day care center, adult family home, assisted living facility, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home from employing a person who may have access to residents or patients unless it has done all of the following:

1. Requested from DHFS a criminal history record search of the person and made a determination that the person does not have a conviction relating to patient abuse and has not been convicted or, if convicted, has been pardoned, of certain serious crimes.

2. Requested from DHFS any information regarding that person that is contained in the DHFS registry and made a determination that the person has no record of patient, resident or client abuse.

3. Verified the validity of the person's professional license, if necessary.

A violation of this prohibition is punishable by a forfeiture of not more than $1,000.

In addition, this bill makes a change in the current law regarding the kind of abuse or neglect allegedly engaged in by a nurse's assistant that must be reported in the DHFS registry, in order to conform state law to federal law. Under current state law, an individual need only report to DHFS that he or she believes a nurse's assistant has neglected, abused or misappropriated the property of a resident or patient. The standard required under federal law includes not only the misappropriation of property, but also patient abuse or neglect. This bill incorporates this federal standard into state law.

Finally, under current law, every individual who reaches the age of 65 before the close of the taxable year to which his or her income tax return relates may claim a credit of $25. Under this bill, for taxable years beginning on or after January 1, 1998, the credit may be claimed by such a person only if his or her adjusted gross income (AGI) is less than $71,200 or, if the person is married and files a joint return, if the couple's AGI is less than $95,000 or, if the person is married and files a separate return, if the taxpayer's AGI is less than $47,500.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

AB341, s. 1 Section 1. 20.435 (6) (gu) of the statutes is created to read:

AB341,3,5 20.435 (6) (gu) Abuse background checks. All moneys received from fees charged under s. 50.065 (6) to be used for criminal history record searches and to transfer all moneys in excess of $1.15 per criminal history record search to the appropriation under s. 20.455 (2) (kt).

AB341, s. 2 Section 2. 20.455 (2) (kt) of the statutes is created to read:

AB341,3,9 20.455 (2) (kt) Interagency criminal history searches. All moneys transferred from s. 20.435 (6) (gu) for the purpose of assisting with criminal history record searches conducted by the department of health and family services under s. 50.065.

AB341, s. 3 Section 3. 49.498 (3) (b) 1. of the statutes is amended to read:

AB341,3,16 49.498 (3) (b) 1. Inform each resident, orally and in writing at the time of admission to the nursing facility, of the resident's legal rights during the stay at the nursing facility, including a description of the protection of personal funds under sub. (8) and a statement that a resident may file a complaint with the department under s. 146.40 (4r) (a) concerning neglect, abuse or misappropriation of property, neglect or abuse of a resident.

AB341, s. 4 Section 4. 50.01 (1r) of the statutes is created to read:

AB341,4,1 50.01 (1r) "Home health agency" has the meaning given under s. 50.49 (1) (a).

AB341, s. 5 Section 5. 50.065 of the statutes is created to read:

AB341,4,4 50.065 Criminal history and patient abuse record search. (1) In this section:

AB341,4,7 (a) "Adult day care center" means a facility that is operated by an adult day care provider that provides care and services to persons who are aged 60 or older for less than 24 hours a day.

AB341,4,8 (b) "Hospice" has the meaning given in s. 50.90 (1).

AB341,4,9 (c) "Hospital" has the meaning given in s. 50.33 (2).

AB341,4,11 (d) "Personal care worker agency" has the meaning specified by the department by rule.

AB341,4,13 (e) "Serious crime" has the meaning specified by the department by rule under sub. (7).

AB341,4,15 (f) "Supportive home care service agency" has the meaning specified by the department by rule.

AB341,4,16 (g) "Treatment facility" has the meaning given in s. 51.01 (19).

AB341,4,20 (h) "Vulnerable person" means a patient, resident or client of a community-based residential facility, home health agency, adult day care center, adult family home, assisted living facility, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home.

AB341,5,2 (2) Notwithstanding s. 111.335, and except as provided in sub. (5), no community-based residential facility, home health agency, adult day care center, adult family home, assisted living facility, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home may hire a person who may have access to its residents, patients or clients unless it has done all of the following:

AB341,5,7 (a) Requested from the department a criminal history record search of that person and made a determination that the person does not have a conviction in any jurisdiction relating to patient abuse described in 42 USC 1320a-7 (a) (2) and has not been convicted of a serious crime or, if convicted, that the person has been pardoned for the violation resulting in the conviction.

AB341,5,11 (b) Requested from the department any information regarding that person that is contained in the registry under s. 146.40 (4g) and made a determination that the person has no record of misappropriation of property, abuse or neglect of a vulnerable person.

AB341,5,14 (c) For a position for which the person must be licensed by the department of regulation and licensing, verified with the department of regulation and licensing that the person's license is valid.

AB341,6,2 (3) Every adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency and nursing home shall, in accordance with rules promulgated by the department, periodically request the department to conduct a criminal history record search and a search of the registry under s. 146.40 (4g) for all of the employes of the adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home who may have access to patients, residents or clients of the adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home.

AB341,6,4 (4) Whoever violates sub. (2) or (3) may be required to forfeit not more than $1,000.

AB341,6,14 (5) An adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home may employ a person who has been convicted of a serious crime and who has not been pardoned for the violation resulting in the conviction if the person demonstrates in accordance with procedures established by the department by rule, in consultation with the board on aging and long-term care, evidence of rehabilitation. No person who has been convicted, and not pardoned, of a serious crime involving the abuse or neglect of a vulnerable person may be permitted to demonstrate evidence of rehabilitation.

AB341,6,25 (5m) Notwithstanding s. 111.335, an adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home may refuse to employ a person who may have access to its residents, patients or clients if the person has been convicted of an offense that the department has not defined as a "serious crime" under sub. (7) but that is, in the estimation of the adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home significantly related to the care of a vulnerable person.

AB341,7,8 (6) The department of health and family services shall request the department of justice to conduct a criminal history record search of all persons for whom a search is required under subs. (2) (a) and (3). The department of health and family services shall charge to an adult day care center, adult family home, assisted living facility, community-based residential facility, home health agency, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home that makes the requests required under subs. (2) (a) and (b) and (3) the following:

AB341,7,10 (a) For each criminal history record search requested by a nonprofit organization, as defined in s. 108.02 (19), $2.

AB341,7,12 (b) For each criminal history record search requested by a governmental agency, $5.

AB341,7,13 (c) For each criminal history record search by any other requester, $13.

AB341,7,18 (7) The department, in conjunction with the board on aging and long-term care and after consultation with the department of justice, shall establish by rule a definition of "serious crime" for the purposes of this section and s. 146.40. The definition shall include only crimes that are substantially related to the care of a vulnerable person.

AB341, s. 6 Section 6. 50.065 (2) (intro.) of the statutes, as created by 1997 Wisconsin Act .... (this act), is amended to read:

AB341,8,2 50.065 (2) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), no community-based residential facility, home health agency, adult day care center, adult family home, assisted living facility, hospice, hospital, treatment facility, personal care worker agency, supportive home care service agency or nursing home may hire employ a person who may have access to its residents, patients or clients unless it has done all of the following:

AB341, s. 7 Section 7. 55.043 (1) (a) (intro.), (4) (intro.), (e) and (f) and (5) of the statutes are amended to read:

AB341,8,12 55.043 (1) (a) (intro.) If a county protective services agency has probable cause to believe that there is abuse, neglect or misappropriation of property, neglect or abuse, the county protective services agency may conduct an investigation in Milwaukee county to determine if the vulnerable adult in question is in need of protective services. The county protective services agency shall conduct the investigation in accordance with standards established by the department for conducting the investigations. The investigation shall include at least one of the following:

AB341,8,15 (4) Offer of services. (intro.) If upon investigation the county protective services agency finds abuse, neglect or misappropriation of property, neglect or abuse, the county protective services agency may do one or more of the following:

AB341,8,19 (e) Refer the case to the department of regulation and licensing or the appropriate examining board if the abuse, neglect or misappropriation of property, neglect or abuse involves an individual who is required to be licensed, permitted, certified or registered under chs. 440 to 459.

AB341,8,24 (f) Bring a petition for a guardianship and protective service or protective placement if necessary to prevent abuse, neglect or misappropriation of property, neglect or abuse and if the vulnerable adult would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter and services.

AB341,9,6 (5) Applicability. This section does not apply to patients or residents of state-operated or county-operated inpatient institutions or hospitals issued certificates of approval under s. 50.35 unless the alleged abuse, neglect or misappropriation of property, neglect or abuse of such a patient or resident is alleged to have been done by a person other than an employe of the inpatient institution or hospital.

AB341, s. 8 Section 8. 71.07 (8) (a) of the statutes is renumbered 71.07 (8) (a) (intro.) and amended to read:

AB341,9,10 71.07 (8) (a) (intro.) An exemption of $25 if the taxpayer has reached the age of 65 prior to the close of the calendar or fiscal year. and if one of the following applies:

AB341, s. 9 Section 9. 71.07 (8) (a) 1. to 3. of the statutes are created to read:

AB341,9,13 71.07 (8) (a) 1. The taxpayer is an individual, files an individual return, and has adjusted gross income of less than $71,200 in the year to which the claim relates.

AB341,9,15 2. The taxpayer is married, files a joint return, and has adjusted gross income of less than $95,000 in the year to which the claim relates.

AB341,9,17 3. The taxpayer is married, files a separate return, and has adjusted gross income of less than $47,500 in the year to which the claim relates.

AB341, s. 10 Section 10. 146.40 (title) of the statutes is amended to read:

AB341,9,20 146.40 (title) Instructional programs for nurse's assistants and home health and hospice aides; reporting patient, resident and client abuse.

AB341, s. 11 Section 11. 146.40 (1) (a) of the statutes is renumbered 146.40 (1) (as).

AB341, s. 12 Section 12. 146.40 (1) (ad) of the statutes is created to read:

AB341,9,25 146.40 (1) (ad) "Adult day care center" means a facility that is operated by an adult day care provider that provides care and services to persons who are aged 60 or older for less than 24 hours a day.

AB341, s. 13 Section 13. 146.40 (1) (ag) of the statutes is created to read:

AB341,10,2 146.40 (1) (ag) "Adult family home" has the meaning given in s. 50.01 (1).

AB341, s. 14 Section 14. 146.40 (1) (aj) of the statutes is created to read:

AB341,10,4 146.40 (1) (aj) "Assisted living facility" has the meaning given in s. 50.01 (1d).

AB341, s. 15 Section 15. 146.40 (1) (am) of the statutes is created to read:

AB341,10,7 146.40 (1) (am) "Community-based residential facility" has the meaning given under s. 50.01 (1g).

AB341, s. 16 Section 16. 146.40 (1) (em) of the statutes is created to read:

AB341,10,10 146.40 (1) (em) "Personal care worker agency" has the meaning specified by the department by rule.

AB341, s. 17 Section 17. 146.40 (1) (fm) of the statutes is created to read:

AB341,10,13 146.40 (1) (fm) "Serious crime" has the meaning specified by the department by rule under s. 50.065 (7).

AB341, s. 18 Section 18. 146.40 (1) (gm) of the statutes is created to read:

AB341,10,16 146.40 (1) (gm) "Supportive home care service agency" has the meaning specified by the department by rule.

AB341, s. 19 Section 19. 146.40 (1) (h) of the statutes is created to read:

AB341,10,18 146.40 (1) (h) "Treatment facility" has the meaning given in s. 51.01 (19).

AB341, s. 20 Section 20. 146.40 (4g) (a) 2. (intro.) of the statutes is amended to read:

AB341,10,22 146.40 (4g) (a) 2. (intro.) A listing of all individuals about whom the department is notified under sub. (4r) (a) or (am), for whom the department makes findings under sub. (4r) (b) and to whom any of the following applies:

AB341, s. 21 Section 21. 146.40 (4g) (a) 2. b. of the statutes is amended to read:

AB341,10,25 146.40 (4g) (a) 2. b. A hearing officer finds reasonable cause to believe that the individual performed an action alleged under sub. (4r) (a) or (am).

AB341, s. 22 Section 22. 146.40 (4g) (a) 3. of the statutes is amended to read:

AB341,11,5 146.40 (4g) (a) 3. Findings of the department under sub. (4r) (b) or of the hearing officer under sub. (4r) (d) concerning the neglect, abuse or misappropriation of property, neglect or abuse of a resident or patient by an individual listed under subd. 2.

AB341, s. 23 Section 23. 146.40 (4r) (a) of the statutes is amended to read:

AB341,11,14 146.40 (4r) (a) Any individual may report to the department that he or she believes that a nurse's assistant or other person employed by or under contract with a nursing home or hospital has neglected, or abused a nursing home resident or a hospital patient or misappropriated the resident's or patient's property of a nursing home resident or a hospital patient or that a home health aide or other person employed by or under contract with a home health agency has neglected, or abused a home health agency patient or misappropriated the patient's property of a home health agency patient.

AB341, s. 24 Section 24. 146.40 (4r) (am) of the statutes is created to read: