AB1114: Bill Text

The bill authorizes the court to make a specific finding of county of residence of a person who is under a court order of commitment under ch. 51 or an order for protective placement or services after notice and an opportunity to be heard has been given to all affected counties and parties, if there is no objection. Notice must be sent to the corporation counsel of each affected county by certified mail. If there is an objection to the proposed finding of a county of residence, the county or a party may request the department to make a determination of county of responsibility. Any transfer of venue must be suspended until the determination of county of responsibility is final.

Current law sets forth criteria to determine the residency of a person living in a nursing home. The bill specifies that determinations made pursuant to those criteria are presumptions that may be overcome by substantial evidence that clearly establishes residence in another county.

The bill specifies that placement of an individual by a county department or an agency of a county department into a facility outside the jurisdiction of the county does not transfer the individual's legal residency to the county of the facility's location. If a person is present in a county while being a resident of another county and is in need of immediate care, a county of appropriate venue may provide for the immediate needs of a person without being declared the person's county of residence.

The bill specifies that if it is not contrary to the other statutory criteria concerning residency, an individual residing in a facility who is incapable of indicating intent is a resident of the county in which he or she last resided before entering the facility.

Current law provides that a ward in a state facility or nursing home whose parent or sibling serves as his or her guardian is a resident of the guardian's county of residence if the state facility or nursing home is located in that county or if the guardian states in writing that the ward is expected to return to the guardian's county of residence when the purpose of entering the state facility or nursing home has been accomplished or when needed care and services can be obtained in that county.

The bill substantially amends this provision as follows:

1. Amends the title of the provision to "Guardian's authority to declare county of residence."

2. Makes the provisions applicable to all guardians (not just guardians who are a parent or sibling of a ward) of wards in any facility (not just a state facility or nursing home).

3. Provides that if other criteria to determine residency do not apply, a guardian may declare a ward's county of residence to be the county where the ward is physically present if all of the following apply:

The ward's presence in the county is voluntary.

There is no ch. 55 order in effect and the ward is not under an involuntary commitment to the county, other than the county where the ward is physically present, or to the Department of Corrections.

The ward is living in a place of fixed habitation.

The guardian states in writing that it is the ward's intent to remain in the county for the foreseeable future.

The bill also provides that a guardian may, for good cause shown, if in the ward's best interests, clarify or change a ward's county of residence by filing with the probate court having jurisdiction of the guardianship and protective placement a written statement declaring the ward's domiciliary intent, subject to court approval, with notice and opportunity to appear by potentially affected counties and parties.

Current law provides a procedure for the department to make a determination of county of responsibility of an individual upon request. The bill specifies that any pending motion for change of venue shall be stayed until the department's determination is final. The bill also expands notice requirements pertaining to the residency determination procedure.

The bill provides that the county found to be responsible for providing services ordered under ch. 46, 51, or 55 to an individual must reimburse any other county that provided services to the individual for all services provided to the individual beginning on the date of the initial order under ch. 46, 51, or 55. Full reimbursement by the responsible county must be made within 120 days of the department's responsibility determination, or of the outcome of any appeal by the department's determination that is brought under ch. 227, or on a date or pursuant to a schedule of two or more payments agreed to by both counties.

The bill specifies that to be eligible for protective placement or services, a person must be a resident of Wisconsin or be present in Wisconsin having a need for protective placement or services until such time as appropriate protective services can be established in the person's place of residence.

Current law specifies that a petition under ch. 55 must be filed in the county of residence of the person sought to be protected. The bill provides that the petition may be filed in the county in which the person sought to be protected is physically present under extraordinary circumstances requiring medical aid or the prevention of harm to the person or others.

The bill provides that the court in which a petition under ch. 55 or 880 is filed must determine venue. The court must direct that proper notice be given to any potentially responsible or affected county. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, if it is determined that venue lies in another county, the court must order the entire record certified to the proper court. A court in which a subsequent petition is filed must, upon being satisfied of an earlier filing in another court, summarily dismiss such petition. If any county or party objects to the court's finding of venue, the issue must be referred to the department and the department must make a determination of county of responsibility pursuant to the procedure under current law. The court must suspend ruling on the motion for change of venue until the department's determination is final.

The bill provides that the county department under s. 51.42 or 51.437 to which an individual is involuntarily committed for treatment under ch. 51 retains responsibility for the person when the person voluntarily moves to another county until venue for the person is transferred to the county where the person is residing or until the person is no longer a proper subject of continued commitment.

The bill specifies that the residence of a person who is committed under ch. 51 and who is placed in a facility in another county by a county developmental disabilities board does not transfer to the county of the facility's location while the person is under commitment.

AB1114, s. 1 Section 1. 46.266 (4) (b) of the statutes is amended to read:

AB1114,4,5 46.266 (4) (b) If Notwithstanding s. 51.40 (2), if the department is unable to determine the county of residence under par. (a), the county department of the county in which is located the facility where the person resided on the date of the finding by the federal health care financing administration or the department.

AB1114, s. 2 Section 2. 46.27 (6g) (c) of the statutes is amended to read:

AB1114,4,10 46.27 (6g) (c) For a person living in a nursing home , except a state-operated long-term care facility, whose legal residence is established in another county, the county in which the legal of residence is established is the county of for purposes of fiscal responsibility is determined under s. 51.40.

AB1114, s. 3 Section 3. 51.01 (4g) of the statutes is created to read:

AB1114,4,13 51.01 (4g) "County of residence" means the county that is determined under s. 51.40 to be the county of residence.

AB1114, s. 4 Section 4. 51.01 (4r) of the statutes is created to read:

AB1114,4,18 51.01 (4r) "Degenerative brain disorder" means the loss or dysfunction of brain cells to the extent that the individual is substantially impaired in his or her ability to provide adequately for his or her own care or custody or to manage adequately his or her property or financial affairs.

AB1114, s. 5 Section 5. 51.01 (14) of the statutes is amended to read:

AB1114,5,2 51.01 (14) "Residence", "legal residency" or "county of residence" has the meaning given under s. 49.001 (6).

AB1114, s. 6 Section 6. 51.01 (14t) of the statutes is created to read:

AB1114,5,12 51.01 (14t) "Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. "Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability or of alcohol or drug dependence.

AB1114, s. 7 Section 7. 51.05 (2) of the statutes is amended to read:

AB1114,5,23 51.05 (2) Admissions authorized by counties. The department may not accept for admission to a mental health institute any resident person, except in an emergency, unless the county department under s. 51.42 in the county where the person has legal residency of residence authorizes the care, as provided in s. 51.42 (3) (as). Patients who are committed to the department under s. 975.01, 1977 stats., or s. 975.02, 1977 stats., or s. 971.14, 971.17, 975.06 or 980.06, admitted by the department under s. 975.17, 1977 stats., or are transferred from a secured correctional facility, a secured child caring institution or a secured group home to a state treatment facility under s. 51.35 (3) or from a jail or prison to a state treatment facility under s. 51.37 (5) are not subject to this section.

AB1114, s. 8 Section 8. 51.13 (4) (h) 2. of the statutes is amended to read:

AB1114,6,7 51.13 (4) (h) 2. Order the petition to be treated as a petition for involuntary commitment and refer it to the court where the review under this section was held, or if it was not held in the county of legal residence of the subject individual's parent or guardian and hardship would otherwise occur and if the best interests of the subject individual would be served thereby, to the court assigned to exercise jurisdiction under chs. 48 and 938 in such county for a hearing under s. 51.20 or 51.45 (13).

AB1114, s. 9 Section 9. 51.20 (1) (c) of the statutes is amended to read:

AB1114,7,2 51.20 (1) (c) The petition shall contain the names and mailing addresses of the petitioners and their relation to the subject individual, and shall also contain the names and mailing addresses of the individual's spouse, adult children, parents or guardian, custodian, brothers, sisters, person in the place of a parent and person with whom the individual resides or lives. If this information is unknown to the petitioners or inapplicable, the petition shall so state. The petition may be filed in the court assigned to exercise probate jurisdiction for the county where the subject individual is present or the county of the individual's legal residence of the individual. If the judge of the court or a circuit court commissioner who handles probate matters is not available, the petition may be filed and the hearing under sub. (7) may be held before a judge or circuit court commissioner of any circuit court for the county. For the purposes of this chapter, duties to be performed by a court shall be carried out by the judge of the court or a circuit court commissioner of the court who is designated by the chief judge to so act, in all matters prior to a final hearing under this section. The petition shall contain a clear and concise statement of the facts which constitute probable cause to believe the allegations of the petition. The petition shall be sworn to be true. If a petitioner is not a petitioner having personal knowledge as provided in par. (b), the petition shall contain a statement providing the basis for his or her belief.

AB1114, s. 10 Section 10. 51.20 (9) (a) 3. of the statutes is amended to read:

AB1114,7,9 51.20 (9) (a) 3. If requested by the subject individual, the individual's attorney, or any other interested party with court permission, the individual has a right at his or her own expense or, if indigent and with approval of the court hearing the petition, at the reasonable expense of the individual's county of legal residence, to secure an additional medical or psychological examination and to offer the evaluator's personal testimony as evidence at the hearing.

AB1114, s. 11 Section 11. 51.20 (13) (g) 4. of the statutes is created to read:

AB1114,7,15 51.20 (13) (g) 4. The county department under s. 51.42 or 51.437 to which an individual is committed under par. (a) 3. retains financial responsibility for the individual when the individual voluntarily moves to another county until venue for the individual is transferred to the county where the individual is residing or until the individual is no longer a proper subject of continued commitment.

AB1114, s. 12 Section 12. 51.20 (18) (d) of the statutes is amended to read:

AB1114,8,2 51.20 (18) (d) If the subject individual has a legal residence in a county individual's county of residence is other than the county from which he or she is detained, committed or discharged, that county shall reimburse the county from which the individual was detained, committed or discharged for all expenses under pars. (a) to (c). The county clerk on each July 1 shall submit evidences of payments of all such proceedings on nonresident payments to the department, which shall certify such expenses for reimbursement in the form of giving credits to the detaining, committing or discharging county and assessing such costs against the county of legal residence or against the state at the time of the next apportionment of charges and credits under s. 70.60.

AB1114, s. 13 Section 13. 51.22 (4) of the statutes is amended to read:

AB1114,8,9 51.22 (4) If a patient is placed under involuntary commitment or protectively placed in a facility authorized by a county department under s. 51.42 or 51.437 and such the placement or protective placement is outside the jurisdiction of that county department under s. 51.42 or 51.437, the placement or protective placement does not transfer the patient's legal residence to the county of the facility's location while such the patient is under involuntary commitment or protective placement.

AB1114, s. 14 Section 14. 51.37 (5) (c) of the statutes is amended to read:

AB1114,8,16 51.37 (5) (c) No state treatment facility may accept for admission an individual who is being transferred from a county jail under par. (a) or (b) without the approval of the county department under s. 51.42 or 51.437 of the county in which the jail is located. No state treatment facility may retain such an individual beyond 72 hours without the approval of the county department under s. 51.42 or 51.437 of the county where of residence of the transferred individual has legal residence.

AB1114, s. 15 Section 15. 51.40 (title) of the statutes is repealed and recreated to read:

AB1114,8,19 51.40 (title) Determination of residence for certain adults; county of responsibility.

AB1114, s. 16 Section 16. 51.40 (1) (e) of the statutes is amended to read:

AB1114,8,23 51.40 (1) (e) "County of responsibility" means the county responsible for funding the provision of care, treatment, or services under this chapter or ch. 46 or 55 to an individual.

AB1114, s. 17 Section 17. 51.40 (1) (em) of the statutes is created to read:

AB1114,9,2 51.40 (1) (em) "Facility" means a place, other than a hospital, that is licensed, registered, certified, or approved by the department or a county under ch. 50 or 51.

AB1114, s. 18 Section 18. 51.40 (1) (hm) of the statutes is created to read:

AB1114,9,8 51.40 (1) (hm) "Other like incapacities" means those conditions incurred at any age that are the result of accident, organic brain damage, mental or physical disability, or continued consumption or absorption of substances, producing a condition that substantially impairs an individual from adequately providing for his or her care or custody.

AB1114, s. 19 Section 19. 51.40 (1) (k) of the statutes is created to read:

AB1114,9,10 51.40 (1) (k) "Voluntary" has the meaning specified under s. 49.001 (8).

AB1114, s. 20 Section 20. 51.40 (2) (intro.) of the statutes is amended to read:

AB1114,9,18 51.40 (2) Determination of county of residence. (intro.) For purposes of determining responsibility for funding the provision of services under chs. 46, 51 and 55, the The county of residence of individuals an individual aged 18 or older with a developmental disability or chronic, serious and persistent mental illness in state facilities or nursing homes, degenerative brain disorder, or other like incapacity who is residing in a facility is the county of responsibility for the individual. The county of residence shall be determined as follows:

AB1114, s. 21 Section 21. 51.40 (2) (a) of the statutes is amended to read:

AB1114,9,25 51.40 (2) (a) Directed placement. 1. `Commitment or protection protective placement or protective services.' If an individual is under a court order of commitment under this chapter or protective placement or protective services under s. 55.06 ch. 55, the individual remains a resident of the county in which he or she has residence at the time the initial commitment or initial order for protective placement or protective services is made. If the court makes no specific finding of a county of residence, the individual is a resident of the county in which the court is located. The court may make a specific finding of a county of residence, after notice, including notice to the corporation counsel of each affected county by certified mail, after opportunity to be heard has been provided to all affected counties and parties, and if there is no objection. If any affected county or party objects to the court's proposed finding of a county of residence, the county or party may request the department to make a determination under par. (g) and any transfer of venue shall be suspended until the determination is final.

AB1114,10,23 2. `Placement by a county.' Except for the provision of emergency services under s. 51.15, 51.42 (1) (b), 51.437 (4) (c), 51.45 (11) and or (12) or 55.06 (11) emergency protective services or emergency or temporary protective placement under ch. 55, if a county department or an agency of a county department arranges places or makes arrangements for placement of the individual into a state facility or nursing home, the individual is a resident of the county of that county department. Any agency of the county department is deemed to be acting on behalf of the county department in arranging placing or making arrangements for placement. Placement of an individual by a county department or an agency of a county department into a facility outside the jurisdiction of the county department or agency does not transfer the individual's legal residence to the county in which the facility is located. If a resident of a county is physically present in another county and is in need of immediate care, the county in which the individual is present may provide for the immediate needs of a person under ss. 51.15, 51.20, 51.42 (1) (b), 51.437 (4) (c), 51.45 (11) and (12), and 880.07 and ch. 55 without becoming the county of residence.

AB1114, s. 22 Section 22. 51.40 (2) (b) (intro.) of the statutes is amended to read:

AB1114,11,2 51.40 (2) (b) Other admissions. (intro.) If par. (a) does not apply, one of the following shall apply the county of residence shall be determined as follows:

AB1114, s. 23 Section 23. 51.40 (2) (b) 1. of the statutes is amended to read:

AB1114,11,9 51.40 (2) (b) 1. `Individuals in state facilities.' An individual who is in a state facility is a resident of the county in which he or she was a resident at the time the admission to the state facility was made. This subdivision may not be applied to change residence from a county, other than the county in which the facility is located, which that has accepted responsibility for or provided services to the individual prior to August 1, 1987 before the effective date of this subdivision .... [revisor inserts date].

AB1114, s. 24 Section 24. 51.40 (2) (b) 2. (intro.) of the statutes is amended to read:

AB1114,11,14 51.40 (2) (b) 2. `Individuals in nursing homes.' (intro.) The following are presumptions regarding the county of residence of an individual in a nursing home that may be overcome by substantial evidence that clearly establishes other county residence:

AB1114,11,18 ag. An individual in a nursing home who was admitted under s. 50.04 (2r) to the nursing home on or after August 1, 1987 the effective date of this subd. 2. ag. .... [revisor inserts date], is a resident of the county which that approved the admission under s. 50.04 (2r).

AB1114,11,24 bg. An individual residing in a nursing home on or before August 1, 1987 the effective date of this subd. 2. bg. .... [revisor inserts date], is presumed to be a resident of the county in which the individual is physically present unless another county accepts the individual as a resident. The presumption of residence may be overcome by substantial evidence which clearly establishes residence in another county in one of the following ways:

AB1114, s. 25 Section 25. 51.40 (2) (b) 2. a. of the statutes is renumbered 51.40 (2) (b) 2. cg. and amended to read:

AB1114,12,11 51.40 (2) (b) 2. cg. The If the individual had an established residence in another county prior to entering the nursing home; the individual or the individual's guardian, if any, indicates an intent that the individual will return to that county when the purpose of entering the nursing home has been accomplished or when needed care and services can be obtained in the other that county; and the individual, when capable of indicating intent, or a guardian for the individual, has made no clearly documented expression to a court or county department of an intent to establish residence elsewhere since leaving that county, the individual is a resident of that county.

AB1114, s. 26 Section 26. 51.40 (2) (b) 2. b. of the statutes is renumbered 51.40 (2) (b) 2. dg. and amended to read:

AB1114,12,17 51.40 (2) (b) 2. dg. The If the individual is incapable of indicating intent as determined by the county department, has no guardian, ordinarily resides in another county, and is expected to return to that county within one year, the individual is a resident of that county.

AB1114, s. 27 Section 27. 51.40 (2) (b) 2. c. of the statutes is renumbered 51.40 (2) (b) 2. eg. and amended to read:

AB1114,12,22 51.40 (2) (b) 2. eg. Another If another county has accepted responsibility for or provided services to the individual prior to August 1, 1987 the effective date of this subd. 2. eg. .... [revisor inserts date], the individual is a resident of that county.

AB1114, s. 28 Section 28. 51.40 (2) (b) 2. d. of the statutes is renumbered 51.40 (2) (b) 2. fg. and amended to read:

AB1114,13,7 51.40 (2) (b) 2. fg. The If the individual is incapable of indicating intent; the individual was living in another county outside of a nursing home or state facility on December 1, 1982 the effective date of this subd. 2. fg. .... [revisor inserts date], or under circumstances which that established residence in that county after December 1, 1982 the effective date of this subd. 2. fg. .... [revisor inserts date]; and that county was the last county in which the individual had residence while living outside of a nursing home or state facility, the individual is a resident of that county.

AB1114, s. 29 Section 29. 51.40 (2) (b) 3. of the statutes is created to read:

AB1114,13,12 51.40 (2) (b) 3. `Individuals in facilities.' If subd. 1. or 2. does not apply, an individual who is incapable of indicating intent and is residing in a facility is a resident of the county in which the individual resided before admittance to the facility.

AB1114, s. 30 Section 30. 51.40 (2) (f) of the statutes is repealed and recreated to read:

AB1114,13,15 51.40 (2) (f) Guardian's authority to declare county of residence. A guardian may declare any of the following, under any of the following conditions:

AB1114,13,22 1. The ward's county of residence is the guardian's county of residence, if pars. (a) and (b) do not apply, if the guardian's ward is in a facility and is incapable of indicating intent, and if the guardian is a resident of the county in which the facility is located or states in writing that the ward is expected to return to the guardian's county of residence when the purpose of entering the facility has been accomplished or when needed care and services can be obtained in the guardian's county of residence.

AB1114,13,24 2. The ward's county of residence is the county in which the ward is physically present, if pars. (a) and (b) do not apply and if all of the following apply:

AB1114,13,25 a. The ward's presence in the county is voluntary.

AB1114,14,4 b. There is no current order under ch. 55 in effect with respect to the ward, and the ward is not under an involuntary commitment order to the department of corrections or to a county other than the county in which the ward in physically present.

AB1114,14,5 c. The ward is living in a place of fixed habitation.