Chapter 46

46.87(7)(c) (c) The program and services of the county or tribe or band related to Alzheimer’s disease contain a substantial difference, as defined by rule, from the description of the program and services of the county or tribe or band contained in the letter of intent most recently submitted by the county board or tribe or band to the department under sub. (3) (a).

46.87(8) (8) The department shall collect and analyze information about persons with Alzheimer’s disease who are served under this section and about caregivers.

46.87 History History: 1985 a. 29, 176; 1987 a. 27, 255, 403; 1989 a. 31, 336; 1991 a. 235; 1993 a. 27; 1997 a. 27; 2001 a. 16; 2015 a. 273.

46.87 Cross-reference Cross-reference: See also ch. DHS 68, Wis. adm. code.

46.90 46.90 Elder abuse reporting system.

46.90(1) (1) Definitions. In this section:

46.90(1)(a) (a) “Abuse” means any of the following:

46.90(1)(a)1. 1. Physical abuse.

46.90(1)(a)2. 2. Emotional abuse.

46.90(1)(a)3. 3. Sexual abuse.

46.90(1)(a)4. 4. Treatment without consent.

46.90(1)(a)5. 5. Unreasonable confinement or restraint.

46.90(1)(ag) (ag) “Aging unit” has the meaning given under s. 46.82 (1) (a).

46.90(1)(aj) (aj) “Bodily harm” means physical pain or injury, illness, or any impairment of physical condition.

46.90(1)(an) (an) “Caregiver” means a person who has assumed responsibility for all or a portion of an individual’s care voluntarily, by contract, or by agreement, including a person acting or claiming to act as a legal guardian.

46.90(1)(ar) (ar) “Case management” means an assessment of need for direct services, development of a direct service plan and coordination and monitoring of the provision of direct services.

46.90(1)(bm) (bm) “Direct services” includes temporary shelter, relocation assistance, housing, respite care, emergency funds for food and clothing and legal assistance.

46.90(1)(br) (br) “Elder adult at risk” means any person age 60 or older who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.

46.90(1)(bt) (bt) “Elder-adult-at-risk agency” means the agency designated by the county board of supervisors under sub. (2) to receive, respond to, and investigate reports of abuse, neglect, self-neglect, and financial exploitation under sub. (4).

46.90(1)(cm) (cm) “Emotional abuse” means language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the individual to whom the conduct or language is directed.

46.90(1)(ed) (ed) “Financial exploitation” means any of the following:

46.90(1)(ed)1. 1. Obtaining an individual’s money or property by deceiving or enticing the individual, or by forcing, compelling, or coercing the individual to give, sell at less than fair market value, or in other ways convey money or property against his or her will without his or her informed consent.

46.90(1)(ed)2. 2. Theft, as prohibited in s. 943.20.

46.90(1)(ed)3. 3. The substantial failure or neglect of a fiscal agent to fulfill his or her responsibilities.

46.90(1)(ed)4. 4. Unauthorized use of an individual’s personal identifying information or documents, as prohibited in s. 943.201.

46.90(1)(ed)5. 5. Unauthorized use of an entity’s identifying information or documents, as prohibited in s. 943.203.

46.90(1)(ed)6. 6. Forgery, as prohibited in s. 943.38.

46.90(1)(ed)7. 7. Financial transaction card crimes, as prohibited in s. 943.41.

46.90(1)(eg) (eg) “Fiscal agent” includes any of the following:

46.90(1)(eg)1. 1. A guardian of the estate appointed under s. 54.10.

46.90(1)(eg)2. 2. A conservator appointed under s. 54.76.

46.90(1)(eg)3. 3. An agent under a power of attorney under ch. 244.

46.90(1)(eg)4. 4. A representative payee under 20 CFR 416.635.

46.90(1)(eg)5. 5. A conservatorship under the U.S. department of veterans affairs.

46.90(1)(er) (er) “Investigative agency” means a law enforcement or a city, town, village, county, or state governmental agency or unit with functions relating to protecting health, welfare, safety, or property, including an agency concerned with animal protection, public health, building code enforcement, consumer protection, or insurance or financial institution regulation.

46.90(1)(f) (f) “Neglect” means the failure of a caregiver, as evidenced by an act, omission, or course of conduct, to endeavor to secure or maintain adequate care, services, or supervision for an individual, including food, clothing, shelter, or physical or mental health care, and creating significant risk or danger to the individual’s physical or mental health. “Neglect” does not include a decision that is made to not seek medical care for an individual, if that decision is consistent with the individual’s previously executed declaration or do-not-resuscitate order under ch. 154, a power of attorney for health care under ch. 155, or as otherwise authorized by law.

46.90(1)(fg) (fg) “Physical abuse” means the intentional or reckless infliction of bodily harm.

46.90(1)(g) (g) “Self-neglect” means a significant danger to an individual’s physical or mental health because the individual is responsible for his or her own care but fails to obtain adequate care, including food, shelter, clothing, or medical or dental care.

46.90(1)(gd) (gd) “Sexual abuse” means a violation of s. 940.225 (1), (2), (3), or (3m).

46.90(1)(gf) (gf) “State governmental agency” has the meaning given for “agency” in s. 16.417 (1) (a).

46.90(1)(gr) (gr) “State official” means any law enforcement officer employed by the state or an employee of one of the following:

46.90(1)(gr)1. 1. The department of health services.

46.90(1)(gr)2. 2. The department of justice.

46.90(1)(gr)3. 3. The department of safety and professional services.

46.90(1)(gr)4. 4. The board on aging and long-term care.

46.90(1)(gr)5. 5. A state governmental agency other than those specified in subds. 1. to 4. with functions relating to protecting health and safety.

46.90(1)(h) (h) “Treatment without consent” means the administration of medication to an individual who has not provided informed consent, or the performance of psychosurgery, electroconvulsive therapy, or experimental research on an individual who has not provided informed consent, with the knowledge that no lawful authority exists for the administration or performance.

46.90(1)(i) (i) “Unreasonable confinement or restraint” includes the intentional and unreasonable confinement of an individual in a locked room, involuntary separation of an individual from his or her living area, use on an individual of physical restraining devices, or the provision of unnecessary or excessive medication to an individual, but does not include the use of these methods or devices in entities regulated by the department if the methods or devices are employed in conformance with state and federal standards governing confinement and restraint.

46.90(2) (2) Elder-adult-at-risk agency designation. Each county board shall designate an agency in the county as the elder-adult-at-risk agency for the purposes of this section.

46.90(3) (3) Elder-adult-at-risk agency duties.

46.90(3)(a) (a) Each elder-adult-at-risk agency shall develop a policy for notifying other investigative agencies, including law enforcement officials in appropriate cases, and shall establish an elder abuse reporting system to carry out the purposes of this section. Each elder-adult-at-risk agency shall enter into a memorandum of understanding regarding the operation of the system with the county department under s. 46.215 or 46.22 and with any private or public agency, including a county department under s. 51.42 or 51.437, within the county that is participating in the elder abuse reporting system. The memorandum of understanding shall, at a minimum, identify the agencies that are responsible for the investigation of reports of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk and for the provision of specific direct services.

46.90(3)(b) (b) Each elder-adult-at-risk agency shall receive reports of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk.

46.90(3)(c) (c) Each elder-adult-at-risk agency shall publicize the existence of an elder abuse reporting system in the county and shall provide a publicized telephone number that can be used by persons wishing to report suspected cases of abuse, financial exploitation, neglect, or self-neglect of elder adults at risk. Each elder-adult-at-risk agency shall also provide a telephone number that can be used to make reports after the elder-adult-at-risk agency’s regular business hours.

46.90(4) (4) Reporting.

46.90(4)(ab) (ab) The following persons shall file reports as specified in par. (ad):

46.90(4)(ab)1. 1. An employee of any entity that is licensed, certified, or approved by or registered with the department.

46.90(4)(ab)3. 3. A health care provider, as defined in s. 155.01 (7).

46.90(4)(ab)4. 4. A social worker, professional counselor, or marriage and family therapist certified under subch. I of ch. 457 or a professional counselor who is exercising the privilege to practice, as defined in s. 457.50 (2) (s), in this state.

46.90(4)(ad) (ad) Except as provided in par. (ae), a person specified in par. (ab) who has seen an elder adult at risk in the course of the person’s professional duties shall file a report with the county department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care if the elder adult at risk has requested the person to make the report, or if the person has reasonable cause to believe that any of the following situations exist:

46.90(4)(ad)1. 1. The elder 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.

46.90(4)(ad)2. 2. An elder adult at risk other than the subject of the report is at risk of serious bodily harm, death, sexual assault, or significant property loss inflicted by a suspected perpetrator.

46.90(4)(ae) (ae) A person specified in par. (ab) to whom any of the following applies is not required to file a report as provided in par. (ad):

46.90(4)(ae)1. 1. If the person believes that filing a report would not be in the best interest of the elder adult at risk. If the person so believes, the person shall document the reasons for this belief in the case file that the person maintains on the elder adult at risk.

46.90(4)(ae)2. 2. If a health care provider provides treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition and his or her communications with patients are required by his or her religious denomination to be held confidential.

46.90(4)(ar) (ar) Any person, including an attorney or a person working under the supervision of an attorney, may report to the county department, the elder-adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care that he or she believes that abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred if the person is aware of facts or circumstances that would lead a reasonable person to believe or suspect that abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk has occurred. The person shall indicate the facts and circumstances of the situation as part of the report.

46.90(4)(b) (b)

46.90(4)(b)1. 1.

46.90(4)(b)1.a. a. No person may discharge or otherwise retaliate or discriminate against any person for reporting in good faith under this subsection.

46.90(4)(b)1.b. b. No person may discharge or otherwise retaliate or discriminate against any individual on whose behalf another person has reported in good faith under this subsection.

46.90(4)(b)1.cm. cm. Any discharge of a person or act of retaliation or discrimination that is taken against a person who makes a report under this subsection, within 120 days after the report is made, establishes a rebuttable presumption that the discharge or act is made in response to the report. This presumption may be rebutted by a preponderance of evidence that the discharge or act was not made in response to the report.

46.90(4)(b)2. 2.

46.90(4)(b)2.b. b. Any employee who is discharged or otherwise discriminated against may file a complaint with the department of workforce development under s. 106.54 (5).

46.90(4)(b)2.c. c. Any person not described in subd. 2. b. who is retaliated or discriminated against in violation of subd. 1. a. or b. may commence an action in circuit court for damages incurred as a result of the violation.

46.90(4)(c) (c) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for reporting in good faith under this subsection and within the scope of his or her authority, or for filing a report with an agency not listed in par. (ad) (intro.) or (ar) if the person had a good faith belief that the report was filed correctly with one of the listed agencies.

46.90(4)(d) (d) If a report under par. (ad) or (ar) is made to a state official, the state official shall refer the report to the appropriate elder-adult-at-risk agency. The requirement under this paragraph does not apply to an employee of the board on aging and long-term care who determines that his or her referral would be in violation of 42 USC 3058g (d).

46.90(4)(e) (e) Any person making a report under this subsection is presumed to have reported in good faith.

46.90(5) (5) Response and investigation.

46.90(5)(a) (a)

46.90(5)(a)1. 1. Except as otherwise provided, upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of an elder adult at risk, the elder-adult-at-risk agency shall either respond to the report including, if necessary, by conducting an investigation, or refer the report to another agency for investigation. Upon receiving a report of alleged abuse, financial exploitation, neglect, or self-neglect of a client, as defined in s. 50.065 (1) (b), of an entity, as defined in s. 50.065 (1) (c), if the person suspected of perpetrating the alleged abuse, financial exploitation, or neglect is a caregiver or a nonclient resident of the entity, the elder-adult-at-risk agency shall refer the report within 24 hours after the report is received to the department for investigation. The department shall coordinate its investigatory efforts with other investigative agencies or authorities as appropriate. An elder-adult-at-risk agency’s response to or another investigative agency’s investigation of a report of alleged abuse, financial exploitation, neglect, or self-neglect that is not referred to the department shall be commenced within 24 hours after a report is received, excluding Saturdays, Sundays and legal holidays.

46.90(5)(a)2. 2. If an agent or employee of an elder-adult-at-risk agency required to respond under this subsection is the subject of a report, or if the elder-adult-at-risk agency or an agency under contract with the county department determines that the relationship between the elder-adult-at-risk agency and the agency under contract with the county department would not allow for an unbiased response, the elder-adult-at-risk agency shall, after taking any action necessary to protect the elder adult at risk, notify the department. Upon receipt of the notice, the department or a county department under s. 46.215, 46.22, 51.42, or 51.437 designated by the department shall conduct an independent investigation. The powers and duties of a county department making an independent investigation are those given to an elder-adult-at-risk agency under pars. (b) to (f) and sub. (6).

46.90(5)(b) (b) The elder-adult-at-risk agency’s response or another investigative agency’s investigation shall include at least one of the following:

46.90(5)(b)1. 1. A visit to the residence of the elder adult at risk.

46.90(5)(b)2. 2. Observation of the elder adult at risk, with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.

46.90(5)(b)3. 3. An interview with the elder adult at risk, in private to the extent practicable, and with or without the consent of his or her guardian or agent under an activated power of attorney for health care, if any.

46.90(5)(b)4. 4. An interview with the guardian or agent under an activated power of attorney for health care, if any, and with any caregiver of the elder adult at risk.

46.90(5)(b)5. 5. A review of the treatment and patient health care records of the elder adult at risk.

46.90(5)(b)6. 6. A review of any financial records of the elder adult at risk that are maintained by a financial institution, as defined in s. 705.01 (3); by an entity, as defined in s. 50.065; by any caregiver of the elder adult at risk; or by a member of the immediate family of the elder adult at risk or caregiver. The records shall be released without informed consent in either of the following circumstances:

46.90(5)(b)6.a. a. To an elder-adult-at-risk agency or other investigative agency under this section. The financial record holder may release financial record information by initiating contact with the elder-adult-at-risk agency or other investigative agency without first receiving a request for release of the information from the elder-adult-at-risk agency or other investigative agency.

46.90(5)(b)6.b. b. Under a lawful order of a court of record.