AB1114: Bill Text

LRB-2339/1

DAK:wlj:jf

2005 - 2006 LEGISLATURE

2005 Assembly BILL 1114

March 14, 2006 - Introduced by Joint Legislative Council. Referred to Committee on Health.

AB1114,1,11 An Act to renumber and amend 51.40 (2) (b) 2. a., 51.40 (2) (b) 2. b., 51.40 (2) (b) 2. c. and 51.40 (2) (b) 2. d.; to amend 46.266 (4) (b), 46.27 (6g) (c), 51.01 (14), 51.05 (2), 51.13 (4) (h) 2., 51.20 (1) (c), 51.20 (9) (a) 3., 51.20 (18) (d), 51.22 (4), 51.37 (5) (c), 51.40 (1) (e), 51.40 (2) (intro.), 51.40 (2) (a), 51.40 (2) (b) (intro.), 51.40 (2) (b) 1., 51.40 (2) (b) 2. (intro.), 51.40 (2) (g) 1., 55.06 (1) (a), 55.06 (3) (c), 55.06 (8) (intro.), 880.06 (1) and 880.33 (2) (a) 3.; to repeal and recreate 51.40 (title), 51.40 (2) (f) and 880.06 (2); and to create 51.01 (4g), 51.01 (4r), 51.01 (14t), 51.20 (13) (g) 4., 51.40 (1) (em), 51.40 (1) (hm), 51.40 (1) (k), 51.40 (2) (b) 3., 51.40 (2) (g) 6. and 55.06 (3) (d) of the statutes; relating to: venue, county of responsibility, and determination of county of residence for certain services, commitments, protective placements, and protective services.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

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:

Joint Legislative Council prefatory note:

Residency, Venue, and County of Responsibility

Current law sets forth criteria to determine which county is responsible for the costs of services provided to an individual under chs. 46, 51, and 55.

The current criteria apply only to persons with a developmental disability or chronic mental illness. The bill replaces the term "chronic mental illness" with "serious and persistent mental illness," to correspond to similar changes elsewhere in the bill. The bill also expands applicability of the criteria to individuals with "degenerative brain disorder" or "other like incapacity."

The current criteria apply only to individuals in state facilities or nursing homes. The bill expands applicability of the criteria to individuals in any facility licensed or registered under ch. 50 of the statutes.

The bill specifies that the criteria apply to individuals receiving court-ordered protective services as well as placement; current law refers only to protective placement.

The bill specifies that for purposes of s. 51.40, "residence" has the meaning specified in s. 49.001 (6): "the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation. Physical presence is prima facie evidence of intent to remain."

The bill further specifies that for purposes of s. 51.40, "voluntary" has the meaning specified in s. 49.001 (8).

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: