does not apply if, after considering the factors under par. (c) 1.
, 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.
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.
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
, and other money due or to be due in the future to the county department under s. 46.22
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.
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.
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.
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.
The department shall promulgate rules for the operation and implementation of assignments under this paragraph.
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.
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
, 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.
The department shall delegate to county departments under ss. 51.42
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
, 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
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.
History: 1971 c. 125
; 1971 c. 213
; 1973 c. 90
, 560 (3)
; 1973 c. 198
; 1975 c. 39
; 1975 c. 41
; 1975 c. 189
s. 99 (2)
; 1975 c. 198
; 1975 c. 413
; 1975 c. 428
; 1975 c. 430
; 1977 c. 29
; 1977 c. 418
, 924 (50)
, 929 (18)
; 1977 c. 428
; 1977 c. 447
; 1977 c. 449
; 1979 c. 34
; 1979 c. 102
ss. 236 (4)
; 1979 c. 117
; 1981 c. 20
, 2202 (20) (i)
, (n); 1981 c. 81
; 1983 a. 27
, 2202 (20)
; 1985 a. 29
; 1987 a. 307
; 1989 a. 31
; 1991 a. 39
; 1993 a. 16
; 1995 a. 27
, 9130 (4)
; 1995 a. 77
; 1997 a. 3
; 1999 a. 9
; 2001 a. 16
; 2003 a. 33
; 2005 a. 25
; 2007 a. 20
; 2009 a. 28
; 2011 a. 260
; 2015 a. 55
; 2017 a. 207
; 2019 a. 9
; 2021 a. 238
See also s. DHS 1.01
, Wis. adm. code.
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
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
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
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
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
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
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).
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).
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
The department may arrange with the laboratory of hygiene to secure the Wassermann test for any person confined in any state or county institution.
Reports of state institutions. 46.14(1)(1)
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.
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.
History: 1977 c. 29
; 1983 a. 27
General supervision and inspection by department. 46.16(1)(1)
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.
(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.
(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.
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.
(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.
(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.
(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.
(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.
(10) Statistics to be furnished.
Wherever the department is required to collect statistics, the person or agency shall furnish the required statistics on request.
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.
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.
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.
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.
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.
County institutions: minimum standards.
Notwithstanding any other provision of law, any county currently operating an institution established under s. 49.70
, 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
. 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.
Trustees of county institutions. 46.18(1)(1)
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.
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.
(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.
(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.
The trustees shall elect a president. The superintendent of the institution shall be the secretary.
(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.
(7) Fiscal year.
The fiscal year of each institution shall commence July 1 and end June 30 of the following year.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(15) Joint operation of health-related service.
If the county board of supervisors, or the Milwaukee County mental health board, as applicable, so authorizes, the trustees of the county hospital may, together with a private or public organization or affiliation, organize, establish and participate in the governance and operation of an entity to operate, wholly or in part, any health-related service, may participate in the financing of the entity and may provide administrative and financial services or resources for its operation on terms prescribed by the county board of supervisors or the Milwaukee County mental health board, as applicable.
The county board in a county having a county executive could require that four of seven trustees be county supervisors. 70 Atty. Gen. 181.
The county board, not the board of trustees, determines the disposition of bequests made to an institution under this section. 73 Atty. Gen. 125
Officers and employees of county institutions. 46.19(1)(1)
The trustees shall appoint a superintendent of each institution and may remove the superintendent for cause, as defined in s. 17.001
, on due notice in writing and hearing of the charges against the superintendent.
The trustees shall prescribe the duties of the superintendent. The superintendent shall execute and file an official bond with sureties approved by the trustees.
Subject to the approval of the trustees, the superintendent shall appoint and prescribe the duties of necessary additional officers and employees of the institution, and may remove them at the superintendent's discretion, subject to the county civil service law.
The salaries of the superintendent, visiting physician and all necessary additional officers and employees shall be fixed by the county board. In Milwaukee County, the salaries of any superintendent of a mental health institution and the salaries of any visiting physician and necessary additional officers and employees whose duties are related to mental health shall be fixed by the county executive.
Joint county institutions. 46.20(1)(1)
Any 2 or more counties may jointly, by majority vote of all the members of each county board, provide for a county home, infirmary, hospital, or similar institution, or juvenile detention home, which shall be established, maintained and operated pursuant to all the statutes relating to the establishment, maintenance and operation of similar institutions, respectively, by any single county whose population is less than 250,000, except as otherwise provided in this section; and in all respects, except as herein specified, each such institution shall be the county institution of each of the counties so joining.
Any 2 or more counties may jointly, by majority vote of all the members of each county board, provide for a secured residential care center for children and youth, as defined in s. 938.02 (15g)
, under ss. 59.52 (7)
. A secured residential care center for children and youth established under this section shall be the county secured residential care center for children and youth of each of the counties so joining.
The county board of each such county shall elect 3 of its members to represent the county in a joint committee to select the site, anywhere within either of said counties, and prepare the plans and specifications of the buildings, for such institution; and said joint committee shall be vested with all functions, relative to the establishment of such institution, possessed by the county board relative to like county institutions.
Upon approval of the site, plans, and specifications for the institution, as provided in ss. 46.17
, the joint committee shall report to the several county boards the estimated cost of the site and buildings, and the amount thereof chargeable to each county on the basis set forth in sub. (6) (a)
, appending to each report a copy of the plans and specifications and all matter relating to the site and buildings. If the report is approved by each county board, the joint committee shall purchase the site and cause the buildings to be erected in accordance with the plans and specifications.
The functions of the joint committee shall terminate upon completion of said buildings; and the board of trustees thereupon elected shall be composed of 2 electors from each county when 2 counties join, and of one elector from each county in all other cases; which trustees, except those elected at first elections, shall hold during terms of 4 years in the former case, and as many years as there are counties joining in the other cases. Trustees elected at first elections shall hold for terms beginning at once and so ending that the terms of one member only will expire on the first Monday of each succeeding January, beginning with January of the second year thereafter; which terms shall be allotted to the respective trustees at their first meeting. The county board of each county joining shall at an annual meeting elect a successor to any trustee from such county whose term will expire on the first Monday of the next following January. The trustees shall have the qualifications and functions and be subject to the limitations and restrictions of trustees elected pursuant to s. 46.18
. They shall be reimbursed their traveling expenses necessarily incurred in the discharge of their functions, and shall receive compensation similar to that of the trustees, respectively, of like county institutions; and if the county board is empowered to fix the latter, the compensation of the joint trustees shall be fixed by joint action of the county boards.
All receipts on account of such institution shall be paid into the treasury of the county in which said institution is located.
Prior to the election of the trustees the joint committee, and thereafter the board of trustees, shall audit all claims against said counties on account of such institution; and all such claims shall, in the first instance, be certified to and paid by the county in which said institution is located, subject to apportionment and adjustment among the several counties as follows:
All expenditures for the site, buildings, furniture, equipment, and permanent improvements, after deducting all receipts therefor except county appropriations, shall immediately upon payment be apportioned by the clerk of the county in which the institution is located and certified to the clerks of the other counties, on the basis of the percentage which the valuation of the taxable property in each county bears to the valuation of the aggregate taxable property in all said counties, as determined pursuant to s. 70.57
All expenditures for repairs, maintenance, and operation, after deducting all receipts therefor except county appropriations, shall be so apportioned for each month, on the first day of the next succeeding month, on the basis of the percentage which the aggregate cost of keeping the inmates at public charge from each such county bears to the aggregate cost of keeping the inmates at public charge from all such counties, adopting as the unit of cost the total average cost per capita per week of keeping all the inmates, at public charge and otherwise, in said institution.
Immediately upon receipt of such certified apportionment each such other county shall pay over to the county in which said institution is located its proportion of said expense.
If any net profit shall arise from the operation of said institution it shall be apportioned among the several counties on the basis prescribed in sub. (6) (b)
; and the county in which said institution is located shall pay over to the other counties, respectively, their proportions of such profit.
The board of trustees shall maintain as a segregated cash reserve the 2 percent charge required under s. 46.18 (13)
. It 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.
At any time after the organization of any such institution, any additional county or counties may join in the support and conduct thereof upon payment of such equitable proportion of the original cost of its establishment, and any joint county may withdraw upon such terms, as may be agreed upon among the county boards of the counties interested; and thereupon the board of trustees of such institution shall be reorganized, in such manner as may be determined by the county boards of the participating counties, to conform to sub. (4)