Community Grievance Decision Digest

LEAST RESTRICTIVE CONDITIONS NECESSARY, RIGHT TO

The decision summaries regarding this law may be found in the document:
Community Grievance Decision Digest: Decisions. (PDF, 512KB)

THE LAW:

"RESTRICTIONS ON PLACEMENTS AND ADMISSIONS TO INTERMEDIATE AND NURSING FACILITIES. (1) Definitions. In this section:

“Developmental disability” has the meaning given in s. 51.01(5)(a).

(b) "Intermediate facility” means an intermediate care facility for the mentally retarded, as defined in 42 USC 1396d(d), other than a center for the developmentally disabled, as defined in s. 51.01(3).

(bm) “Most integrated setting” means a setting that enables an individual to interact with persons without developmental disabilities to the fullest extent possible.

(c) “Nursing facility” has the meaning given under 42 USC 1369r(a)

(2) PLACEMENTS AND ADMISSIONS TO INTERMEDIATE FACILITIES. Except as provided in sub. (5), no person may place an individual with a developmental disability in an intermediate facility and intermediate facility may admit such an individual unless, before the placement or admission and after having considered a plan developed under subd. (4), a court under s. 55.06(9)(a) or (10)(a)2. finds that placement in the intermediate care facility is the most integrated setting that is appropriate for the needs of the individual, taking into account information presented by all affected parties. An intermediate facility to which an individual who has a developmental disability applies for admission shall, within 5 days after receiving the application, notify the county department that is participating in the program under s. 46.278 of the county of residence of the individual who is seeking admission concerning the application.

(3) PLACEMENTS AND ADMISSIONS TO NURSING FACILITIES. Except as provided in subd. (5), if the department or entity determines from a screening under s. 49.45(6c)(b) that an individual requires active treatment for developmental disability, non individual may be placed in a nursing facility, and no nursing facility may admit the individual, unless it is determined from the screening that the individual’s need for care cannot fully be met in an intermediate facility or under a plan under sub. (4)

(4) PLAN FOR HOME OR COMMUNITY-BASED CARE. Except as provided in a contract specified in sub. (4m), a county department that participates in the program under s. 46.278 shall develop a plan for providing home or community-based care in a non-institutional community setting to an individual who is a resident of that county, under any of the following circumstances:

(a) Within 120 days after any determination under s. 49.45(6c)(c)3, that the level of care required by a resident that is provided by a facility could be provided in an intermediate facility or a plan under this subsection.

(b) Within 120 days after receiving written notice under (2) of an application.

(c) Within 120 days after a proposal is made under s. 55.06(9)(a) to place the individual in an intermediate facility or a nursing facility.

(d) Within 120 days after receiving written notice under s. 55.06(10)(a)2. of the placement of the individual in a nursing home or an intermediate facility.

(e) Within 90 days after an extension of a temporary placement order by the court under s. 55.06(11)(c).

(4m) CONTRACT FOR PLAN DEVELOPMENT. The department shall contract with a public or private agency to develop a plan under sub. (4), and the county department is not required to develop such a plan, for an individual, as specified in the contract, to whom all of the following apply:

(a) The individual resides in a county with a population of less than 100,000 in which are located at least 2 intermediate facilities that have licenses issued to nonprofit organizations that are exempt from federal income tax under section 501(a) of the Internal Revenue Code.

(b) Placement for the individual is in, or proposed to be in, an intermediate facility specified under par. (a) that has agreed to reduce its licensed bed capacity to an extent and according to a schedule acceptable to the facility and the department.

(5) EXCEPTIONS. Subsections (2) and (3) do not apply to an emergency placement under s. 55.06(11)(a) or to a temporary placement under s. 55.06(11)(c) or (12).”

ss. 46.279, Wis. Stats.* [Emphasis added]

[*Note: Subs. (1), (2), (3), (4) and (5) were created effective 01/01/03.]

Each patient shall... "...have the right to the least restrictive conditions necessary to achieve the purposes of admission, commitment or placement, except in the case of a patient who is admitted or transferred under s. 51.35(3) or 51.37 or under ch. 971 or 975."

ss. 51.61(1)(e), Wis. Stats. [Emphasis added.]

"(1) Except in the case of a patient who is admitted or transferred under s.51.35(3) or 51.37, Stats., or under ch. 971 or 975, Stats., each patient shall be provided the least restrictive treatment which allows the maximum amount of personal and physical freedom in accordance with s. 51.61(1)(e), Stats., and this section.

(2) No patient may be transferred to a setting which increases personal or physical restrictions unless the transfer is justified by documented treatment or security reasons or by a court order.

(3) Inpatient and residential treatment facilities shall identify all patients ready for placement in less restrictive settings and shall, for each of these patients, notify the county department or social services department that placed the patient that the patient is ready for placement in a less restrictive setting. The county department or social services department then shall act in accordance with s. 51.61(1)(e), Stats., to place the patient in a less restrictive setting.

(4) Inpatient and residential treatment facilities shall identify security measures in their policies and procedures and shall specify criteria for the use of each security-related procedure.

(5) Inpatients shall be permitted to conduct personal and business affairs in any lawful manner not otherwise limited by statute so long as these do not interfere with the patient's treatment plan, the orderly operation of the facility, security or the rights of other patients."

DHS 94.07, Wis. Admin. Code [Emphasis added.]

'Least restrictive treatment' means treatment and services which will best meet the patient's treatment and security needs and which least limit the patient's freedom of choice and mobility."

DHS 94.02(17), Wis. Admin. Code [Emphasis added.]

Last Updated: June 18, 2009