(1) Definitions. In this section:
Terms Used In Wisconsin Statutes 46.272
- Adult: means a person who has attained the age of 18 years, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, "adult" means a person who has attained the age of 17 years. See Wisconsin Statutes 403.504
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appropriation: The provision of funds, through an annual appropriations act or a permanent law, for federal agencies to make payments out of the Treasury for specified purposes. The formal federal spending process consists of two sequential steps: authorization
- Contract: A legal written agreement that becomes binding when signed.
- Escrow: Money given to a third party to be held for payment until certain conditions are met.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 403.504
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Land: includes lands, tenements and hereditaments and all rights thereto and interests therein. See Wisconsin Statutes 403.504
- Minor: means a person who has not attained the age of 18 years, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, "minor" does not include a person who has attained the age of 17 years. See Wisconsin Statutes 403.504
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 403.504
- Promulgate: when used in connection with a rule, as defined under s. See Wisconsin Statutes 403.504
- State: when applied to states of the United States, includes the District of Columbia, the commonwealth of Puerto Rico and the several territories organized by Congress. See Wisconsin Statutes 403.504
- Year: means a calendar year, unless otherwise expressed; "year" alone means "year of our Lord". See Wisconsin Statutes 403.504
(a) “Child” means a person under 22 years of age who is not eligible to receive services in or on a waiting list for an adult long-term care program.
(b) “Disability” means a severe physical, developmental, or emotional impairment which is diagnosed medically, behaviorally, or psychologically, which is characterized by the need for individually planned and coordinated care, treatment, vocational rehabilitation, or other services and which has resulted or is likely to result in substantial limitation on the ability to function in at least 2 of the following areas, equivalent to nursing home, hospital, or institution for mental disease level of care:
2. Receptive and expressive language.
(c) “Hospital” has the meaning provided in s. 50.33 (2).
(d) “Institutional setting” means a nursing home, as defined in s. 50.01 (3), a state-operated long-term care facility, or any other residential facility that provides long-term care to children outside of a home.
(e) “Residence” means the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation. Physical presence shall be prima facie evidence of intent to remain.
(f) “State-operated long-term care facility” means a state center for the developmentally disabled and a Wisconsin veterans home operated by the department of veterans affairs under s. 45.50.
(g) “Voluntary” means according to an individual’s free choice, if competent, or by choice of his or her parent or guardian, if the individual is adjudicated incompetent or is a minor.
(2) Departmental duties. The department shall do all of the following to establish a children’s community options program:
(a) Review and approve or disapprove the selection of a county department to administer the children’s community options program.
(b) In consultation with representatives of counties; programs that provide community-based services to children or families, other publicly funded programs, and the social services, mental health, and developmental disabilities programs under ss. 46.495, 51.42, and 51.437; the independent living center program under s. 46.96; and the Medical Assistance program under subch. IV of ch. 49; and with recipients of children’s community support services, develop guidelines for implementing the program and criteria for reviewing community options plans from counties participating in the program under this section. The guidelines and criteria shall address cost-effectiveness, scope, feasibility and impact on the quality and appropriateness of health services and social services and shall provide counties with maximum flexibility to develop programs that address local needs.
(c) Review and approve or disapprove the community options plan of each county participating in the children’s community options program.
(d) Require that a county, by use of a form provided by the department or other appropriate procedure, ensure that persons receiving services under this section meet the eligibility requirements for the children’s community options program.
(e) Periodically monitor the implementation of the children’s community options program.
(f) Review and approve or disapprove the terms of risk reserve escrow accounts created under sub. (13) (f) and approve or disapprove disbursements for administrative or staff costs from the risk reserve escrow accounts.
(4) Duties of participating county departments. Each participating county department shall do all of the following:
(a) Appoint members to an advisory committee or appoint an existing committee in the service area as the children’s community options advisory committee to assist in developing the program plan and to monitor the program. The committee shall include, but need not be limited to, the following members:
1. Parents of children with disabilities including, if possible, parents from families that participate in the children’s community options program. To the maximum extent possible, the parents shall be representative of the various disability, racial, and ethnic groups in the service area. The members specified under this subdivision shall constitute a majority of the membership of the committee.
2. Persons from the service area representing the county department under s. 46.23, 51.42, or 51.437 and the county department under s. 46.215 or 46.22, school districts, and local health departments, as defined in s. 250.01 (4). At least one of the committee members selected under this subdivision shall be a person providing community social services to children with disabilities who are eligible for the program.
3. Persons in the service area who provide social or educational services to children who have disabilities other than the providers specified in subd. 2.
(b) Cooperate with the committee appointed under par. (a) to prepare a program plan. The program plan shall include all of the following:
1. A description of the proposed program operations.
2. The estimated number of families that will be assessed and served.
3. A list of specific groups, if any, that will be given priority for available funding.
4. A description of the outreach procedures that will be used to ensure that the program will be made available to children with physical, emotional, and developmental disabilities.
5. The procedures that will be used to determine family needs.
6. A description of the methods that will be used for the development and monitoring of service plans and for coordinating the provision of services and goods to participating families.
7. A description of the methods that will be used to promote the creation of informal support and advocacy systems for families.
8. A description of the method that will be used to monitor the children’s community options program.
(c) Submit the proposed program plan to the department upon approval by the children’s community options program advisory committee.
(d) Administer the program or contract with a human service agency in the service area to administer the program within the limits of state and federal funds under subs. (13) and (14).
(e) In conjunction with the county department under s. 46.215 or 46.22, if any, in the service area and with the administering agency, if it is not the county department under s. 46.23, 51.42, or 51.437, coordinate the administration of the program with the administration of other publicly funded programs that serve children who have disabilities.
(f) Submit all information and reports required by the department.
(5) Powers and duties of a private nonprofit agency. The department may contract with a private nonprofit agency for services under this section. The agency shall have the powers and duties under this section of a county department designated to administer the program.
(6) Duties of counties or agencies. Each county or each agency under contract under sub. (5) shall:
(a) Cooperate in the development of the program plan under sub. (4) (b).
(b) Provide information about the program and other programs for children who have disabilities to families in the service area.
(c) Implement the program in accordance with the program plan.
(d) Designate one of its employees as the coordinator for each participating family.
(7) County department duties. The county department selected to administer the children’s community options program shall:
(a) Organize assessment activities specified in par. (f) and sub. (8). The county department shall utilize persons for each assessment who can determine the needs of the child being assessed and who know the availability within the county of services. The county department shall coordinate the involvement of representatives from the county departments under ss. 46.215, 46.22, 51.42 and 51.437, and health service providers in the assessment activities specified in sub. (8), as well as the child being assessed and members of the child’s family or the child’s guardian.
(b) Within the limits of state and federal funds allocated under sub. (13), arrange service contracts under s. 46.036 and ensure the provision of necessary long-term community support services for each child who meets the criteria for services under the children’s community options program.
(c) Within the limits of state and federal funds allocated under sub. (13), provide for ongoing care management services in accordance with the requirements established under sub. (10) (b) 1., periodic case plan review and follow-up services for any child receiving community support services under the children’s community options program.
(d) Determine, under sub. (9), the fee, if any, for all families or guardians of children who meet the criteria to receive services and are applying for or receiving children’s community support services that are funded under sub. (13) or (14).
(e) In the instances in which a child who is provided community support services under this section for which the child or his or her parent or guardian receives direct funding, serve directly as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for that child for the purposes of performing the responsibilities and protecting the interests of the individual under the unemployment insurance law. The county department may elect to act as a fiscal agent or contract with a fiscal intermediary to serve as a fiscal agent for a child who is provided long-term community support services under s. 46.275, 46.277, 46.278, 46.2785, 46.495, 51.42, or 51.437. The fiscal agent under this paragraph is responsible for remitting any federal unemployment compensation taxes or state unemployment insurance contributions owed by the child, including any interest and penalties which are owed by the child; for serving as the representative of the child in any investigation, meeting, hearing, or appeal involving ch. 108 or the federal unemployment tax act (26 USC 3301 to 3311) in which the child is a party; and for receiving, reviewing, completing, and returning all forms, reports, and other documents required under ch. 108 or the federal unemployment tax act on behalf of the child. A child may make an informed, knowing, and voluntary election to waive the right to a fiscal agent. The waiver may be as to all or any portion of the fiscal agent’s responsibilities. The waiver may be rescinded in whole or in part at any time.
(f) Develop assessments and care plans according to uniform criteria established by the department for children in all long-term care programs.
(8) Assessments. Within the limits of state and federal funds allocated under sub. (13) and within the limits of fees collected, an assessment shall be conducted for any child with a disability who is seeking services in the program.
(9) Financial eligibility and fees.
(a) The department shall create a sliding scale formula for a fee chargeable for conduct of an assessment under sub. (8), for development of a case plan, and for children’s long-term community support services that is based on the child’s ability to pay, unless prohibited from payment under the federal Medicaid law.
(b) The county department selected to administer the program shall require all children or their parents or guardians applying for children’s long-term community support services at the time of application and all children receiving the services that are funded under sub. (13) or (14) annually to provide the following information:
1. A declaration of income, on a form prescribed by the department.
2. A declaration of costs paid annually for care and services related to the special needs or disability of the child for whom the application is made or services are provided.
(c) From the information obtained under par. (b), the county department shall determine the amount of the fee for receipt of children’s long-term community support services under this section. The county department shall require payment by the child or parent or guardian of the child of 100 percent of the amount calculated under this paragraph.
(d) The county department shall use funds received under par. (c) to pay for long-term community support services for children who are eligible for services under the children’s community options program.
(10) Services; care management requirements.
1. Within the limits of state and federal funds allocated under sub. (13) and within the limits of fees collected, the department shall reimburse, if applicable, and the county department or private nonprofit agency shall provide long-term community support services to eligible children who have a disability.
2. The department may not reimburse and the county department or private nonprofit agency may not pay for room and board for children under the children’s community options program.
(b) The department, after consulting with representatives of counties, hospitals, and individuals who receive services under the children’s community options program under this section, shall do all of the following:
1. Establish minimum requirements for the provision of care management services, as defined by the department, including standards for care, times for performance of duties, and size of case loads.
2. Specify a reasonable schedule for phasing in the requirements established under subd. 1.
3. Provide technical consultation and assistance to the administrator of the program with respect to the requirements established under subd. 1.
(c) The department need not promulgate as rules under ch. 227 the requirements under par. (b) 1. or the schedule under par. (b) 2.
(11) Fiscal responsibility. Except as provided in s. 51.40, and within the limitations under sub. (13) (a) 2., the fiscal responsibility of a county for an assessment, unless the assessment is performed by an entity under a contract as specified under s. 46.284 (2), case plan, or services provided to a child under this section is as follows:
(a) For a child seeking admission to or about to be admitted to an institutional setting, the county in which the child has residence is the county of fiscal responsibility.
(b) For a child residing in an institutional setting, except a state-operated long-term care facility, the county in which the institution is located is the county of fiscal responsibility.
(c) For a child living in an institutional setting, except a state-operated long-term care facility, whose legal residence is established in another county, the county in which the legal residence is established is the county of fiscal responsibility.
(d) For a child residing in a state-operated long-term care facility, or for a person protectively placed under ch. 55, the county in which the child has residence before he or she enters the state-operated long-term care facility or is protectively placed is the county of fiscal responsibility.
(12) Reimbursement disallowances. The department may disallow reimbursement under this section for services provided to children who do not meet the eligibility requirements for the children’s community options program or any other eligibility requirements established by the department.
(a) Subject to pars. (b) and (h), from the appropriation under s. 20.435 (4) (bd), the department shall allocate funds to each county or private nonprofit agency with which the department contracts for all of the following purposes:
1. To pay assessment and case plan costs not otherwise paid by fee or under s. 49.45 or 49.78 (2). The department shall reimburse multicounty consortia for the cost of assessing children eligible for medical assistance under s. 49.46, 49.468, 49.47, or 49.471 (4) (a) as part of the administrative services of medical assistance, payable under s. 49.45 (3) (a). Counties may use unspent funds allocated under this subdivision to pay the cost of long-term community support services and for a risk reserve under par. (f).
2. To pay the cost of providing long-term community support services described under sub. (7) (b) not otherwise paid under s. 49.45 to children eligible for medical assistance under s. 49.46, 49.47, or 49.471 (4) (a). The county department administering the program may spend funds received under this paragraph only in accordance with the case plan and service contract created for each child receiving long-term community support services. Counties may use unspent funds allocated under this subdivision from the appropriation under s. 20.435 (4) (bd) for a risk reserve under par. (f).
1. Receipt of funds under this section is subject to s. 46.495 (2).
2. The department may not release funds under this subsection before approving the county’s community options plan.
3. No county may use funds received under par. (a) 2. to pay for long-term community support services provided to any child who resides in a nursing home, unless the department waives this restriction on use of funds and the services are provided in accordance with a discharge plan.
4. No county may use funds received under this section to purchase land or construct buildings.
(c) The department may release funds to counties acting jointly, if the counties sign a contract approved by the secretary that explains the plans for joint sponsorship.
(d) If the department determines that a county demonstrates a pattern of failure to serve clients whose cost of care significantly exceeds the average cost of care for children’s long-term community support services provided under this section, the department may require that county to reserve a portion of funds allocated under this subsection for provision of service to those clients.
(e) The department shall, at the request of a county, carry forward up to 5 percent of the amount allocated under this subsection to the county for a calendar year if up to 5 percent of the amount so allocated has not been spent or encumbered by the county by December 31 of that year, for use by the county in the following calendar year, except that the amount carried forward shall be reduced by the amount of funds that the county has notified the department that the county wishes to place in a risk reserve under par. (f). The department may transfer funds within s. 20.435 (4) (bd) to accomplish this purpose. An allocation under this paragraph does not affect a county’s base allocation under this subsection and shall lapse to the general fund unless expended within the calendar year to which the funds are carried forward. A county may not expend funds carried forward under this paragraph for administrative or staff costs, except administrative or staff costs that are associated with implementation of the waiver under sub. (14) and approved by the department.
1. Notwithstanding s. 46.036 (3) and (5m), a county may place in a risk reserve funds that are allocated under par. (a) or sub. (14) (b) 1. and are not expended or encumbered for services under this subsection or sub. (14). The county shall notify the department of this decision and of the amount to be placed in the risk reserve. The county shall maintain the risk reserve in an interest-bearing escrow account with a financial institution, as defined in s. 69.30 (1) (b), if the department has approved the terms of the escrow. All interest from the principal shall be reinvested in the escrow account.
2. The annual amount of a county’s expenditure for a risk reserve, as specified in subd. 1., may not exceed 10 percent of the county’s most recent allocation under par. (a) and sub. (14) (b) 1. or $750,000, whichever is less. The total amount of the risk reserve, including interest, may not exceed 15 percent of the county’s most recent allocation under this subsection.
3. A county may expend funds maintained in a risk reserve, as specified in subd. 1., for any of the following purposes:
a. To defray costs of children’s long-term community support services under this section.
b. If approved by the department, for administrative or staff costs under this section.
4. A county that maintains a risk reserve, as specified in subd. 1., shall annually, on a form prescribed by the department, submit to the department a record of the status of the risk reserve, including revenues and disbursements.
(g) The department may carry forward to the next state fiscal year funds allocated under this subsection and not encumbered by counties by December 31 or carried forward under par. (e). The department may transfer moneys within s. 20.435 (4) (bd) to accomplish this purpose. An allocation under this paragraph shall not affect a county’s base allocation for the program. The department may allocate these transferred moneys during the next fiscal year to counties for the improvement or expansion of long-term community support services for clients whose cost of care significantly exceeds the average cost of care provided under this section, including any of the following:
1. Specialized training for providers of services under this section.
2. Start-up costs for developing needed services.
3. Home modifications.
4. Purchase of medical equipment or other specially adapted equipment.
(h) Funds allocated under this subsection may not be used to replace any other state and federal funds or any county funds that are currently being provided under any program to a family whose child is receiving services through the children’s community options program.
(14) Medical assistance waiver.
(a) The department may request a waiver from the federal department of health and human services authorizing the department to provide as part of the Medical Assistance program services for persons who are eligible for children’s long-term support community options program services under sub. (7) (b).
1. Medical assistance reimbursement for services a county or a private nonprofit agency[, or] with which the department contracts provides under this subsection shall be made from the appropriations under s. 20.435 (4) (bd) and (o) and (7) (b). Payments made under sub. (13) (a) may be used as the state share for purposes of Medical Assistance reimbursement.
46.272 Note NOTE: The text in brackets is unnecessary. Corrective legislation is pending.
3. The department may contract for services under this subsection with a county or a private nonprofit agency.
4. No county or private nonprofit agency may use funds received under this subsection to provide residential services in a group home, as defined in s. 48.02 (7), that has more than 5 beds, unless the department approves the provision of services in a group home that has 6 to 8 beds.
(c) If a county department or private nonprofit agency providing services under this subsection is certified under s. 49.45 (37) (a), the waiver under s. 49.45 (37), if in effect, applies to plans of care for children receiving services under this subsection.
(15) Right to hearing. A child who is denied eligibility for services or whose services are reduced or terminated under this section may request a hearing from the department under s. 227.44, except that lack of adequate funding may not serve as the basis for a request under this subsection.