Chapter 46

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.

46.90(5)(br) (br) The elder-adult-at-risk agency or other investigative agency may transport the elder adult at risk for performance of a medical examination by a physician if any of the following applies:

46.90(5)(br)1. 1. The elder adult at risk or his or her guardian or agent under an activated power of attorney for health care, if any, consents to the examination.

46.90(5)(br)2. 2. The elder adult at risk is incapable of consenting to the examination and one of the following applies:

46.90(5)(br)2.a. a. The elder adult at risk has no guardian or agent under an activated power of attorney for health care.

46.90(5)(br)2.b. b. The elder adult at risk has a guardian or an agent under an activated power of attorney for health care, but that guardian or agent is the person suspected of abusing, neglecting, or financially exploiting the elder adult at risk.

46.90(5)(br)2.c. c. The examination is authorized by order of a court.

46.90(5)(c) (c) The elder-adult-at-risk agency may request a sheriff or police officer to accompany the elder-adult-at-risk agency investigator or worker during visits to the residence of the elder adult at risk or request other assistance as needed. If the request is made, a sheriff or police officer shall accompany the elder-adult-at-risk agency investigator or worker to the residence of the elder adult at risk and shall provide other assistance as requested or necessary.

46.90(5)(d) (d) If a person interferes with the response or investigation under this subsection or interferes with the delivery of protective services under ch. 55 to the elder adult at risk, the elder-adult-at-risk agency investigator or worker may apply for an order under s. 813.123 prohibiting the interference.

46.90(5)(f) (f) If the elder-adult-at-risk agency worker or investigator or other agency investigator has reason to believe that substantial physical harm, irreparable injury, or death may occur to an elder adult at risk, the worker or investigator shall request immediate assistance in either initiating a protective services action under ch. 55 or contact law enforcement or another public agency, as appropriate.

46.90(5)(h) (h) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for responding to a report or for participating in or conducting an investigation under this subsection, including the taking of photographs or the conducting of a medical examination, if the response or investigation was performed in good faith and within the scope of his or her authority.

46.90(5m) (5m) Offer of services and referral of cases.

46.90(5m)(a) (a) Upon responding to a report, the elder-adult-at-risk agency or the investigative agency shall determine whether the elder adult at risk or any other individual involved in the alleged abuse, financial exploitation, neglect, or self-neglect is in need of services under this chapter or ch. 47, 49, 51, 54, or 55. From the appropriation under s. 20.435 (1) (dh), the department shall allocate to selected counties not less than $25,000 in each fiscal year, and within the limits of these funds and of available state and federal funds and of county funds appropriated to match the state and federal funds, the elder-adult-at-risk agency shall provide the necessary direct services to the elder adult at risk or other individual or arrange for the provision of the direct services with other agencies or individuals. Those direct services provided shall be rendered under the least restrictive conditions necessary to achieve their objective.

46.90(5m)(b) (b) If the elder-adult-at-risk agency is not the aging unit, the elder-adult-at-risk agency in each county shall consult with and accept advice from the aging unit with respect to the distribution of the funds for direct services that are allocated under par. (a).

46.90(5m)(br) (br) If, after responding to a report, the elder-adult-at-risk agency has reason to believe that the elder adult at risk has been the subject of abuse, financial exploitation, neglect, or self-neglect, the elder-adult-at-risk agency may do any of the following:

46.90(5m)(br)1. 1. Request immediate assistance in initiating a protective services action under ch. 55 or contact an investigative agency, as appropriate.

46.90(5m)(br)2. 2. Take appropriate emergency action, including emergency protective placement under s. 55.135, if the elder-adult-at-risk agency determines that the emergency action is in the best interests of the elder adult at risk and the emergency action is the least restrictive appropriate intervention.

46.90(5m)(br)3. 3. Refer the case to law enforcement officials, as specified in sub. (3) (a), 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.

46.90(5m)(br)4. 4. Refer the case to the licensing, permitting, registration, 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, permitted, registered, or certified or is otherwise regulated.

46.90(5m)(br)5. 5. Refer the case to the department of safety and professional services if the financial exploitation, neglect, self-neglect, or abuse involves an individual who is required to hold a credential, as defined in s. 440.01 (2) (a), under chs. 440 to 460.

46.90(5m)(br)5g. 5g. Refer the case to the department of financial institutions if the financial exploitation, neglect, self-neglect, or abuse involves an individual who is required to be registered under s. 202.13 or 202.14.

46.90(5m)(br)6. 6. Bring a petition for a guardianship and protective services or protective placement under ch. 55 or a review of an existing guardianship if necessary to prevent financial exploitation, neglect, self-neglect, or abuse and if the elder adult at risk would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter, or services.

46.90(5m)(c) (c) An elder adult at risk may refuse to accept services unless a guardian authorizes the services. The elder-adult-at-risk agency or other provider agency shall notify the elder adult at risk of this right to refuse before providing services.

46.90(6) (6) Records; confidentiality.

46.90(6)(ac) (ac) In this subsection:

46.90(6)(ac)1. 1. “Departmental report form” includes documentation of an elder-adult-at-risk agency’s response to or investigation of a report made under sub. (5) and is the information required to be submitted to the department.

46.90(6)(ac)2. 2. “Record” includes any document relating to the response, investigation, assessment, and disposition of a report made under this section.

46.90(6)(am) (am) The elder-adult-at-risk agency shall prepare a departmental report form of its response under sub. (5) to a report of suspected abuse, financial exploitation, neglect, or self-neglect. If the elder-adult-at-risk agency refers the report to an investigative agency, the investigative agency shall advise the elder-adult-at-risk agency in writing of its response to the report. The elder-adult-at-risk agency shall maintain records of suspected abuse, financial exploitation, neglect, or self-neglect.

46.90(6)(b) (b) Departmental report forms are confidential and may not be released by the elder-adult-at-risk agency or other investigative agency, except under the following circumstances:

46.90(6)(b)1. 1. To the elder adult at risk, any person named in a departmental report form who is suspected of abusing, neglecting, or financially exploiting an elder adult at risk, and the suspect’s attorney. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

46.90(6)(b)2. 2. To the agency or other entity from which assistance is requested under sub. (5) (f). Information obtained under this subdivision shall remain confidential.

46.90(6)(b)3. 3. To an individual, organization, or agency designated by the department or as required by law for the purposes of management audits or program monitoring and evaluation. Information obtained under this subdivision shall remain confidential and may not be used in any way that discloses the names of or other identifying information about the individuals involved.

46.90(6)(b)4. 4. For purposes of research, if the research project has been approved by the department or the elder-adult-at-risk agency and the researcher has provided assurances that the information will be used only for the purposes for which it was provided to the researcher, the information will not be released to a person not connected with the study under consideration, and the final product of the research will not reveal information that may serve to identify the individuals involved. The information shall remain confidential. In approving the use of information under this subdivision, the department shall impose any additional safeguards needed to prevent unwarranted disclosure of information.

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

46.90(6)(b)6. 6. To any agency or individual that provides direct services under sub. (5m), including an attending physician for purposes of diagnosis and treatment, and within the department to coordinate treatment for mental illness, developmental disabilities, alcoholism, or drug abuse of individuals committed to or under the supervision of the department. Information obtained under this subdivision shall remain confidential.

46.90(6)(b)7. 7. To the guardian of the elder adult at risk or the guardian of any person named in a report who is suspected of abusing, neglecting, or financially exploiting an elder adult at risk. These persons may inspect the departmental report form, except that information identifying the person who initially reported the suspected abuse, financial exploitation, neglect, or self-neglect, or any other person whose safety might be endangered through disclosure, may not be released.

46.90(6)(b)8. 8. To law enforcement officials in accordance with the policy developed under sub. (3) (a).

46.90(6)(b)9. 9. To a federal agency, state governmental agency, agency of any other state, or local governmental unit in this state or any other state that has a need for a departmental report form in order to carry out its responsibility to protect elder adults at risk from abuse, financial exploitation, neglect, or self-neglect.

46.90(6)(b)10. 10. To the reporter who made a report in his or her professional capacity, regarding action to be taken to protect or provide services to the alleged victim of abuse, financial exploitation, neglect, or self-neglect.

46.90(6)(bd) (bd) If a person requesting a departmental report form is not one of the persons or entities specified in par. (b), the elder-adult-at-risk agency may release information indicating only whether or not a report was received and whether or not statutory responsibility was fulfilled.

46.90(6)(br) (br) Notwithstanding par. (b) 1. to 10., an elder-adult-at-risk agency or an investigative agency may not release departmental report forms under this section if any of the following applies:

46.90(6)(br)1. 1. The elder-adult-at-risk agency determines that the release would be contrary to the best interests of the elder adult at risk who is the subject of the departmental report form or of another person residing with the subject of the departmental report form, or the release is likely to cause mental, emotional, or physical harm to the subject of the departmental report form or to any other individual.

46.90(6)(br)2. 2. The district attorney determines that disclosure of the information would jeopardize any ongoing or future criminal investigation or prosecution or would jeopardize a defendant’s right to a fair trial.

46.90(6)(br)3. 3. The elder-adult-at-risk agency determines that disclosure would jeopardize ongoing or future civil investigations or proceedings or would jeopardize the fairness of such a legal proceeding.

46.90(6)(bt) (bt) Subject to pars. (b), (bd), (br), (bv), and (bw), records under this subsection are confidential and may not be released by the elder-adult-at-risk agency or other investigative agency, except under the following circumstances, upon request:

46.90(6)(bt)1. 1. To the elder adult at risk who is the alleged victim named in the record.

46.90(6)(bt)2. 2. To the legal guardian, conservator, or other legal representative of the elder adult at risk who is the alleged victim named in the record, if the legal guardian, conservator, or other legal representative of the alleged victim is not the alleged perpetrator of the abuse, financial exploitation, or neglect.

46.90(6)(bt)3. 3. To law enforcement officials and agencies in accordance with the policy developed under sub. (3) (a) or with investigations conducted under sub. (5), or a district attorney, for purposes of investigation or prosecution.

46.90(6)(bt)4. 4. To the department, under s. 51.03 (2), or for death investigations under s. 50.04 (2t) or 50.035 (5); or to a sheriff, police department, or district attorney for death investigations under s. 51.64 (2) (a).

46.90(6)(bt)5. 5. To an employee of a county department under s. 51.42 or 51.437 that is providing services either to the elder adult at risk who is the alleged victim named in the record or to the alleged perpetrator of abuse, to determine whether the alleged victim should be transferred to a less restrictive or more appropriate treatment modality or facility.

46.90(6)(bt)6. 6. To a court, tribal court, or state governmental agency for a proceeding relating to the licensure or regulation of an individual or entity regulated or licensed by the state governmental agency, that was an alleged perpetrator of abuse, financial exploitation, or neglect.

46.90(6)(bt)7. 7. To the department, for management, audit, program monitoring, evaluation, billing, or collection purposes.

46.90(6)(bt)8. 8. To the attorney or guardian ad litem for the elder adult at risk who is the alleged victim named in the record, to assist in preparing for any proceeding under ch. 48, 51, 54, 55, 813, 971, or 975 pertaining to the alleged victim.

46.90(6)(bt)9. 9. To a coroner, medical examiner, pathologist, or other physician investigating the cause of death of an elder adult at risk that is unexplained or unusual or is associated with unexplained or suspicious circumstances.

46.90(6)(bt)10. 10. To staff members of the protection and advocacy agency designated under s. 51.62 and the board on aging and long-term care under s. 16.009.

46.90(6)(bt)11. 11. To an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of abuse, neglect, or financial exploitation of an elder adult at risk.

46.90(6)(bt)12. 12. To a grand jury, if it determines that access to specified records is necessary for the conduct of its official business.

46.90(6)(bt)13. 13. Under a lawful order of a court of record.

46.90(6)(bv) (bv) The identity of a person making a report of alleged abuse, neglect, self-neglect, or financial exploitation shall be deleted from any record prior to its release under par. (bt) or from any departmental report form prior to its release under par. (b). The identity of any reporter may only be released with the written consent of the reporter or under a lawful order of a court of record.

46.90(6)(bw) (bw) A person to whom a departmental report form or a record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this subsection.

46.90(6)(by) (by) A custodian of records or departmental report forms incurs no civil or criminal liability under this subsection and may not be found guilty of unprofessional conduct for the release or nonrelease of records or departmental report forms in accordance with this subsection while acting in good faith and within the scope of his or her authority.

46.90(6)(d) (d) Any person who requests or obtains confidential information under this subsection under false pretenses may be fined not more than $500 or imprisoned not more than one year in the county jail or both.

46.90(6)(e) (e) Any employee who violates this subsection may be subject to discharge or suspension without pay.

46.90(7) (7) Exception. Nothing in this section may be construed to mean that a person is abused, financially exploited, neglected or in need of direct or protective services solely because he or she consistently relies upon treatment by spiritual means through prayer for healing in lieu of medical care in accordance with his or her religious tradition.

46.90(8) (8) Department duties.

46.90(8)(a) (a) The department shall develop a plan to assist elder-adult-at-risk agencies in determining appropriate responses to reports of abuse, financial exploitation, neglect, or self-neglect.

46.90(8)(b) (b) The department shall prepare and distribute sample departmental report forms for use by elder-adult-at-risk agencies.

46.90(8)(c) (c) The department shall collect statistical information from each county pertaining to each reported case of abuse, financial exploitation, neglect, or self-neglect. The department may require elder-adult-at-risk agency workers or investigators to submit departmental report forms to the department that summarize the information being reported. These departmental report forms may not name or otherwise identify individuals. The department shall use this information to review the effectiveness of this section, to plan program changes, and to formulate reports.

46.90(8)(d) (d) The department shall develop and disseminate information on elder-adult-at-risk abuse and the elder abuse reporting system under this section. The department shall also develop informational materials to be used by elder-adult-at-risk agencies regarding abuse of elder adults at risk and regarding the elder abuse reporting system. The department shall solicit contributions of labor, materials, and expertise from private sources to assist in developing the informational materials.

46.90(9) (9) Penalties.

46.90(9)(a) (a) Any person, including the state or any political subdivision of the state, violating sub. (6) is liable to any person damaged as a result of the violation for such damages as may be proved, together with exemplary damages of not less than $100 nor more than $500 for each violation and the costs and reasonable actual attorney fees that are incurred by the person damaged.

46.90(9)(b) (b) In any action brought under par. (a) in which the court determines that the violator acted in a manner that was knowing and willful, the violator shall be liable for such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees as may be incurred. It is not a prerequisite to an action under par. (a) that the plaintiff suffer or be threatened with actual damages.

46.90(9)(c) (c) An individual may bring an action to enjoin any violation of sub. (6) or to compel compliance with sub. (6), and may in the same action seek damages as provided in this subsection. The individual may recover costs and reasonable actual attorney fees incurred in the action, if he or she prevails.

46.90(9)(d) (d) Any person who violates sub. (4) (b) 1. may be fined not more than $10,000 or imprisoned for not more than 6 months or both.

46.90(9)(e) (e) Whoever intentionally violates sub. (4) (ad) by failure to report as required may be fined not more than $500 or imprisoned not more than 6 months or both.

46.90 History History: 1983 a. 398, 1985 a. 176; 1989 a. 31; 1991 a. 39, 235; 1993 a. 27; 1995 a. 27 ss. 2334, 9130 (4); 1995 a. 225; 1997 a. 3, 131; 1999 a. 82; 2003 a. 33; 2005 a. 264, 388; 2007 a. 20 s. 9121 (6) (a); 2007 a. 45; 2009 a. 319; 2011 a. 32; 2013 a. 20; 2017 a. 59; 2021 a. 122; 2023 a. 55.

46.90 Annotation Failure of a defamation plaintiff to assert any facts to support a finding of bad faith on the part of a person who reported possible material abuse resulted in a concession that the reporter was acting in good faith at the time he made the elder abuse report and thus his statements were entitled to protection or privilege under sub. (4) (c). A ruling finding good faith did not resolve a counterclaim under sub. (4) (b) 2. c. that the lawsuit was retaliatory. Attorney fees are not recoverable as damages resulting from the statutory tort of retaliation. Schaul v. Kordell, 2009 WI App 135, 321 Wis. 2d 105, 773 N.W.2d 454, 08-2571.

46.90 Annotation Abuse and Neglect in Long-term Care Facilities: The Civil Justice System’s Response. Studinski. Wis. Law. Aug. 2004.

46.90 Annotation Preventing Abuse and Neglect in Health Care Settings: The Regulatory Agency’s Responsibility. Dawson. Wis. Law. Aug. 2004.

46.90 Annotation Seeking Justice in Death’s Waiting Room: Barriers to Effectively Prosecuting Crime in Long-term Care Facilities. Hanrahan. Wis. Law. Aug. 2004.

46.90 Annotation A Response: Issues Affecting Long-term Care. Purtell. Wis. Law. Oct. 2004.