Community Grievance Decision Digest

LEAST RESTRICTIVE CONDITIONS NECESSARY, RIGHT TO

THE LAW:

"RESTRICTIONS ON PLACEMENTS AND ADMISSIONS TO INTERMEDIATE AND NURSING FACILITIES. (1) Definitions. In this section:

(a)   “Developmental disability” has the meaning given in s. 51.01(5)(a).

(b)    “Intermediate facility” means an intermediate care facility for the mentally retarded, as defined in 42 USC 1396d(d), other than a center for the developmentally disabled, as defined in s. 51.01(3).

(bm) “Most integrated setting” means a setting that enables an individual to interact with persons without developmental disabilities to the fullest extent possible.

(c)   “Nursing facility” has the meaning given under 42 USC 1369r(a)

(2)      PLACEMENTS AND ADMISSIONS TO INTERMEDIATE FACILITIES.  Except as provided in sub. (5), no person may place an individual with a developmental disability in an intermediate facility and intermediate facility may admit such an individual unless, before the placement or admission and after having considered a plan developed under subd. (4), a court under s. 55.06(9)(a) or (10)(a)2. finds that placement in the intermediate care facility is the most integrated setting that is appropriate for the needs of the individual, taking into account information presented by all affected parties.  An intermediate facility to which an individual who has a developmental disability applies for admission shall, within 5 days after receiving the application, notify the county department that is participating in the program under s. 46.278 of the county of residence of the individual who is seeking admission concerning the application. 

(3)      PLACEMENTS AND ADMISSIONS TO NURSING FACILITIES. Except as provided in subd. (5), if the department or entity determines from a screening under s. 49.45(6c)(b) that an individual requires active treatment for developmental disability, non individual may be placed in a nursing facility, and no nursing facility may admit the individual, unless it is determined from the screening that the individual’s need for care cannot fully be met in an intermediate facility or under a plan under sub. (4)

(4)      PLAN FOR HOME OR COMMUNITY-BASED CARE.  Except as provided in a contract specified in sub. (4m), a county department that participates in the program under s. 46.278 shall develop a plan for providing home or community-based care in a non-institutional community setting to an individual who is a resident of that county, under any of the following circumstances:

(a)   Within 120 days after any determination under s. 49.45(6c)(c)3, that the level of care required by a resident that is provided by a facility could be provided in an intermediate facility or a plan under this subsection.

(b)   Within 120 days after receiving written notice under (2) of an application.

(c)   Within 120 days after a proposal is made under s. 55.06(9)(a) to place the individual in an intermediate facility or a nursing facility.

(d)   Within 120 days after receiving written notice under s. 55.06(10)(a)2. of the placement of the individual in a nursing home or an intermediate facility.

(e)   Within 90 days after an extension of a temporary placement order by the court under s. 55.06(11)(c).

(4m)  CONTRACT FOR PLAN DEVELOPMENT.  The department shall contract with a public or private agency to develop a plan under sub. (4), and the county department is not required to develop such a plan, for an individual, as specified in the contract, to whom all of the following apply:

(a)   The individual resides in a county with a population of less than 100,000 in which are located at least 2 intermediate facilities that have licenses issued to nonprofit organizations that are exempt from federal income tax under section 501(a) of the Internal Revenue Code.

(b) Placement for the individual is in, or proposed to be in, an intermediate facility specified under par. (a) that has agreed to reduce its licensed bed capacity to an extent and according to a schedule acceptable to the facility and the department.

(5)      EXCEPTIONS.  Subsections (2) and (3) do not apply to an emergency placement under s. 55.06(11)(a) or to a temporary placement under s. 55.06(11)(c) or (12).”

§ 46.279, Wis. Stats.* [Emphasis added]

 [*Note:  Subs. (1), (2), (3), (4) and (5) were created effective 01/01/03.]

Each patient shall... "...have the right to the least restrictive conditions necessary to achieve the purposes of admission, commitment or placement, except in the case of a patient who is admitted or transferred under s. 51.35(3) or 51.37 or under ch. 971 or 975."

§ 51.61(1)(e), Wis. Stats. [Emphasis added.]

"(1) Except in the case of a patient who is admitted or transferred under s.51.35(3) or 51.37, Stats., or under ch. 971 or 975, Stats., each patient shall be provided the least restrictive treatment which allows the maximum amount of personal and physical freedom in accordance with s. 51.61(1)(e), Stats., and this section.

(2) No patient may be transferred to a setting which increases personal or physical restrictions unless the transfer is justified by documented treatment or security reasons or by a court order.

(3) Inpatient and residential treatment facilities shall identify all patients ready for placement in less restrictive settings and shall, for each of these patients, notify the county department or social services department that placed the patient that the patient is ready for placement in a less restrictive setting.  The county department or social services department then shall act in accordance with s. 51.61(1)(e), Stats., to place the patient in a less restrictive setting.

(4) Inpatient and residential treatment facilities shall identify security measures in their policies and procedures and shall specify criteria for the use of each security-related procedure.

(5) Inpatients shall be permitted to conduct personal and business affairs in any lawful manner not otherwise limited by statute so long as these do not interfere with the patient's treatment plan, the orderly operation of the facility, security or the rights of other patients."

HFS 94.07, Wis. Admin. Code [Emphasis added.]

"`Least restrictive treatment' means treatment and services which will best meet the patient's treatment and security needs and which least limit the patient's freedom of choice and mobility."

HFS 94.02(17), Wis. Admin. Code [Emphasis added.]

DECISIONS

1.  An individual was convicted of his 5^th Operating While Intoxicated (OWI) and received an assessment. His assessment recommended inpatient treatment. The individual tried a voluntary admission, but left after five days.  He was offered outpatient counseling as an alternative, but never accepted it.  His right to the least restrictive setting was not violated.  (Level III decision in Case No. 98-SGE-02 on 10/13/98, upheld at Level IV.)

2. A county human services department (HSD) did not have a policy in place for contacting clients who are emergency detained.  Having such a policy is not mandated by law, but is a good risk-management practice.  Had the HSD had such a policy, they would have found out that this particular client had insurance that would have covered her stay in another facility, where her treating physician also happened to work. This resulted in her staying at the original place of detention longer than necessary and costing her money from her own pocket.  It violated her right to the least restrictive setting.  Also, the client should not be held personally responsible for the increased cost of care. (Level IV decision in Case No. 99-SGE-03 on 11/3/99, reversing the Level III decision.

3. A client was placed in a more restrictive setting than necessary under an emergency detention.  She was advised to execute an Advance Directive to identify her hospital preference and her treating physician and to provide a copy to the county, too.  That would assist the county to appropriately place her if she ever needed emergency detention again. (Level IV decision in Case No. 99-SGE-03 on 11/3/99, reversing the Level III decision.)

4. Methadone is a nationally recognized treatment modality for heroin addiction.  Where a patient has done well on a methadone program, staying drug-free for a period of 18 months, the continuation of outpatient treatment for her is appropriate.  It is also the least restrictive alternative to inpatient treatment. (Level IV decision in Case No. 99-SGE-01 on 5/16/00.)

5. A patient in an outpatient methadone treatment program was observed “splitting his dose” in a bathroom at the clinic.  The clinic subsequently increased his “monitoring level” for a six-month probationary period.  This did not violate his right to the least restrictive treatment. (Level IV decision in Case No. 99-SGE-02 on 5/24/00, upholding the Level III.)

6. Where a developmentally disabled young woman ended up in an acute inpatient mental health setting, it was appropriate for the Level I Client Rights Specialist to recommend a potential “crisis intervention plan” for her in case the situation arose again. Such an approach is an element of ongoing quality assurance on the part of the county program, too.  (Level III decision in Case No. 99-SGE-07 on 1/3/01.)

7. A client was denied CIP 1-B funding for an addition to her house. The county followed all applicable laws and policies in denying the request, so the client’s rights were not violated.  However, the county and the department worked together to find another way to pay for the remodeling project.  (Level III decision in Case No. 00-SGE-06 on 2/5/01.)

8. A client who was about to be discharged from an inpatient facility felt she was not being given enough input or choices in terms of to where she would be discharged.  She wanted to be placed in an apartment in the community. Facility staff were considering placement at other inpatient settings or a CBRF (group home) setting. Ultimately, she was transferred to a community supported living arrangement in an apartment.  Since this was what she wanted, the grievance was dismissed at Level III as being “resolved”. (Level III decision in Case No. 00-SGE-05 on 2/16/01.)

9.  A man made several statements about wanting to take his own life.  His wife called the police and he was emergency detained.  He wanted to be detained at a local hospital, but the police made the decision to detain him at a state mental health facility, over his objections.  Since other, less-restrictive options were available and he adamantly did not want to go to the state facility, his right to the least restrictive conditions was violated.  (Level III decision in Case No. 00-SGE-04 on 4/9/01.)

Last Updated: November 08, 2006