DDES Numbered Memo Series 2007-01
For: Area Administrators/Human Services Area Coordinators
DDES Bureau / Office Directors
County Corporation Counsels
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
Developmental Disability Services Coordinators
Mental Health Coordinators
Mental Health Institutes
Substance Abuse Coordinators
Tribal Chairperson/Human Services Facilitators
From: Sinikka Santala
Division of Disability and Elder Services
This Memo Series contains the criteria (statutory and policy) to make a
determination of the county of residency of persons age 18 years and older
in need of services under Chapters 46, 51, and 55. The county of residency
is the county responsible to provide the services to the individual.
Residency determinations issued by the Department of Health and Family
) will be based on the criteria herein, on other applicable
statutes, and on precedents established in other formal DHS
determinations and court decisions. The criteria in this Memo Series apply
to residency determinations made pursuant to s. 51.40, stats. and
administrative residency determinations. This memo was previously issued
as DCS Memo Series 95-28.
Wisconsin Department Of Health and Family Services
TABLE OF CONTENTS
|Intent and Scope
|Section 51.40 Residency Determinations
|Administrative Residency Determinations
|Requesting a Residency Determination
|Definition of Legal Residency in Wisconsin
Intent to Remain
Place of Fixed Habitation
|II. DETERMINING RESIDENCY PURSUANT TO SECTION
51.40, WIS. STATS.
|Application and Basic Provisions of Section 51.40,
Placement by a County
Guardian's Authority to Declare Residency
|Change of Venue
|III. ADMINISTRATIVE RESIDENCY DETERMINATIONS (Not
covered by 51.40 Wis Stats)
|County Responsibility to Provide Services
|County Responsibilities: Commitments and Admissions
|Service Referrals to Other Counties
Definition of "Competent"
Residency for Competent Adults
|Determining Residency for Persons Who are Adjudicated
Persons in State Facilities
Juveniles in Congregate Care Facilities
Adults in Congregate Care Facilities
Residents in Large Extended Care and
|Admission of Non-Wisconsin Residents to Nursing Homes
and Other Facilities
|IV. MECHANISMS TO RESOLVE DISPUTES
|Formal Residency Request Process
|Change of Venue
|Emergency Detentions and County Mandated Services
|State Institution Referrals and Releases
|CENTRAL OFFICE CONTACT
A. Intent and Scope
The Residency Manual contains the criteria (statutory and policy) to
make a determination of the county of residency of persons age 18 years
and older in need of services under Chapters 46, 51, and 55. The county of
residency is the county responsible to provide the services to the
individual. Residency determinations issued by the Department of Health
and Family Services (DHS
) will be based on the criteria herein, on other
applicable statutes, and on precedents established in other formal DHS
residency determinations and court decisions. The criteria in this Memo
Series apply to residency determinations made pursuant to s. 51.40, stats.
and administrative residency determinations. This memo was previously
issued as DCS Memo Series 95-28.
B. Section 51.40 Residency Determinations
This policy applies to s. 51.40 residency determinations for persons
who are age 18 or older and who have a developmental disability, serious
and persistent mental illness, degenerative brain disorder, or other like
capacity who are living in any facility. The roots of s. 51.40 go back to
1974 when county 51.42/437 agencies were first created statewide and the
present definition of residency was applied. This represented a departure
from the concept of "legal settlement", which required county
governments to provide funding for individuals for up to a year after they
C. Administrative Residency Determinations
This policy also applies to administrative residency determinations
(when s. 51.40 does not apply), and reflects the criteria for making those
decisions originally published in Memo Series 86-76, and later republished
in Memo Series 95-28. Some updates in the criteria have been made where
appropriate. The criteria for Administrative residency determinations was
developed by a Central Office Project Experience (COPE) Committee
appointed by the then Secretary of the Department of Health and Family
Services. Participants on this committee consisted of county
representatives, client advocacy groups and state representatives to
recommend a policy to more equitably resolve county responsibility for
funding human services in situations where s. 51.40 does not apply. The
criteria that resulted from that effort are incorporated in this Memo
D. Requesting a Residency Determination
The individual in question, an interested person on behalf of the
individual, or any county agency may make a request to the Department for
a formal residency determination. The county should indicate whether the
request is for a s.51.40 or an administrative residency determination, if
E. Definitions - See Appendix at the end of this Memo Series for
F. Definition of Legal Residency in Wisconsin
Section 51.40, Stats., specifies for certain individuals the point in
time when the determination of the individual's residence will be made and
who will make that determination.
For those persons who are covered by s. 51.40, the authority of the
guardian to express the individual's intent to reside somewhere is limited
by s. 51.40(2)(f) (See II.B.5. on page 8 for further information on
guardian's right to determine county of residence)
With the exceptions noted below in this paragraph, county agencies
under Chapter 46, 51 and 55, are responsible for providing services to
legal residents of their county. The only exceptions to the principles of
county responsibility based upon a client's legal residence are for
emergency services under Chapter 51 and 55 based upon the
"found" principle, [see sections 51.42(1)(b) and 51.437(4)(c)],
and emergency services and other Chapter 48 services ordered by the
juvenile court to be provided by the agency which is appointed as legal
custodian of a child [see sections 48.02(12), 48.57(1)(a) and (b) and
Legal residence is defined in sections 49.001(6), 49.001(8), 51.01(14)
and 51.42(1)(b) as follows:
- Section 49.001(6). "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.
- Section 49.001(8). "Voluntary means according to an
individual's free choice, if competent, or by choice of his or her
guardian if the individual is adjudicated incompetent.
There are four criteria in the statutory definition of "legal
- (1) Physical presence within the state/county.
- Physical presence must be (2) voluntary on the part of the
individual, or by choice of the person's legal guardian appointed by a
court under ch. 880, Wis. Stats. (Note that guardianship court orders
issued in another state are honored in Wisconsin.)
- The individual has the (3) intent to remain in (4) a place
of fixed habitation within the state/county.
All of these four criteria must occur simultaneously. If any one or
more of the four criteria do not simultaneously apply to a person, legal
residency is not established.
1. Physical Presence
Physical presence in a county creates a rebuttable presumption that
the individual intends to reside there. This presumption can be overcome
by a preponderance of evidence to the contrary, such as the individual's
expressed intent to reside elsewhere. The intent must have existed when
the individual was physically present in the other county. The physical
presence presumption places the burden on the county where the
individual is located. If the individual is covered by s. 51.40, the
wording of some provisions in that section overcomes the physical
The simultaneous concurrence of all four criteria must be voluntary
on the part of the person or his or her legal guardian. Examples of
physical presence not being voluntary include, but are not limited to,
placement pursuant to a court order such as a protective placement
order, or placement pursuant to the conditions of probation or parole
Placement for care or treatment by a county 51.42/437 department to
another jurisdiction does not change the individual's legal residence
while the individual is receiving care or treatment. See s. 51.22(4) and
3. Intent to Remain
Intent to remain has been interpreted to mean "to live in that
county for the foreseeable future." A person, or his or her
guardian on behalf of their ward, must have the intent to remain, for
the foreseeable future, in the county where he or she is physically
present. Generally, intent to remain may be expressed verbally by the
individual or his or her guardian. However, a written expression of
intent by a person's legal guardian is preferable when the person has a
legal guardian and the person's county of residency is in dispute.
No specific time period must have elapsed to establish the intent to
remain for Wisconsin residency. Situations such as, but not limited to,
seasonal employment in Wisconsin, an extended vacation, temporarily
caring for a sick relative / friend, or for educational / training
purposes do not alone qualify as having the intent to remain. Other
facts that may be considered as indicators of intent include the
location from which the individual files tax returns, or maintains
financial accounts, or has a driver's license, or votes, for example.
4. Place of Fixed Habitation
Examples of a place of fixed habitation include a home, apartment,
condominium, residential hotel or a mobile home (fixed on a site). It
also may include a nursing home, CBRF or other supervised residential
facility when the person intends to live there for the foreseeable
future because he or she has long term care needs and the services of
the facility are needed to meet those needs. A motel, hotel (except a
residential hotel), or rooming house are generally not considered places
of fixed habitation. However, in limited situations a motel, hotel or
rooming house may be considered a place of fixed habitation if the
person lives there voluntarily and intends to remain there for the
A place of fixed habitation does not include a car or other motorized
vehicle because it is not a fixed habitation. Nor does it include an
emergency shelter for the homeless because it is by definition a
temporary shelter, a shelter for victims of domestic abuse, or a nursing
home, CBRF or other supervised residential facility where a person's
stay is temporary to address acute care needs.
When all four criteria are met simultaneously, the person becomes a
resident of the State of Wisconsin and the respective county where there
is concurrence of physical presence. There is no waiting period before a
person establishes legal residency in Wisconsin.
Once a person establishes legal residency in a Wisconsin county, he or
she does not lose that residency until he or she establishes legal
residency in another Wisconsin County or in another state. Even in extreme
situations where a person has been homeless, perhaps for years, he or she
retains their legal residency in the county and state where they last
established legal residency before becoming homeless.
II. DETERMINING RESIDENCY PURSUANT TO SECTION 51.40, WISCONSIN
A. Application and Basic Provisions of Section 51.40, Wis. Stats.
Section 51.40 applies only to a determination of residency for persons
who are 18 years old or older and who have a developmental disability,
serious and persistent mental illness, degenerative brain disorder, or
other like capacity, who are living in any facility.
Section 51.40 identifies five main methods to determine residency for
persons identified above:
- Court ordered commitment, protective placement or protective
- Placement by a county.
- Individuals in State facilities.
- Individuals in nursing homes.
1) Admitted prior to 12/1/06.
2) Admitted on or after 12/1/06.
- Guardian's intent
Each of these will be addressed in detail.
Section 51.40 does not apply to:
- Other residents in a facility who do not have a developmental
disability, a serious and persistent mental illness, degenerative
brain disorder or other like incapacity.
- Persons under age 18.
For persons not covered by s. 51.40, the determination of legal
residence is based upon the definition of residence per s. 49.001(6) and
(8) discussed in Section CC below entitled Administrative Residency
2. Basic Provisions of s. 51.40
- The criteria for determining legal residency based on s. 51.01(14)
and 49.001(6) and (8), are applied in many s. 51.40 determinations.
- Several paragraphs in s. 51.40 set a point in time at which an
individual's residence is conclusively established. See s.
51.40(2)(b)1 and (b)2.ag., bg., eg., and fg
- Other paragraphs determine who can make the determination (e.g., the
guardian). See s. 51.40(2) (f) and s. 51.40(2)(b)cg. (if person is in
a nursing home).
- Still other paragraphs cite court (legal) actions or county agency
actions as determinative. See s. 51.40(2)(a) 1. and 2.
- For those cases where a specific point in time is not solely
determinative, the statutes refer to ". . . the county in which
the individual has (or had) residence at a specific time." Thus,
careful analysis of s. 49.001(6) and (8) as it applies to s. 51.40 is
- Section 51.40 applies to both competent persons as well as those
adjudicated incompetent under Chapter 880.
- The definition of "mental illness", s. 51.10(13), is
broader than the definition of "chronic mental illness", s.
51.01(3g). Section 51.40 only applies to residency determinations of
persons with a serious and persistent mental illness, a developmental
disability, degenerative brain disorder, or other like capacity in a
B. Determination Criteria
Subsection 51.40(2), "Determination of Residence" specifies
the conditions and circumstances to make decisions.
1. Court Commitment
Subdivision 51.40(2)(a)1. states, that if a person is under a court
ordered commitment under Ch. 51, or a protective placement or protective
services under Ch. 55, the individual remains a resident of the county
where he/she resided 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 where the court is located. After notice,
including notice to the corporation counsel of each affected county by
certified mail, after an 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, a
county or party may request the department to make a determination. Any
transfer of venue may be suspended until the department's determination
Pre-Lessard (prior to 1974) Ch. 51 commitments without an "order
for discharge" or "termination of services" can still
form the basis for determining residency.
2. Placement by a County
Subdivision 51.40(2)(a)2, "Placement by a County". Except
for the provision of emergency services, if a county department or an
agency of the county department places or makes arrangements for
placement of the individual into a facility, the sending county is the
person's county of residence.
Any agency of the county department is deemed to be acting on behalf
of the county in placing or making arrangements for placement. Placement
of an individual by 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
Ch. 51, 54 or 55 without becoming the individual's county of residence.
3. State Facilities
Subdivision 51.40(2)(b)1, "Individuals in State
Facilities", states, "An individual who is in a state facility
is a resident of the county in which he/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."
4. 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:
a. Admissions after December 1, 2006:
Subdivision 51.40(2)(b) 2, "Individuals in Nursing Homes",
states "An individual who was admitted under 50.04 (2r) after
December 1, 2006, is a resident of the county which approved the
admission under s. 50.04(2r)."
b. Admissions prior to December 1, 2006:
- An individual in a nursing home on December 1, 2006, is a resident
of the county in which they are physically present, i.e., the county
in which the nursing home is located unless another county accepts the
individual as a resident.
- If the individual had established residence in another county prior
to entering the nursing home; the individual (or guardian) indicates
an intent to return to that county when the purpose of entering the
nursing home has been accomplished or when needed care and services
are available in the that county; and the individual, or the guardian,
has made no clearly documented expression to a court or a county
department of an intent to establish residence elsewhere since leaving
that county, the individual is a resident of that county.
- 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.
- 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. Although not specifically referenced in
s. 51.40, the provision of Chapter 49, "Income Maintenance
Services" does apply per s. 46.22(1)(b), "County Social
Services, Powers and Duties." However, application for a Medical
Assistance card does not, in and of itself, determine residency
because eligibility is frequently determined in the county where the
person is placed, not necessarily their county of residence.
- If the individual is incapable of indicating intent; 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
where the individual had residence prior to entering a nursing home or
state facility, the individual is a resident of that county.
c. For the procedures regarding the admission of non-Wisconsin
residents suspected of being incompetent into nursing homes in Wisconsin
resulting from the U.S. Court of Appeals decision effective August 21,
1997, involving Bethesda Lutheran Homes and Services and this Department,
see section "VI" on page 12.
5. Guardian's Authority to Declare County of Residence
A guardian may declare any of the following, under any of the following
- The ward is a resident of the guardian's county of residence, if
Section B. 1 and 2, Directed Placement, and 3 and 4, Individuals in
State Facilities and Nursing Homes, 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.
- The ward is a resident of the county in which the ward is physically
present, if Section B. 1 through 4 do not apply and if all of the
- The ward's presence in the county is voluntary.
- There is no current order under ch. 55 in effect with respect to
the ward, and the ward is not under any involuntary commitment
order to the department of corrections or to a county other than
the county in which the ward is physically present.
- The ward is living in a place of fixed habitation.
- The guardian states in writing that it is the ward's intent to
remain in the county for the foreseeable future.
- 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 Section B. 1 through 4 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.
Note: The rights of a guardian to affect the placement of a ward are
limited if the ward is covered by s. 51.40. These restrictions were placed
into law to specifically provide added protection to this vulnerable
C. Change of Venue
An individual, an interested person on behalf of an individual, or any
county may request that the department make a determination of the county
responsibility of an individual. Any motion for change of venue pending
before the court of jurisdiction may be stayed until the determination 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 individuals' immediate
family, if they can be located; and all potentially responsible counties
that a determination of county 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.
When a county court is considering a change of venue, the county to
which the venue is to be transferred must be notified. This notification
shall allow sufficient time for the county to which venue may be
transferred to become aware of the facts of the case and to present their
own case. For Chapter 55 cases, thirty days is considered a reasonable
period of time. Chapter 51 cases must be acted on within 14 days;
therefore, 7 days is considered a reasonable period of time.
III. ADMINISTRATIVE RESIDENCY DETERMINATIONS (Not covered by 51.40 Wis
A. County Responsibility to Provide Services
Sections 51.42, 51.437 and 46.23 state that county social services
departments and community boards are required by law to provide services
to the residents of their counties within available State, Federal and
local match dollars. The county board of supervisors has the primary
responsibility for the care, treatment and well-being of individuals with
a mentally illness, developmentally disability, and/or substance abuse
issues residing within its county, and for ensuring individuals in need of
emergency services found within its county receive immediate care. County
liability for care and services is based upon the individual's county of
residence, except for emergency services under Chapter 51 where fiscal
responsibility is based on the "found" principle. In emergency
cases, fiscal liability is limited to 72 hours (plus intervening weekends
and legal holidays) of care and services. [See DSL Memo Series 2002-19,
"Emergency Detention Services for Non-Wisconsin Residents and
Procedures for Reimbursement Authorization", and ss. 51.42(1)(b), and
B. County Responsibilities: Commitments and Admissions
Section 51.22 addresses commitments to and responsibilities of
51.42/437 boards. Except for inmates committed to the Department per s.
51.20(13)(a)4 and (5), persons committed under Chapter 51 shall be
committed to the county department under 51.42 or 51.437 serving the
person's county of residence. Likewise, voluntary admissions under s.
s. 51.13 (minors), and s. 51.45 (alcoholism) are made through the
51.42/437 department serving the person's county of residence. The county
shall authorize placement in an appropriate facility for care, custody and
The county board to which the person is committed shall provide the
least restrictive treatment alternative appropriate to the individual's
needs, and guide the person's movement through all appropriate and
necessary treatment components to assure continuity of care per s.
Admissions through counties are made in accordance with s. 51.42(3)(as)
or s. 51.437(4rm)(a). Non-Wisconsin residents are admitted through DHS
accordance with s. 51.22(3).
C. Service Referrals to Other Counties
To facilitate the provision of needed and appropriate Chapter 51
services, and recognizing that certain services are located in counties
other than the individual's county of residence, the following procedures
- When a resident of one county is placed in an institutional or
residential facility such as a CBRF or Adult Family Home in another
county, the referring county remains liable for the cost of authorized
services stipulated in an intercounty agreement [see s. 51.22(4)]. The
county in which the facility is located shall be notified in advance
of the anticipated placement and participate in the planning. The
placement does not transfer the person's legal residence to the county
where the facility is located. The placement may be voluntary or as
part of a commitment order.
- The inter-county agreement should anticipate the potential for the
individual to remain in the receiving county after the contracted
services are no longer needed, as determined by the placing county.
The placing county may discharge the individual from commitment or, if
placed voluntarily, the individual may, at any time, choose to remain
in the county where the facility is located.
However, when a person voluntarily moves to another county while under
involuntary outpatient civil commitment to a county, and the person
remains a proper subject of continued commitment and supervision under
s. 51.20, the county to which the person is civilly committed retains
responsibility for the person's services and supervision until court
venue for the person is transferred to the receiving county or until
the person is no longer a proper subject of continued commitment under
s. 51.20. There is no provision in statute that authorizes discharge
of a person's involuntary civil commitment when he or she continues to
be a proper subject of commitment and supervision.
- If the receiving county disputes the individual's competency to
choose to remain, or the receiving county disputes the sending
county's discharge criteria, informal negotiations between the
counties are to be pursued. If agreement cannot be reached, a request
to the DHS
for a formal residency determination should be initiated.
1. Definition of "Competent"
For the purpose of obtaining human services, a person shall be
presumed to be competent to choose where he or she wishes to reside,
unless the person has been adjudicated incompetent. In this policy,
"presumed" means. . ."having grounds for a reasonable
belief." This presumption of belief shall prevail unless it is
proven to be untrue.
2. Determining Competency
The following procedures shall be used to determine a person's
- The two counties involved shall jointly assess the individual's
competency, level of independent decision-making, and wishes.
- If the counties agree that the individual can make a competent,
independent decision regarding where to reside, the individual's
decision shall prevail unless otherwise determined by statute or court
- If counties cannot agree on the individual's competency, either
county may initiate a petition to determine competency under Chapter
54. Definitions of "incompetent," "degenerative brain
disorder" and "incapacity" are included in the
3. Residency for Competent Adults
Competent adults who chose to enter a facility within their county of
residence may do so if they meet the admission requirements. Competent
adults who choose to move from other counties or states and voluntarily
admit themselves to a facility for congregate care with intent to
establish residency are considered residents of the county in which the
facility is located. In both cases, counties are responsible to provide
or contract for services for these residents, if and when they need
"Congregate care" includes any care and treatment facility
owned and operated by the State of Wisconsin, the Federal government (VA
Hospitals), or any county or municipality. It also includes non-publicly
owned facilities such as Adult Family Homes, Community-Based Residential
Facilities (CBRFs), Nursing Homes, Residential Care Apartment Complexes,
and other like facilities.
E. Determining Residency for Persons Who are Adjudicated Incompetent
Subsection 54.30(2) allows the court to appoint a guardian of anyone
subject to guardianship who is a resident of the county, or physically
present in a county, and for non residence of Wisconsin under certain
circumstances. Subsection 54.30(3) states that the court in which the
petition is first filed shall determine venue.
If the counties agree that the person is not competent to indicate a
firm residency decision, and there is a finding of incompetence under Ch.
54, the following residency rules shall apply.
1. Persons in State Facilities
Persons who do not meet the criteria of s.51.40 (see page 3), and who
are currently institutionalized in a state-operated facility, shall be
presumed to be residents of the county which is fiscally responsible for
that individual as indicated on institutional records and commitment
orders. If such documentation does not exist, then the county where the
person had established residency at the time he or she was admitted to
the state-operated facility is the county of responsibility.
2. Juveniles in Congregate Care Facilities
Juveniles who reside in a facility for congregate care shall be
presumed to be residents of the county in which their custodial parent
resides or, if they are subject to guardianship or legal custody by a
public agency, the county in which they last resided prior to entering a
facility. It is common (case) law that a minor's residence follows that
of his/her parent. This principle is nationally recognized. Section
49.001(6) and (8) defining residency applies to the parent and thus the
3. Adults in Congregate Care Facilities
Adults who reside or are placed in a facility for congregate care
shall be presumed to be residents of the county in which they last
resided prior to entering the facility. The admission records of the
facility shall indicate the county of residence when the placement
occurred. Completion of a DDE-822 form is required for admission of a
person with a developmental disability and a person with a mental
illness to a nursing home, an ICF/MR, or an IMD. There are, however,
placements from another facility and/or county or state where the
"receiving" county was not involved in the placement. An
example is a transfer from a VA hospital to a VA-contracted CBRF. These
residency determinations are problematic and must be addressed
4. Residents in Large Extended Care and Inpatient Settings
The Department recognizes that counties with large inpatient
facilities can become magnet counties. The majority of residents in
these facilities (ICFs/MR, Veteran's Hospitals, Inpatient Psychiatric
Hospitals and State Facilities) are from other states or counties. These
facilities are under pressure to place their residents in less
restrictive settings in the community, thus the need to determine the
individual's county of residence and fiscal responsibility. Many
long-term residents do not have a home county, or there is at best a
sketchy pre-admission history. Prior to 1974, the term "legal
settlement" was used on Institution Admission records. While this
phrase does not establish county of residence, it may be used in
conjunction with other records to establish residency in these cases.
When there is no easily identifiable county of residence, as a matter
of courtesy and expediency, the "host" county and court may
attempt to clarify the person's county of residence, perform an annual
WATTS review or perform guardianship proceedings. These actions in and
of themselves do not necessarily mean the county is fiscally
responsible. Because a facility is located in a county does not mean the
residents in the facility are the fiscal responsibility of the county
unless they were county residents prior to entering the facility (or
unless s. 51.40(2)(f), "Exception: county of guardian's
Residence," applies). However, if a resident of a facility requires
a Ch. 51 commitment, or a Ch. 55 protective placement, the county,
through its Corporation Counsel, should ensure the individual's county
of residence is clearly stipulated.
5. Guardian's Rights
- The guardian can authorize admission of his or her ward to a foster
home, group home, or CBRF with 15 or fewer beds without court
involvement (see 55.055(1) and 50.06).
- If the admission is not primarily for treatment of the mental
illness or developmental disability the guardian may authorize
admission to a nursing home for an initial period of 60 days without
court involvement (see 55.55(1)(b).
[The following in c. d. and e. are based upon the definition of
residence in sections 49.001(6) and 51.01(14) and court law. This does
not apply to situations covered by section 51.40]
- A guardian may make a written declaration that his or her ward's
county of residence is the county where the ward is physically present
if all of the following apply:
- The ward's presence in the county is voluntary; and
- The ward is residing in a place of fixed habitation; and
- The guardian states in writing that it is his or her ward's
intent to remain in that county for the foreseeable future.
- A guardian may make a written declaration that his or her ward is a
resident of the guardian's county of residence if either of the
- The ward is living in a place of fixed habitation located in the
guardian's county of residence; or
- The guardian states in writing that his or her ward is expected
to return to the guardian's county of residence when any of the
- The ward is living in a congregate care facility in another
county and the purpose of the ward's entering the facility has
or will be accomplished in the foreseeable future; or
- When the care and services needed by the ward become
available in the guardian's county of residence.
- 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 that the individual has been placed by a county
agency in a facility or a resident of a state facility:
- If in the ward's best interest, the guardian files with the
probate court having jurisdiction of the guardian 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 shall be sent to the
corporation counsel of each affected county by certified mail.
F. Admission of Non-Wisconsin Residents to Nursing Homes and Other
For many years, it was often very difficult for persons living in other
states to be admitted to nursing homes and other facilities in Wisconsin,
particularly when they might later need community services. In 1997, the
U.S. Court of Appeals in Chicago held that Wisconsin statutes imposed an
unconstitutional barrier on disabled persons who wanted to be admitted to
facilities in Wisconsin. See Bethesda Lutheran Homes v. State DHS
Jefferson County, August 21, 1997, 122 F.3rd 443, 7th Circuit.
In 2005, the Wisconsin Supreme Court issued a decision addressing
similar issues in the case entitled In the Matter of the Guardianship
of Jane E. P., July 7, 2005, reported at 2005 WI 106. The Supreme
Court adopted specific procedures enabling guardians to transfer
guardianship cases from other states (these are called "foreign
guardianships") to Wisconsin courts, and to process petitions for
protective placement of the guardians' wards into facilities for treatment
By passage of 2005 Wisconsin Act 387, the Wisconsin Legislature adopted
(with slight modification) the July 7, 2005, decision of the Wisconsin
Supreme Court in the Jane E.P. case cited above. These new statutes
appear in sections 54.30(1), 54.34(3), and 54.38(1m), Wis. Stats. They are
effective beginning December 1, 2006.
The petition for guardianship and protective placement in Wisconsin
must include a certified copy of certain guardianship papers and other
information from the court in the other state. These court procedures are
quite complex. Wisconsin county agencies involved in cases of this nature
should consult the County Corporation Counsel Office.
Wisconsin County Departments of Human Services, Social Service,
Community Programs and Development 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), Stats. (Originally published in
INFO MEMO 97-19).
has also established policy and funding for non-Wisconsin
residents who are placed under a Chapter 51.15, Emergency Detention, in an
approved psychiatric inpatient program. Please refer to DDES Numbered Memo
2002-19 for further instructions on the handling of these cases and the
application for funding.
IV. MECHANISMS TO RESOLVE DISPUTES
A. Informal Mechanisms
- Counties must first attempt to resolve residency disputes
- In lieu of submitting a contested matter to the Division of
Disability and Elder Services (DDES), counties may agree to submit the
matter to a peer review group composed of three other county
directors. Each disputing county shall select one county for the
review group and those two shall select the third. These directors
shall review the dispute and make a binding decision. The decision
shall be transmitted to the DDES Administrator. Any cost related to
the peer review process shall be charged to the county determined to
be responsible under this procedure.
B. Formal Residency Request Process
- 1. Per s. 51.40(2)(g)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." This should occur only after the affected counties
attempt to resolve the matter informally. Requests should be submitted
in writing to:
Department of Health Services
- The letter should state the basis for the request, the statutory
authority to request a residency determination [s. 51.40(2)(g)],
background information about the individual and his or her family and
documentation that the counties and other interested parties have
attempted informally to resolve the dispute. The letter should also
identify (names, addresses and phone numbers) all potentially
interested parties including other county agencies, congregate living
facilities where the person has lived, if any, other family members,
and the guardian, if any.
- Within 10 business days after receiving the request, the Residency
Determination Facilitator will provide written notice of the request
to all interested parties and request background information about the
person and his or her family. The letter will state that the
department will make a determination of the county of responsibility.
To assist counties, a copy of the request will be sent to the County
- Written information and comments must be submitted to the Residency
Determination Facilitator within 30 business days after the date of
the notice. County agencies and other service providers may,
pursuant to s. 51.30 (4) (b) 5, stats., send confidential treatment
information to the Department's Residency Determination Facilitator
without informed written consent of the client or their guardian.
- The Residency Determination Facilitator will review the information
submitted and "make such investigations as he or she deems
necessary." The Residency Determination Facilitator may request
additional information and institution / facility / county agency
- The Residency Determination Facilitator will draft a residency
determination that is reviewed by the DHS
Office of Legal Counsel.
Within 30 days after the period for submitting information, the DDES
Administrator will issue a written decision.
- The decision will be addressed to the party who requested the
decision, and a copy will be sent to all other interested parties.
- The decision may be appealed under s. 227.44 by the county
determined to be the county of responsibility.
- While the decision is pending, the county department, which has been
providing services to the individual, shall continue to provide
necessary services to the person.
- If no county is currently providing services, the county in which
the individual is physically present shall provide necessary services
pending the determination.
- A determination by the department may provide for a period of
transitional services to assure continuity of services. The transition
period shall clearly state the beginning and ending dates and
responsible counties by specifying a date until which the county
department, which has been providing services, shall continue to do
- The formal residency determination of the department is binding on
the county determined to have responsibility for the person. Unless
noted in the determination letter, the county determined to be the
county of responsibility shall assume responsibility immediately
following receipt of the determination and during any pending appeal
brought under Chapter 227. If a county does not comply with the
finding, the Department, a county, the individual's guardian, or a
facility providing services may go to court for an order to enforce
the legal determination.
- If the county of responsibility or the county where the person is
physically present refuse to cooperate, the facility, relatives or
potential guardians may initiate a petition for guardianship based on
s. 880.08, or as otherwise appropriate, for the purpose of determining
- The department shall have the final authority to decide
responsibility for funding and provision of services.
C. Private Placements
There are occasions when private attorneys' request residency
determinations without first consulting the county. These requests may be
in response to placements in facilities without county knowledge. To
minimize these types of placements, the county agency and the corporation
counsel should establish a system of notification with the Probate Court
so they will be informed up front of such requests. Likewise, county
agencies need to make residential care facilities aware of the requirement
to complete necessary paperwork and receive county approval prior to
accepting the person for placement.
D. Change of Venue
When a county is considering a change of court venue, the county to
which the venue is to be changed must be notified. This notification shall
allow sufficient time for the county to which venue may be changed to
become involved with the facts of the case and to present their own case.
E. Adjustment Period
When a person or guardian decides that the person will remain in the
receiving (service) county, and when appropriate or similar services are
not available in the referring county, or when the referring county agrees
with the plan, there shall be a plan for an adjustment period to allow the
receiving (service) county to assume the cost and provision of services.
In anticipation of this, receiving counties should negotiate adjustment
period provisions with the sending county. If incorporated into the
original contract, clear fiscal responsibility will be established if an
adjustment period is needed. Both counties involved must agree to the
adjustment plan, which shall be in effect for not less than three months
or more than twelve months. If two counties agree that it is in the best
interest of the person to extend services beyond one year, the agreement
must be renegotiated.
Most counties have waiting lists for services. This will impact on the
need for out-of-county referrals and the availability of services in other
counties. In all cases, residency must be clearly documented.
F. Emergency Detentions and County Mandated Services
Persons who are in need of emergency services shall be provided such
services by the county in which the person is present. Circumstances may
result in detentions that frequently lead to Chapter 51 commitments. In
all these proceedings, determining the county of residence is important.
The County Circuit Court where the facility is located or where the person
is detained usually processes the paperwork. A court action in a county
does not, in and of itself, mean that the county where the court is
located is the county of fiscal responsibility.
G. State Institution Referrals and Releases
Prior to release of a person institutionalized in a State facility,
both the county where the placement is to occur and the county of fiscal
responsibility must be advised and participate in planning. The county
agency under s. 51.42 or 51.437 to which the person is committed must
approve the discharge. The fiscally responsible county / county of
residence, as indicated by institutional records, shall be responsible for
the cost of service. Each State facility shall notify the appropriate
Chapter 51 Board whenever there is a transfer that may affect that Board.
CENTRAL OFFICE CONTACT:
MEMO WEB SITE: http://www.dhs.wisconsin.gov/dsl_info/
cc Disability Rights Wisconsin
DDES Client Rights Office
The following definitions are specifically listed in subsection
51.40(1). They apply only to residency determinations that are covered by
51.40(1)(a) "Agency of a county department" means a
public or private organization with which a county department contracts
for provision of services under Chapters 46, 51, or 55.
51.40(1)(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
51.40(1)(c) "Capable of indicating intent" means able
to express by words or other means an informed choice of a place to live.
51.40(1)(d) "County department" means a county
department under ss. 46.23, 51.42 or 51.437, Wis. Stats.
51.40(1)(e) "County of responsibility" means the
county responsible for funding the provision of services under Chapter 46
or 55 to an individual. (Chapter 46 includes numerous references to
Chapter 51 services and therefore a particular reference to Chapter 51 is
not included in this definition.)
54.01 (6) "Degenerative Brain Disorder" means the loss
or dysfunction of an individual's brain cells to the extent that he or she
is substantially impaired in his or her ability to provide adequately for
his or her own care or custody or to manage adequately his or her property
or financial affairs.
51.40(1)(f) "Guardian" means a guardian of the person
appointed by a court under Chapter 54, Wis. Stats.
51.40(1)(g) "Incapable of indicating intent" means one
of the following:
- The status of an individual who has had a guardian appointed under
Chapter 880, unless the court made a specific finding under Section
880.33(3) that the individual is competent to make an informed choice
of a place to live.
- 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.
54.01(15) "Incapacity" means the inability of an
individual effectively to receive and evaluate information or to make or
communicate a decision with respect to the exercise of a right or power.
54.01(16) "Individual found incompetent" means an
individual who has been adjudicated by a court as meeting the requirements
of s. 54.10(3).
51.40(1)(h) "Nursing home" has the meaning specified
under ss. 50.01(3), except that "nursing home" does not include
a facility that is operated directed by the department.
Other definitions relevant to residency determinations are:
50.01(3) "Nursing home" means a place which provides
24-hour services including board and room to 3 or more unrelated residents
who because of their mental or physical condition require nursing care or
personal care in excess of 7 hours per week.
51.40(1)(i) "Parent" has the meaning specified under
s. 48.02(13), "Parent" means either a biological parent, a
husband who has consented to the artificial insemination of his wife under
s. 891.40, or a parent by adoption. If the child is a non-marital child
who is not adopted or whose parents do not subsequently intermarry under
s. 676.60, "parent" includes a person adjudged in a judicial
proceeding to be the biological father. "Parent" does not
include any person whose parental rights have been terminated.
51.40(1)(j) "State facility" means a state mental
health institute, center for the developmentally disabled, or prison as
specified in s. 302.01, or a facility that is operated directly by the
Department of Health and Family Services (DHS
) or the Department of
51.01(5)(a) "Developmental disability" means a
disability attributable to brain injury, cerebral palsy, epilepsy, autism,
mental retardation, or another neurological condition closely related to
mental retardation or requiring treatment similar to that required for
mental retardation, which has continued or can be expected to continue
indefinitely and constitutes a substantial handicap to the afflicted
individual. "Developmental disability" does not include senility
which is primarily caused by the process of aging or the infirmities of
51.01(5)(b) "Developmental disability" for the
purposes of involuntary commitment, does not include cerebral palsy or
51.01(3)(g) "Serious and persistent mental illness"
means a mental illness which is severe in degree and persistent in
duration, which causes a substantially diminished level of functioning in
the primary aspects of daily living and an inability to cope with the
ordinary demands of life, which may lead to an inability to maintain
stable adjustment and independent functioning without long-term treatment
and support and which may be of lifelong duration. "Serious and
persistent mental illness" includes schizophrenia as well as a wide
spectrum of psychotic and other severely disabling psychiatric diagnostic
categories, but does not include infirmities of aging or a primary
diagnosis of mental retardation or of alcohol or drug dependence.
880.01(4) "Incompetent" means a person adjudicated by
a court of record to be substantially incapable of managing his property
or caring for himself by reason of infirmities of aging, developmental
disabilities, or other like incapacities. Physical disability without
mental incapacity is not sufficient to establish incompetence.
54.01(17) "Interested person" means any adult relative
or friend of a person to be protected under this subchapter, or any
official or representative of a public or private agency, corporation or
association concerned for his welfare.
49.001(6) "Legal 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
49.001(8) "Voluntary" means according to a person's
free choice, if competent, or by choice of a guardian if incompetent.
880.01(5) "Infirmities of aging" means organic brain
damage caused by advanced age or other physical degeneration in connection
therewith to the extent that the person so afflicted is substantially
impaired in his ability to adequately provide for his own care or custody
880.01(8) "Other like incapacities" means those
conditions incurred at any age which are the result of accident, organic
brain damage, mental or physical disability, continued consumption or
absorption of substances, producing a condition which substantially
impairs an individual from providing for his own care or custody.
51.20 "Involuntary commitment for treatment." The
basis for involuntary commitment included in definitions/criteria include:
51.20(1)(a)1 The individual is mentally ill, drug dependent, or
developmentally disabled and is a proper subject for treatment.
51.20(1)(a)2 The individual is dangerous because he or she does any
of the following:
- Evidences a substantial probability of physical harm to himself or
herself as manifested by evidence of recent threats of or attempts at
suicide or serious bodily harm . . .
- Evidences a substantial probability of physical harm to himself or
herself as manifested by evidence of recent homicidal or other violent
behavioral, or by evidence that others are placed in reasonable fear
of violent behavior and serious physical harm to them, as evidenced by
a recent overt act, attempt or threat to do serious physical harm. . .
- Evidences such impaired judgment, manifested by evidence of a
pattern of recent acts or omissions, that there is a substantial
probability of physical impairment or injury to himself or herself. .
- Evidences behavior manifested by recent acts or omissions that due
to mental illness, he or she is unable to satisfy basic needs for
nourishment, medical care, shelter or safety without prompt and
adequate treatment so that a substantial probability exists that
death, serious physical injury, serious physical debilitation or
serious physical disease will imminently ensue unless the individual
receives prompt and adequate treatment for this mental illness. . .
- Evidences, because of a mental illness, either the incapability of
expressing and understanding the advantages and disadvantages of
accepting medication or treatment and the alternatives . . . and
evidences a substantial probability, as demonstrated by both the
individual's treatment history and his or her recent acts or
omissions, that the individual needs care or treatment to prevent
further disability or deterioration. In addition, there is a
substantial probability that he or she will, if left untreated, lack
services necessary for his or her health or safety and suffer severe
mental, emotional or physical harm that will result in the loss of the
individual's ability to function independently in the community, or
the loss of cognitive or volitional control over his or her thought or
actions. . . (The so-called 5th Standard.)
51.01(1) "Alcoholic" means a person who is suffering
51.01(1m) "Alcoholism" is a disease which is
characterized by the dependency of a person on the drug alcohol, to the
extent that the person's health is substantially impaired or endangered or
his or her social or economic functioning is substantially disrupted.
51.01(2) "Approved treatment facility" means any
publicly or privately operated treatment facility or unit thereof approved
by the department for treatment of alcoholic, drug dependent, mentally ill
or developmentally disabled persons.
51.01(2g)(a) "Brain injury" means an injury to the
brain, regardless of age at onset, whether mechanical or infectious in
origin, including brain trauma, brain damage and traumatic head injury,
the results of which are expected to continue indefinitely, which
constitutes a substantial handicap to the individual, and which directly
results in any 2 or more of the following:
- Attention impairment.
- Cognition impairment.
- Language impairment.
- Memory impairment
- Conduct disorder
- Motor disorder
- Any other neurological dysfunction
51.01(2g)(am) "Brain injury" includes any injury to
the brain under par (a) that is vascular in origin if received by a person
prior to his or her attaining the age of 22 years.
51.01(2g)(b) "Brain injury" does not include
alcoholism, Alzheimer's disease as specified under s. 46.87(1)(a) or the
infirmities of aging as specified under s. 55.01(3).
51.01(10) "Inpatient facility" means a public or
private hospital or unit of a hospital which has as its primary purpose
the diagnosis, treatment and rehabilitation of mental illness,
developmental disability, alcoholism or drug abuse and which provides
51.01(13)(a) "Mental illness" means mental disease to
such extent that a person so afflicted requires care and treatment for his
or her own welfare, or the welfare of others, or of the community.
51.01(13)(b) "Mental illness" for purposes of
involuntary commitment, means a substantial disorder of thought, mood,
perception, orientation, or memory which grossly impairs judgement,
behavior, capacity to recognize reality, or ability to meet the ordinary
demands of life, but does not include alcoholism.
Residency Manual, Chaps 3 & 4.doc
to Numbered Memos Index