940.295 Abuse and neglect of patients and residents.

(1) Definitions. In this section:

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

(ag) “Adult at risk" has the meaning given in s. 55.01 (1e).

(am) “Adult family home" has the meaning given in s. 50.01 (1).

(b) “Bodily harm" has the meaning given in s. 46.90 (1) (aj).

(c) “Community-based residential facility" has the meaning given in s. 50.01 (1g).

(cr) “Elder adult at risk" has the meaning given in s. 46.90 (1) (br).

(d) “Foster home" has the meaning given in s. 48.02 (6).

(e) “Great bodily harm" has the meaning given in s. 939.22 (14).

(f) “Group home" has the meaning given in s. 48.02 (7).

(g) “Home health agency" has the meaning given in s. 50.49 (1) (a).

(h) “Hospice" has the meaning given in s. 50.90 (1).

(hr) “Individual at risk" means an elder adult at risk or an adult at risk.

(i) “Inpatient health care facility" has the meaning given in s. 50.135 (1).

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

(km) “Negligence" means an act, omission, or course of conduct that the actor should realize creates a substantial and unreasonable risk of death, great bodily harm, or bodily harm to another person.

(L) “Patient" means any person who does any of the following:

1. Receives care or treatment from a facility or program under sub. (2), from an employee of a facility or program or from a person providing services under contract with a facility or program.

2. Arrives at a facility or program under sub. (2) for the purpose of receiving care or treatment from a facility or program under sub. (2), from an employee of a facility or program under sub. (2), or from a person providing services under contract with a facility or program under sub. (2).

(o) “Recklessly" means conduct that creates a situation of unreasonable risk of death or harm to and demonstrates a conscious disregard for the safety of the patient or resident.

(p) “Resident" means any person who resides in a facility under sub. (2).

(r) “State treatment facility" has the meaning given in s. 51.01 (15).

(s) “Treatment facility" has the meaning given in s. 51.01 (19).

(2) Applicability. This section applies to any of the following types of facilities or programs:

(a) An adult day care center.

(b) An adult family home.

(c) A community-based residential facility.

(d) A foster home.

(e) A group home.

(f) A home health agency.

(g) A hospice.

(h) An inpatient health care facility.

(i) A program under s. 51.42 (2).

(j) The Wisconsin Educational Services Program for the Deaf and Hard of Hearing under s. 115.52 and the Wisconsin Center for the Blind and Visually Impaired under s. 115.525.

(k) A state treatment facility.

(L) A treatment facility.

(m) A residential care center for children and youth operated by a child welfare agency licensed under s. 48.60 or an institution operated by a public agency for the care of neglected, dependent, or delinquent children.

(n) Any other health facility or care-related facility or home, whether publicly or privately owned.

(3) Abuse and neglect; penalties.

(a) Any person in charge of or employed in any facility or program under sub. (2) who does any of the following, or who knowingly permits another person to do so, may be penalized under par. (b):

1. Intentionally abuses or intentionally neglects a patient or resident.

2. Recklessly abuses or recklessly neglects a patient or resident.

3. Except as provided in par. (am), abuses, with negligence, or neglects a patient or a resident.

(am) Paragraph (a) 3. does not apply to a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.

(b)

1g. Any person violating par. (a) 1. or 2. under circumstances that cause death to an individual at risk is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death to an individual at risk is guilty of a Class D felony.

1m. Any person violating par. (a) under circumstances that cause great bodily harm to an individual at risk is guilty of a Class E felony.

1r. Except as provided in subd. 1m., any person violating par. (a) 1. under circumstances that cause great bodily harm is guilty of a Class F felony. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony.

2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.

3. Except as provided in subd. 1m., any person violating par. (a) 2. or 3. under circumstances that cause great bodily harm is guilty of a Class H felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.

4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.

5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.

History: 1993 a. 445; 1995 a. 225; 1997 a. 180; 1999 a. 9; 2001 a. 57, 59, 109; 2005 a. 264, 388; 2007 a. 45; 2011 a. 2.

Evidence that residents suffered weight loss and bedsores was sufficient to support the conviction of a nursing home administrator for abuse of residents. State v. Serebin, 119 Wis. 2d 837, 350 N.W.2d 65 (1984).

Section 50.135 (1), as incorporated in sub. (1) (i), requires that all of the specifically enumerated facilities must be places licensed or approved by DHFS. A VA hospital is subject to federal regulation but is not licensed or regulated by the state and thus not within the definition of inpatient health care facility. State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, 03-1514.

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

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