WI Stat § 55.043 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 55 - Protective service system.|55.043 - Adult-at-risk agency.

55.043  Adult-at-risk agency. (1d) Adult-at-risk agency designation. Each county board shall designate an agency as the adult-at-risk agency for the purposes of this section. (1g)  Adult-at-risk agency duties. (a) Each adult-at-risk agency shall develop a policy for notifying other investigative agencies, including law enforcement officials in appropriate cases, and shall establish an adult-at-risk abuse reporting system to carry out the purposes of this section. Each 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 adult-at-risk 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 adults at risk and for the provision of specific direct services.(b) Each adult-at-risk agency shall receive reports of abuse, financial exploitation, neglect, or self-neglect of adults at risk.(c) Each adult-at-risk agency shall publicize the existence of an adult-at-risk 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 adults at risk. Each adult-at-risk agency shall also provide a telephone number that can be used by persons to make reports after the adult-at-risk agency's regular business hours. (1m)  Reporting. (a) The following persons shall file reports as specified in par. (b):1. An employee of any entity that is licensed, certified, or approved by or registered with the department.3. A health care provider, as defined in s. 155.01 (7).4. A social worker, professional counselor, or marriage and family therapist certified under ch. 457.(b) Except as provided in par. (be), a person specified in par. (a) who has seen an adult at risk in the course of the person's professional duties shall file a report with the county department, the adult-at-risk agency, a state or local law enforcement agency, the department, or the board on aging and long-term care if the 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:1. The 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.2. An 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.(be) A person specified in par. (a) to whom any of the following applies is not required to file a report as provided in par. (b):1. If the person believes that filing a report would not be in the best interest of the 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 adult at risk.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.(br) Any person, including an attorney or a person working under the supervision of an attorney, may report to the county department, 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 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 adult at risk has occurred. The person shall indicate the facts and circumstances of the situation as part of the report.(c)1.a. No person may discharge or otherwise retaliate or discriminate against any person for reporting in good faith under this subsection.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.d. 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.2.b. Any employee of an employer who is discharged or otherwise discriminated against may file a complaint with the department of workforce development under s. 106.54 (5).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.(d) No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for reporting in good faith under this subsection, or for filing a report with an agency not listed in par. (b) (intro.) or (br) if the person had a good faith belief that the report was filed correctly with one of the listed agencies.(e) If a report under par. (b) or (br) is made to a state official, the state official shall refer the report to the appropriate 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).(f) Any person making a report under this subsection is presumed to have reported in good faith. (1r)  Response and investigation.  (a)1g. Except as otherwise provided, if an adult-at-risk agency has reason to believe that an adult at risk has been the subject of abuse, financial exploitation, neglect, or self-neglect, the adult-at-risk agency may respond, including by conducting an investigation, to determine whether the adult at risk is in need of protective services. If an adult-at-risk agency has reason to believe that there is abuse, financial exploitation, neglect, or self-neglect of an adult at risk who is a client, as defined in s. 50.065 (1) (b), of an entity, as defined in s. 50.065 (1) (c), and if the person suspected of perpetrating the alleged abuse, financial exploitation, or neglect is a caregiver or nonclient resident of the entity, the 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 adult-at-risk agency's response to or another investigative agency's investigation of a report of 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.2. If an agent or employee of an adult-at-risk agency required to refer under this subsection is the subject of a report, or if the adult-at-risk agency or an agency under contract with the county department determines that the relationship between the adult-at-risk agency and the agency under contract with the county department would not allow for an unbiased response, the adult-at-risk agency shall, after taking any action necessary to protect the 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 the independent investigation are those given to an adult-at-risk agency under pars. (b) to (d) and sub. (6).(b) The adult-at-risk agency's response or another investigative agency's investigation may include one or more of the following:1. A visit to the residence of the adult at risk.2. Observation of or an interview with the adult at risk, in private to the extent practicable, and with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.3. An interview with the adult at risk, in private to the extent practicable, and with or without consent of his or her guardian or agent under an activated power of attorney for health care, if any.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 adult at risk.5. A review of the treatment and patient health care records of the adult at risk.6. A review of any financial records of the 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 (1) (c); by any caregiver of the adult at risk; or by a member of the immediate family of the vulnerable adult at risk. The records shall be released without informed consent in either of the following circumstances:a. To an 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 adult-at-risk agency or other investigative agency without first receiving a request for release of the information from the adult-at-risk agency or other investigative agency.b. Under a lawful order of a court of record.(c) The adult-at-risk agency or other investigative agency may transport the adult at risk for performance of a medical examination by a physician if any of the following applies:1. The 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.2. The adult at risk is incapable of consenting to the examination and one of the following applies:a. The adult at risk has no guardian or agent under an activated power of attorney for health care.b. The adult at risk has a guardian or 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 adult at risk.c. The examination is authorized by order of a court.(d) 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 conducting of a medical examination, if the response or investigation was performed in good faith and within the scope of his or her authority. (2)  Local enforcement assistance. (a) The adult-at-risk agency may request a sheriff or police officer to accompany the adult-at-risk agency investigator or worker during visits to the residence of the adult at risk or request other assistance as needed. If the request is made, a sheriff or police officer shall accompany the adult-at-risk agency investigator or worker to the residence of the adult at risk and shall provide other assistance as requested or necessary.(b) If the 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 adult at risk, the worker or investigator shall either initiate a protective services action under this chapter or contact law enforcement or another public agency, as appropriate. (3)  Restraining order; injunction. If a person interferes with the response or investigation under sub. (1r) or interferes with the delivery of protective services under this chapter to the adult at risk, the adult-at-risk agency investigator or worker may apply for an order under s. 813.123 prohibiting the interference. (4)  Offer of services and referral of cases.  (am) Upon responding to a report, the adult-at-risk agency or the investigative agency shall determine whether the 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. 46, 47, 49, 51, or 54. If provided, direct services shall be rendered under the least restrictive conditions necessary to achieve their objective.(b) If, after responding to a report, the adult-at-risk agency has reason to believe that the adult at risk has been the subject of abuse, financial exploitation, neglect, or self-neglect, the adult-at-risk agency may do any of the following: 1. Initiate a protective services action or contact an investigative agency, as appropriate. 2. Take appropriate emergency action, including provision of emergency protective services under s. 55.13 or emergency protective placement under s. 55.135, if the adult-at-risk agency considers that the emergency action is in the best interests of the adult at risk and the emergency action is the least restrictive appropriate intervention.3. Refer the case to law enforcement officials, as specified in sub. (2), for further investigation or to the district attorney, if the adult-at-risk agency has reason to believe that a crime has been committed. 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 adult at risk is or should be licensed, permitted, registered, or certified or is otherwise regulated.5. Refer the case to the department of safety and professional services or the department of agriculture, trade and consumer protection, as appropriate, 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 or to hold a license, certification, or permit issued under s. 89.06, 89.072, or 89.073.5g. 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 202.14.6. Bring or refer for action to bring a petition for a guardianship and protective services or protective placement or a review of an existing guardianship if necessary to prevent financial exploitation, neglect, self-neglect, or abuse and if the adult at risk would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter, or services. (5g)  Refusal of services. An adult at risk may refuse to accept services unless a guardian authorizes the services. The adult-at-risk agency or other provider agency shall notify the adult at risk of this right to refuse before providing services. (6)  Records; confidentiality.  (a) In this subsection:1. “Departmental report form" includes documentation of an adult-at-risk agency's response to or investigation of a report made under sub. (1r) and is the information required to be submitted to the department.2. “Record" includes any document relating to the response, investigation, assessment, and disposition of a report made under sub. (1r).(am) The adult-at-risk agency shall prepare a departmental report form on its response under sub. (1r) to a report of suspected abuse, financial exploitation, neglect, or self-neglect. If the adult-at-risk agency refers the report to an investigative agency, the investigative agency shall advise the adult-at-risk agency in writing of its response to the report. The adult-at-risk agency shall maintain records of suspected abuse, financial exploitation, neglect, or self-neglect.(b) Departmental report forms are confidential and may not be released by the adult-at-risk agency or other investigative agency, except under the following circumstances:1. To the adult at risk, any person named in a departmental report form who is suspected of abusing, neglecting, or financially exploiting an 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.2. To the agency or other entity contacted under sub. (2) (b). Information obtained under this subdivision shall remain confidential.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.4. For purposes of research, if the research project has been approved by the department or the 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.5. Under lawful order of a court of record.6. To any agency or individual that provides direct services under sub. (4), including an attending physician for purposes of diagnosis, examination, 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.7. To the guardian of the adult at risk or the guardian of any person named in a report who is suspected of abusing, neglecting, or financially exploiting an 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.8. To law enforcement officials in accordance with the policy developed under sub. (1g) (a).9. To a federal agency, state governmental agency, agency of any other state, or local unit of government 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 adults at risk from abuse, financial exploitation, neglect, or self-neglect.10. To the reporter who made a report in his or her professional capacity, regarding action taken to protect or provide services to the alleged victim of abuse, financial exploitation, neglect, or self-neglect.(bd) If a person requesting a departmental report form is not one of the persons or entities specified in par. (b), the adult-at-risk agency may release information indicating only whether or not a report was received and whether or not statutory responsibility was fulfilled.(br) Notwithstanding par. (b) 1. to 10., an adult-at-risk agency or an investigative agency may not release departmental report forms under this section, if any of the following applies:1. The adult-at-risk agency determines that release would be contrary to the best interests of the adult at risk who is the subject of the departmental report form or of a minor 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.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.3. The 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.(bt) Subject to pars. (b), (bd), (br), (bv) and (bw), records under this subsection are confidential and may not be released by the adult-at-risk agency or other investigative agency, except under the following circumstances, upon request:1. To the adult at risk who is the alleged victim named in the record.2. To the legal guardian, conservator, or other legal representative of the 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.3. To law enforcement officials and agencies in accordance with the policy developed under sub. (1g) (a) or with investigations conducted under sub. (1r), or a district attorney, for purposes of investigation or prosecution.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).5. To an employee of the county department under s. 51.42 or 51.437 that is providing services to an 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.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.7. To the department, for management, audit, program monitoring, evaluation, billing, or collection purposes.8. To the attorney or guardian ad litem for the adult at risk who is the alleged victim named in the record, to assist in preparing for any proceeding under this chapter or ch. 48, 51, 54, 813, 971, or 975 pertaining to the alleged victim. 9. To a coroner, medical examiner, pathologist, or other physician investigating the cause of death of an adult at risk that is unexplained or unusual or is associated with unexplained or suspicious circumstances.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. 16.009.11. 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 adult at risk.12. To a grand jury, if it determines that access to specified records is necessary for the conduct of its official business.13. Under a lawful order of a court of record.(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.(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.(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. (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. (8)  Department duties. (a) The department shall develop a plan to assist adult-at-risk agencies in determining appropriate responses to reports of abuse, financial exploitation, neglect, or self-neglect.(b) The department shall prepare and distribute sample departmental report forms for use by adult-at-risk agencies.(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 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.(d) The department shall develop and disseminate information on adult-at-risk abuse and the adult-at-risk reporting system under this section. The department shall also develop informational materials to be used by adult-at-risk agencies regarding abuse of adults at risk and regarding the adult-at-risk abuse reporting system. The department shall solicit contributions of labor, materials, and expertise from private sources to assist in developing the informational materials. (9m)  Penalties. (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.(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.(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.(d) Whoever violates sub. (1m) (c) 1. may be fined not more than $10,000 or imprisoned for not more than 6 months or both.(e) Whoever intentionally violates sub. (1m) (b) by failure to report as required may be fined not more than $500 or imprisoned not more than 6 months or both. History:  1993 a. 445; 1997 a. 27; 2001 a. 74, 103; 2005 a. 264, 388; 2007 a. 45; 2011 a. 32; 2013 a. 20; 2015 a. 55, 179.NOTE:  2005 Wis. Act 388 made major revisions to this section and contains extensive explanatory notes.Adult Protective Services: On the Front Line Against Elder Abuse. Page. Wis. Law. June 2020.