Wisconsin Legislature: Jus 11.07(2)(b)

(1) Eligible providers. Eligible providers of mental health treatment under this subchapter include a qualified treatment trainee under clinical supervision as defined by s. DHS 35.03 (17m) or any of the following individuals licensed by the state in which he or she practices:

(a) A physician who has completed a residency in psychiatry.

(e) A psychologist.

(f) A marriage and family therapist.

(g) A professional counselor.

(h) A clinical social worker.

(2) Eligible services. Eligible types of mental health treatment under this subchapter include:

(a) Inpatient psychiatric services provided within the psychiatric unit of a general hospital or a psychiatric facility.

(b) Outpatient psychotherapy services.

(d) Complementary mental health services may be considered for payment by the department if administered in conjunction with any of the above-listed treatments, prescribed by an eligible provider, and administered by an accredited practitioner.

(3) Limitations on eligible services. Limitations on eligible services include:

(a) Collateral interviews are limited to the non-offending family members.

(b) Group psychotherapy sessions are limited to those in which not more than 10 individuals receive psychotherapy services together from an eligible provider.

(4) Authorization process. The department shall require eligible providers of services to submit an authorization request which may include the following information:

(a) The name, address, and medical assistance or identification number of the provider conducting the diagnostic examination and performing the psychotherapy services.

(b) A detailed summary of the problems for which the victim or claimant is seeking mental health treatment.

(c) A detailed summary of the diagnostic examination, including the severity of the victim’s or claimant’s mental illness, medically significant emotional or social dysfunctions, the medical necessity for treatment and the suggested outcome of treatment.

(d) A statement of the estimated frequency of treatment sessions and the estimated cost of treatment.

(e) A statement of the relationship between the crime and the need for treatment, and to what extent the treatment is directly related to the crime.

(f) A statement of the victim’s or claimant’s psychological condition prior to the crime.

(5) Review process.

(a) Department claims specialists shall review authorization requests for mental health claims. The department may appoint persons who meet the same minimum requirements that providers are expected to meet to review authorization requests.

(b) The department shall review the progress of the treatment periodically as the department determines it is reasonable to do so. Progress reports shall describe the victim’s current symptoms, problem changes in symptoms since the last report, progress made toward each treatment goal, a list of impediments to progress, and a plan to address impediments.

History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 15-058: am. (1) (intro.), (2) (intro.) Register May 2016 No. 725, eff. 6-1-16; CR 19-136: am. (1) (intro.), (a), r. (1) (b) to (d), cr. (1) (e) to (h), am. (2) (a), (b), r. (2) (c), cr. (2) (d), am. (4) (intro.), (b), (c), (e), (f) Register September 2021 No. 789, eff. 10-1-21.

Jus 11.07 Limitations on awards. The department may not make an award if the department determines that any of the following apply:

(1) The application was not filed within one year after the date of the personal injury or death, subject to the exception under s. 949.08 (1m) (b), Stats. The department may waive the one year filing requirement under this subsection in the interest of justice.

(2) The incident upon which the claim is based was not reported to a law enforcement agency within 5 days of its occurrence or, if the incident could not have reasonably been reported within that period, within 5 days of the time when a report could reasonably have been made. The department may waive the time limit on reporting under this subsection in the interest of justice.

(a) Lack of knowledge of the provisions of ch. 949, Stats., and of this subchapter does not extend the time in which an incident must be reported to a law enforcement agency.

(b) Compliance with sub. (5) (a), (b) and (c) constitutes a report to a law enforcement agency under this subsection.

(3) The victim engaged in conduct which substantially contributed to the victim’s injury or death or engaged in conduct in which the victim could have reasonably foreseen could lead to injury or death. This paragraph does not apply to awards to victims under s. 949.03 (1) (a), Stats. In determining whether the victim engaged in contributory conduct under this subsection the department:

(a) Shall consider any behavior of the victim that may have directly or indirectly contributed to the victim’s injury or death including consent, provocation, verbal utterance, gesture, incitement, prior conduct of the victim and the ability of the victim to have reasonably avoided the incident upon which the claim is based.

(b) May consider whether the victim was under the influence of an intoxicant or controlled substance at the time of the incident upon which the claim is based; whether the victim has engaged in an ongoing course of criminal conduct within 5 years or less of the date of the incident upon which the claim is based; or whether the incident upon which the claim is based occurred while the victim was incarcerated in a city or county detention facility pending the disposition of criminal charges or, after being convicted of an offense, was serving a sentence of imprisonment.

(4) The victim committed a crime which caused, or contributed to, the victim’s injury or death.

(5) The victim has not cooperated with appropriate law enforcement agencies. In this subsection “cooperation with appropriate law enforcement agencies” means the victim has cooperated with the reasonable requests of the law enforcement agency investigating the incident, including:

(a) Providing a true, accurate and complete description of the crime, including the circumstances which led to the crime.

(b) Describing the assailant and telling the appropriate law enforcement agency the offender’s name and whereabouts, if known.

(c) Reporting the incident to the law enforcement agency within a reasonable time so as to enable the agency to identify and apprehend the offender, identify witnesses, and conduct a thorough investigation of the incident.

(d) Participating, if requested by the law enforcement agency, in follow-up investigative activities including, but not limited to, viewing photographs and lineups and other investigative procedures.

(e) Agreeing to participate in the initiation of proceedings against the offender, agreeing to appear and testify on behalf of the prosecution and assisting in the prosecution of the offender at all stages. The department may waive the provisions of this paragraph upon good cause shown by the victim that the failure to cooperate in the prosecution is due to a compelling health or safety reason.

(6) The applicant has not cooperated with the department in the administration of the program. Cooperation with the department means that the applicant provides all information deemed necessary by the department within 30 days of its request. The department may waive this requirement upon good cause shown by the applicant that the failure to take the steps required by the department was beyond the control of the applicant.

(7) The injured victim is an adult passenger in a vehicle operated by the offender and the crime involved is specified in s. 346.63 (2) or 940.25, Stats., and the passenger knew the offender was under the influence of an intoxicant, a controlled substance, or another drug to a degree that renders him or her incapable of safely driving. This subsection does not apply if the victim is also a victim of a crime specified in s. 940.30, 940.305, 940.31 or 948.30, Stats. This subsection applies, however, if the victim is also a victim of a crime specified in s. 940.09, Stats.

(8) The victim has been certified to the department under s. 49.855 (7), Stats., as being delinquent in child support or maintenance payments.

Note: 1999 Wis. Act 9 repealed s. 49.855 (7), Stats.

(9) The award would unjustly benefit the offender or accomplice. In this subsection “unjust benefit” includes:

(a) The extent to which the offender or accomplice has the legal responsibility to reimburse the victim or claimant for economic loss.

(b) The extent to which an award to a victim or claimant will provide support to the offender or accomplice by paying for living expenses of the offender or accomplice including food, shelter, clothing and entertainment.

History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; correction in (9) (a) made under s. 13.93 (2m) (b) 12., Stats., Register, September, 1994, No. 465; corrections in (7) and (8) made under s. 13.93 (2m) (b) 7., Stats., Register September 2001 No. 549; CR 15-058: am. (2) (a) Register May 2016 No. 725, eff. 6-1-16; CR 19-136: am. (1), (2), (7) Register September 2021 No. 789, eff. 10-1-21; correction in (1) made under s. 35.17, Stats., Register September 2021 No. 789.

Jus 11.09 Contested case hearing.

(1) Petition for hearing. The applicant may petition the department for a contested case hearing to review the decision of the department.

(a) The applicant filing a petition for hearing shall be designated as “petitioner.” The department of justice shall be designated as“respondent.”

(b) The petition for hearing shall request that a hearing be granted in the particular case and clearly state the particular finding or findings of the department which applicant claims are in error.

(c) The applicant shall file with the department the written request for a contested case hearing within 30 days of the date of the written decision of the department. The time during which the applicant may request a contested case hearing to review the decision of the department shall begin with the date of mailing of the decision.

(d) The department shall either grant or deny the request for a contested case hearing by mailing to the petitioner an order granting or denying the request. If a hearing is not granted within 60 days of receipt of the request for a contested case hearing, the request shall be deemed denied.

(2) Prehearing conference. In any action to be set for hearing, the hearing examiner may conduct a prehearing conference in person or by telephone in all proceedings for hearings under this subchapter.

(a) The hearing examiner shall attempt to obtain from the parties to the prehearing conference a stipulation as to any issue of fact or law over which there is no genuine dispute, including:

1. Whether a crime has been committed.

2. Whether the applicant sustained injuries or death as a direct result of a crime.

3. The nature and extent of the applicant’s injuries.

4. The economic loss sustained by the applicant.

5. The amount the applicant has been, or expects to be, compensated from other sources.

(b) Failure of any interested party to appear in person or by attorney at the prehearing conference constitutes a waiver of that interested party’s right to become a party to the administrative proceedings.

(c) Failure of petitioner to appear in person or by attorney at the prehearing conference shall result in the entry of a decision dismissing the petition.

(3) Hearing practices and procedures. The hearing examiner shall conduct contested case hearings in accordance with the rules in this subsection.

(a) The department shall request the division of hearings and appeals, department of administration, to appoint a hearing examiner to preside over the contested case hearing.

(b) Chapter HA 1 rules of procedures and practice shall apply in all contested case hearings held under this subchapter, except as specifically provided otherwise.

(d) The department shall attach to the request for a contested case hearing:

1. The application.

2. The written decision of the department.

3. The written request for a hearing.

4. The order granting the hearing.

5. A list of all interested parties.

6. Any other documents the department deems necessary.

(e) The claimant shall proceed with the burden of proving by a preponderance of the credible evidence that:

1. A crime occurred which meets the definition under s. 949.03, Stats.

2. The victim incurred a personal injury as defined under s. 949.01 (5), Stats., or a death, as a direct result of the incident.

3. The victim or claimant suffered an economic loss as defined in s. 949.06, Stats., as a direct result of the injury or death.

(f) The department shall have the burden of proving by the preponderance of the credible evidence any limitations to an award or any defenses to the claimant’s application.

(g) All hearings shall be open to the public unless in a particular case the examiner determines that the hearing, or a portion thereof, shall be held in private having regard for the fact that the offender has not been convicted and for the interest of the victim.

(h) The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this subchapter and may enforce compliance with such subpoenas as provided in s. 885.12, Stats.

History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 15-058: am. (2) (intro.), (3) (b), (c), (h) Register May 2016 No. 725, eff. 6-1-16; CR 19-136: am. (1) (d), (3) (g) Register September 2021 No. 789, eff. 10-1-21.

Jus 11.10 Review by attorney general.

(1) Petition for review. After entry of a decision of the hearing examiner, any party who is adversely affected by that decision may submit a written petition for review by the attorney general of the record upon which that decision was based.

(a) The petition for review shall be served upon the attorney general and upon all other parties to the action, either personally or by certified mail, within ten days of the entry of the decision of the hearing examiner.

(b) The petition shall specify in detail the grounds for the review, the relief which the petitioner seeks and citation to any supporting authorities.

(c) Papers and petitions under this section shall be served in person or by mail and shall be addressed: Attorney General, 114 East State Capitol, Madison, WI 53702.

(2) Discretion. Within 14 days of receipt of the petition for review, the attorney general shall issue an order either granting or denying review of the decision. The attorney general shall not delegate the review to anyone who has had prior involvement in either the contested case hearing or decision-making process.

(a) If the order of the attorney general denies review, the decision of the hearing examiner shall become the final decision of the department.