AB785: Bill Text

Under current law, s. 55.06 (6), relating to procedures in protective placement proceedings, provides that s. 880.33 (2) applies to all hearings under ch. 55 except for transfers of protective placements. Section 880.33 (2) (a) 1. provides that the proposed ward has the right to counsel in incompetency proceedings. Section 880.33 (2) (a) 2. further provides that if the person requests, but is unable to obtain legal counsel, the court shall appoint legal counsel. The statutes also provide that if the person is represented by counsel appointed under s. 977.08 in a proceeding for a protective placement under s. 55.06, the court shall order the counsel appointed under s. 977.08 to represent the person.

Although ch. 55 does not explicitly provide for counsel appointed under s. 977.08 in case of an indigent subject, the language in s. 880.33 (2) (a) 2. implies that counsel should be appointed. Further, s. 55.06 (11), relating to emergency protective placements, clearly provides for counsel appointed under s. 977.08 in the case of an indigent subject. Finally, it is the practice in this state to appoint counsel under s. 977.08 in the case of an indigent subject of a ch. 55 petition.

This bill amends the public defender statute that sets forth to whom the state public defender must provide legal services by clearly setting forth the requirement that the state public defender provide legal services in cases involving persons who are subject to petitions for protective placement under ch. 55. This codifies current practice.

The remainder of this prefatory note consists of a table of contents for reorganized ch. 55: - See PDF for table

AB785, s. 1 Section 1. 20.435 (2) (gk) of the statutes is amended to read:

AB785,25,13 20.435 (2) (gk) Institutional operations and charges. The amounts in the schedule for care, other than under s. 51.06 (1r), provided by the centers for the developmentally disabled, to reimburse the cost of providing the services and to remit any credit balances to county departments that occur on and after July 1, 1978, in accordance with s. 51.437 (4rm) (c); for care, other than under s. 46.043, provided by the mental health institutes, to reimburse the cost of providing the services and to remit any credit balances to county departments that occur on and after January 1, 1979, in accordance with s. 51.42 (3) (as) 2.; for maintenance of state-owned housing at centers for the developmentally disabled and mental health institutes; for repair or replacement of property damaged at the mental health institutes or at centers for the developmentally disabled; and for reimbursing the total cost of using, producing, and providing services, products, and care. All moneys received as payments from medical assistance on and after August 1, 1978; as payments from all other sources including other payments under s. 46.10 and payments under s. 51.437 (4rm) (c) received on and after July 1, 1978; as medical assistance payments, other payments under s. 46.10, and payments under s. 51.42 (3) (as) 2. received on and after January 1, 1979; as payments for the rental of state-owned housing and other institutional facilities at centers for the developmentally disabled and mental health institutes; for the sale of electricity, steam, or chilled water; as payments in restitution of property damaged at the mental health institutes or at centers for the developmentally disabled; for the sale of surplus property, including vehicles, at the mental health institutes or at centers for the developmentally disabled; and for other services, products, and care shall be credited to this appropriation, except that any payment under s. 46.10 received for the care or treatment of patients admitted under s. 51.10, 51.15, or 51.20 for which the state is liable under s. 51.05 (3), of patients admitted under s. 55.06 (9) (d) or (e) for which the state is liable under s. 55.05 (1), of forensic patients committed under ch. 971 or 975, admitted under ch. 975, or transferred under s. 51.35 (3), or of patients transferred from a state prison under s. 51.37 (5), to the Mendota Mental Health Institute or the Winnebago Mental Health Institute shall be treated as general purpose revenue — earned, as defined under s. 20.001 (4); and except that moneys received under s. 51.06 (6) may be expended only as provided in s. 13.101 (17).

Note: Deletes cross-references to s. 55.06 (9) (d) and (e), which are repealed by the bill.

AB785, s. 2 Section 2. 46.011 (2) of the statutes is amended to read:

AB785,25,20 46.011 (2) "Prisoner" means any person who is either arrested, incarcerated, imprisoned or otherwise detained in excess of 12 hours by any law enforcement agency of this state, except when detention is pursuant to s. 51.15, 51.20, 51.45 (11) (b) or 55.06 (11) (a) 55.135 (1) or ch. 980. "Prisoner" does not include any person who is serving a sentence of detention under s. 973.03 (4) unless the person is in the county jail under s. 973.03 (4) (c).

Note: Changes a cross-reference to emergency protective placement, the provisions of which are renumbered under this bill.

AB785, s. 3 Section 3. 46.10 (2) of the statutes is amended to read:

AB785,27,3 46.10 (2) Except as provided in subs. (2m) and (14) (b) and (c), any person, including but not limited to a person admitted, committed, protected, or placed under s. 975.01, 1977 stats., s. 975.02, 1977 stats., and s. 975.17, 1977 stats., s. 55.05 (5), 2003 stats., and 55.06, 2003 stats., and ss. 51.10, 51.13, 51.15, 51.20, 51.35 (3), 51.37 (5), 51.45 (10), (11), (12) and (13), 55.05, 55.06 55.055, 55.12, 55.13, 55.135, 971.14 (2) and (5), 971.17 (1), 975.06 and 980.06, receiving care, maintenance, services and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73, and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c), 1997 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (5) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services and supplies in accordance with the fee schedule established by the department under s. 46.03 (18). If a spouse, widow or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

Note: Changes cross-references to protective placement, which is renumbered in this bill.

AB785, s. 4 Section 4 . 46.21 (2m) (c) of the statutes is amended to read:

AB785,27,16 46.21 (2m) (c) 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) 55.22 (3), 146.82, 252.11 (7) and 253.07 (3) (c), any subunit of the county department of human services acting under this subsection may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of human services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of human services 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 human services to coordinate the delivery of services to the client.

AB785, s. 5 Section 5. 46.215 (1m) of the statutes is amended to read:

AB785,28,6 46.215 (1m) 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) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of the county department of social services 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 social services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of social services 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 social services to coordinate the delivery of services to the client.

AB785, s. 6 Section 6. 46.22 (1) (dm) of the statutes is amended to read:

AB785,28,19 46.22 (1) (dm) 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) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of the county department of social services acting under this subsection may exchange confidential information about a client, without the informed consent of the client, with any other subunit of the same county department of social services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of social services 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 social services to coordinate the delivery of services to the client.

AB785, s. 7 Section 7 . 46.23 (3) (e) of the statutes is amended to read:

AB785,29,7 46.23 (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) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), any subunit of a county department of human services 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 human services, with a resource center, care management organization or family care district, or with any person providing services to the client under a purchase of services contract with the county department of human services 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 human services to coordinate the delivery of services to the client.

Note: Sections 4 to 7 change a cross-reference to provisions relating to confidentiality of treatment and service records for persons who are protected under chapter 55. These provisions are renumbered in this bill.

AB785, s. 8 Section 8. 46.27 (6r) (b) 2. of the statutes is amended to read:

AB785,29,12 46.27 (6r) (b) 2. The person has chronic serious and persistent mental illness, as defined under s. 51.01 (3g) (14t), affecting mental health to the extent that long-term or repeated hospitalization is likely unless the person receives long-term community support services.

Note: Deletes a reference to the term "chronic mental illness", which is eliminated in this bill, and replaces it with the updated term "serious and persistent mental illness".

AB785, s. 9 Section 9. 46.275 (4) (b) 1. of the statutes is amended to read:

AB785,29,19 46.275 (4) (b) 1. Consent for participation is given either by the person's parent, guardian or legal custodian, if the person is under age 18, or by the person or the person's guardian, if the person is age 18 or over, except that this subdivision does not limit the authority of the circuit court to enter, change, revise or extend a dispositional order under subch. VI of ch. 48 or subch. VI of ch. 938 or to order a protective placement or protective services under s. 55.06 55.12.

Note: Amends language in medical assistance waiver program language to reflect the bill's clarification that protective services, as well as protective placement, may be court ordered.

AB785, s. 10 Section 10 . 46.279 (2) of the statutes, as affected by 2005 Wisconsin Act .... (Assembly Bill 296), is amended to read:

AB785,30,19 46.279 (2) Placements and admissions to intermediate facilities. Except as provided in sub. (5), no person may protectively place or continue protective placement of an individual with a developmental disability in an intermediate facility and no intermediate facility may admit or continue service for such an individual unless, before the protective placement, continued placement following review under s. 55.06 (10) 55.18, or admission and after having considered a plan developed under sub. (4), a court under s. 55.06 (9) (a) or (10) (a) 2. 55.12 or 55.18 (1) (ar) finds that protective placement in the intermediate facility is the most integrated setting that is appropriate to the needs of the individual or that the county of residence of the individual would not reasonably be able to provide community-based care in accordance with the plan within the limits of available state and federal funds and county funds required to be appropriated to match state funds, taking into account information presented by all affected parties. An intermediate facility to which an individual who has a developmental disability applies for admission shall, within 5 days after receiving the application, notify the county department that is participating in the program under s. 46.278 of the county of residence of the individual who is seeking admission concerning the application.

AB785, s. 11 Section 11 . 46.279 (3) of the statutes, as affected by 2005 Wisconsin Act .... (Assembly Bill 296), is amended to read:

AB785,31,8 46.279 (3) Placements and admissions to nursing facilities. Except as provided in sub. (5), if the department or an entity determines from a screening under s. 49.45 (6c) (b) that an individual requires active treatment for developmental disability, no individual may be protectively placed in a nursing facility or have protective placement in a nursing facility continued following review under s. 55.06 (10) 55.18, and no nursing facility may admit or continue service for the individual, unless the department or entity that conducts the screening determines that the individual's need for care cannot fully be met in an intermediate facility or under a plan under sub. (4) or that the county of residence of the individual would not reasonably be able to provide community-based care in accordance with the plan within the limits of available state and federal funds and county funds required to be appropriated to match state funds.

Note: Sections 10 and 11 change a cross-reference to orders for protective placement, the provisions of which are renumbered in this bill.

AB785, s. 12 Section 12. 46.279 (4) (c) of the statutes is amended to read:

AB785,31,12 46.279 (4) (c) Within 120 days after a proposal is made under s. 55.06 (9) (a) 55.12 (6) to place provide protective placement to the individual in an intermediate facility or a nursing facility.

Note: Changes a cross-reference to the annual review of protective placements, the provisions of which are renumbered in this bill.

AB785, s. 13 Section 13. 46.279 (4) (d) of the statutes is amended to read:

AB785,31,16 46.279 (4) (d) Within 120 days after receiving written notice under s. 55.06 (10) (a) 2. 55.18 (1) (ar) of the protective placement of the individual in a nursing facility or an intermediate facility.

Note: Changes a cross-reference to the annual review of protective placement, the provisions of which are renumbered in this bill.

AB785, s. 14 Section 14. 46.279 (4) (e) of the statutes is amended to read:

AB785,31,19 46.279 (4) (e) Within 90 days after extension of a temporary protective placement order by the court under s. 55.06 (11) (c) 55.135 (5).

Note: Changes a cross-reference to temporary protective placement, the provisions of which are renumbered in this bill.

AB785, s. 15 Section 15. 46.279 (5) of the statutes is amended to read:

AB785,32,3 46.279 (5) Exceptions. Subsections (2) and (3) do not apply to an emergency protective placement under s. 55.06 (11) (a) 55.135 or to a temporary protective placement under s. 55.06 (11) (c) or (12) 55.135 (5) or 55.055 (5).

Note: Changes cross-references to emergency and temporary protective placements, the provisions of which are renumbered under this bill.

AB785, s. 16 Section 16 . 46.283 (7) (b) of the statutes is amended to read:

AB785,32,12 46.283 (7) (b) Notwithstanding ss. 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), a resource center acting under this section may exchange confidential information about a client, as defined in s. 46.287 (1), without the informed consent of the client, under s. 46.21 (2m) (c), 46.215 (1m), 46.22 (1) (dm), 46.23 (3) (e), 46.284 (7), 46.2895 (10), 51.42 (3) (e) or 51.437 (4r) (b) in the county of the resource center, if necessary to enable the resource center to perform its duties or to coordinate the delivery of services to the client.

AB785, s. 17 Section 17 . 46.284 (7) (b) of the statutes is amended to read:

AB785,32,22 46.284 (7) (b) Notwithstanding ss. 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), a care management organization acting under this section may exchange confidential information about a client, as defined in s. 46.287 (1), without the informed consent of the client, under s. 46.21 (2m) (c), 46.215 (1m), 46.22 (1) (dm), 46.23 (3) (e), 46.283 (7), 46.2895 (10), 51.42 (3) (e) or 51.437 (4r) (b) in the county of the care management organization, if necessary to enable the care management organization to perform its duties or to coordinate the delivery of services to the client.

Note: Sections 16 and 17 change cross-references to records in protective placement and services proceedings, the provisions of which are renumbered in this bill.

AB785, s. 18 Section 18 . 46.286 (1) (intro.) of the statutes is amended to read:

AB785,33,6 46.286 (1) Eligibility. (intro.) A person is eligible for, but not necessarily entitled to, the family care benefit if the person is at least 18 years of age; has a physical disability, as defined in s. 15.197 (4) (a) 2., a developmental disability, as defined in s. 51.01 (5) (a), or infirmities of aging degenerative brain disorder, as defined in s. 55.01 (3) (1v); and meets all of the following criteria:

AB785, s. 19 Section 19 . 46.286 (3) (a) (intro.) of the statutes is amended to read:

AB785,33,14 46.286 (3) (a) (intro.) Subject to pars. (c) and (d), a person is entitled to and may receive the family care benefit through enrollment in a care management organization if he or she is at least 18 years of age, has a physical disability, as defined in s. 15.197 (4) (a) 2., a developmental disability, as defined in s. 51.01 (5) (a), or infirmities of aging degenerative brain disorder, as defined in s. 55.01 (3) (1v), is financially eligible, fulfills any applicable cost-sharing requirements and meets any of the following criteria:

AB785, s. 20 Section 20. 46.286 (3) (a) 3. of the statutes is amended to read:

AB785,33,19 46.286 (3) (a) 3. Is functionally eligible at the intermediate level and is determined by an agency under s. 46.90 (2) or specified by a county protective services agency, as defined in s. 55.01 (1t), to be in need of protective services under s. 55.05 or protective placement under s. 55.06 ch. 55.

AB785, s. 21 Section 21. 46.2895 (10) of the statutes is amended to read:

AB785,34,3 46.2895 (10) Exchange of information. Notwithstanding sub. (9) and ss. 48.78 (2) (a), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.06 (17) (c) 55.22 (3), 146.82, 252.11 (7), 253.07 (3) (c) and 938.78 (2) (a), a family care district acting under this section may exchange confidential information about a client, as defined in s. 46.287 (1), without the informed consent of the client, under s. 46.21 (2m) (c), 46.215 (1m), 46.22 (1) (dm), 46.23 (3) (e), 46.283 (7), 46.284 (7), 51.42 (3) (e) or 51.437 (4r) (b) in the jurisdiction of the family care district, if necessary to enable the family care district to perform its duties or to coordinate the delivery of services to the client.

AB785, s. 22 Section 22 . 46.90 (1) (c) of the statutes is amended to read:

AB785,34,6 46.90 (1) (c) "Elder person" means a person who is age 60 or older or who is subject to the infirmities of aging degenerative brain disorder.

AB785, s. 23 Section 23 . 46.90 (1) (d) of the statutes is renumbered 46.90 (1) (bg) and amended to read:

AB785,34,10 46.90 (1) (bg) "Infirmities of aging Degenerative brain disorder" has the meaning provided under s. 55.01 (3) (1v).

Note: Sections 18 , 19, 22 and 23 delete the term "infirmities of aging" and replace it with the more up-to-date term "degenerative brain disorder".

AB785, s. 24 Section 24. 49.001 (5m) of the statutes is amended to read:

AB785,34,17 49.001 (5m) "Prisoner" means any person who is either arrested, incarcerated, imprisoned or otherwise detained in excess of 12 hours by any law enforcement agency of this state, except when detention is pursuant to s. 51.15, 51.20, 51.45 (11) (b) or 55.06 (11) (a), 55.13, or 55.135 or ch. 980. "Prisoner" does not include any person who is serving a sentence of detention under s. 973.03 (4) unless the person is in the county jail under s. 973.03 (4) (c).

Note: Changes a cross-reference to emergency detention, the provisions of which are renumbered in this bill.

AB785, s. 25 Section 25. 49.001 (8) of the statutes is amended to read:

AB785,35,2 49.001 (8) "Voluntary" means according to a person's individual's free choice, if competent, or, if incompetent, by choice of a guardian if incompetent, unless the individual is subject to a court-ordered placement under ch. 55, is placed by an agency having a court-ordered involuntary commitment of the individual under ch. 51, or is involuntarily committed to the department of corrections or to the department under ch. 971 or 980.

Note: Amends the definition of "voluntary" in ch. 49.

AB785, s. 26 Section 26 . 49.43 (10v) of the statutes is created to read:

AB785,35,5 49.43 (10v) "Serious and persistent mental illness" has the meaning given in s. 51.01 (14t).

AB785, s. 27 Section 27. 49.45 (6m) (i) 2. of the statutes is amended to read:

AB785,35,13 49.45 (6m) (i) 2. Payment for personal or residential care is available for a person in a facility certified under 42 USC 1396 to 1396p only if the person entered a facility before the date specified in subd. 1. and has continuously resided in a facility since the date specified in subd. 1. If the person has a primary diagnosis of developmental disabilities or chronic serious and persistent mental illness, payment for personal or residential care is available only if the person entered a facility on or before November 1, 1983.

AB785, s. 28 Section 28 . 49.45 (25) (am) 2. of the statutes is amended to read:

AB785,35,16 49.45 (25) (am) 2. Has a chronic serious and persistent mental illness, as defined under s. 51.01 (3g).

Note: Sections 26 to 28 change the term "chronic mental illness" to "serious and persistent mental illness", which is the more up-to-date term.

AB785, s. 29 Section 29. 49.45 (30m) (b) of the statutes is amended to read:

AB785,36,2 49.45 (30m) (b) No payment under this section may be made for services specified under par. (a) or (am) unless the individual who receives the services is protectively placed provided protective placement under s. 55.06 (9) (a), 2003 stats., or s. 55.12, is provided emergency protective services under s. 55.05 (4), 2003 stats., or s. 55.13, or is placed under provided an emergency protective placement under s. 55.06 (11) (a), 2003 stats., or s. 55.135 or a temporary protective placement under s. 55.06 (11) (c), 2003 stats., or s. 55.135 (5) or 55.055 (5).

Note: Changes cross-references to protective placement and emergency protective placement proceedings, the provisions of which are renumbered in the draft.

AB785, s. 30 Section 30. 49.45 (30m) (c) 2. of the statutes is amended to read:

AB785,36,7 49.45 (30m) (c) 2. For an individual who was protectively placed provided protective placement under ch. 55 at any time, any annual review that is conducted under s. 55.06 (10) (a) 1. 55.18 (1) (a) (intro.) after April 30, 2005, complies with the requirements of s. 55.06 (10) (a) 2 55.18 (1) (ar).

Note: Changes cross-references to annual review of protective placement, the provisions of which are are renumbered in the draft.

AB785, s. 31 Section 31. 50.02 (2) (ad) of the statutes is created to read:

AB785,36,11 50.02 (2) (ad) The department shall promulgate rules that require each facility licensed under this subchapter to provide information necessary for the department to assess the facility's compliance with s. 55.14.

Note: Requires the DHFS to promulgate rules that require community-based residential facilities, nursing homes, adult family homes, and residential care apartment complexes to provide DHFS information necessary for DHFS to determine if those facilities are in compliance with the provisions relating to involuntary administration of psychotropic medication created by the bill.

AB785, s. 32 Section 32. 50.03 (5m) (c) of the statutes is amended to read:

AB785,37,4 50.03 (5m) (c) Relocation. The department shall offer removal and relocation assistance to residents removed under this section, including information on available alternative placements. Residents shall be involved in planning the removal and shall choose among the available alternative placements, except that where an emergency situation makes prior resident involvement impossible the department may make a temporary placement until a final placement can be arranged. Residents may choose their final alternative placement and shall be given assistance in transferring to such place. No resident may be forced to remain in a temporary or permanent placement except pursuant to the procedures provided under s. 55.06, 2003 stats., or an order under s. 55.12 for protective placement. Where the department makes or participates in making the relocation decision, consideration shall be given to proximity to residents' relatives and friends.

AB785, s. 33 Section 33. 50.06 (2) (c) of the statutes is amended to read:

AB785,37,8 50.06 (2) (c) A petition for guardianship for the individual under s. 880.07 and a petition under s. 55.075 for protective placement of the individual under s. 55.06 (2) are filed prior to the proposed admission.