DLTC Memo Series 2009-01
STATE OF WISCONSIN
Department of Health Services
Division of Long Term Care
DLTC Numbered Memo Series 2009-01
Date: January 9, 2009
Index Title: Disability Benefit Specialists: Elder
Adults/Adults-at-Risk Reporting Requirements
To: Listserv
From: Sinikka Santala, Administrator
For: Area Administrators / Human Services Area Coordinators
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
Area Agencies on Aging Executive Directors
Board on Aging and Long Term Care
County COP Coordinators
County Waiver Coordinators
County/Tribal Aging Unit Directors
Aging and Disability Resource Centers
Disability Benefit Specialists
Disability Rights Wisconsin - Disability Benefit Specialist Program Staff
Developmental Disabilities Coordinators
Long Term Support Coordinators
Lead Adult-at-Risk Agency Contacts
Lead Elder Adult-at-Risk Agency Contacts
DLTC Administrator
DLTC Bureau Directors
DLTC Facility Directors
DMHSAS Administrator
DMHSAS Bureau Directors
Subject: Disability Benefit Specialists: Elder Adults/Adults-at-Risk
Reporting Requirements
Document Summary
Wisconsin State Statutes 55.043(1m)(b) and 46.90(4)(ab)1, requires
reporting of abuse, financial exploitation, neglect or self-neglect in
some situations if the elder adult/adult at risk is seen in the course
of the person's professional duties (emphasis added). This memo
clarifies that Disability Benefit Specialists (DBS) are not limited
required reporters under Wisconsin State Statutes 55.043(1m)(b) and
46.90(4)(ab)1. Disability Benefit Specialists are not limited required
reporters because although some DBSs may hold a professional license
for example as a registered nurse (RN) or social worker (SW), they do not
see clients "in the course of the person's professional duties"
in their licensed capacity as a RN or SW. They are not employed to work as
a nurse or a social worker; they are employed as a disability benefit
specialist and are to fulfill those job responsibilities when seeing
clients in the course of their professional duties. While disability
benefits specialists are not limited required reporters, they do qualify
as permissive reporters of abuse, financial exploitation, neglect
or self-neglect of elder adults/adults at risk under Wisconsin state
statutes 55.043(1m)(br) and 46.90(4)(ar).
However, prior to November 3, 2008 the Family Care (FC) administrative
rule in HFS 10.23(2)(d)2 prevented DBSs from complying with the permissive
reporting clause without violating this provision of the administrative
code. To allow permissive reporting by disability benefit specialists, the
Department of Health Services issued an emergency rule effective November
3, 2008, which amends the Family Care rule on an emergency basis until a
permanent change can take place. Therefore, as of November 3, 2008,
disability benefit specialists may report abuse, financial
exploitation, neglect or self-neglect of elder adults/adults at risk under
Wisconsin state statutes 55.043(1m)(br) and 46.90(4)(ar) and not be in
violation of the FC administrative rule in HFS 10.
BACKGROUND
Effective December 1, 2006, Wisconsin Act 388 revised the reporting of,
and responses to, abuse, neglect and financial exploitation of adults at
risk (vulnerable adults age 18 and older) including elder adults at risk
(age 60 and up). The 2005 Wisconsin Act 388 reporting requirements
discussed in this memorandum apply to both "adults at risk" and
"elder adults at risk." For ease of reference, "adults
at risk" will be used to refer to both populations throughout
this memo.
REQUIRED REPORTERS
State statutes at 46.90(4)(ab)1. and 55.043(1m)(a)1. require that the
following persons file reports:
1. An employee of an entity regulated by DHS, such as nursing homes
and community-based residential facilities (See OQA Memo # 06-028,
November, 2006 available at http://www.dhs.wisconsin.gov/rl_dsl/Publications/06-028.htm
for additional information regarding entity employee reporting
requirements under 2005 Wisconsin Act 388). There is no specific list of
covered providers, but this should include at least the direct-care
entities covered by the caregiver misconduct system.
2. A health care provider as defined in s.155.01(7), which includes
nurses, chiropractors, dentists, physicians, physician assistants,
perfusionists, podiatrists, physical therapists, physical therapist
assistants, occupational therapists, occupational therapist assistants,
optometrists, and psychologists.
3. A social worker, professional counselor, or marriage and family
therapist certified under Ch. 457.
These individuals must report allegations of abuse, financial
exploitation, neglect or self-neglect if the adult at risk is seen in the
course of the person's licensed professional duties and one of the
following conditions is true:
- The adult at risk has requested the person to make the report.
Any professional must make a report if they are asked to do so.
- There is reasonable cause to believe that the adult at risk is at imminent
risk of serious bodily harm, death, sexual assault, or significant
property loss and is unable to make an informed judgment about
whether to report the risk. This second condition requires a concern
about future serious risk; it is not applicable to situations that
involve past incidents only.
- Other adults at risk are at risk of serious bodily harm,
death, sexual assault, or significant property loss inflicted by the
suspected perpetrator. This third condition applies to reporting
past abuse perpetrated on an adult-at-risk only if there is a
possibility of harm to others. For example, a specialized
transportation van driver allegedly sexually assaults a client. Once
any of the listed professionals are aware of the situation, they
must report the allegation because even if the client no longer uses
the transportation service, other adults at risk most likely would
be riding with that van driver in the future.
Not reporting is allowed in two instances:
- If the professional believes that filing the report would not be
in the best interest of the adult at risk and the professional
documents the reasons for this belief in the suspected victim's case
file.
- If a health care provider provides treatment by spiritual means
through prayer for healing in lieu of medical care in accordance
with his or her religious tradition, and his or her communications
with patients are required by his or her religious denomination to
be held confidential.
DISABILITY BENEFIT SPECIALISTS: ARE THEY REQUIRED REPORTERS OF ELDER
ADULTS/ADULTS-AT-RISK ABUSE, NEGLECT OR EXPLOITATION?
A question has been raised as to whether Disability Benefit Specialists
(DBSs) are to be considered limited required reporters under Wisconsin
State Statutes 55.043(1m)(b) and 46.90(4)(ab)1 when they hold a
professional license or credential either as a health care provider as
defined in s.155.01(7) or a social worker, professional counselor, or
marriage and family therapist certified under Ch. 457 (see above).
Although some DBSs may hold for example a professional license as a
registered nurse (RN) or social worker (SW), they do not see clients
"in the course of the person's professional duties" in their
licensed capacity as a RN or SW. They are not employed to work as a nurse
or a social worker; they are employed as a disability benefit specialist
and are to serve in that capacity when seeing clients. Therefore, a
disability benefit specialist is not a limited required reporter under
Wisconsin State Statutes 55.043(1m)(b) and 46.90(4)(ab)1.
DISABILITY BENEFIT SPECIALISTS: ARE THEY PERMISSIVE REPORTERS OF ELDER
ADULTS/ADULTS-AT-RISK ABUSE, NEGLECT OR EXPLOITATION?
The statutory language which addresses permissive reporting of adults
at risk can be found at ss.55.043(1m)(br) and 46.90(4)(ar), Stats.
The two statutes contain identical language and read as follows:
"Any person, including an attorney or a person working
under the supervision of an attorney, may report to the county
department, adult-at-risk agency, a state or local law enforcement agency,
the department, or the board on aging and long-term care that he or she
believes that abuse, financial exploitation, neglect, or self-neglect of
an adult at risk has occurred if the person is aware of facts or
circumstances that would lead a reasonable person to believe or suspect
that abuse, financial exploitation, neglect, or self-neglect of an adult
at risk has occurred. The person shall indicate the facts and
circumstances of the situation as part of the report." (emphasis
added)
Prior to November 3, 2008, a benefit specialist could not disclose
information about a client without the informed consent of the client, unless
required by law. (emphasis added). This meant that prior to November
3, 2008, the Family Care rule in HFS 10.23(2)(d)2 prevented DBSs from
complying with the permissive reporting provision for elder adults/adults
at risk contained in 55.043(1m)(br) and 46.90(4)(ar), Wis. Stats. without
violating the administrative code.
As of November 3, 2008, the Department of Health Services has
adopted an emergency rule to permanently amend the Family Care rule.
In this emergency order the Department has revised s.HFS 10.23(2)(d)2., by
adding language that would permit disability benefit specialists to
report abuse, neglect or financial exploitation of adults-at-risk
without violating that section's non-disclosure provisions.
The text of the proposed rule follows:
"HFS 10.23(2)(d)2. Notwithstanding sub. (7) (b), a benefit
specialist may not disclose information about a client without the
informed consent of the client, unless required by law or as allowed in
55.043(1m)(br) or 46.90(4)(ar), Wis. Stats." (emphasis added)
The Department issued this amendment as an emergency rule in that this
amendment is necessary to protect the health and welfare of elder
adults/adults at risk, who may suffer harm if the disability benefit
specialists are not able to report abuse, neglect, self-neglect or
financial exploitation. Disability Benefit Specialists may now report
these types of situations.
NEXT STEPS
The Department will continue the process for amending HFS 10.23(2)(d)2.
as an emergency rule to be followed by a permanent rule change. A public
hearing will be held on the rules on January 27, 2009. Comments may be
submitted to the central office contact person that is listed below until
the deadline given in the upcoming notice of public hearing. The deadline
for submitting comments and the notice of public hearing will be posted on
the Wisconsin Administrative Rules Website at http://adminrules.wisconsin.gov
after the hearing is scheduled.
If you have questions concerning this numbered memo, please contact
Jane Raymond, Advocacy and Protection Systems Developer, at DHSStopAbuse@wisconsin.gov
or by phone at 608-266-2568.
CENTRAL OFFICE CONTACT:
Jane A. Raymond
Bureau of Aging and Disability Resources
Division of Long Term Care
1 W. Wilson Street, Room 450
Madison, WI 53702
(608) 266-2568
email: DHSStopAbuse@wisconsin.gov
or Jane.Raymond@Wisconsin.gov
MEMO WEB SITE: http://www.dhs.wisconsin.gov/dsl_info/NumberedMemos/NMemos_Index.htm
cc Glenn Silverberg, Legal Services Developer, BADR/Office on Aging
Certified Mental Health and AODA Programs
Home Health Agencies
Division of Quality Assurance/Office of Caregiver Quality
Tribal Chairperson/Human Services Facilitators
Licensing Chiefs / Section Chiefs
Coalition of Wisconsin - Elderly Benefit Specialists Program Staff
County and Tribal Elderly Benefit Specialists
Legal Action of Wisconsin - Elderly Benefit Specialists Program Staff
Elder Adults/Adults-at-Risk and Adult Protective Services Systems
Notification List
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