DSL INFO MEMO 97-19
November 24, 1997
STATE OF WISCONSIN
Department of Health and Family Services
Division of Supportive Living
To:
Area Administrators/Assistant Area Administrators
Division Administrators
DSL Bureau Directors
Centers for the Developmentally Disabled
Certified Mental Health In-Patient Facilities
County Departments of Community Programs Directors
County Departments of Developmental Disabilities Services Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
Mental Health Institutes
Tribal Chairpersons/Human Services Facilitators
Wisconsin Hospitals
Wisconsin Nursing Homes
From:
Gerald A. Born
Administrator
Division of Supportive Living
Re: Admission of Residents of Other States in Certain Long Term Care
Institutions in Wisconsin
On August 21, 1997, the U.S. Court of Appeals, Seventh Circuit, issued
a decision involving Bethesda Lutheran Homes and Services and this
department which affects the right of residents of other states to
receive needed care and treatment under the Wisconsin Medicaid Program in
certain long term care institutions in Wisconsin. The types of
institutions affected are Intermediate Care Facilities for the Mentally
Retarded (ICF's-MR), Institutes for Mental Disease (IMD's), and nursing
homes.
Currently, ss. 50.04 (2r), Wis. Stats., and ss. HFS 134.52 (2) (b),
Wisconsin Administrative Code, permit the admission of a person with a
developmental disability or a chronic mental illness to one of the types
of institutions identified above only upon the recommendation of the
county agency of the individual's Wisconsin county of residence (except
for an emergency).
If the person is found mentally incompetent under chapter 880, Wis.
Stats., a petition for "protective placement" under section
55.06, Wis. Stats., must also be filed in the Wisconsin county of
residence of the person needing protection, and an order issued. When
these protections of the incompetent person are in place, and the person
is unable to pay for their care, Wisconsin Medicaid pays for the person's
needed institutional care and treatment.
The U.S. Court of Appeals found that these residency requirements and
related Medicaid regulations make it difficult for non-Wisconsin residents
suspected of being incompetent, and who are unable to pay for their care,
to obtain institutional care and treatment appropriate to their needs in
Wisconsin. The court concluded, "the residency requirement is an
unjustifiable interference with interstate mobility . . .
However, the court decision does not affect the requirement for a
protective placement order under chapter 55, Wis. Stats., guardianship
orders under chapter 880, Wis. Stats., or the need for county
authorization for admission to these types of institutions under chapter
51, Wis. Stats.
To comply with the U.S. Court of Appeals decision, effective August 21,
1997 the following procedures should be initiated. Prior to the admission
of any non-Wisconsin resident suspected of being incompetent who
requires care and treatment in an ICF-MR, an IMD, or a nursing
home, a court petition for protective placement under Chapter 55,
Wis. Stats., and for guardianship under Chapter 880, Wis. Stats., shall
be filed in the Wisconsin county where the person wishes to live (i.e.,
where the institution is located), regardless of the source of payment.
Wisconsin counties should accept these petitions from non-Wisconsin
residents.
Wisconsin County Departments of Human Services, Social Services,
Community Programs and Developmental Disabilities Services should accept,
consider, and approve requests from non-Wisconsin residents on the same
basis, and apply the same clinical and programmatic criteria, as residents
of the county when considering approval of admissions to ICF's-MR, IMD's
and nursing homes under
ss. 50.04 (2r), Wis. Stats.
This directive does not affect Wisconsin residents seeking admission to
one of these types of institutions. The established residency requirements
and procedures for filing for protective placement and guardianship
continue to apply to Wisconsin residents.
CENTRAL OFFICE CONTACT:
Michael A. Peters
Coordinator of Special Investigations
Division of Supportive Living
1 West Wilson Street
P.O. Box 7851
Madison, WI 53707-7851
(608) 266-6989
cc:
AMI Chapters
Consumer Organizations
Wisconsin Council on Mental Health
Developmental Disability Services Coordinators
Wisconsin Council on Developmental Disabilities
Mental Health Coordinators
Wisconsin Alliance for the Mentally III
Wisconsin Coalition for Advocacy
Assistant Attorney General Bruce Olsen
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