AB539: Bill Text

AB539,31,15 1. The elder-adult-at-risk agency determines that the release would be contrary to the best interests of the elder adult at risk who is the subject of the departmental report form or of another person residing with the subject of the departmental report form, or the release is likely to cause mental, emotional, or physical harm to the subject of the departmental report form or to any other individual.

AB539,31,18 2. The district attorney determines that disclosure of the information would jeopardize any ongoing or future criminal investigation or prosecution or would jeopardize a defendant's right to a fair trial.

AB539,31,21 3. The elder-adult-at-risk agency determines that disclosure would jeopardize ongoing or future civil investigations or proceedings or would jeopardize the fairness of such a legal proceeding.

AB539, s. 75 Section 75. 46.90 (6) (bt) of the statutes is created to read:

AB539,32,2 46.90 (6) (bt) Subject to pars. (b), (bd), (br), (bv), and (bw), records under this subsection are confidential and may not be released by the elder-adult-at-risk agency or other investigative agency, except under the following circumstances, upon request:

AB539,32,3 1. To the elder adult at risk who is the alleged victim named in the record.

AB539,32,7 2. To the legal guardian, conservator, or other legal representative of the elder adult at risk who is the alleged victim named in the record, if the legal guardian, conservator, or other legal representative of the alleged victim is not the alleged perpetrator of the abuse, financial exploitation, or neglect.

AB539,32,10 3. To law enforcement officials and agencies in accordance with the policy developed under sub. (3) (a) or with investigations conducted under sub. (5), or a district attorney, for purposes of investigation or prosecution.

AB539,32,13 4. To the department, under s. 51.03 (2), or for death investigations under s. 50.04 (2t) or 50.035 (5); or to a sheriff, police department, or district attorney for death investigations under s. 51.64 (2) (a).

AB539,32,18 5. To an employee of a county department under s. 51.42 or 51.437 that is providing services either to the elder adult at risk who is the alleged victim named in the record or to the alleged perpetrator of abuse, to determine whether the alleged victim should be transferred to a less restrictive or more appropriate treatment modality or facility.

AB539,32,22 6. To a court, tribal court, or state governmental agency for a proceeding relating to the licensure or regulation of an individual or entity regulated or licensed by the state governmental agency, that was an alleged perpetrator of abuse, financial exploitation, or neglect.

AB539,32,24 7. To the department, for management, audit, program monitoring, evaluation, billing, or collection purposes.

AB539,33,3 8. To the attorney or guardian ad litem for the elder adult at risk who is the alleged victim named in the record, to assist in preparing for any proceeding under ch. 48, 51, 55, 880, 971, or 975 pertaining to the alleged victim.

AB539,33,6 9. To a coroner, medical examiner, pathologist, or other physician investigating the cause of death of an elder adult at risk that is unexplained or unusual or is associated with unexplained or suspicious circumstances.

AB539,33,8 10. To staff members of the protection and advocacy agency designated under s. 51.62 and the board on aging and long-term care under s. 16.009.

AB539,33,11 11. To an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of abuse, neglect, or financial exploitation of an elder adult at risk.

AB539,33,13 12. To a grand jury, if it determines that access to specified records is necessary for the conduct of its official business.

AB539,33,14 13. Under a lawful order of a court of record.

AB539, s. 76 Section 76. 46.90 (6) (bv), (bw) and (by) of the statutes are created to read:

AB539,33,20 46.90 (6) (bv) The identity of a person making a report of alleged abuse, neglect, self-neglect, or financial exploitation shall be deleted from any record prior to its release under par. (bt) or from any departmental report form prior to its release under par. (b). The identity of any reporter may only be released with the written consent of the reporter or under a lawful order of a court of record.

AB539,33,23 (bw) A person to whom a departmental report form or a record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this subsection.

AB539,34,3 (by) A custodian of records or departmental report forms incurs no civil or criminal liability under this subsection and may not be found guilty of unprofessional conduct for the release or nonrelease of records or departmental report forms in accordance with this subsection while acting in good faith and within the scope of his or her authority.

AB539, s. 77 Section 77. 46.90 (6) (c) 1. of the statutes is renumbered 46.90 (9) (a) and amended to read:

AB539,34,12 46.90 (9) (a) Any person, including the state or any political subdivision of the state, violating this subsection shall be sub. (6) is liable to any person damaged as a result of the violation for such damages as may be proved, together with exemplary damages of not less than $100 nor more than $500 for each violation and such the costs and reasonable actual attorney fees as may be that are incurred by the person damaged. A custodian of records incurs no liability under this subdivision for the release of records in accordance with this subsection while acting in good faith.

AB539, s. 78 Section 78. 46.90 (6) (c) 2. of the statutes is renumbered 46.90 (9) (b) and amended to read:

AB539,34,21 46.90 (9) (b) In any action brought under subd. 1. par. (a) in which the court determines that the violator acted in a manner that was knowing and willful, the violator shall be liable for such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees as may be incurred. It is not a prerequisite to an action under this paragraph par. (a) that the plaintiff suffer or be threatened with actual damages.

AB539, s. 79 Section 79. 46.90 (6) (c) 3. of the statutes is renumbered 46.90 (9) (c) and amended to read:

AB539,35,3 46.90 (9) (c) An individual may bring an action to enjoin any violation of this subsection sub. (6) or to compel compliance with this subsection sub. (6), and may in the same action seek damages as provided in this paragraph subsection. The individual may recover costs and reasonable actual attorney fees as may be incurred in the action, if he or she prevails.

AB539, s. 80 Section 80. 46.90 (7) of the statutes is amended to read:

AB539,35,9 46.90 (7) Exception. Nothing in this section shall may be construed to mean that a person is abused, financially exploited, neglected or in need of direct or protective services solely because he or she consistently relies upon treatment by spiritual means through prayer for healing in accordance with his or her religious tradition.

AB539, s. 81 Section 81. 46.90 (8) (a) of the statutes is amended to read:

AB539,35,13 46.90 (8) (a) The department shall develop a plan to assist county elder-adult-at-risk agencies in determining appropriate responses to reports of abuse, material abuse financial exploitation, neglect, or self-neglect.

AB539, s. 82 Section 82. 46.90 (8) (b) of the statutes is amended to read:

AB539,35,16 46.90 (8) (b) The department shall prepare and distribute sample departmental report forms for use by county elder-adult-at-risk agencies.

AB539, s. 83 Section 83. 46.90 (8) (c) and (d) of the statutes are amended to read:

AB539,36,2 46.90 (8) (c) The department shall collect statistical information from each county pertaining to each reported case of abuse, material abuse financial exploitation, neglect, or self-neglect. The department may require investigators elder-adult-at-risk agency workers or investigators to submit statements departmental report forms to the department that summarize the information being reported. These summary statements departmental report forms may not name or otherwise identify individual persons individuals. The department shall use this information to review the effectiveness of this section, to plan program changes, and to formulate reports.

AB539,36,9 (d) The department shall develop and disseminate information on elder elder-adult-at-risk abuse and the elder abuse reporting system under this section. The department shall also develop informational materials to be used by county elder-adult-at-risk agencies regarding elder abuse of elder adults at risk and regarding the elder abuse reporting system. The department shall solicit contributions of labor, materials, and expertise from private sources to assist in developing the informational materials.

AB539, s. 84 Section 84. 46.90 (9) (title) and (e) of the statutes are created to read:

AB539,36,11 46.90 (9) (title) Penalties.

AB539,36,13 (e) Whoever intentionally violates sub. (4) (ad) by failure to report as required may be fined not more than $500 or imprisoned not more than 6 months or both.

AB539, s. 85 Section 85. 49.498 (3) (b) 1. of the statutes is amended to read:

AB539,36,20 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 misappropriation of property or financial exploitation, neglect, or abuse of a resident.

AB539, s. 86 Section 86. 50.065 (1) (br) of the statutes is amended to read:

AB539,36,24 50.065 (1) (br) "Direct contact" means face-to-face physical proximity to a client that affords the opportunity to commit abuse or , neglect, or financial exploitation of a client or to misappropriate the property of a client.

AB539, s. 87 Section 87. 50.065 (1) (cg) of the statutes is created to read:

AB539,37,1 50.065 (1) (cg) "Financial exploitation" means any of the following:

AB539,37,5 1. Obtaining an individual's money or property by deceiving or enticing the individual, or by forcing, compelling, or coercing the individual to give, sell at less than fair market value, or in other ways convey money or property against his or her will without his or her informed consent.

AB539,37,6 2. Theft, as prohibited in s. 943.20.

AB539,37,8 3. The substantial failure or neglect of a fiscal agent to fulfill his or her responsibilities.

AB539, s. 88 Section 88. 50.065 (4m) (a) 3. of the statutes is amended to read:

AB539,37,13 50.065 (4m) (a) 3. That a unit of government or a state agency, as defined in s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property committed abuse, neglect, or financial exploitation of any client.

AB539, s. 89 Section 89. 50.065 (4m) (b) 3. of the statutes is amended to read:

AB539,37,18 50.065 (4m) (b) 3. That a unit of government or a state agency, as defined in s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property committed abuse, neglect, or financial exploitation of any client.

AB539, s. 90 Section 90. 50.065 (7) (c) of the statutes is amended to read:

AB539,37,24 50.065 (7) (c) Conduct throughout the state periodic training sessions that cover criminal background investigations; reporting and investigating misappropriation of property or financial exploitation, abuse, or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.

AB539, s. 91 Section 91. 50.09 (1) (k) of the statutes is amended to read:

AB539,38,11 50.09 (1) (k) Be free from mental and physical abuse, and as defined in s. 46.90 (1) (a). The resident has a right to be free from chemical and physical restraints except as authorized in writing by a physician for a specified and limited period of time and documented in the resident's medical record. Physical restraints may be used in an emergency when necessary to protect the resident from injury to himself or herself or others or to property. However, authorization for continuing use of the physical restraints shall be secured from a physician within 12 hours. Any use of physical restraints shall be noted in the resident's medical records. "Physical restraints" includes, but is not limited to, any article, device or garment which interferes with the free movement of the resident and which the resident is unable to remove easily, and confinement in a locked room.

AB539, s. 92 Section 92. 51.01 (2g) (b) of the statutes is amended to read:

AB539,38,15 51.01 (2g) (b) "Brain injury" does not include alcoholism, Alzheimer's disease as specified under s. 46.87 (1) (a), or the infirmities of aging as specified under s. 55.01 (3) degenerative brain disorder, as defined in s. 55.01 (1v).

AB539, s. 93 Section 93. 51.01 (3g) of the statutes is amended to read:

AB539,39,2 51.01 (3g) "Chronic mental illness" means a mental illness that which is severe in degree and persistent in duration, which 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, which that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and which that may be of lifelong duration. "Chronic mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include infirmities of aging degenerative brain disorder, as defined in s. 55.01 (1v), or a primary diagnosis of mental retardation or of alcohol or drug dependence.

AB539, s. 94 Section 94. 51.01 (5) (a) of the statutes is amended to read:

AB539,39,11 51.01 (5) (a) "Developmental disability" means a disability attributable to brain injury, cerebral palsy, epilepsy, autism, Prader-Willi syndrome, mental retardation, or another neurological condition closely related to mental retardation or requiring treatment similar to that required for mental retardation, which has continued or can be expected to continue indefinitely and constitutes a substantial handicap to the afflicted individual. "Developmental disability" does not include senility which is primarily caused by the process of aging or the infirmities of aging degenerative brain disorder, as defined in s. 55.01 (1v).

AB539, s. 95 Section 95. 51.30 (4) (b) 17. of the statutes is amended to read:

AB539,39,22 51.30 (4) (b) 17. To the county elder-adult-at-risk agency designated under s. 46.90 (2) or other investigating agency under s. 46.90 for the purposes of s. 46.90 (4) (a) and (5), to the county department, as defined in s. 48.02 (2g), or the sheriff or police department for the purposes of s. 48.981 (2) and (3), or to the county protective services adult-at-risk agency designated under s. 55.02 for purposes of s. 55.043. The treatment record holder may release treatment record information by initiating contact with the county protective services elder-adult-at-risk agency, adult-at-risk agency, or county department, as defined in s. 48.02 (2g), without first receiving a request for release of the treatment record from the county protective services elder-adult-at-risk agency, adult-at-risk agency, or county department.

AB539, s. 96 Section 96. 51.42 (3) (e) of the statutes is amended to read:

AB539,40,12 51.42 (3) (e) Exchange of information. Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of a county department of community programs or tribal agency acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of community programs or tribal agency, with a resource center, a care management organization, or a family care district, or with any person providing services to the client under a purchase of services contract with the county department of community programs or tribal agency or with a resource center, care management organization, or family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of community programs or tribal agency to coordinate the delivery of services to the client. Any agency releasing information under this paragraph shall document that a request was received and what information was provided.

AB539, s. 97 Section 97. 51.437 (4r) (b) of the statutes is amended to read:

AB539,41,3 51.437 (4r) (b) Notwithstanding ss. 46.2895 (9), 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of the a county department of developmental disabilities services or tribal agency acting under this section may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of developmental disabilities services or tribal agency, with a resource center, a care management organization , or a family care district, or with any person providing services to the client under a purchase of services contract with the county department of developmental disabilities services or tribal agency or with a resource center, a care management organization , or a family care district, if necessary to enable an employee or service provider to perform his or her duties, or to enable the county department of developmental disabilities services or tribal agency to coordinate the delivery of services to the client. Any agency releasing information under this paragraph shall document that a request was received and what information was provided.

AB539, s. 98 Section 98. 51.62 (1) (ag) of the statutes is repealed and recreated to read:

AB539,41,5 51.62 (1) (ag) "Abuse" has the meaning given in s. 46.90 (1) (a).

AB539, s. 99 Section 99. 51.62 (1) (ar) of the statutes is created to read:

AB539,41,7 51.62 (1) (ar) "Financial exploitation" has the meaning given in s. 46.90 (1) (ed).

AB539, s. 100 Section 100. 51.62 (1) (br) of the statutes is repealed and recreated to read:

AB539,41,9 51.62 (1) (br) "Neglect" has the meaning given in s. 46.90 (1) (f).

AB539, s. 101 Section 101. 51.62 (3) (a) 2m. of the statutes is amended to read:

AB539,41,16 51.62 (3) (a) 2m. Have immediate access to any person individual with mental illness or developmental disability, regardless of age, who has requested services or on whose behalf services have been requested from the protection and advocacy agency or concerning whom the protection and advocacy agency has reasonable cause to believe that abuse, neglect, financial exploitation, or a violation of rights of the individual has occurred.

AB539, s. 102 Section 102. 55.001 of the statutes is amended to read:

AB539,42,6 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 degenerative brain disorders, developmental disabilities, or like incapacities incurred at any age, are in need of protective services. Except as provided in s. 49.45 (30m) (a), 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 required to be appropriated to match state funds, allow the individual the same rights as other citizens, and at the same time protect the individual from financial exploitation, abuse , and degrading treatment. This chapter is designed to establish those services and assure their availability to all persons individuals 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.

AB539, s. 103 Section 103. 55.01 (1) of the statutes is repealed and recreated to read:

AB539,42,8 55.01 (1) "Abuse" has the meaning given in s. 46.90 (1) (a).

AB539, s. 104 Section 104. 55.01 (1e) of the statutes is created to read:

AB539,42,13 55.01 (1e) "Adult at risk" means any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.

AB539, s. 105 Section 105. 55.01 (1f) of the statutes is created to read:

AB539,42,17 55.01 (1f) "Adult-at-risk agency" means the agency designated by the county board of supervisors under s. 55.043 (1) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under s. 55.043.

AB539, s. 106 Section 106. 55.01 (1m) of the statutes is amended to read:

AB539,42,19 55.01 (1m) "Bodily harm" has the meaning given in s. 939.22 (4) 46.90 (1) (aj).

AB539, s. 107 Section 107. 55.01 (1p) of the statutes is repealed and recreated to read:

AB539,42,21 55.01 (1p) "Caregiver" has the meaning given in s. 46.90 (1) (an).