51.40 Determination of residence for certain adults; county of responsibility.

(1) Definitions. In this section:

(a) “Agency of a county department" means a public or private organization with which a county department contracts for provision of services under ch. 46, 51 or 55.

(b) “Arrange or make placement" means perform any action beyond providing basic information concerning the availability of services, facilities or programs in a county to an individual or the individual's family.

(c) “Capable of indicating intent" means able to express by words or other means an informed choice of a place to live.

(d) “County department" means a county department under s. 46.23, 51.42 or 51.437.

(e) “County of responsibility" means the county responsible for funding the provision of care, treatment, or services under this chapter or ch. 46 or 55 to an individual.

(em) “Facility" means a place, other than a hospital, that is licensed, registered, certified, or approved by the department or a county under ch. 50 or 51.

(f) “Guardian" means a guardian of the person appointed by a court under ch. 54 or ch. 880, 2003 stats.

(g) “Incapable of indicating intent" means one of the following:

1. The status of an individual who has a guardian.

2. The status of an individual for whom there is substantial evidence, based on documentation from a licensed physician or psychologist who has personally examined the individual and who has expertise concerning the type of mental disability evidenced by the individual, that the individual is incapable of indicating intent.

(hm) “Other like incapacities" has the meaning given in s. 55.01 (5).

(i) “Parent" has the meaning specified under s. 48.02 (13).

(j) “State facility" means a state mental health institute, center for the developmentally disabled, prison as specified in s. 302.01 or a facility that is operated directly by the department of health services or the department of corrections.

(m) “Voluntary" has the meaning given in s. 49.001 (8).

(2) Determination of county of residence. The county of residence of an individual aged 18 or older with developmental disability or serious and persistent mental illness, degenerative brain disorder, or other like incapacity who is residing in a facility is the county of responsibility for the individual. The county of residence shall be determined as follows:

(a) Directed placement.

1. `Commitment or protective placement or protective services.' If an individual is under a court order of commitment under this chapter or protective placement or protective services under s. 55.06, 2003 stats., or s. 55.12, the individual remains a resident of the county in which he or she has residence at the time the initial commitment or initial order for protective placement or protective services is made. If the court makes no specific finding of a county of residence, the individual is a resident of the county in which the court is located. After notice, including notice to the corporation counsel of each affected county by certified mail, after opportunity to be heard has been provided to all affected counties and parties, and if there is no objection, the court may make a specific finding of a county of residence. If any affected county or party objects to the court's proposed finding, the county or party may request the department to make a determination under par. (g). Any transfer of venue may be suspended until the department's determination is final.

2. `Placement by a county.' Except for the provision of emergency services under s. 51.15, 51.42 (1) (b), 51.437 (4) (c), or 51.45 (11) and (12), emergency protective services under s. 55.13, or emergency protective placement under s. 55.135, if a county department or an agency of a county department places or makes arrangements for placement of the individual into a facility, the individual is a resident of the county of that county department. Any agency of the county department is deemed to be acting on behalf of the county department in placing or making arrangements for placement. Placement of an individual by a county department or an agency of a county department in a facility outside the jurisdiction of the county department or agency does not transfer the individual's legal residence to the county in which the facility is located. If a resident of a county is physically present in another county and is in need of immediate care, the county in which the individual is present may provide for his or her immediate needs under s. 51.15, 51.20, 51.42 (1) (b), 51.437 (4) (c), or 51.45 (11) or (12), or ch. 54 or 55, without becoming the individual's county of residence.

(b) Other admissions. If par. (a) does not apply, the county of residence shall be determined as follows:

1. `Individuals in state facilities.' An individual who is in a state facility is a resident of the county in which he or she was a resident at the time the admission to the state facility was made. This subdivision may not be applied to change residence from a county, other than the county in which the facility is located, that has accepted responsibility for or provided services to the individual before December 1, 2006.

2. `Individuals in nursing homes.' The following are presumptions regarding the county of residence of an individual in a nursing home that may be overcome by substantial evidence that clearly establishes other county residence:

ag. An individual in a nursing home who was admitted under s. 50.04 (2r) to the nursing home after December 1, 2006, is a resident of the county that approved the admission under s. 50.04 (2r).

bg. An individual residing in a nursing home on December 1, 2006, is a resident of the county in which the individual is physically present unless another county accepts the individual as a resident.

cg. If the individual had an established residence in another county prior to entering the nursing home; the individual or the individual's guardian, if any, indicates an intent that the individual will return to that county when the purpose of entering the nursing home has been accomplished or when needed care and services can be obtained in that county; and the individual, when capable of indicating intent, or a guardian for the individual, has made no clearly documented expression to a court or county department of an intent to establish residence elsewhere since leaving that county, the individual is a resident of that county.

dg. If the individual is incapable of indicating intent as determined by the county department, has no guardian, ordinarily resides in another county, and is expected to return to that county within one year, the individual is a resident of that county.

eg. If another county has accepted responsibility for or provided services to the individual prior to December 1, 2006, the individual is a resident of that county.

fg. If the individual is incapable of indicating intent; the individual was living in another county outside of a nursing home or state facility on December 1, 2006, or under circumstances that established residence in that county after December 1, 2006; and that county was the last county in which the individual had residence while living outside of a nursing home or state facility, the individual is a resident of that county.

g. If subd. 2. ag. to fg. does not apply, an individual who is incapable of indicating intent and is residing in a facility is a resident of the county in which the individual resided before admittance to the facility.

(f) Guardian's authority to declare county of residence. A guardian may declare any of the following, under any of the following conditions:

1. The ward is a resident of the guardian's county of residence, if pars. (a) and (b) do not apply, if the guardian's ward is in a facility and is incapable of indicating intent, and if the guardian is a resident of the county in which the facility is located or states in writing that the ward is expected to return to the guardian's county of residence when the purpose of entering the facility has been accomplished or when needed care and services can be obtained in the guardian's county of residence.

2. The ward is a resident of the county in which the ward is physically present, if pars. (a) and (b) do not apply and if all of the following apply:

a. The ward's presence in the county is voluntary.

b. There is no current order under ch. 55 in effect with respect to the ward, and the ward is not under an involuntary commitment order to the department of corrections or to a county other than the county in which the ward is physically present.

c. The ward is living in a place of fixed habitation.

d. The guardian states in writing that it is the ward's intent to remain in the county for the foreseeable future.

3. The ward is a resident of the county specified by the guardian, regardless if a previous determination of county of residence has been made, notwithstanding pars. (a) and (b) for good cause shown, if, in the ward's best interest, the guardian files with the probate court having jurisdiction of the guardianship and protective placement a written statement declaring the ward's domiciliary intent, subject to court approval, and if notice and opportunity to be heard are provided to all affected counties and parties. Notice under this subdivision shall be sent to the corporation counsel of each affected county by certified mail.

(g) Determination of county of responsibility.

1. An individual, an interested person on behalf of the individual, or any county may request that the department make a determination of the county of responsibility of the individual. Any motion for change of venue pending before the court of jurisdiction may be stayed until the determination under this paragraph is final. Within 10 days after receiving the request, the department shall provide written notice to the individual; to the individual's guardian, guardian ad litem, and counsel, if any; to the individual's immediate family, if they can be located; and to all potentially responsible counties that a determination of county of responsibility shall be made and that written information and comments may be submitted within 30 days after the date on which the notice is sent.

2. The department shall review information submitted under subd. 1. and make such investigation as it deems proper. Within 30 days after the end of the period for submitting information, the department shall make a decision as to residence, and send a copy of the decision to the individual and to all involved counties. The decision may be appealed under s. 227.44 by the individual or the county determined to be responsible.

3. Pending a determination under subd. 2., a county department which has been providing services to the individual shall continue to provide services if necessary to meet the individual's needs. If no county department is currently providing services, the county in which the client is physically present shall provide necessary services pending the determination.

4. A determination under subd. 2. may provide for a period of transitional services to assure continuity of services by specifying a date until which the county department which has been providing services shall continue to do so.

5. The decision of the department under subd. 2. is binding on the individual and on any county which received notice of the proceeding. Except as provided in the determination, the county determined to be the county of responsibility shall act as the county of responsibility immediately after receiving notice of the determination, and during the pendency of any appeal of the determination that is brought under ch. 227.

6. The county that is determined to be the county of responsibility shall reimburse any other county for all care, treatment, and services provided by the other county to the individual under ch. 46, 51, or 55. Full reimbursement by the county that is determined to be the county of responsibility shall be made within 120 days after the date of the department's determination of the county of responsibility or within 120 days after the date of the outcome of any appeal of the department's determination that is brought under ch. 227, or by a date or under a schedule of 2 or more payments that is agreed to by both counties.

History: 1987 a. 27; 1989 a. 31, 359; 1995 a. 27 s. 9126 (19); 2005 a. 264, 387; 2007 a. 20 s. 9121 (6) (a); 2007 a. 45.

The residence of an adult who was protectively placed as a minor is discussed. Waukesha County v. B.D. 163 Wis. 2d 779, 472 N.W.2d 563 (Ct. App. 1991).

A community-based residential facility is neither a nursing home nor a state facility. Sub. (2) is limited to individuals living in nursing homes or state facilities. Juneau County v. Sauk County, 217 Wis. 2d 705, 580 N.W.2d 694 (Ct. App. 1998), 97-1365.