Chapter 46

46.035(1) (1) As used in this section unless the context requires otherwise:

46.035(1)(a) (a) The term “existing building” in relation to any conveyance, lease or sublease made under sub. (2) (a), (b), and (c) means all detention, treatment, administrative, recreational, infirmary, hospital, vocational and academic buildings; all dormitories and cottages; all storage facilities, heating plants, sewage disposal plants, and such other buildings, structures, facilities and permanent improvements as in the judgment of the secretary are needed or useful for the purposes of the department, and all equipment therefor and all improvements and additions thereto which were erected, constructed or installed prior to the making of such conveyance, lease or sublease.

46.035(1)(b) (b) The term “new building” in relation to any conveyance, lease or sublease made under sub. (2) (a), (b), and (c) means all detention, treatment, administrative, recreational, infirmary, hospital, vocational and academic buildings; all dormitories and cottages; all storage facilities, heating plants, sewage disposal plants, and such other buildings, structures, facilities and permanent improvements as in the judgment of the secretary are needed or useful for the purposes of the department, and all equipment therefor and all improvements and additions thereto which are erected, constructed or installed after the making of such conveyance, lease or sublease.

46.035(1)(c) (c) The term “nonprofit corporation” means a nonstock corporation that is organized under ch. 181 and that is a nonprofit corporation, as defined in s. 181.0103 (17).

46.035(2) (2) In order to provide new buildings and to enable the construction and financing thereof, to refinance indebtedness hereafter created by a nonprofit corporation for the purpose of providing a new building or buildings or additions or improvements thereto which are located on land owned by, or owned by the state and held for, the department or on lands of the institutions under the jurisdiction of the department or by the nonprofit corporation, or for any one or more of said purposes, but for no other purpose unless authorized by law, the department has, subject to s. 16.848, the following powers and duties:

46.035(2)(a) (a) Without limitation by reason of any other provisions of the statutes except ss. 13.48 (14) (am) and 16.848 (1), the power to sell and to convey title in fee simple to a nonprofit corporation any land and any existing buildings thereon owned by, or owned by the state and held for, the department or of any of the institutions under the jurisdiction of the department for such consideration and upon such terms and conditions as in the judgment of the secretary are in the public interest.

46.035(2)(b) (b) The power to lease to a nonprofit corporation for a term or terms not exceeding 50 years each any land and any existing buildings thereon owned by, or owned by the state and held for, the department or of any of the institutions under the jurisdiction of the department upon such terms and conditions as in the judgment of the secretary are in the public interest.

46.035(2)(c) (c) The power to lease or sublease from such nonprofit corporation, and to make available for public use, any such land and existing buildings conveyed or leased to such nonprofit corporation under pars. (a) and (b), and any new buildings erected upon such land or upon any other land owned by such nonprofit corporation, upon such terms, conditions and rentals, subject to available appropriations, as in the judgment of the secretary are in the public interest. With respect to any property conveyed to such nonprofit corporation under par. (a), such lease from such nonprofit corporation may be subject or subordinated to one or more mortgages of such property granted by such nonprofit corporation.

46.035(2)(d) (d) The duty to submit the plans and specifications for all such new buildings and all conveyances, leases and subleases made under this subsection to the department of administration and the governor for written approval before they are finally adopted, executed and delivered.

46.035(2)(e) (e) The power to pledge and assign all or any part of the revenues derived from the operation of such new buildings as security for the payment of rentals due and to become due under any lease or sublease of such new buildings under par. (c).

46.035(2)(f) (f) The power to covenant and agree in any lease or sublease of such new buildings made under par. (c) to impose fees, rentals or other charges for the use and occupancy or other operation of such new buildings in an amount calculated to produce net revenues sufficient to pay the rentals due and to become due under such lease or sublease.

46.035(2)(g) (g) The power to apply all or any part of the revenues derived from the operation of existing buildings to the payment of rentals due and to become due under any lease or sublease made under par. (c).

46.035(2)(h) (h) The power to pledge and assign all or any part of the revenues derived from the operation of existing buildings to the payment of rentals due and to become due under any lease or sublease made under par. (c).

46.035(2)(i) (i) The power to covenant and agree in any lease or sublease made under par. (c) to impose fees, rentals or other charges for the use and occupancy or other operation of existing buildings in an amount calculated to produce net revenues sufficient to pay the rentals due and to become due under such lease or sublease.

46.035(2)(j) (j) The power and duty, upon receipt of notice of any assignment by any such nonprofit corporation of any lease or sublease made under par. (c), or of any of its rights under any such sublease, to recognize and give effect to such assignment, and to pay to the assignee thereof rentals or other payments then due or which may become due under any such lease or sublease which has been so assigned by such nonprofit corporation.

46.035(3) (3) The state is liable for accrued rentals and for any other default under any lease or sublease made under sub. (2) (c), and may be sued therefor on contract as in other contract actions pursuant to ch. 775, except that it is not necessary for the lessor under any such lease or sublease or any assignee of such lessor or any person or other legal entity proceeding on behalf of such lessor to file any claim with the legislature prior to the commencement of any such action.

46.035(4) (4) Nothing in this section empowers the secretary or the department to incur any state debt.

46.035(5) (5) All laws, except s. 16.848 and ch. 150, that conflict with any provisions of this section, are, insofar as they conflict with this section and no further, superseded by this section.

46.035 History History: 1975 c. 39 ss. 341, 732 (2); 1977 c. 29; 1979 c. 32 s. 92 (5); 1989 a. 31, 107; 1997 a. 79; 2005 a. 25; 2013 a. 20.

46.036 46.036 Purchase of care and services.

46.036(1) (1) All care and services purchased by the department or by a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437, except as provided under subch. III of ch. 49 and s. 301.08 (2), shall be authorized and contracted for under the standards established under this section. The department may require the county departments to submit the contracts to the department for review and approval. For purchases of $10,000 or less the requirement for a written contract may be waived by the department. When the department directly contracts for services, it shall follow the procedures in this section in addition to meeting purchasing requirements established in s. 16.75.

46.036(2) (2) All care and services purchased shall meet standards established by the department and other requirements specified by purchaser in the contract. Based on these standards the department shall establish standards for cost accounting and management information systems that shall monitor the utilization of such services, and document the specific services in meeting the service plan for the client and the objective of the service.

46.036(3) (3) 

46.036(3)(a) (a) Purchase of service contracts shall be written in accordance with rules promulgated and procedures established by the department. Contracts for client services shall show the total dollar amount to be purchased and for each service the number of clients to be served, number of client service units, the unit rate per client service and the total dollar amount for each service.

46.036(3)(b) (b) Payments under a contract may be made on the basis of actual allowable costs or on the basis of a unit rate per client service multiplied by the actual client units furnished each month. The contract may be renegotiated when units vary from the contracted number. The purchaser shall determine actual marginal costs for each service unit less than or in addition to the contracted number.

46.036(3)(c) (c) For proprietary agencies, contracts may include a percentage add-on for profit according to rules promulgated by the department.

46.036(3)(d) (d) Reimbursement to an agency may be based on total costs agreed to by the parties regardless of the actual number of service units to be furnished, when the agency is entering into a contract for a new or expanded service that the purchaser recognizes will require a start-up period not to exceed 180 days. Such reimbursement applies only if identified client needs necessitate the establishment of a new service or expansion of an existing service.

46.036(3)(e) (e) If the purchaser finds it necessary to terminate a contract prior to the contract expiration date for reasons other than nonperformance by the provider, actual cost incurred by the provider may be reimbursed for an amount determined by mutual agreement of the parties.

46.036(3)(f) (f) Advance payments of up to one-twelfth of an annual contract may be allowed under the contract. If the advance payment exceeds $10,000, the provider shall supply a surety bond for an amount equal to the amount of the advance payment applied for. No surety bond is required if the provider is a state agency. The cost of the surety bond shall be allowable as an expense.

46.036(3)(g) (g) Notwithstanding pars. (b) and (d), if a county has an existing system, approved by the department, to monitor and assess the outcomes of a contract and if the county is so authorized by the department, the county may contract with providers to pay in advance or after provision of services a fixed amount for each person served by the provider in return for a defined set of expected outcomes that are determined by the county.

46.036(4) (4) For purposes of this section and as a condition of reimbursement, each provider under contract shall:

46.036(4)(a) (a) Except as provided in this paragraph, maintain a uniform double entry accounting system and a management information system which are compatible with cost accounting and control systems prescribed by the department.

46.036(4)(b) (b) Cooperate with the department and purchaser in establishing costs for reimbursement purposes.

46.036(4)(c) (c) Unless waived by the department, biennially, or annually if required under federal law, provide the purchaser with a certified financial and compliance audit report if the care and services purchased exceed $100,000. The audit shall follow standards that the department prescribes.

46.036(4)(d) (d) Transfer a client from one category of care or service to another only with the approval of the purchaser.

46.036(4)(e) (e) Charge a uniform schedule of fees as defined under s. 46.03 (18) unless waived by the purchaser with approval of the department. Whenever providers recover funds attributed to the client, such funds shall offset the amount paid under the contract.

46.036(5) (5) Except as provided under sub. (5m), the purchaser shall recover from provider agencies money paid in excess of the conditions of the contract from subsequent payments made to the provider.

46.036(5m) (5m) 

46.036(5m)(a) (a) In this subsection:

46.036(5m)(a)1. 1. “Provider” means a nonstock corporation organized under ch. 181 that is a nonprofit corporation, as defined in s. 181.0103 (17), and that contracts under this section to provide client services on the basis of a unit rate per client service or a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 that contracts under this section to provide client services on the basis of a unit rate per client service.

46.036(5m)(a)2. 2. “Rate-based service” means a service or a group of services, as determined by the department, that is reimbursed through a prospectively set rate and that is distinguishable from other services or groups of services by the purpose for which funds are provided for that service or group of services and by the source of funding for that service or group of services.

46.036(5m)(b) (b)

46.036(5m)(b)1. 1. If revenue under a contract for the provision of a rate-based service exceeds allowable costs incurred in the contract period, the contract shall allow the provider to retain from the surplus up to 5 percent of the revenue received under the contract unless a uniform rate is established by rule under subd. 4., in which case the contract shall allow the provider to retain the uniform percentage rate established by the rule. The retained surplus is the property of the provider.

46.036(5m)(b)3. 3. If on December 31 of any year the provider’s accumulated surplus from all contract periods ending during that year for a rate-based service exceeds the allowable retention rate under subd. 1., the provider shall provide written notice of that excess to all purchasers of the rate-based service. Upon the written request of such a purchaser received no later than 6 months after the date of the notice, the provider shall refund the purchaser’s proportional share of that excess. If the department determines based on an audit or fiscal review that the amount of the excess identified by the provider was incorrect, the department may seek to recover funds after the 6-month period has expired. The department shall commence any audit or fiscal review under this subdivision within 6 years after the end of the contract period.

46.036(5m)(b)4. 4. The department, in consultation with the department of children and families and the department of corrections, shall promulgate rules to implement this subsection including all of the following:

46.036(5m)(b)4.a. a. Requiring that contracts for rate-based services under this subsection allow a provider to retain from any surplus revenue up to 5 percent of the total revenue received under the contract, or a different percentage rate determined by the department. The percentage rate established under this subd. 4. a. shall apply uniformly to all rate-based service contracts under this subsection.

46.036(5m)(b)4.b. b. Establishing a procedure for reviewing rate-based service contracts to determine whether a contract complies with the provisions of this subsection.

46.036(5m)(e) (e) Notwithstanding par. (b), the department or a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 that purchases care and services from an inpatient alcohol and other drug abuse treatment program that is not affiliated with a hospital and that is licensed as a community-based residential facility may allocate to the program an amount that is equal to the amount of revenues received by the program that are in excess of the allowable costs incurred in the period of a contract between the program and the department or the county department for purchase of care and services under this section. The department or the county department may make the allocation under this paragraph only if the funds so allocated do not reduce any amount of unencumbered state aid to the department or the county department that otherwise would lapse to the general fund.

46.036(5m)(em) (em) Notwithstanding pars. (b) and (e), a county department under s. 46.215, 51.42, or 51.437 providing client services in a county having a population of 750,000 or more or a nonstock, nonprofit corporation providing client services in such a county may not retain a surplus under par. (b) or allocate an amount under par. (e) from revenues that are used to meet the maintenance-of-effort requirement under the federal temporary assistance for needy families program under 42 USC 601 to 619.

46.036(5m)(f) (f) All providers that are subject to this subsection shall comply with any financial reporting and auditing requirements that the department may prescribe. Those requirements shall include a requirement that a provider provide to any purchaser and the department any information that the department needs to claim federal reimbursement for the cost of any services purchased from the provider and a requirement that a provider provide audit reports to any purchaser and the department according to standards specified in the provider’s contract and any other standards that the department may prescribe.

46.036(6) (6) Contracts may be renegotiated by the purchaser under conditions specified in the contract.

46.036(7) (7) The service provider under this section may appeal decisions of the purchaser in accordance with terms and conditions of the contract and ch. 68 or 227.

46.036 History History: 1973 c. 90, 333; 1975 c. 39; 1975 c. 198 s. 65; 1977 c. 29, 418; 1981 c. 20; 1983 a. 27, 116, 192; 1985 a. 176; 1985 a. 332 s. 251 (3); 1987 a. 27; 1987 a. 161 s. 13m; 1989 a. 31, 122, 359; 1993 a. 375, 380, 446; 1995 a. 27; 1997 a. 27, 79, 237; 1999 a. 9, 103; 2001 a. 16; 2007 a. 20; 2017 a. 59; 2017 a. 207 s. 5.

46.04 46.04 Anchorage program.

46.04(1) (1) Definitions. In this section:

46.04(1)(a) (a) “Adolescent” means an individual who is at least 12 years of age and under 18 years of age.

46.04(1)(b) (b) “Drug dependent” has the meaning specified under s. 51.01 (8b).

46.04(1)(c) (c) “Mental illness” has the meaning given in s. 51.01 (13).

46.04(2) (2) Program. From the appropriations under s. 20.435 (2) (a) and (gk), the department shall establish at the Winnebago Mental Health Institute a program of inpatient assessment and treatment to be known as the “Anchorage program,” which is designed primarily to meet the needs of adolescents who are drug dependent, who evidence drug-related behavior that may be dangerous to the adolescent or to others, and who have a history of drug dependency and resistance to less restrictive forms of treatment, but that also may be used by the department to provide inpatient assessment and treatment of adolescents who have mental illness, who evidence mental illness-related behavior that may be dangerous to the adolescent or to others, and who have a history of mental illness and resistance to less restrictive forms of treatment. A county department under s. 51.42 may refer an adolescent for assessment or treatment under this section and shall approve all admissions to the program under this section of adolescents committed under s. 51.20 or 51.45 or admitted under s. 51.13. Transfers under s. 51.35 (3) or 51.37 (5) may also be made to the program under this section.

46.04 History History: 1987 a. 96; 1993 a. 16; 2001 a. 103; 2017 a. 34.

46.041 46.041 Children’s consultation service; establishment; purposes. A program to be known as the “children’s consultation service” shall be provided. The service shall be established at the Mendota Mental Health Institute or the Winnebago Mental Health Institute, or at both institutions. The service shall:

46.041(1m) (1m) Provide for the temporary residence and evaluation of children referred from courts assigned to exercise jurisdiction under chs. 48 and 938, the institutions and services under the jurisdiction of the department, University of Wisconsin Hospitals and Clinics Authority, county departments under s. 46.215, 46.22 or 46.23, private child welfare agencies, the Wisconsin Educational Services Program for the Deaf and Hard of Hearing, the Wisconsin Center for the Blind and Visually Impaired, and mental health facilities within the state at the discretion of the director of the institution providing services under this section.

46.041(2) (2) Promote the development of preventive mental health services to children in communities by participating in the training of mental health personnel, by demonstration of methods of evaluation, care and treatment, by assisting in the assessment of community services and the development of the most effective coordination between the institution and the community, and by offering services when community resources need to be supplemented.

46.041 History History: 1973 c. 90 s. 560 (3); 1977 c. 418 s. 924 (50); 1977 c. 447 s. 206; 1977 c. 449; 1985 a. 29, 176; 1995 a. 27, 77; 1999 a. 9; 2001 a. 57, 103; 2021 a. 239 s. 73.

46.042 46.042 Treatment program for emotionally disturbed children. The department shall establish a program for the intensive treatment of emotionally disturbed children. The program shall be operated by the Mendota Mental Health Institute and be subject to all federal and state laws, rules, and regulations that apply to the institute. Operational planning shall provide close interrelationship between the department and the University of Wisconsin Medical School for conduct of educational and research programs.

46.042 History History: 1975 c. 224; 1977 c. 29; 2001 a. 103.

46.043 46.043 Additional services of mental health institutes.

46.043(1) (1) In addition to inpatient and outpatient services provided at mental health institutes under ss. 51.05 and 51.07, the department may authorize mental health institutes to offer services other than inpatient mental health services when the department determines that community services need to be supplemented. Services that may be offered under this section include mental health outpatient treatment and services, day programming, consultation and services in residential facilities, including group homes, residential care centers for children and youth, and community-based residential facilities.

46.043(2) (2) Services under this section may be provided only under contract between the department and a county department under s. 46.215, 46.22 or 46.23, a school district or another public or private entity within the state to persons referred from those entities, at the discretion of the department. The department shall charge the referring entity all costs associated with providing the services. Unless a referral is made, the department may not offer services under this section to the person who is to receive the services or his or her family. The department may not impose a charge for services under this section upon the person receiving the services or his or her family. The department shall credit any revenues received under this section to the appropriation account under s. 20.435 (2) (g).

46.043(3) (3) 

46.043(3)(a) (a) Except as provided in par. (b), services under this section are governed by all of the following:

46.043(3)(a)1. 1. The terms of the contract between the department and the referring entity.

46.043(3)(a)2. 2. Subchapter XVI of ch. 48 and ss. 50.03, 50.032, 50.033, 50.034 (1) to (3), 50.035, 50.04, 50.09, 51.04, 51.42 (7) (b) and 51.61. In applying these statutes, the services shall be considered to be provided by a private entity.

46.043(3)(a)3. 3. Rules promulgated under the statutes specified in subd. 2.

46.043(3)(b) (b) In the event of a conflict between par. (a) 1. and 2. or 3., the services shall comply with the contractual, statutory or rules provision that is most protective of the service recipient’s health, safety, welfare or rights.

46.043(3)(c) (c) Sections 46.03 (18), 46.10, 51.15 (2), 51.20 (13) (c) 1. and 51.42 (3) (as), other similar provisions in chs. 46 and 51 and zoning or other ordinances or regulations of the county, city, town or village in which the services are provided or the facility is located do not apply to the services under this section.

46.043(3)(d) (d) The department may not be required, by court order or otherwise, to offer services under this section.

46.043(4) (4) Services in a residential facility operated by a mental health institute that are authorized by the department under this section shall be provided only in a facility that is situated on the grounds of a mental health institute. The facility may not be considered to be a hospital, as defined in s. 50.33 (2), an inpatient facility, as defined in s. 51.01 (10), a state treatment facility, as defined in s. 51.01 (15), or a treatment facility, as defined in s. 51.01 (19).

46.043 History History: 1999 a. 9; 2001 a. 16; 2007 a. 20, 97.

46.044 46.044 State psychiatric institute. There is established the state psychiatric institute to be maintained as a department of the University of Wisconsin-Madison. The statutes relating to admission, commitment, placement, transfer, custody and discharge of mentally ill persons are applicable to the psychiatric institute.

46.044 History History: 1975 c. 430; 1977 c. 26.

46.047 46.047 State-operated residential facilities and support services. The department may establish and operate noninstitutional residential facilities for persons who are relocated from any center for the developmentally disabled, as defined in s. 51.01 (3), and may provide necessary support services for the persons.

46.047 History History: 1993 a. 16.

46.048 46.048 Central Wisconsin Center for the Developmentally Disabled. There is established a new institution to be located near the city of Madison and to be known as the Central Wisconsin Center for the Developmentally Disabled. The department, with the approval of the governor, is authorized to purchase lands for a suitable site and to erect and equip such buildings as it deems necessary from funds appropriated for the long-range building program. Such institution when constructed shall be maintained and operated by the department and all laws pertaining to the care of mentally deficient patients shall apply.

46.048 History History: 1975 c. 189 s. 99 (2); 1975 c. 430 s. 78.

46.055 46.055 Secure mental health facility for sexually violent persons. The department shall establish and operate a secure mental health facility for the detention, evaluation and institutional care of persons under ch. 980.

46.055 History History: 1999 a. 9.

46.055 Cross-reference Cross-reference: See also ch. DHS 95, Wis. adm. code.

46.056 46.056 Wisconsin Resource Center. The department shall establish the Wisconsin Resource Center on the grounds of the Winnebago Mental Health Institute near Oshkosh. Notwithstanding s. 301.03, the department shall have responsibility for administering the center as a correctional institution that provides psychological evaluations, specialized learning programs, training and supervision for inmates whose behavior presents a serious problem to themselves or others in state prisons and whose mental health needs can be met at the center.