LRB-0025/1
DAK:jld:pg
2005 - 2006 LEGISLATURE
July 7, 2005 - Introduced by Joint Legislative Council. Referred to Committee
on Aging and Long-Term Care.
AB539,3,15
1An Act to repeal 46.90 (1) (b), 46.90 (1) (c), 46.90 (1) (d), 46.90 (1) (e), 46.90 (4)
2(a) 2., 46.90 (5) (d) 2., 46.90 (5) (g), 55.01 (1t), 55.01 (3), 55.01 (4p), 55.01 (7),
355.043 (1) (title), 55.043 (5), 55.043 (9), 813.123 (1) (c), 813.123 (1) (f), 813.123
4(1) (h), 813.123 (11), 940.285 (1) (a), 940.285 (1) (b), (bm), (c) and (d), 940.285
5(1) (e), 940.295 (1) (cm), 940.295 (1) (hm), 940.295 (1) (j), 940.295 (1) (jm),
6940.295 (1) (kp), 940.295 (1) (n), 940.295 (1) (t) and 943.20 (2) (e);
to renumber
7940.225 (5) (ab), 940.295 (1) (a) and 943.20 (2) (a);
to renumber and amend
846.90 (4) (a) 1., 46.90 (4) (b) 1. c., 46.90 (5) (a), 46.90 (5) (d) 1., 46.90 (6) (a), 46.90
9(6) (c) 1., 46.90 (6) (c) 2., 46.90 (6) (c) 3., 55.043 (1) (a) (intro.), 55.043 (1) (a) 1.,
1055.043 (1) (a) 2., 55.043 (1) (a) 3., 55.043 (1) (a) 4., 55.043 (1) (a) 5., 55.043 (1)
11(b) (intro.), 55.043 (1) (b) 1., 55.043 (1) (b) 2. (intro.), 55.043 (1) (b) 2. a., 55.043
12(1) (b) 2. b., 55.043 (2), 55.043 (4) (intro.), 55.043 (4) (a), 55.043 (4) (b), 55.043
13(4) (c), 55.043 (4) (d), 55.043 (4) (e), 55.043 (4) (f), 813.123 (2), 813.123 (3) (b) 2.
14and 3., 813.123 (4) (a) 2. and 880.01 (5);
to consolidate, renumber and
1amend 813.123 (3) (b) (intro.) and 1.;
to amend 20.435 (7) (dh), 46.21 (2m) (c),
246.215 (1m), 46.22 (1) (dm), 46.23 (3) (e), 46.283 (4) (h), 46.286 (1) (intro.),
346.286 (3) (a) (intro.), 46.286 (3) (a) 3., 46.90 (1) (g), 46.90 (2), 46.90 (3) (title),
446.90 (3) (a), (b) and (c), 46.90 (4) (b) 1. b., 46.90 (4) (b) 2. c., 46.90 (4) (c), 46.90
5(4) (d), 46.90 (5) (b) (intro.) and 1. to 5., 46.90 (5) (c), 46.90 (5) (f), 46.90 (5m) (title)
6and (a), 46.90 (5m) (b), 46.90 (5m) (c), 46.90 (6) (b) (intro.), 46.90 (6) (b) 1., 46.90
7(6) (b) 2., 46.90 (6) (b) 3., 46.90 (6) (b) 4., 46.90 (6) (b) 5., 46.90 (6) (b) 6., 46.90
8(6) (b) 7., 46.90 (7), 46.90 (8) (a), 46.90 (8) (b), 46.90 (8) (c) and (d), 49.498 (3) (b)
91., 50.065 (1) (br), 50.065 (4m) (a) 3., 50.065 (4m) (b) 3., 50.065 (7) (c), 50.09 (1)
10(k), 51.01 (2g) (b), 51.01 (3g), 51.01 (5) (a), 51.30 (4) (b) 17., 51.42 (3) (e), 51.437
11(4r) (b), 51.62 (3) (a) 2m., 55.001, 55.01 (1m), 55.01 (2), 55.02, 55.043 (title),
1255.043 (3), 55.043 (4) (title), 55.06 (2) (c), 55.06 (11) (a), 106.54 (5), 146.40 (4g)
13(a) 3., 146.40 (4r) (a), 146.40 (4r) (am) 1., 146.40 (4r) (am) 2., 146.40 (4r) (am)
143., 146.40 (4r) (b), 146.82 (2) (a) 7., 813.123 (title), 813.123 (1) (a), 813.123 (1)
15(b), 813.123 (1) (g), 813.123 (4) (a) (intro.), 813.123 (5) (a) (intro.), 813.123 (5)
16(a) 3. a., 813.123 (5) (a) 3. b., 813.123 (5) (c) 1., 2. and 3., 813.123 (6) (a), 813.123
17(6) (c), 813.123 (7), 813.123 (9) (intro.), 880.01 (2), 880.01 (4), 895.85 (2), 940.285
18(title), 940.285 (2) (title) and (a) 1. to 3., 940.295 (1) (b), 940.295 (1) (o), 940.295
19(3) (a) 3., 940.295 (3) (b) 1g., 940.295 (3) (b) 1m. and 943.20 (3) (d) 6.;
to repeal
20and recreate 46.90 (1) (a), 46.90 (1) (f), 46.90 (5) (title), 51.62 (1) (ag), 51.62 (1)
21(br), 55.01 (1), 55.01 (1p), 55.01 (4r), 940.295 (1) (k) and 940.295 (1) (km); and
22to create 46.90 (1) (aj), 46.90 (1) (an), 46.90 (1) (br), 46.90 (1) (bt), 46.90 (1) (cm),
2346.90 (1) (ed), 46.90 (1) (eg), 46.90 (1) (er), 46.90 (1) (fg), 46.90 (1) (gd), 46.90 (1)
24(gf), 46.90 (1) (gr), 46.90 (1) (h), 46.90 (1) (i), 46.90 (4) (ab), 46.90 (4) (ad), 46.90
25(4) (ae), 46.90 (4) (b) 1. cm., 46.90 (4) (e), 46.90 (5) (a) 2., 46.90 (5) (b) 6., 46.90
1(5) (br), 46.90 (5) (h), 46.90 (5m) (br), 46.90 (6) (ac), 46.90 (6) (b) 9. and 10., 46.90
2(6) (bd), 46.90 (6) (br), 46.90 (6) (bt), 46.90 (6) (bv), (bw) and (by), 46.90 (9) (title)
3and (e), 50.065 (1) (cg), 51.62 (1) (ar), 55.01 (1e), 55.01 (1f), 55.01 (1v), 55.01 (2s),
455.01 (4g), 55.01 (6), 55.01 (6d), 55.01 (6g), 55.043 (1d), 55.043 (1g), 55.043 (1m),
555.043 (1r) (title), 55.043 (1r) (a) 2., 55.043 (1r) (b) (intro.), 55.043 (1r) (b) 3.,
655.043 (1r) (b) 6. a., 55.043 (1r) (b) 6. b., 55.043 (1r) (c) 2. b., 55.043 (1r) (d),
755.043 (2) (b), 55.043 (4) (am), 55.043 (5g), 55.043 (6), 55.043 (7), 55.043 (8),
855.043 (9m), 146.40 (1) (ab), 146.40 (1) (aw), 813.123 (1) (ae), 813.123 (1) (am),
9813.123 (1) (br), 813.123 (1) (cg), 813.123 (1) (dm), 813.123 (1) (eg), 813.123 (1)
10(ep), 813.123 (1) (fm), 813.123 (1) (gr), 813.123 (1) (gs), 813.123 (2) (b), 813.123
11(3) (c) (intro.), 813.123 (4) (a) 2. b., 813.123 (4) (ar), 813.123 (5) (a) 3. c., 813.123
12(5) (ar), 940.225 (2) (j), 940.225 (5) (abm) and (ak), 940.285 (1) (ag), 940.285 (1)
13(am), 940.285 (1) (dc), 940.285 (1) (dg), 940.295 (1) (ad), 940.295 (1) (ag), 943.20
14(2) (ac), 943.20 (2) (ad) and 943.20 (2) (ae) of the statutes;
relating to: adult
15protective services and providing penalties.
Analysis by the Legislative Reference Bureau
This bill is explained in the Prefatory note provided by the Joint Legislative
Council in the bill.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's special committee on the recodification of chapter 55, placement and
services for persons with disabilities.
Scope and Definitions
Under current law, Wisconsin's elder abuse law, s. 46.90, stats., establishes a
system in each county for the reporting and investigation of suspected elder abuse, and
the provision of services to elder persons who are being abused or neglected or
experiencing material abuse. The elder abuse reporting and services system set forth in
s. 46.90, stats., addresses creating public awareness of elder abuse; who is responsible for
receiving and responding to reports of suspected abuse and neglect; how services are
provided once abuse or neglect is documented; and how information is exchanged among
providers of services.
Currently, vulnerable adults who are under the age of 60 may also be victims of
abuse, neglect, or misappropriation of property. However, under current law, Milwaukee
county is the only county with the explicit authority to investigate suspected abuse,
neglect, or misappropriation of property of a vulnerable adult under the age of 60, to
determine if there is a need for protective services. A "vulnerable adult" is defined in s.
940.285 (1) (e) as any person 18 years of age or older who either is a developmentally
disabled person or has infirmities of aging, mental illness, or other like incapacities and
who is either: (1) substantially mentally incapable of providing for his or her needs for
food, shelter, clothing, or personal or health care; or (2) unable to report cruel
maltreatment without assistance.
Currently, the statutes inconsistently define abuse, material abuse,
misappropriation of property, neglect, and self-neglect, when these conditions are
experienced by elder or vulnerable adults. For example, the term "material abuse" is used
in s. 46.90, stats., when referring to the misuse of an elder person's property or financial
resources. In ch. 55, however, the term "misappropriation of property" is used to refer to
misuse of a vulnerable adult's property or financial resources.
This bill revises the current statutory provisions of Wisconsin's elder abuse law.
The bill revises terminology, elder abuse reporting provisions, investigation provisions,
and confidentiality of elder abuse reports and records. The bill also deletes reference to
the term "elder person." Under current law, an "elder person" who could receive services
under the "elder abuse system" was defined as a person who is age 60 or older or subject
to the infirmities of aging. The bill instead refers to an "elder adult-at-risk," who is
defined as "a person age 60 or older who has experienced, is currently experiencing, or
is at risk of experiencing abuse, neglect, or financial exploitation."
The bill also permits counties to assist persons who are at risk of experiencing
abuse, neglect, or financial exploitation who are under age 60 (currently, only Milwaukee
County has this authority). These persons, who are at risk due to a physical or mental
condition are defined as "adults-at-risk" in ch. 55. An "adult-at-risk" is defined as "any
adult who has a physical or mental condition that substantially impairs his or her ability
to care for his or her needs who has experienced, is currently experiencing, or is at risk
of experiencing abuse, neglect, or financial exploitation." In addition, the draft creates
parallel provisions in ch. 55 to the elder abuse system in ch. 46 to permit abuse
investigations and follow-up services to be provided on behalf of these adults-at-risk.
The bill revises definitions of several terms in current law, including the terms
abuse, neglect, and self-neglect. The term "material abuse" is redefined as "financial
exploitation" and made more precise with regard to what constitutes financial
exploitation. Some new definitions are created, including "emotional abuse," "state
official" (to whom reports of suspected abuse or neglect may also be made), and
"investigative agency."
Reports
Under current law, Wisconsin requires the reporting of suspected child abuse and
neglect. However, there is no similar requirement for reporting the abuse of vulnerable
adults, even in the most egregious cases of suspected abuse or neglect where the elder or
vulnerable adult's life may be in danger. Wisconsin's elder abuse system is based on
voluntary reporting of suspected abuse, neglect and material abuse.
Once a report of suspected abuse, neglect, or material abuse is made, the county
agency must investigate the report and, if it is found that the person is being abused or
neglected, services must be offered to the individual. The individual has the option of
refusing to accept the services. The services must be offered in the least restrictive
manner necessary to achieve the objective of protecting the individual.
This bill retains the voluntary system of reporting for the majority of situations of
suspected abuse or neglect. However, the bill creates a provision requiring certain
categories of persons to file reports in situations where the elder person is facing a serious
risk of harm or even death.
Under the bill, the following persons must file a report of suspected abuse or neglect
if there is reasonable cause to believe that the elder adult-at-risk or adult-at-risk is at
imminent risk of serious bodily harm, death, sexual assault, or significant property loss,
and is unable to make an informed judgment about whether to report the risk; or other
adults-at-risk, are at risk of serious bodily harm, death, sexual assault, or significant
property loss inflicted by the suspected perpetrator:
•An employee of any entity that is licensed, certified, or approved by, or registered
with the department of health and family services (DHFS).
• An employee of a financial institution.
• A health care provider.
• A social worker, professional counselor, or marriage and family therapist.
These persons are not required to file a report, however, if the person believes that
filing the report would not be in the best interest of the elder adult-at-risk or
adult-at-risk. If the person believes this, the person must document the reasons for this
belief in the case file of the person who is the suspected victim. There is a penalty for not
complying with this requirement, which is a fine of not more than $500, imprisonment
not more than six months, or both.
The bill applies the immunity protections in current law to the new category of
required reporters created in the bill. Therefore, a person required to file a report under
the bill may not be discharged or retaliated against for doing so. The person found guilty
of retaliating against a reporter is subject to a fine of not more than $1,000, imprisonment
not more than six months, or both. In addition, a person is immune from civil or criminal
liability for filing a report.
The bill also increases the penalties for retaliating against a reporter, by increasing
the maximum fine to $10,000. In addition, the bill creates a rebuttable presumption that
any discharge of a person or act of retaliation or discrimination that is taken against a
person who makes a report, within 120 days after the report is made, establishes a
rebuttable presumption that the discharge or act is retaliatory.
Investigations
Under current law, upon receiving a report of abuse, material abuse, neglect or
self-neglect, the county agency must either investigate the report or refer the report to
another agency for investigation. If the report concerns abuse of a person who resides in
a nursing home, community based residential facility, or receives services from a licensed
home health agency, the county agency must refer the report to DHFS for investigation.
An investigation of a report must be commenced within 24 hours after a report is received,
excluding Saturdays, Sundays, and legal holidays. An investigation of a report of
material abuse shall be commenced within 5 days after a report is received, excluding
Saturdays, Sundays, and legal holidays. The scope of the investigation is at the discretion
of the investigating agency and may include a visit to the elder person's residence;
observation of the elder person; an interview with the elder person, or the elder person's
caretaker, if any; and a review of treatment and health care records.
The bill creates new provisions regarding referral of an investigation to another
agency, if the county department, or agency under contract with the county department,
determines that there are circumstances that would prevent conducting an independent
investigation. In that case, the bill permits the DHFS or another county department to
conduct the investigation. In addition, additional investigative tools are provided to
investigative agencies, including the ability to interview the elder adult-at-risk or
adult-at-risk, with or without the consent of the person's guardian; an interview of the
guardian; transporting the person for a medical examination; and a review of the
financial records of an elder adult-at-risk or adult-at-risk in cases of suspected financial
exploitation. The bill also provides immunity from civil or criminal liability or a finding
of unprofessional conduct if any element of an investigation was performed in good faith
and under lawful authority.
Services
Currently, a county agency or investigating agency must determine whether the
person who is the subject of the alleged abuse or neglect is in need of services. If the
department so determines, the agency must provide the necessary direct services to the
person, within the limits of available funds.
The bill provides more specificity with regard to what types of services and
responses may be made by an agency if a person is found to be the subject of abuse or
neglect or financial exploitation. These responses include:
• Requesting immediate assistance in either initiating a protective services action
or contacting law enforcement or another public agency as appropriate.
•Taking appropriate emergency action, including emergency protective placement
under s. 55.06.
• Referring the case to local law enforcement for further investigation or to the
district attorney, if the elder adult-at-risk agency has reason to believe that a crime has
been committed.
• Referring the case to the licensing or certification authorities of the department
or to other regulatory bodies if the residence, facility, or program for the elder
adult-at-risk is or should be licensed or certified or is otherwise regulated.
• Referring the case to the department of regulation and licensing if the abuse,
financial exploitation, neglect or self-neglect involves an individual who is required to
hold a credential under chs. 440 to 460, stats.
• Bringing or referring for a petition for a guardianship and protective services or
placement, if necessary.
Records and Reports; Confidentiality
Under current law, the county agency or other investigating agency must prepare
a report on each investigation it conducts unless the agency finds, at the conclusion of the
investigation, that the report of alleged abuse, material abuse, neglect or self-neglect is
without foundation. If an agency other than the county agency conducts the
investigation, it must submit a copy of the investigation report to the county agency.
Reports of suspected abuse, material abuse, neglect or self-neglect and
investigation reports under this section are confidential and may not be released by the
county agency or other investigating agency, except under the following circumstances:
• To the elder person and any person named in a report who is suspected of abusing
or neglecting an elder person.
•To the protective services agency that is notified when an elder adult at risk is
believed to be at risk of substantial physical harm, irreparable injury, or death.
