Chapter 46

46.10(8m)(b)1. 1. Paragraph (a) 1. and 2. does not apply to primary psychiatric care, which shall be billed on the basis of total chargeable cost. Collections for primary care shall be deducted from the chargeable cost of other types of care provided at the institutes.

46.10(8m)(b)2. 2. Paragraph (a) 2. and 4. does not apply to services provided under s. 51.06 (1m) (d) that are billed under s. 51.437 (4rm) (c) 2m. and does not apply to treatment and services provided under s. 51.42 (3) (aw) 1. d.

46.10(9) (9) Any person who willfully testifies falsely as to any material matter in an investigation or proceeding under this section shall be guilty of perjury. Banks, employers, insurers, savings banks, savings and loan associations, brokers and fiduciaries, upon request of the department, shall furnish in writing and duly certified, full information regarding the property, earnings or income or any funds deposited to the credit of or owing to any person liable under sub. (2). Such certified statement shall be admissible in evidence in any action or proceeding to compel payment under this section, and shall be evidence of the facts therein stated, provided a copy of such statement be served upon the party sought to be charged not less than 3 days before the hearing.

46.10(10) (10) The department shall make all reasonable and proper efforts to collect all claims for maintenance, to keep payments current, and to periodically review all unpaid claims.

46.10(11) (11) 

46.10(11)(a) (a) Except as provided in par. (b), in any action to recover from a person liable under this section, the statute of limitations may be pleaded in defense.

46.10(11)(b) (b) If a person who is liable under this section is deceased, a claim may be filed against the decedent’s estate and the statute of limitations specified in s. 859.02 shall be exclusively applicable. This paragraph applies to liability incurred on or after July 20, 1985.

46.10(12) (12) The district attorney or his or her assistants in a county having a population of 750,000 or more shall, in matters pertaining to the recovery of the cost of maintenance of persons in county institutions in that county, have the same authority as granted in this section to the department.

46.10(13) (13) This section does not impair any rights or liability existing prior to June 19, 1947.

46.10(14) (14) 

46.10(14)(a) (a) Except as provided in pars. (b) and (c), liability of a person specified in sub. (2) or s. 46.03 (18) for inpatient care and maintenance of persons under 18 years of age at community mental health centers, a county mental health complex under s. 51.08, the centers for the developmentally disabled, the Mendota Mental Health Institute, and the Winnebago Mental Health Institute or care and maintenance of persons under 18 years of age in residential, nonmedical facilities such as group homes, foster homes, subsidized guardianship homes, residential care centers for children and youth, and juvenile correctional institutions is determined in accordance with the cost-based fee established under s. 46.03 (18). The department shall bill the liable person up to any amount of liability not paid by an insurer under s. 632.89 (2) or (4m) or by other 3rd-party benefits, subject to rules that include formulas governing ability to pay promulgated by the department under s. 46.03 (18). Any liability of the patient not payable by any other person terminates when the patient reaches age 18, unless the liable person has prevented payment by any act or omission.

46.10(14)(b) (b) Except as provided in par. (c) and subject to par. (cm), liability of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the parent’s minor child who has been placed by a court order under s. 48.32, 48.355, or 48.357 in a residential, nonmedical facility such as a group home, foster home, subsidized guardianship home, or residential care center for children and youth shall be determined by the court by using the percentage standard established by the department of children and families under s. 49.22 (9) and by applying the percentage standard in the manner established by the department under par. (g).

46.10(14)(c) (c) Upon request by a parent, the court may modify the amount of child support payments determined under par. (b), subject to par. (cm), if, after considering the following factors, the court finds by the greater weight of the credible evidence that the use of the percentage standard is unfair to the child or to either of the parents:

46.10(14)(c)1. 1. The needs of the child.

46.10(14)(c)2. 2. The physical, mental and emotional health needs of the child, including any costs for the child’s health insurance provided by a parent.

46.10(14)(c)3. 3. The standard of living and circumstances of the parents, including the needs of each parent to support himself or herself at a level equal to or greater than that established under 42 USC 9902 (2).

46.10(14)(c)4. 4. The financial resources of the parents.

46.10(14)(c)5. 5. The earning capacity of each parent, based on each parent’s education, training and work experience and based on the availability of work in or near the parent’s community.

46.10(14)(c)6. 6. The need and capacity of the child for education, including higher education.

46.10(14)(c)7. 7. The age of the child.

46.10(14)(c)8. 8. The financial resources and the earning ability of the child.

46.10(14)(c)9. 9. The needs of any person, including dependent children other than the child, whom either parent is legally obligated to support.

46.10(14)(c)10. 10. The best interests of the child, including, but not limited to, the impact on the child of expenditures by the family for improvement of any conditions in the home that would facilitate the reunification of the child with the child’s family, if appropriate, and the importance of a placement that is the least restrictive of the rights of the child and the parents and the most appropriate for meeting the needs of the child and the family.

46.10(14)(c)11. 11. Any other factors that the court in each case determines are relevant.

46.10(14)(cm) (cm)

46.10(14)(cm)1. 1. Except as provided in subd. 2., if a parent who is required to pay child support under par. (b) or (c) is receiving adoption assistance under s. 48.975 for the child for whom support is ordered, the amount of the child support payments determined under par. (b) or (c) may not exceed the amount of the adoption assistance maintenance payments under s. 48.975 (3) (a). If an agreement under s. 48.975 (4) is in effect that provides for a payment of $0 under s. 48.975 (3) (a), the payment of $0 shall be considered to be an adoption assistance maintenance payment for purposes of this subdivision.

46.10(14)(cm)2. 2. Subdivision 1. does not apply if, after considering the factors under par. (c) 1. to 11., the court finds by the greater weight of the credible evidence that limiting the amount of the child support payments to the amount of the adoption assistance maintenance payments under s. 48.975 (3) (a) is unfair to the child or to either of the parents.

46.10(14)(d) (d) If the court finds under par. (c) that use of the percentage standard is unfair to the minor child or either of the parents, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court’s order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the parent, its reasons for the amount of the modification and the basis for the modification.

46.10(14)(e) (e)

46.10(14)(e)1. 1. An order issued under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), or 48.363 (2) for support determined under this subsection constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62, duty disability benefits under s. 40.65, benefits under ch. 102 or 108, and other money due or to be due in the future to the county department under s. 46.22 or 46.23 in the county where the order was entered or to the department, depending upon the placement of the child as specified by rules promulgated under subd. 5. The assignment shall be for an amount sufficient to ensure payment under the order.

46.10(14)(e)2. 2. Except as provided in subd. 3., for each payment made under the assignment, the person from whom the payer under the order receives money shall receive an amount equal to the person’s necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer.

46.10(14)(e)3. 3. Benefits under ch. 108 may be assigned and withheld only in the manner provided in s. 108.13 (4). Any order to withhold benefits under ch. 108 shall be for an amount certain. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money.

46.10(14)(e)4. 4. No employer may use an assignment under this paragraph as a basis for the denial of employment to a person, the discharge of an employee or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this subdivision may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Except as provided in this subdivision, restitution shall be in accordance with s. 973.20. An aggrieved person may apply to the district attorney or to the department of workforce development for enforcement of this subdivision.

46.10(14)(e)5. 5. The department shall promulgate rules for the operation and implementation of assignments under this paragraph.

46.10(14)(f) (f) If the amount of the child support determined under this subsection is greater than the cost for the care and maintenance of the minor child in the residential, nonmedical facility, the assignee under par. (e) 1. shall expend or otherwise dispose of any funds that are collected in excess of the cost of such care and maintenance in a manner that the assignee determines will serve the best interests of the minor child.

46.10(14)(g) (g) For purposes of determining child support under par. (b), the department shall promulgate rules related to the application of the standard established by the department of children and families under s. 49.22 (9) to a child support obligation for the care and maintenance of a child who is placed by a court order under s. 48.32, 48.355, or 48.357 in a residential, nonmedical facility. The rules shall take into account the needs of any person, including dependent children other than the child, whom either parent is legally obligated to support.

46.10(16) (16) The department shall delegate to county departments under ss. 51.42 and 51.437 or the local providers of care and services meeting the standards established by the department under s. 46.036, the responsibilities vested in the department under this section for collection of patient fees for services other than those provided at state facilities, those provided to children that are reimbursed under a waiver under s. 46.275, 46.278, or 46.2785, or those provided under the disabled children’s long-term support program if the county departments or providers meet the conditions that the department determines are appropriate. The department may delegate to county departments under ss. 51.42 and 51.437 the responsibilities vested in the department under this section for collection of patient fees for services provided at the state facilities if the necessary conditions are met.

46.10 History History: 1971 c. 125; 1971 c. 213 s. 5; 1973 c. 90 ss. 223, 223m, 560 (3); 1973 c. 198, 333; 1975 c. 39 ss. 347 to 350, 734; 1975 c. 41, 94; 1975 c. 189 s. 99 (2); 1975 c. 198, 199, 224; 1975 c. 413 s. 18; 1975 c. 428; 1975 c. 430 ss. 6, 80; 1977 c. 29, 203; 1977 c. 418 ss. 294 to 295, 924 (50), 929 (18); 1977 c. 428; 1977 c. 447 s. 206; 1977 c. 449 ss. 75, 497; 1979 c. 34; 1979 c. 102 ss. 236 (4), 237; 1979 c. 117, 221, 331; 1981 c. 20 ss. 755 to 758, 2202 (20) (i), (n); 1981 c. 81; 1983 a. 27 ss. 955m, 2202 (20); 1985 a. 29, 176, 281, 332; 1987 a. 307; 1989 a. 31, 56, 96, 212; 1991 a. 39, 221, 315, 316; 1993 a. 16, 27, 385, 437, 446, 479, 481; 1995 a. 27 ss. 2054, 2055, 9130 (4); 1995 a. 77, 224, 404; 1997 a. 3, 27, 35, 237, 308; 1999 a. 9, 103; 2001 a. 16, 59, 103; 2003 a. 33; 2005 a. 25, 264, 434; 2007 a. 20, 97; 2009 a. 28, 218; 2011 a. 260; 2015 a. 55, 373; 2017 a. 207 s. 5; 2019 a. 9; 2021 a. 238 ss. 44, 45.

46.10 Cross-reference Cross-reference: See also s. DHS 1.01, Wis. adm. code.

46.10 Annotation Before there can be recovery by the department for care and hospitalization of an individual committed to one of its institutions by reason of lack of competency to stand trial, the nature of the confinement must be changed to a civil commitment. Conservatorship of Grams, 63 Wis. 2d 194, 216 N.W.2d 889.

46.10 Annotation Liability under sub. (2) for the cost of institutionalization is constitutional. In Matter of Guardianship of Nelson, 98 Wis. 2d 261, 296 N.W.2d 736 (1980).

46.10 Annotation This section and s. 46.03 (18) 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).

46.10 Annotation The statute imposing liability for costs of care and services on persons committed to state institutions did not apply to persons committed in violation of due process. Jankowski v. Milwaukee County, 104 Wis. 2d 431, 312 N.W.2d 45 (1981).

46.10 Annotation Subs. (2) and (2m) violate neither the guarantees of equal protection nor due process. Matter of Care & Maintenance of K.C., 142 Wis. 2d 906, 420 N.W.2d 337 (1988).

46.10 Annotation Sub. (3) and s. 46.03 (18) 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).

46.10 Annotation Section 46.03 (18) (b) imposes liability upon minors and parents for the costs of services but does not give counties an automatic right of recovery; this section 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).

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

46.10 Annotation A circuit court may order parents to pay toward a child’s support when a CHIPS child is placed in residential treatment, but the court may not assess any of the facility’s education-related costs against the parents. Calumet County Department of Human Services v. Randall H., 2002 WI 126, 257 Wis. 2d 57, 653 N.W.2d 503, 01-1272.

46.13 46.13 Wassermann tests. The department may arrange with the laboratory of hygiene to secure the Wassermann test for any person confined in any state or county institution.

46.14 46.14 Reports of state institutions.

46.14(1) (1) Monthly. The officer in charge of each state institution under the control of the department shall report monthly to the department, an itemized statement of all receipts and disbursements, and of the daily number of inmates, officers, teachers and employees, and of the wages paid to each.

46.14(2) (2) Biennial. On July 1 in each even-numbered year such officer shall report to the department, covering the preceding biennial fiscal term, a summarized statement of the management of every department of the institution and of all receipts and disbursements, and such other information as may be required by the department.

46.15 46.15 Institutions subject to chapter 150. Nursing homes or hospitals under ss. 46.16, 46.17, 46.175, 46.20 and 46.205 are subject to ch. 150.

46.15 History History: 1977 c. 29; 1983 a. 27.

46.16 46.16 General supervision and inspection by department.

46.16(1) (1) Generally. The department shall investigate and supervise all the charitable and curative institutions, including county infirmaries, of every county and municipality, except tuberculosis sanatoriums, and all hospitals, asylums, and institutions organized for the purpose set forth in s. 58.01, and familiarize itself with all the circumstances affecting their management and usefulness.

46.16(3) (3) County homes, poor relief. The department shall visit the county homes and ascertain the number of each sex and the number of mentally ill, mentally deficient, deaf, or blind persons supported in each, at what cost and under what circumstances affecting their health, comfort, morals, and education; collect statistics of the cost of support, and other important facts, of the poor relieved at public expense outside of county homes; and collect information as to the adequacy and efficiency of existing laws for the support and relief of the poor, and the causes of pauperism in the state.

46.16(4) (4) Mental health institutions. The department shall visit all places in which mentally ill persons are committed or admitted; collect statistics concerning the residents, their treatment and employment; and collect information of other facts and considerations affecting the increase or decrease of mental illness.

46.16(5) (5) Inspections. It shall inquire into the methods of treatment, instruction, government and management of inmates of the institutions mentioned in this section; the conduct of their trustees, managers, directors, superintendents and other officers and employees; the condition of the buildings, grounds and all other property pertaining to said institutions, and all other matters pertaining to their usefulness and management; and recommend to the officers in charge such changes and additional provisions as it deems proper.

46.16(6) (6) Frequency of inspections. It shall inspect and investigate each institution annually, or oftener; and, when directed by the governor, it shall make special investigation into its management, or anything connected therewith, and report to the governor the testimony taken, the facts found and conclusions thereon.

46.16(7) (7) Enforcement by attorney general and district attorneys. Upon request of the department, the attorney general or the district attorney of the proper county shall aid in any investigation, inspection, hearing, or trial had under the provisions of this chapter relating to powers of the department, and shall institute and prosecute all necessary actions or proceedings for the enforcement of those provisions and for the punishment of violations of those provisions. The attorney general or district attorney so requested shall report or confer with the department regarding the request, within 30 days after the receipt of the request.

46.16(8) (8) Opportunity to inspect. All trustees, managers, directors, superintendents and other officers or employees of such institutions shall at all times afford to every member of the department and its agents, unrestrained facility for inspection of and free access to all parts of the buildings and grounds and to all books and papers of such institutions; and shall give, either verbally or in writing, such information as the department requires; and if any person offends against this requirement the person shall forfeit not less than $10 nor more than $100.

46.16(9) (9) Testimonial power; expenses. The director or any person delegated by the director may administer oaths and take testimony; and may cause depositions to be taken. All expenses of the investigations, including fees of officers and witnesses, shall be charged to the appropriation for the department.

46.16(10) (10) Statistics to be furnished. Wherever the department is required to collect statistics, the person or agency shall furnish the required statistics on request.

46.16 History History: 1989 a. 31, 107, 120; 1991 a. 316; 1993 a. 27, 209, 446, 450, 491; 1995 a. 27; 2007 a. 20.

46.16 Annotation This section does not convey authority to the department to order methods of operation, numbers, and qualifications of staff, standards for food service, and the nature of treatment and training programs in local places of confinement. Section 46.17 relates to construction and maintenance of buildings and provides no additional authority to the department under this section. 63 Atty. Gen. 267.

46.17 46.17 County buildings; establishment, approval, inspection.

46.17(1) (1) The department shall fix reasonable standards and regulations for the design, construction, repair, and maintenance of county homes, county infirmaries, county hospitals, and mental health facilities, with respect to their adequacy and fitness for the needs which they are to serve.

46.17(2) (2) The selection and purchase of the site, and the plans, specifications and erection of buildings for such institutions shall be subject to the review and approval of the department. Department review shall include review of the proposed program to be carried out by the institution and the program’s ability to meet the mental health service requirements of the county and the area it serves.

46.17(3) (3) Before any such building is occupied, and annually or oftener thereafter, the department shall inspect it with respect to safety, sanitation, adequacy and fitness, and report to the authorities conducting the institution any deficiency found, and order the necessary work to correct it or a new building. If within 6 months thereafter such work is not commenced, or not completed within a reasonable period thereafter, to the satisfaction of the department, it shall suspend the allowance of state aid for, and prohibit the use of such building until said order is complied with.

46.17 History History: 1971 c. 125, 215; 1983 a. 254; 1989 a. 31; 2007 a. 20.

46.17 Annotation This section relates to construction and maintenance of buildings and provides no authority to the department applicable to the management of inmates under s. 46.16. 63 Atty. Gen. 267.

46.175 46.175 County institutions: minimum standards. Notwithstanding any other provision of law, any county currently operating an institution established under s. 49.70, 49.71, 49.72, 51.08, or 51.09 may, by resolution of the county board or, in Milwaukee County for institutions providing mental health treatment, the Milwaukee County mental health board, designate such institution or distinct part of such institution as a facility to be operated under s. 50.02, 50.03 or 50.33. Any county institution or part thereof, where so designated, shall be required to meet those licensure standards established by the department for the type of facility designated by the county. Any designation under this section may be made only if such designation will not result in any additional cost to the state.

46.175 History History: 1971 c. 215; 1975 c. 413 s. 18; 1975 c. 430 s. 80; 1995 a. 27; 2013 a. 203.

46.18 46.18 Trustees of county institutions.

46.18(1) (1) Trustees. Every county home, infirmary, hospital, or similar institution, shall, subject to regulations approved by the county board except in Milwaukee County for county homes, infirmaries, hospitals, or institutions providing mental health treatment, be managed by a board of trustees, electors of the county, chosen by ballot by the county board. In Milwaukee County, every county home, infirmary, hospital, or similar institution that provides mental health treatment shall be managed as specified by the Milwaukee County mental health board. At its annual meeting, the county board shall appoint an uneven number of trustees, from 3 to 9 at the option of the board, for staggered 3-year terms ending the first Monday in January. Any vacancy shall be filled for the unexpired term by the county board, but the chairperson of the county board may appoint a trustee to fill the vacancy until the county board acts.

46.18(2) (2) Eligibility. No trustee is eligible, during the term for which he or she was elected, to the office of superintendent or administrator of the institution in his or her charge.

46.18(3) (3) Removal of trustee. Any trustee may be removed from office for misconduct or neglect, by a two-thirds vote of the county board or of the Milwaukee County mental health board, as applicable, on due notice in writing and hearing of the charges against the trustee.

46.18(4) (4) Oath of office, bond, expenses, pay. Each trustee shall take and file the official oath and execute and file an official bond to the county, in the amount determined by the county board, or the Milwaukee County mental health board, as applicable, and the sufficiency of the sureties shall be approved by the chairperson of the board. Each trustee shall be reimbursed for traveling expenses necessarily incurred in the discharge of the duties, and shall receive the compensation fixed by the county board or the Milwaukee County mental health board, as applicable, unless otherwise provided by law.

46.18(5) (5) Officers. The trustees shall elect a president. The superintendent of the institution shall be the secretary.

46.18(6) (6) Monthly audit; suits. At least once each month the trustees shall audit all claims against the county incurred on behalf of said institutions, when presented to them verified under oath by the claimant or the claimant’s agent and, when allowed, the president and secretary shall certify such claims to the county clerk who shall thereupon issue county orders for their payment. The trustees may sue and defend in the name of the county any cause for action involving the interest of said institution and may employ counsel for that purpose. All receipts on account of said institutions shall be paid into the county treasury within one week after receipt.

46.18(7) (7) Fiscal year. The fiscal year of each institution shall commence July 1 and end June 30 of the following year.

46.18(8) (8) Bookkeeping. For the institutions listed in sub. (1), the department of health services shall formulate a system of keeping the books, accounts, and reports, and shall furnish forms for reports, and reports shall be made accordingly.

46.18(9) (9) Reports; accounts. The trustees shall install a system of accounting and reporting, under the supervision of the department of health services, and the trustees shall conduct business in conformity with that system. The department of health services may from time to time audit the books, records, documents, accounts and transactions of each institution.

46.18(10) (10) Annual report. On July 1 of each year the trustees shall prepare a report for the preceding fiscal year and shall transmit a copy to the department of health services and a copy to the county clerk, and keep a copy on file at the institution. The report shall be accompanied by an inventory of all properties on hand on the last day of the fiscal year, an estimate of the receipts and expenditures for the current fiscal year, and the reports of the superintendent and visiting physician, of the institution.

46.18(11) (11) County appropriation. The county board or, in Milwaukee County, the Milwaukee County mental health board, as applicable, shall annually appropriate for operation and maintenance of each such institution not less than the amount of state aid estimated by the trustees to accrue to said institution; or such lesser sum as may be estimated by the trustees to be necessary for operation and maintenance.

46.18(12) (12) Additional duties. The county board or the Milwaukee County mental health board, as applicable, may provide that the trustees and superintendent of any institution shall be the trustees and superintendent of any other institution.

46.18(13) (13) Building reserve fund. Except in Milwaukee County, the county board shall maintain as a segregated cash reserve an annual charge of 2 percent of the original cost of new construction or purchase or of the appraised value of existing infirmary structures and equipment. In Milwaukee County, the Milwaukee County mental health board, for mental health infirmary structures and equipment, shall ensure the maintenance, as a segregated cash reserve, of an annual charge of 2 percent of the original cost of new construction or purchase or of the appraised value of existing mental health infirmary structures and equipment. If the infirmary or any of its equipment is replaced, any net cost of replacement in excess of the original cost is subject to an annual charge of 2 percent. No contributions to the cash reserve in excess of the amount required under this subsection may be included in the calculation under s. 49.726 (1). The county board, except the Milwaukee County board, may from time to time appropriate from such reserve sums to be expended solely for the enlargement, modernization or replacement of such infirmary and its equipment. In Milwaukee County, the Milwaukee County mental health board may require to be appropriated from reserve sums for mental health infirmaries to be expended for the enlargement, modernization, or replacement of a mental health infirmary and its equipment.

46.18(14) (14) Incentive payments to patients in mental hospitals. The county board or, in Milwaukee County, the Milwaukee County mental health board may authorize the board of trustees of any county mental hospital to establish a program of incentive payments so as to provide incentive and encouragement to patients by the disbursement of small weekly payments but not restricted to work allowances. Incentive payments paid to inmates shall not be included as costs in arriving at the per capita rate for state aids or charges to other counties and the state for care of inmates.