51.62 Protection and advocacy system.

(1) Definitions. In this section:

(ag) “Abuse" has the meaning given in s. 46.90 (1) (a).

(am) “Developmental disability" means a severe, chronic disability of a person that is characterized by all of the following:

1. Is attributable to a mental or physical impairment or a combination of a mental and a physical impairment.

2. Is manifested before the person has attained the age of 22.

3. Is likely to continue indefinitely.

4. Results in substantial functional limitation in at least 3 of the following areas of major life activity:

a. Self-care.

b. Receptive and expressive language.

c. Learning.

d. Mobility.

e. Self-direction.

f. Capacity for independent living.

g. Economic self-sufficiency.

5. Requires a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of lifelong or extended duration and are individually planned and coordinated.

(ar) “Financial exploitation" has the meaning given in s. 46.90 (1) (ed).

(b) “Inpatient health care facility" has the meaning provided under s. 50.135 (1), except that it does include community-based residential facilities as defined under s. 50.01 (1g).

(bm) “Mental illness" means mental disease to such extent that a person so afflicted requires care and treatment for his or her welfare, or the welfare of others, or of the community and is an inpatient or resident in a facility rendering care or treatment or has been discharged from the facility for not more than 90 days.

(br) “Neglect" has the meaning given in s. 46.90 (1) (f).

(c) “Protection and advocacy agency" means an entity designated by the governor to implement a system to protect and advocate the rights of persons with developmental disabilities, as authorized under 42 USC 6012 or mental illness, as authorized under 42 USC 10801 to 10851.

(2) Designation.

(a) The governor shall designate as the protection and advocacy agency a private, nonprofit corporation that is independent of all of the following:

1. A state agency.

2. The board for people with developmental disabilities and the council on mental health.

3. An agency that provides treatment, services or habilitation to persons with developmental disabilities or mental illness.

(b) After the governor has designated a protection and advocacy agency under par. (a), the protection and advocacy agency so designated shall continue in that capacity unless and until the governor redesignates the protection and advocacy agency to another private, nonprofit corporation that meets the requirements of par. (a). The governor may redesignate this private, nonprofit corporation the protection and advocacy agency only if all of the following conditions are met:

1. Good cause exists for the redesignation.

2. Prior notice and an opportunity to comment on a proposed redesignation has been given to all of the following:

a. The board for people with developmental disabilities and the council on mental health.

b. Major organizations, in the state, of persons with developmental disabilities or mental illness and families and representatives of these persons.

(c) If the governor has designated a protection and advocacy agency before July 20, 1985, that entity shall continue in that capacity unless and until the governor redesignates the protection and advocacy agency to another private, nonprofit corporation that meets the requirements of par. (a).

(3) Agency powers and duties.

(a) The protection and advocacy agency may:

1. Pursue legal, administrative and other appropriate remedies to ensure the protection of the rights of persons with developmental disabilities or mental illness and to provide information on and referral to programs and services addressing the needs of persons with developmental disabilities or mental illness.

2. Have access to records as specified under ss. 51.30 (4) (b) 18. and 146.82 (2) (a) 9.

2m. Have immediate access to any individual with mental illness or developmental disability, regardless of age, who has requested services or on whose behalf services have been requested from the protection and advocacy agency or concerning whom the protection and advocacy agency has reasonable cause to believe that abuse, neglect, financial exploitation, or a violation of rights of the individual has occurred.

3. Contract with a private, nonprofit corporation to confer to that corporation the powers and duties specified for the protection and advocacy agency under this subsection, except that the corporation may have access to records as specified under ss. 51.30 (4) (b) 18. and 146.82 (2) (a) 9. only if all of the following conditions are met:

a. The contract of the corporation with the protection and advocacy agency so provides.

b. The department has approved the access.

(b) The protection and advocacy agency shall pay reasonable costs related to the reproducing or copying of patient health care or treatment records.

(3m) Funding. From the appropriation under s. 20.435 (7) (md), the department shall distribute $75,000 in each fiscal year to the protection and advocacy agency for performance of community mental health protection and advocacy services.

(4) Departmental duties. The department shall provide the protection and advocacy agency with copies of annual surveys and plans of correction for intermediate care facilities for persons with an intellectual disability on or before the first day of the 2nd month commencing after completion of the survey or plan.

History: 1985 a. 29; 1987 a. 161 s. 13m; 1987 a. 399; 1989 a. 31; 1993 a. 27; 1995 a. 27, 169; 1997 a. 27, 35; 2005 a. 388; 2007 a. 20, 153; 2009 a. 180; 2011 a. 126.

The Wisconsin statutory scheme does not give an agency express authority to investigate incidents of abuse and neglect or to obtain patient records, but under federal law any state system established to protect the rights of persons with developmental disabilities has that authority. Wisconsin Coalition for Advocacy v. Czaplewski, 131 F. Supp. 2d 1039 (2001).