Chapter 46

46.027(8) (8) Compliance. Any party that seeks to enforce its rights under this section may assert a civil action for injunctive relief against the entity or agency that allegedly commits the violation.

46.027(9) (9) Limitations on use of funds for certain purposes. No funds provided directly to religious organizations by the department may be expended for sectarian worship, instruction or proselytization.

46.027(10) (10) Preemption. Nothing in this section may be construed to preempt any provision of federal law, the U.S. Constitution, the Wisconsin Constitution or any other statute that prohibits or restricts the expenditure of federal or state funds in or by religious organizations.

46.027 History History: 1997 a. 27.

46.028 46.028 Electronic benefit transfer. The department may deliver benefits that are administered by the department to recipients of the benefits by an electronic benefit transfer system if all of the following conditions are satisfied:

46.028(1) (1) The department obtains any authorization from a federal agency that is required under federal law to deliver the benefits by an electronic benefit transfer system.

46.028(2) (2) The department promulgates an administrative rule to deliver the benefits by an electronic benefits transfer system.

46.028(3) (3) The department does not require a county or tribal governing body to use the electronic benefit transfer system if the costs to the county or tribal government of delivering the benefits by the electronic benefit transfer system would be greater than the costs to the county or tribal government of delivering the benefits by means other than an electronic benefit transfer system.

46.028 History History: 2009 a. 28.

46.03 46.03 Department, powers and duties. The department shall:

46.03(1) (1) Institutions governed. Maintain and govern the Mendota and the Winnebago mental health institutes; the secure mental health facility established under s. 46.055; and the centers for the developmentally disabled.

46.03(2) (2) Supervision over property. Supervise, manage, preserve and care for the buildings, grounds and other property pertaining to said institutions, and promote the objects for which they are established.

46.03 Cross-reference Cross-reference: See also ch. DHS 60, Wis. adm. code.

46.03(2a) (2a) Gifts. Be authorized to accept gifts, grants or donations of money or of property from private sources to be administered by the department for the execution of its functions.

46.03(3) (3) Trustee duty. Take and hold in trust, whenever it considers acceptance advantageous, all property transferred to the state to be applied to any specified purpose, use or benefit pertaining to any of the institutions under its control or the inmates thereof, and apply the same in accordance with the trust; and when ordered by the court, act as trustee of funds paid for the support of any child if appointed by the court or a circuit court commissioner under s. 767.82 (7).

46.03(4) (4) Education and prevention.

46.03(4)(a) (a) Develop and maintain education and prevention programs that it considers to be proper.

46.03(4)(b) (b) In order to discharge more effectively its responsibilities under this chapter and other relevant provisions of the statutes, be authorized to study causes and methods of prevention and treatment of mental illness, mental deficiency, mental infirmity, and related social problems, including establishment of demonstration projects to apply and evaluate such methods in actual cases. The department is directed and authorized to utilize all powers provided by the statutes, including the authority under sub. (2a), to accept grants of money or property from federal, state, or private sources, and to enlist the cooperation of other appropriate agencies and state departments. The department may enter into agreements with local government subdivisions, departments, and agencies for the joint conduct of these projects, and it may purchase services when considered appropriate.

46.03(5) (5) Mental hygiene.

46.03(5)(a) (a) Execute the laws relating to the custody, care and treatment of mentally ill, mentally infirm and mentally deficient persons, inebriates and drug addicts. It shall examine all institutions, public and private, authorized to receive and care for such persons, and inquire into the method of government and the management of persons therein, and examine into the condition of buildings, grounds and other property connected with any such institution and into matters relating to its management.

46.03(5)(b) (b) Direct the psychiatric field work, aftercare and community supervision and exercise such powers in relation to prevention as the department deems appropriate.

46.03(7) (7) Children and youth.

46.03(7)(a) (a) Promote the enforcement of laws for the protection of developmentally disabled children; and to this end cooperate with courts assigned to exercise jurisdiction under chs. 48 and 938, licensed child welfare agencies, and public and private institutions and take the initiative in all matters involving the interests of those children when adequate provision for those interests has not already been made, including the establishment and enforcement of standards for services provided under ss. 48.345 and 48.347.

46.03(7)(bm) (bm) Maintain a file containing records of artificial inseminations under s. 891.40 and statements acknowledging paternity under s. 69.15 (3) (b). The department may release those records and statements only upon an order of the court except that the department may use nonidentifying information concerning artificial inseminations for the purpose of compiling statistics, and statements acknowledging paternity shall be released without a court order to the department of children and families or a county child support agency under s. 59.53 (5) upon the request of that department or county child support agency pursuant to the program responsibilities under s. 49.22 or to any other person with a direct and tangible interest in the statement.

46.03(10) (10) Training staff. In its discretion, conduct a training program of in-service training and staff development; and, in cooperation with educational institutions, provide facilities for work experience for students, including subsistence.

46.03(13) (13) Charges. In compliance with the compensation plan established under s. 230.12 (3), have authority to make and determine charges for meals, living quarters, laundry and other services furnished to employees of the several institutions and members of the employee’s family maintained as such. All moneys received from each person on account of these services shall be used for operation of the institutions under s. 20.435 (2) (a) and (gk). If a chaplain employed in any state institution administered by the department is not furnished a residence by the state, $1,800 or 20 percent of the chaplain’s salary, whichever is greater, is designated as his or her housing allowance.

46.03(14) (14) Vending stands. Establish and maintain a revolving fund not exceeding $60,000 in any of the state institutions administered by the department, for the education, recreation and convenience of the patients, inmates and employees, to be used for the operation of vending stands, canteen operations, reading clubs, musical organizations, religious programs, athletics and similar projects. The funds are exempt from s. 20.906, but are subject to audit by the department and the legislative audit bureau in its discretion.

46.03(15) (15) Commissary. Pursuant to its rules the department may, with the approval of the governor and the director of personnel, provide employees in its institutions with laundry, food, housing and necessary furnishings.

46.03(17) (17) Purchase of care and services. Be empowered to contract with public or voluntary agencies or others:

46.03(17)(a) (a) To purchase in full or in part care and services which it is authorized by any statute to provide as an alternative to providing such care and services itself.

46.03(17)(b) (b) To purchase or provide in full or in part the care and services which county agencies may provide or purchase under any statute and to sell to county agencies such portions thereof as the county agency may desire to purchase.

46.03(17)(d) (d) To sell services, under contract, which the department is authorized to provide by statute, to any federally recognized tribal governing body.

46.03(18) (18) Uniform fee schedule, liability and collections.

46.03(18)(a) (a) Except as provided in s. 46.10 (14) (b) and (c), the department shall establish a uniform system of fees for services provided or purchased by the department, or a county department under s. 46.215, 46.22, 51.42, or 51.437, except for services provided under ch. 48 and subch. III of ch. 49; community-based juvenile delinquency-related services; juvenile correctional services; services provided to courts; and outreach, information, and referral services; or when, as determined by the department, a fee is administratively unfeasible or would significantly prevent accomplishing the purpose of the service. A county department under s. 46.215, 46.22, 51.42, or 51.437 shall apply the fees that it collects under this program to cover the cost of those services.

46.03(18)(am) (am) Paragraph (a) also does not prevent a county department under s. 51.42 or 51.437 from charging and collecting the cost of an examination ordered under s. 938.295 (2) (a) as authorized under s. 938.295 (2) (c).

46.03(18)(ar) (ar) Subject to s. 46.995, a county may retain fees that it collects under this subsection for services the county provides without state funding under the disabled children’s long-term support program.

46.03(18)(b) (b) Except as provided in s. 46.10 (14) (b) and (c), any person receiving services provided or purchased under par. (a) or the spouse of the person and, in the case of a minor, the parents of the person, 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, shall be liable for the services in the amount of the fee established under par. (a). If a minor receives services without consent of a parent or guardian under s. 51.138 or 51.47, the department or, if applicable, the county department shall base the fee solely on the minor’s ability to pay.

46.03(18)(c) (c) The department shall make collections from the person who in the opinion of the department is best able to pay, giving due regard to the present needs of the person or of his or her lawful dependents. The department may bring action in the name of the department to enforce the liability established under par. (b). The department may not collect from the parent of a minor receiving treatment for alcohol or drug abuse, except as provided in s. 51.47. This paragraph does not apply to the recovery of fees for the care and services specified under s. 46.10.

46.03(18)(d) (d) The department may compromise or waive all or part of the liability for services received. The sworn statement of the collection and deportation counsel appointed under s. 46.10 (7) or the department secretary, shall be evidence of the services provided and the fees charged for such services.

46.03(18)(e) (e) The department may delegate to county departments under s. 46.215, 46.22, 51.42 or 51.437 and other providers of care and services the powers and duties vested in the department by pars. (c) and (d) as it deems necessary to efficiently administer this subsection, subject to such conditions as the department deems appropriate.

46.03(18)(f) (f) Notwithstanding par. (a), any person who submits to an assessment or airman or driver safety plan under s. 23.33 (13) (e), 23.335 (23) (i), 30.80 (6) (d), 114.09 (2) (bm), 343.16 (5) (a), 343.30 (1q), 343.305 (10) or 350.11 (3) (d) shall pay a reasonable fee therefor to the appropriate county department under s. 51.42, approved tribal treatment facility, as defined in s. 51.01 (2c), or traffic safety school under s. 345.60. A county may allow the person to pay the assessment fee in 1, 2, 3 or 4 equal installments. The fee for the airman or driver safety plan may be reduced or waived if the person is unable to pay the complete fee, but no fee for assessment or attendance at a traffic safety school under s. 345.60 may be reduced or waived. Nonpayment of the assessment fee is noncompliance with the court order that required completion of an assessment and airman or driver safety plan. Upon a finding that the person has the ability to pay, nonpayment of the airman or driver safety plan fee is noncompliance with the court order that required completion of an assessment and airman or driver safety plan.

46.03(18)(fm) (fm) Notwithstanding par. (a), any person who submits to an assessment under s. 961.472 shall pay a fee to the appropriate county department under s. 51.42. The department of health services shall set fees for each county department under s. 51.42 designed to offset all the costs to the county in providing the assessment program. The department of health services shall provide for the reduction or waiver of the fee for persons who are unable to pay the complete fee.

46.03(18)(g) (g) The department shall return to county departments under s. 46.215, 46.22, 51.42 or 51.437 50 percent of collections made by the department on and after January 1, 1978, for delinquent accounts previously delegated under par. (e) and then referred back to the department for collections.

46.03(19) (19) Protective services. Administer the statewide program of protective services under ch. 55.

46.03(20) (20) Payment of benefits.

46.03(20)(a) (a) The department may make payments directly to recipients of public assistance or to persons authorized to receive those payments in accordance with law and rules of the department on behalf of the counties. The department may charge the counties for the cost of operating public assistance systems that make those payments.

46.03(20)(b) (b) The department may make social service payments directly to recipients, vendors or providers in accordance with law and rules of the department on behalf of the counties which have contracts to have such payments made on their behalf.

46.03(20)(c) (c) The county department under s. 46.215, 46.22 or 46.23 shall provide the department with information which the department shall use to determine each person’s eligibility and amount of payment. The county department under s. 46.215, 46.22 or 46.23 shall provide the department all necessary information in the manner prescribed by the department.

46.03(20)(d) (d) The department shall disburse from state or federal funds or both the entire amount and charge the county for its share under s. 46.495.

46.03(22) (22) Community living arrangements for adults.

46.03(22)(a) (a) In this subsection, “community living arrangement for adults” means a community-based residential facility, as defined in s. 50.01 (1g).

46.03(22)(b) (b) Community living arrangements for adults shall be subject to the same building and housing ordinances, codes, and regulations of the municipality or county as similar residences located in the area in which the facility is located.

46.03(22)(c) (c) The department shall designate a subunit to keep records and supply information on community living arrangements for adults under ss. 59.69 (15) (f), 60.63 (7), and 62.23 (7) (i) 6. The subunit shall be responsible for receiving all complaints regarding community living arrangements for adults and for coordinating all necessary investigatory and disciplinary actions under the laws of this state and under the rules of the department relating to the licensing of community living arrangements for adults.

46.03(22)(d) (d) A community living arrangement for adults with a capacity for 8 or fewer persons shall be a permissible use for purposes of any deed covenant which limits use of property to single-family or 2-family residences. A community living arrangement for adults with a capacity for 15 or fewer persons shall be a permissible use for purposes of any deed covenant which limits use of property to more than 2-family residences. Covenants in deeds which expressly prohibit use of property for community living arrangements for adults are void as against public policy.

46.03(22)(e) (e) If a community living arrangement for adults is required to obtain special zoning permission, as defined in s. 59.69 (15) (g), the department shall, at the request of the unit of government responsible for granting the special zoning permission, inspect the proposed facility and review the program proposed for the facility. After such inspection and review, the department shall transmit to the unit of government responsible for granting the special zoning permission a statement that the proposed facility and its proposed program have been examined and are either approved or disapproved by the department.

46.03(25) (25) Uniform regulation and licensing. The department shall promulgate rules to establish licensing and program compliance standards for care and residential facilities, hospitals, hotels, restaurants and the vending of food and beverages after due consideration of the relationship of a licensing code to other related licensing codes, the need for uniform administration, the need to maximize the use of federal funds and the need to encourage the development and operation of needed facilities statewide. In establishing licensing standards designed to ensure that the facility qualifies for federal financial participation, the department shall establish federal regulations as the base requirement. The department may promulgate such additional health and safety standards as it determines to be in the public interest.

46.03(26) (26) Data processing projects. Submit a report each December 31 to the joint committee on finance and to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), regarding the data processing projects under development. The report shall include:

46.03(26)(a) (a) The schedule for implementation;

46.03(26)(b) (b) Estimates of development and operating costs; and

46.03(26)(c) (c) Proposed methods of determining charges for service where applicable.

46.03(30) (30) Primary psychiatric care contracts.

46.03(30)(a) (a) To provide for an orderly reduction of state institutional primary psychiatric services the department may approve the institutes entering into contracts with county departments under s. 51.42 for providing primary psychiatric care. If excess capacity exists at state operated mental health institutes, the department shall, subject to ss. 13.48 (14) (am) and 16.848 (1), explore the possible sale or lease of such excess facilities to a county department under s. 51.42.

46.03(30)(b) (b) No contract may be approved for a period of time greater than one year, and no contract shall be approved except under par. (c).

46.03(30)(c) (c) The counties where the mental health institutes are located may contract with the institutes for primary psychiatric care on an ongoing basis, which contracts shall be approved by the department and shall be renewed annually.

46.03(33) (33) Relief; American Indians. The department may negotiate and enter into an agreement with any appropriate agency of the federal government for provision of relief to needy American Indians.

46.03(34) (34) Fetal alcohol syndrome and drug danger information. The department shall acquire, without cost if possible, information that describes the causes and effects of fetal alcohol syndrome and the dangers to a fetus from the mother’s use of cocaine or other drugs during pregnancy and shall distribute the information free of charge to each county clerk so that each county clerk may provide information to marriage license applicants under s. 765.12 (1) (a) and domestic partnership applicants under s. 770.07 (2).

46.03(37) (37) First aid instruction. In connection with first aid and cardiopulmonary resuscitation instruction to fitness center employees required under s. 100.178, do all of the following:

46.03(37)(a) (a) Promulgate rules establishing standards and procedures under s. 100.178 (5) (a) to (c).

46.03(37)(b) (b) Approve individuals, organizations or institutions of higher education which teach fitness center employees basic first aid and basic cardiopulmonary resuscitation under s. 100.178 (2).

46.03(38) (38) Automatic external defibrillator instruction. Approve individuals, organizations, or institutions of higher education to provide instruction in the use of an automated external defibrillator, as defined in s. 256.15 (1) (cr), for persons who are required as a condition of licensure, certification, or registration to have current proficiency in the use of an automatic external defibrillator.

46.03(40) (40) Grants for pilot programs or demonstration projects. Comply with all of the following whenever the department provides a grant after August 15, 1991, for a pilot program or demonstration project:

46.03(40)(a) (a) State on the grant application that the funding for the program or project will be provided by the department once or for a limited period of time, whichever is applicable.

46.03(40)(b) (b) Require the applicant to provide, as part of the grant application, a plan that describes:

46.03(40)(b)1. 1. How activities funded by the grant will be phased out or how the program or project will be eliminated; or

46.03(40)(b)2. 2. What other funding sources will be available to support the program or project when state funding is eliminated.

46.03(41) (41) Consolidation of allocated tribal funds. The department may consolidate funds appropriated under s. 20.435 that are authorized or required to be allocated to federally recognized American Indian tribes or bands into a single distribution for each tribe or band in each fiscal year.

46.03(42) (42) Administrative hearings and appeals. Any hearing under s. 227.42 granted by the department may be conducted before the division of hearings and appeals in the department of administration.

46.03(43) (43) Compulsive gambling awareness campaigns. From the appropriation account under s. 20.435 (5) (kg), award grants to one or more individuals or organizations in the private sector to conduct compulsive gambling awareness campaigns.

46.03(44) (44) Sexually transmitted disease treatment information. Prepare and keep current an information sheet to be distributed to a patient by a physician, physician assistant, or certified advanced practice nurse prescriber providing expedited partner therapy to that patient under s. 448.035 or 448.9725. The information sheet shall include information about sexually transmitted diseases and their treatment and about the risk of drug allergies. The information sheet shall also include a statement advising a person with questions about the information to contact his or her physician, pharmacist, or local health department, as defined in s. 250.01 (4).

46.03 History History: 1971 c. 270 s. 104; 1973 c. 90; 1973 c. 284 ss. 2, 32; 1973 c. 333; 1975 c. 39, 82; 1975 c. 189 s. 99 (1), (2); 1975 c. 224, 377, 413, 422; 1977 c. 29, 193; 1977 c. 196 s. 131; 1977 c. 203, 205, 271, 354; 1977 c. 418 ss. 287 to 289m, 924 (18) (d); 1977 c. 447, 449; 1979 c. 32 s. 92 (1); 1979 c. 34; 1979 c. 175 s. 46; 1979 c. 221, 331, 352; 1981 c. 20, 81; 1981 c. 314 s. 144; 1981 c. 390; 1983 a. 27, 193; 1983 a. 435 s. 7; 1983 a. 447, 474; 1983 a. 532 s. 36; 1985 a. 19, 29, 120, 176, 234, 285, 328, 331; 1985 a. 332 s. 251 (3); 1987 a. 3, 5, 27, 161, 186, 307, 339, 385, 399, 403, 413; 1989 a. 31 ss. 938m to 951, 2909g, 2909i; 1989 a. 56, 105, 107, 122; 1991 a. 39, 277; 1993 a. 16 ss. 851 to 859, 3072d; 1993 a. 98, 377, 385, 446, 481; 1995 a. 27 ss. 2026m to 2038b, 9126 (19); 1995 a. 77, 201, 225, 352, 370, 404, 448; 1997 a. 3, 27, 111, 283, 292; 1999 a. 9, 83; 2001 a. 16, 59, 61, 109; 2003 a. 33; 2005 a. 25, 293, 406; 2005 a. 443 s. 265; 2007 a. 20 ss. 800 to 823, 9121 (6) (a); 2007 a. 96, 104; 2009 a. 28, 180, 280; 2011 a. 32; 2013 a. 20, 246; 2015 a. 55, 162, 170; 2017 a. 204; 2021 a. 23.

46.03 Cross-reference Cross-reference: See also DHS 1- and DHS 30-, Wis. adm. code.

46.03 Annotation The legislative intent underlying sub. (22) (d) supports a holding that a community living arrangement with a capacity of ten persons was not barred by a deed covenant limiting use to a single-family residence. Crowley v. Knapp, 94 Wis. 2d 421, 288 N.W.2d 815 (1980).

46.03 Annotation Sub. (18) and s. 46.10 do not constitute an unlawful delegation of legislative power. In Matter of Guardianship of Klisurich, 98 Wis. 2d 274, 296 N.W.2d 742 (1980).

46.03 Annotation Retroactive application of sub. (22) is constitutional. Overlook Farms v. Alternative Living, 143 Wis. 2d 485, 422 N.W.2d 131 (Ct. App. 1988).

46.03 Annotation Sub. (18) and s. 46.10 (3) permit the department to promulgate rules that consider non-liable family members’ incomes in determining a liable family member’s ability to pay. In Interest of A.L.W., 153 Wis. 2d 412, 451 N.W.2d 416 (1990).

46.03 Annotation Sub. (18) (b) imposes liability upon minors and parents for the costs of services, but does not give counties an automatic right of recovery. Section 46.10 governs enforcement procedure and allows courts to exercise discretion. In Matter of S.E. Trust, 159 Wis. 2d 709, 465 N.W.2d 231 (Ct. App. 1990).

46.03 Annotation The uniform fee system under sub. (18) and s. 46.10 allows imputing income and, consequently, looking beyond tax returns to determine ability to pay. Interest of Kevin C., 181 Wis. 2d 146, 510 N.W.2d 746 (Ct. App. 1993).

46.03 Annotation “Prisons and jails” as used in sub. (22) (a) are defined. 69 Atty. Gen. 52.

46.031 46.031 County social service and mental hygiene budget and contract.