SB577: Bill Text

SB577,2,2 An Act to repeal 55.01 (2r) and 55.175; to renumber and amend 55.09 (2), 55.10 (2), 55.12 (4), 55.15 (2), 55.15 (7) (d) and 55.195; to consolidate, renumber and amend 55.01 (6r) (intro.) and (k); to amend 55.01 (6y), 55.043 (1r) (b) 5., 55.05 (2) (intro.), 55.055 (1) (a), 55.06, 55.075 (1), 55.075 (4) (b), 55.075 (5) (a), 55.075 (5) (b), 55.075 (5) (bm), 55.08 (1) (b), 55.08 (2) (a), 55.08 (2) (b), 55.10 (3), 55.11 (1) (intro.), 55.11 (3), 55.11 (4), 55.12 (1), 55.12 (2), 55.12 (3), 55.12 (5), 55.12 (6), 55.13 (1), 55.13 (2), 55.135 (1), 55.135 (4), 55.135 (6), 55.14 (8) (a), 55.14 (9), 55.14 (11), 55.15 (1), 55.15 (3), 55.15 (7) (b), 55.15 (7) (c), 55.15 (8) (b), 55.16 (2) (a), 55.16 (4) (a) and (b), 55.17 (1), 55.17 (3) (c) 2., 55.17 (3) (c) 3., 55.18 (1) (a) 3., 55.18 (1) (ar), 55.18 (1) (c), 55.18 (2) (f) (intro.) and 55.18 (3) (e) 2.; and to create 55.01 (3), 55.01 (4) (d), 55.01 (4k), 55.01 (4p), 55.01 (6r) (km), 55.09 (2) (am) 10., 55.09 (2) (bm), 55.10 (2) (d), 55.12 (11), 55.13 (6), 55.15 (2) (a), (b), (c), (d) and (e), 55.15 (7) (d) 1., 2., 3., 4., 5. and 6., 55.17 (1m), 55.18 (1) (a) 1. h., 55.18 (3) (e) 1m. and 55.18 (3) (f) 5. of the statutes; relating to: protective placement.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the laws of protective placement and protective services, including all of the following:

1. The bill defines for purposes of protective placement and protective services a guardian, in the context of the exercise of a specific right or power, as a temporary or permanent guardian of the person, or a temporary or permanent guardian of the estate, who has been granted the authority to exercise that right or power on behalf of the ward.

2. Under current law, protective services are defined as a list of services. The bill specifies that protective services are any services that, when provided to an individual with developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacity, keep the individual safe from abuse, financial exploitation, neglect, or self-neglect or prevent the individual from experiencing deterioration or from inflicting harm on himself or herself or another person, including services such as outreach, counseling, and referral for services, case management, and diagnostic evaluation.

3. The bill makes various changes to the determination of venue and county of responsibility for a petition for protective services or protective placement.

4. The bill includes, for an individual receiving the family care benefit, the care management organization in which the individual is enrolled to receive the family care benefit as an interested person and for other purposes such as receiving notice of a petition for protective services or placement and notice of the time and place of a hearing about protective placement or protective services and having the right to attend a transfer of placement hearing and present and examine witnesses at that hearing. An aging and disability resource center and a care management organization administering the family care benefit, or an organization responsible for administering or providing benefits or services under a long-term care program, is required to comply with all court orders regarding an individual to whom the center or organization provides services to ensure that the individual is placed in the least restrictive environment and receives services in the least restrictive manner consistent with the individual's needs.

5. Under current law, a hearing on protective services or protective placement is required to be open, unless the individual sought to be protected, or his or her attorney, requests the hearing be closed. In a closed hearing, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present. The bill requires that the hearing be closed, unless the individual sought to be protected, or his or her attorney, requests the hearing be open.

6. Under current law, emergency protective services may be provided for not more than 72 hours when there is reason to believe that, if the emergency protective services are not provided, the individual entitled to the services or others will incur a substantial risk of serious physical harm. Under current law, if it is necessary to enter a premises forcibly to provide or investigate the need for emergency protective services, the county department must obtain a court order for the entry except when it appears probable that substantial physical harm, irreparable injury, or death may occur to the individual and the time required to obtain an order would result in greater risk of physical harm to the individual. The bill specifies that the emergency protective services may be provided without the individual's consent. Under the bill, the emergency protective services may be provided even if the risk of serious harm is not a risk of serious physical harm and may be provided for not more than 72 hours unless a preliminary hearing is scheduled on a petition for protective services. Under the bill, a person is not liable for any actions performed in good faith related to emergency protective services.

7. Under current law, an individual under a protective placement may be transferred between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility. In a hearing, under current law, to contest a transfer of an individual under a protective placement, a guardian ad litem must be appointed for the individual. The bill allows an individual to be transferred from an unlocked unit to a locked unit. Under the bill, in a hearing to contest a transfer, the guardian ad litem is required, among other duties, to meet with the individual to be transferred and advise the court whether the individual meets the standard for transfer.

8. Under current law, an individual, the individual's guardian or guardian ad litem, the Department of Health Services, a certain county department or agency, or any other interested person may petition to terminate an order for protective placement or protective services and a hearing is held to determine termination. Under the bill, when a guardian ad litem files the petition for termination or receives notice of a petition for termination, the guardian ad litem is required to do all of the following: interview the ward to explain the procedures for termination and the rights of the ward and provide that information to the ward in writing; request that the court order additional medical, psychological, or other evaluation of the ward, if necessary; review the annual report and relevant reports on the ward's condition and protective services; review the ward's condition, protective services, and rights with the guardian; if relevant or if there is ambiguity about the ward's position, report to the court the present or proposed protective services, the position of the guardian, or the recommendation of the guardian ad litem as to the best interests of the ward; provide a summary written report to the court on certain aspects of the individual's placement and needs; and, if relevant, report to the court that the ward requests the appointment of counsel.

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:

SB577, s. 1 Section 1. 55.01 (2r) of the statutes is repealed.

SB577, s. 2 Section 2. 55.01 (3) of the statutes is created to read:

SB577,4,4 55.01 (3) "Guardian" means, in the context of the exercise of a specific right or power, any of the following:

SB577,4,7 (a) A temporary or permanent guardian of the person, as defined in s. 54.01 (12), who has been granted the authority to exercise that right or power on behalf of the ward.

SB577,4,10 (b) A temporary or permanent guardian of the estate, as defined in s. 54.01 (11), who has been granted the authority to exercise that right or power on behalf of the ward.

SB577, s. 3 Section 3. 55.01 (4) (d) of the statutes is created to read:

SB577,4,15 55.01 (4) (d) If the individual sought to be protected is receiving the family care benefit under s. 46.286, or a benefit under a managed long-term care program that is funded by the Medical Assistance program, the care management organization or other organization that administers the benefit.

SB577, s. 4 Section 4 . 55.01 (4k) of the statutes is created to read:

SB577,4,17 55.01 (4k) "Least restrictive" has the meaning given in s. 54.01 (18).

SB577, s. 5 Section 5. 55.01 (4p) of the statutes is created to read:

SB577,4,20 55.01 (4p) "Most integrated setting" means a setting that enables the individual to interact with persons without disabilities to the fullest extent possible.

SB577, s. 6 Section 6. 55.01 (6r) (intro.) and (k) of the statutes are consolidated, renumbered 55.01 (6r) (intro.) and amended to read:

SB577,5,4 55.01 (6r) (intro.) "Protective services" includes means any of the following: (k) Any services that, when provided to an individual with developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacity, keep the individual safe from abuse, financial exploitation, neglect, or self-neglect or prevent the individual from experiencing deterioration or from inflicting harm on himself or herself or another person. including any of the following:

SB577, s. 7 Section 7. 55.01 (6r) (km) of the statutes is created to read:

SB577,5,6 55.01 (6r) (km) Any other service ordered by the court.

SB577, s. 8 Section 8. 55.01 (6y) of the statutes is amended to read:

SB577,5,10 55.01 (6y) "Voluntary" means according to an individual's free choice, if competent, or by choice of a an individual's guardian, if adjudicated incompetent or by choice of a person having authority under a power of attorney for health care.

SB577, s. 9 Section 9. 55.043 (1r) (b) 5. of the statutes is amended to read:

SB577,5,13 55.043 (1r) (b) 5. A review of the treatment and patient health care records of the adult at risk if provided under s. 51.30 (4) (b) 17. or 146.82 (2) (a) 7.

SB577, s. 10 Section 10. 55.05 (2) (intro.) of the statutes is amended to read:

SB577,5,18 55.05 (2) Conditions required. (intro.) The department or a county department or agency with which the county department contracts designated under s. 55.02 (2) that provides protective services may provide the services under any of the following conditions:

SB577, s. 11 Section 11. 55.055 (1) (a) of the statutes is amended to read:

SB577,6,2 55.055 (1) (a) The guardian of an individual who has been adjudicated incompetent may consent to the individual's admission to a foster home, group home, or community-based residential facility, as defined under s. 50.01 (1g), without a protective placement order under s. 55.12 if the home or facility is licensed for fewer than 16 beds. Prior to providing that consent, and annually thereafter, the guardian shall review the ward's right to the least restrictive residential environment and may consent only to admission only to a home or facility that implements that right.

SB577, s. 12 Section 12. 55.06 of the statutes is amended to read:

SB577,6,17 55.06 Protective services and protective placement; eligibility. To be eligible for court-ordered protective placement or protective services, an individual shall have filed a petition to transfer a foreign guardianship, whether present in the state or not, or shall be a resident of the state; and shall have a need for protective placement or protective services. The individual shall have attained the age of 18, but an individual who is alleged to have a developmental disability may receive protective placement or protective services upon attaining the age of 14. Protective placement or protective services may be ordered under this chapter only for an individual who is adjudicated incompetent in this state or for a minor who is alleged to have a developmental disability, and only if there is a finding of a need for protective placement under s. 55.08 (1) or for protective services under s. 55.08 (2), and ss. s. 55.055 (5), 55.13, and 55.135 are is inappropriate or do does not apply. A procedure for court-ordered protective placement or protective services may be initiated 6 months before a minor attains age 18.

SB577, s. 13 Section 13. 55.075 (1) of the statutes is amended to read:

SB577,6,24 55.075 (1) Who may petition. The department, the county department or an agency with which the county department contracts designated under s. 55.02 (2), a guardian, or an interested person may file a petition for appointment of a guardian and for protective services or protective placement for an individual. The department shall provide for a schedule of reimbursement for the cost of the proceedings based upon the ability to pay of the proposed ward or individual to be protected.

SB577, s. 14 Section 14. 55.075 (4) (b) of the statutes is amended to read:

SB577,7,5 55.075 (4) (b) If a person seeking to be the guardian of a proposed ward requests the assistance of a county department or an agency with which it contracts designated under s. 55.02 (2) in petitioning for guardianship or for protective services or protective placement, the assistance may be considered a service and may be charged for based upon the ability of the person to pay for the service.

SB577, s. 15 Section 15. 55.075 (5) (a) of the statutes is amended to read:

SB577,7,16 55.075 (5) (a) A petition under sub. (1) shall be filed in the county of residence of the individual to be protected, as determined under s. 51.40 or by the individual's guardian or where the individual is physically present due to extraordinary circumstances including those specified under s. 51.22 (4). If an individual has not received services under this chapter or ch. 46 or 51 or if an individual has received services under this chapter or ch. 46 or 51 that have been terminated and has established residence in a county other than that in which the individual resided when the services were received, the court may determine the individual's county of residence. The county of residence under this paragraph is the county of responsibility.

SB577, s. 16 Section 16. 55.075 (5) (b) of the statutes is amended to read:

SB577,8,8 55.075 (5) (b) The If s. 51.40 applies, the county of responsibility under s. 51.40 is the county of residence. At the request of an interested party, the court in which a petition is first filed under par. (a) shall determine venue residence under s. 51.40. The court shall direct that proper written notice be given of the proceeding be sent by certified mail to the county's clerk and corporation counsel of any potentially responsible or affected county. Proper notice is given to a potentially responsible or affected county if written notice of the proceeding is sent by certified mail to the county's clerk and corporation counsel. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, the court shall determine that venue lies in the county in which the petition is filed under par. (a) or in another county, as appropriate. If the court determines that venue lies in another the individual to be protected is a resident of a county other than the one in which the petition is filed, the court shall may order the entire record certified to the proper court. A court in which a subsequent petition is filed shall, upon being satisfied of an earlier filing in another court, summarily dismiss the subsequent petition.

SB577, s. 17 Section 17. 55.075 (5) (bm) of the statutes is amended to read:

SB577,8,25 55.075 (5) (bm) The court in which a petition is first filed under par. (a) shall determine venue. The court shall direct that proper written notice be given of the proceeding be sent by certified mail to the county clerk and corporation counsel of any potentially responsible or affected county. Proper notice is given to a potentially responsible or affected county if written notice of the proceeding is sent by certified mail to the county's clerk and corporation counsel. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, the court shall determine that venue lies in the county in which the petition is filed under par. (a) or in another county, as appropriate. If the court determines that venue lies in another county, the court shall order the entire record certified to the proper court. A court in which a subsequent petition is filed shall, upon being satisfied of an earlier filing in another court, summarily dismiss the subsequent petition. If any potentially responsible or affected county or party objects to the court's finding of venue, the court may refer the issue to the department for a determination of the county of residence under s. 51.40 (2) (g) and may suspend ruling on the motion for change of venue until the determination under s. 51.40 (2) (g) is final.

SB577, s. 18 Section 18. 55.08 (1) (b) of the statutes is amended to read:

SB577,9,5 55.08 (1) (b) The individual is a minor 14 years of age or older who is not alleged to have a developmental disability and on whose behalf a petition for guardianship has been submitted, or is an adult who has been determined to be incompetent by a circuit court.

SB577, s. 19 Section 19. 55.08 (2) (a) of the statutes is amended to read:

SB577,9,9 55.08 (2) (a) The individual has been determined to be incompetent by a circuit court or is a minor 14 years of age or older who is alleged to have a developmental disability and on whose behalf a petition for a guardianship has been submitted.

SB577, s. 20 Section 20. 55.08 (2) (b) of the statutes is amended to read:

SB577,9,15 55.08 (2) (b) As a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual will incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others if protective services are not provided.

SB577, s. 21 Section 21. 55.09 (2) of the statutes is renumbered 55.09 (2) (am), and 55.09 (2) (am) (intro.) and 4., as renumbered, are amended to read:

SB577,9,20 55.09 (2) (am) (intro.) In addition to the notice required under sub. (1) and except as provided in par. (bm), notice shall be served, personally or by mail, at least 10 days before the time set for a hearing, upon all of the following:

SB577,9,23 4. Other persons who have physical custody of the individual sought to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained.

SB577, s. 22 Section 22. 55.09 (2) (am) 10. of the statutes is created to read:

SB577,10,4 55.09 (2) (am) 10. If the individual sought to be protected is receiving a family care benefit under s. 46.286, or other public benefit, using a case management organization, care management organization, or other organization, the organization.

SB577, s. 23 Section 23. 55.09 (2) (bm) of the statutes is created to read:

SB577,10,9 55.09 (2) (bm) 1. The court may waive the notice requirement under par. (am) for a person under par. (am) 2., 3., 4., or 6. if the identity of the person is unknown and not reasonably ascertainable or the address of the person is unknown and not reasonably ascertainable.

SB577,10,11 2. Any person under par. (am) may waive the requirement under par. (am) to receive notice.

SB577, s. 24 Section 24. 55.10 (2) of the statutes is renumbered 55.10 (2) (a) and amended to read:

SB577,10,16 55.10 (2) (a) The petitioner shall ensure that make reasonable arrangements for the transportation of the individual sought to be protected attends to the hearing on the petition.

SB577,10,24 (b) The individual sought to be protected shall attend the hearing under this section unless, after a personal interview, the guardian ad litem waives the attendance and so certifies in writing to the court the specific reasons why the individual is unable to attend. In determining whether to waive attendance by the individual, the guardian ad litem shall consider the ability of the individual to understand and meaningfully participate, the effect of the individual's attendance on his or her physical or psychological health in relation to the importance of the proceeding, and the individual's expressed desires.

SB577,11,5 (c) If the individual is unable to attend a hearing on a petition under this section only because of residency in a nursing home or other facility, physical inaccessibility, or lack of a reasonable means of transportation, the court shall, if requested by the individual, the individual's guardian ad litem, the individual's counsel, or any other interested person, hold the hearing in a place where the individual is able to attend.

SB577, s. 25 Section 25. 55.10 (2) (d) of the statutes is created to read:

SB577,11,8 55.10 (2) (d) Notwithstanding par. (b), the court may order the individual sought to be protected to attend the hearing on the petition under this section.

SB577, s. 26 Section 26. 55.10 (3) of the statutes is amended to read:

SB577,11,14 55.10 (3) Hearing to be open closed. The hearing shall be open closed, unless the individual sought to be protected, or his or her attorney acting with the consent of the individual sought to be protected, requests that it be closed open. If the hearing is closed, only persons in interest, including representatives of providers of service and their attorneys and witnesses, may be present.

SB577, s. 27 Section 27. 55.11 (1) (intro.) of the statutes is amended to read:

SB577,11,24 55.11 (1) (intro.) Before ordering protective placement or protective services for any individual, the court shall require a comprehensive evaluation of the individual sought to be protected, if such an evaluation has not already been made. The court may utilize available multidisciplinary resources in the community in determining the need for protective placement or protective services. The county department or an agency with which it contracts designated under s. 55.02 (2) shall cooperate with the court in securing available resources. The court or the cooperating agency obtaining the evaluation shall request appropriate information which shall include at least the following:

SB577, s. 28 Section 28. 55.11 (3) of the statutes is amended to read:

SB577,12,6 55.11 (3) A copy of the comprehensive evaluation and any independent comprehensive evaluation shall be provided to the individual sought to be protected, the individual's guardian or proposed guardian, the individual's agent under any activated health care power of attorney, and the individual's guardian ad litem, and to the individual or the individual's attorney at least 96 hours in advance of the hearing to determine protective placement or protective services.

SB577, s. 29 Section 29. 55.11 (4) of the statutes is amended to read:

SB577,12,11 55.11 (4) Where applicable by reason of the particular disability, the county department or an agency with which it contracts designated under s. 55.02 (2) that has responsibility where the individual has legal residence shall make a recommendation for protective placement or protective services.

SB577, s. 30 Section 30 . 55.12 (1) of the statutes is amended to read:

SB577,12,18 55.12 (1) When Subject to sub. (11), when ordering protective placement under the standards specified in s. 55.08 (1) or protective services under the standards specified in s. 55.08 (2), the court, on the basis of the evaluation and other relevant evidence, shall order the county department or agency with which it contracts designated under s. 55.02 (2) to provide protective placement or protective services to the individual.

SB577, s. 31 Section 31. 55.12 (2) of the statutes is amended to read:

SB577,13,6 55.12 (2) Subject to s. 46.279, protective placement may be made to nursing homes, public medical institutions, centers for the developmentally disabled under the requirements of s. 51.06 (3), foster care services or other home placements, or to other appropriate facilities, but may not be made to units for the acutely mentally ill. An individual who is subject to an order for protective placement or protective services may be detained on an emergency basis under s. 51.15 or involuntarily committed under s. 51.20 or may be voluntarily admitted to a treatment facility for inpatient care under s. 51.10 (8). No individual who is subject to an order for protective placement or services may be involuntarily transferred to, detained in, or committed to a treatment facility an inpatient facility, as defined in s. 51.01 (10), for care except under s. 51.15 or, 51.20 , or 51.45 (13). Protective placement in a locked unit shall require a specific finding of the court as to the need for the action.

SB577, s. 32 Section 32. 55.12 (3) of the statutes is amended to read:

SB577,13,12 55.12 (3) Protective placement or protective services provided by a county department or an agency with which it contracts designated under s. 55.02 (2) are subject to s. 46.279 and shall be provided in the least restrictive environment and in the least restrictive manner consistent with the needs of the individual to be protected and with the resources of the county department.

SB577, s. 33 Section 33. 55.12 (4) of the statutes is renumbered 55.12 (4) (intro.) and amended to read:

SB577,13,17 55.12 (4) (intro.) Factors that a A county department or an agency designated under s. 55.02 (2) shall consider in, when providing protective placement or protective services shall include, consider the following factors: