Section 46.10. Cost of care and maintenance, liability; collection and deportation counsel; collections; court actions; recovery.

 

(1)  Liability and the collection and enforcement of such liability for the care, maintenance, services, and supplies specified in this section is governed exclusively by this section, except in cases of child support ordered by a court under s. 48.355 (2) (b) 4. or (4g) (a) , 48.357 (5m) (a) , or 48.363 (2) or ch. 767 .

(2)  Except as provided in subs. (2m) and (14) (b) and (c) , any person, including but not limited to a person admitted, committed, protected, or placed under s. 975.01 , 1977 stats., s. 975.02 , 1977 stats., s. 975.17 , 1977 stats., s. 55.05 (5) , 2003 stats., and 55.06 , 2003 stats., and ss. 51.10 , 51.13 , 51.15 , 51.20 , 51.35 (3) , 51.37 (5) , 51.45 (10) , (11) , (12) and (13) , 55.05 , 55.055 , 55.12 , 55.13 , 55.135 , 971.14 (2) and (5) , 971.17 (1) , 975.06 and 980.06 , receiving care, maintenance, services and supplies provided by any institution in this state including University of Wisconsin Hospitals and Clinics, in which the state is chargeable with all or part of the person's care, maintenance, services and supplies, any person receiving care and services from a county department established under s. 51.42 or 51.437 or from a facility established under s. 49.73 , and any person receiving treatment and services from a public or private agency under s. 980.06 (2) (c) , 1997 stats., s. 980.08 (5) , 2003 stats., or s. 971.17 (3) (d) or (4) (e) or 980.08 (4) (g) and the person's property and estate, including the homestead, and the spouse of the person, and the spouse's property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, and, in the case of a foreign child described in s. 48.839 (1) who became dependent on public funds for his or her primary support before an order granting his or her adoption, the resident of this state appointed guardian of the child by a foreign court who brought the child into this state for the purpose of adoption, and his or her property and estate, including his or her homestead, shall be liable for the cost of the care, maintenance, services and supplies in accordance with the fee schedule established by the department under s. 46.03 (18) . If a spouse, widow or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the liable persons as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability.

(2m)  The liability specified in sub. (2) shall not apply to tuberculosis patients receiving care, maintenance, services and supplies under ss. 252.07 to 252.10 , to persons 18 and older receiving care, maintenance, services and supplies provided by prisons named in s. 302.01 or to parents of a minor who receives care for alcohol or drug abuse under s. 51.47 (1) without consent of the minor's parent or guardian.

(3)  After investigation of the liable persons' ability to pay, the department shall make collection from the person who in the opinion of the department under all of the circumstances is best able to pay, giving due regard to relationship and the present needs of the person or of the lawful dependents. However, the liability of relatives for maintenance shall be in the following order: first, the spouse of the patient; then, in the case of a minor, the parent or parents.

(4)  

(a) If a person liable under sub. (2) fails to make payment or enter into or comply with an agreement for payment, the department may bring an action to enforce the liability or may issue an order to compel payment of the liability. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a contested case under ch. 227 by filing with the department a request for a hearing within 30 days after the date of the order.

(b) If judgment is rendered in an action brought under par. (a) for any balance that is 90 or more days past due, interest at the rate of 12 percent per year shall be computed by the clerk and added to the liable person's costs. That interest shall begin on the date on which payment was due and shall end on the day before the date of any interest that is computed under s. 814.04 (4) .

(c) If the department issues an order to compel payment under par. (a) , interest at the rate of 12 percent per year shall be computed by the department and added at the time of payment to the person's liability. That interest shall begin on the date on which payment was due and shall end on the day before the date of final payment.

(5)  If any person named in an order to compel payment issued under sub. (4) (a) fails to pay the department any amount due under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a certified copy of the order to the circuit court for any county. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this subsection shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

(6)  The sworn statement of the collection and deportation counsel, or of the secretary, shall be evidence of the fee and of the care and services received by the patient.

(7)  The department shall administer and enforce this section. It shall appoint an attorney to be designated “collection and deportation counsel" and other necessary assistants. The department may delegate to the collection and deportation counsel such other powers and duties as it considers advisable. The collection and deportation counsel or any of the assistants may administer oaths, take affidavits and testimony, examine public records, subpoena witnesses and the production of books, papers, records, and documents material to any matter of proceeding relating to payments for the cost of maintenance. The department shall encourage agreements or settlements with the liable person, having due regard to ability to pay and the present needs of lawful dependents.

(8)  The department may:

(a) Appear for the state in any and all collection and deportation matters arising in the several courts, and may commence suit in the name of the department to recover the cost of maintenance against the person liable therefor.

(b) Determine whether any patients are subject to deportation; and on behalf of this state enter into reciprocal agreements with other states for deportation and importation of persons who are public charges, upon such terms as will protect the state's interests and promote mutual amicable relations with other states.

(c) From time to time investigate the financial condition and needs of persons liable under sub. (2) , their ability to presently maintain themselves, the persons legally dependent upon them for support, the protection of the property and investments from which they derive their living and their care and protection, for the purpose of ascertaining the person's ability to make payment in whole or in part.

(d) After due regard to the case and to a spouse and minor children who are lawfully dependent on the property for support, compromise or waive any portion of any claim of the state or county for which a person specified under sub. (2) is liable, but not any claim payable by an insurer under s. 632.89 (2) or (4m) or by any other 3rd party.

(e) Make an agreement with a person who is liable under sub. (2) , or who may be willing to assume the cost of maintenance of any patient, providing for the payment of such costs at a specified rate or amount.

(f)

1. Make adjustment and settlement with the several counties for their proper share of all moneys collected.

(h) Ensure that all moneys collected under sub. (12) on and after January 1, 1974, be credited under ss. 46.036 and 51.423 .

(i) Pay quarterly from the appropriation accounts under s. 20.435 (2) (gk) and (5) (gg) the collection moneys due county departments under ss. 51.42 and 51.437 . Payments shall be made as soon after the close of each quarter as is practicable.

(8m)  

(a) Except as provided in par. (b) , for county departments under s. 51.42 or 51.437 , the department shall do all of the following:

1. Deduct 100 percent of all money collected on or after January 1, 1975, from the chargeable cost of care at the mental health institutes.

2. Deduct or remit, through the appropriation under s. 20.435 (2) (gk) , all money collected for persons ineligible for medical assistance benefits and who lack other means of full payment for care provided on or after January 1, 1982, by centers for the developmentally disabled. The deduction or remittance under this subdivision may not exceed the amount chargeable under s. 51.437 (4rm) (c) 2. a.

3. Return to boards 70 percent of all collections made for county hospitals.

4. Return to boards 50 percent of collections made by the department for services other than those specified under par. (a) 1. , 2. or 3.

(b)

1. Paragraph (a) 1. and 2. does not apply to primary psychiatric care, which shall be billed on the basis of total chargeable cost. Collections for primary care shall be deducted from the chargeable cost of other types of care provided at the institutes.

2. Paragraph (a) 2. and 4. does not apply to services provided under s. 51.06 (1m) (d) that are billed under s. 51.437 (4rm) (c) 2m. and does not apply to treatment and services provided under s. 51.42 (3) (aw) 1. d.

(9)  Any person who willfully testifies falsely as to any material matter in an investigation or proceeding under this section shall be guilty of perjury. Banks, employers, insurers, savings banks, savings and loan associations, brokers and fiduciaries, upon request of the department, shall furnish in writing and duly certified, full information regarding the property, earnings or income or any funds deposited to the credit of or owing to any person liable under sub. (2) . Such certified statement shall be admissible in evidence in any action or proceeding to compel payment under this section, and shall be evidence of the facts therein stated, provided a copy of such statement be served upon the party sought to be charged not less than 3 days before the hearing.

(10)  The department shall make all reasonable and proper efforts to collect all claims for maintenance, to keep payments current, and to periodically review all unpaid claims.

(11)  

(a) Except as provided in par. (b) , in any action to recover from a person liable under this section, the statute of limitations may be pleaded in defense.

(b) If a person who is liable under this section is deceased, a claim may be filed against the decedent's estate and the statute of limitations specified in s. 859.02 shall be exclusively applicable. This paragraph applies to liability incurred on or after July 20, 1985.

(12)  The district attorney or his or her assistants in a county having a population of 500,000 or more shall, in matters pertaining to the recovery of the cost of maintenance of persons in county institutions in that county, have the same authority as granted in this section to the department.

(13)  This section does not impair any rights or liability existing prior to June 19, 1947.

(14)  

(a) Except as provided in pars. (b) and (c) , liability of a person specified in sub. (2) or s. 46.03 (18) for inpatient care and maintenance of persons under 18 years of age at community mental health centers, a county mental health complex under s. 51.08 , the centers for the developmentally disabled, the Mendota Mental Health Institute, and the Winnebago Mental Health Institute or care and maintenance of persons under 18 years of age in residential, nonmedical facilities such as group homes, foster homes, subsidized guardianship homes, residential care centers for children and youth, and juvenile correctional institutions is determined in accordance with the cost-based fee established under s. 46.03 (18) . The department shall bill the liable person up to any amount of liability not paid by an insurer under s. 632.89 (2) or (4m) or by other 3rd-party benefits, subject to rules that include formulas governing ability to pay promulgated by the department under s. 46.03 (18) . Any liability of the patient not payable by any other person terminates when the patient reaches age 18, unless the liable person has prevented payment by any act or omission.

(b) Except as provided in par. (c) and subject to par. (cm) , liability of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the parent's minor child who has been placed by a court order under s. 48.32 , 48.355 , or 48.357 in a residential, nonmedical facility such as a group home, foster home, subsidized guardianship home, or residential care center for children and youth shall be determined by the court by using the percentage standard established by the department of children and families under s. 49.22 (9) and by applying the percentage standard in the manner established by the department under par. (g) .

(c) Upon request by a parent, the court may modify the amount of child support payments determined under par. (b) , subject to par. (cm) , if, after considering the following factors, the court finds by the greater weight of the credible evidence that the use of the percentage standard is unfair to the child or to either of the parents:

1. The needs of the child.

2. The physical, mental and emotional health needs of the child, including any costs for the child's health insurance provided by a parent.

3. The standard of living and circumstances of the parents, including the needs of each parent to support himself or herself at a level equal to or greater than that established under 42 USC 9902 (2).

4. The financial resources of the parents.

5. The earning capacity of each parent, based on each parent's education, training and work experience and based on the availability of work in or near the parent's community.

6. The need and capacity of the child for education, including higher education.

7. The age of the child.

8. The financial resources and the earning ability of the child.

9. The needs of any person, including dependent children other than the child, whom either parent is legally obligated to support.

10. The best interests of the child, including, but not limited to, the impact on the child of expenditures by the family for improvement of any conditions in the home that would facilitate the reunification of the child with the child's family, if appropriate, and the importance of a placement that is the least restrictive of the rights of the child and the parents and the most appropriate for meeting the needs of the child and the family.

11. Any other factors that the court in each case determines are relevant.

(cm)

1. Except as provided in subd. 2. , if a parent who is required to pay child support under par. (b) or (c) is receiving adoption assistance under s. 48.975 for the child for whom support is ordered, the amount of the child support payments determined under par. (b) or (c) may not exceed the amount of the adoption assistance maintenance payments under s. 48.975 (3) (a) . If an agreement under s. 48.975 (4) is in effect that provides for a payment of $0 under s. 48.975 (3) (a) , the payment of $0 shall be considered to be an adoption assistance maintenance payment for purposes of this subdivision.

2. Subdivision 1. does not apply if, after considering the factors under par. (c) 1. to 11. , the court finds by the greater weight of the credible evidence that limiting the amount of the child support payments to the amount of the adoption assistance maintenance payments under s. 48.975 (3) (a) is unfair to the child or to either of the parents.

(d) If the court finds under par. (c) that use of the percentage standard is unfair to the minor child or either of the parents, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the parent, its reasons for the amount of the modification and the basis for the modification.

(e)

1. An order issued under s. 48.355 (2) (b) 4. or (4g) (a) , 48.357 (5m) (a) , or 48.363 (2) for support determined under this subsection constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62 , duty disability benefits under s. 40.65 , benefits under ch. 102 or 108 , and other money due or to be due in the future to the county department under s. 46.22 or 46.23 in the county where the order was entered or to the department, depending upon the placement of the child as specified by rules promulgated under subd. 5. The assignment shall be for an amount sufficient to ensure payment under the order.

2. Except as provided in subd. 3. , for each payment made under the assignment, the person from whom the payer under the order receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer.

3. Benefits under ch. 108 may be assigned and withheld only in the manner provided in s. 108.13 (4) . Any order to withhold benefits under ch. 108 shall be for an amount certain. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money.

4. No employer may use an assignment under this paragraph as a basis for the denial of employment to a person, the discharge of an employee or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this subdivision may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Except as provided in this subdivision, restitution shall be in accordance with s. 973.20 . An aggrieved person may apply to the district attorney or to the department of workforce development for enforcement of this subdivision.

5. The department shall promulgate rules for the operation and implementation of assignments under this paragraph.

(f) If the amount of the child support determined under this subsection is greater than the cost for the care and maintenance of the minor child in the residential, nonmedical facility, the assignee under par. (e) 1. shall expend or otherwise dispose of any funds that are collected in excess of the cost of such care and maintenance in a manner that the assignee determines will serve the best interests of the minor child.

(g) For purposes of determining child support under par. (b) , the department shall promulgate rules related to the application of the standard established by the department of children and families under s. 49.22 (9) to a child support obligation for the care and maintenance of a child who is placed by a court order under s. 48.32 , 48.355 , or 48.357 in a residential, nonmedical facility. The rules shall take into account the needs of any person, including dependent children other than the child, whom either parent is legally obligated to support.

(16)  The department shall delegate to county departments under ss. 51.42 and 51.437 or the local providers of care and services meeting the standards established by the department under s. 46.036 , the responsibilities vested in the department under this section for collection of patient fees for services other than those provided at state facilities, those provided to children that are reimbursed under a waiver under s. 46.27 (11) , 46.275 , 46.278 , or 46.2785 , or those provided under the disabled children's long-term support program if the county departments or providers meet the conditions that the department determines are appropriate. The department may delegate to county departments under ss. 51.42 and 51.437 the responsibilities vested in the department under this section for collection of patient fees for services provided at the state facilities if the necessary conditions are met.

1971 c. 125 ; 1971 c. 213 s. 5 ; 1973 c. 90 ss. 223 , 223m , 560 (3) ; 1973 c. 198 , 333 ; 1975 c. 39 ss. 347 to 350 , 734 ; 1975 c. 41 , 94 ; 1975 c. 189 s. 99 (2) ; 1975 c. 198 , 199 , 224 ; 1975 c. 413 s. 18 ; 1975 c. 428 ; 1975 c. 430 ss. 6 , 80 ; 1977 c. 29 , 203 ; 1977 c. 418 ss. 294 to 295 , 924 (50) , 929 (18) ; 1977 c. 428 ; 1977 c. 447 s. 206 ; 1977 c. 449 ss. 75 , 497 ; 1979 c. 34 ; 1979 c. 102 ss. 236 (4) , 237 ; 1979 c. 117 , 221 , 331 ; 1981 c. 20 ss. 755 to 758 , 2202 (20) (i) , (n); 1981 c. 81 ; 1983 a. 27 ss. 955m , 2202 (20) ; 1985 a. 29 , 176 , 281 , 332 ; 1987 a. 307 ; 1989 a. 31 , 56 , 96 , 212 ; 1991 a. 39 , 221 , 315 , 316 ; 1993 a. 16 , 27 , 385 , 437 , 446 , 479 , 481 ; 1995 a. 27 ss. 2054 , 2055 , 9130 (4) ; 1995 a. 77 , 224 , 404 ; 1997 a. 3 , 27 , 35 , 237 , 308 ; 1999 a. 9 , 103 ; 2001 a. 16 , 59 , 103 ; 2003 a. 33 ; 2005 a. 25 , 264 , 434 ; 2007 a. 20 , 97 ; 2009 a. 28 , 218 ; 2011 a. 260 ; 2015 a. 55 , 373 . Cross-reference: See also s. DHS 1.01 , Wis. adm. code. Before there can be recovery by the department for care and hospitalization of an individual committed to one of its institutions by reason of lack of competency to stand trial, the nature of the confinement must be changed to a civil commitment. Conservatorship of Grams, 63 Wis. 2d 194 , 216 N.W.2d 889 . Liability under sub. (2) for the cost of institutionalization is constitutional. In Matter of Guardianship of Nelson, 98 Wis. 2d 261 , 296 N.W.2d 736 (1980). Sections 46.03 (18) and 46.10 do not constitute an unlawful delegation of legislative power. In Matter of Guardianship of Klisurich, 98 Wis. 2d 274 , 296 N.W.2d 742 (1980). The statute imposing liability for costs of care and services on persons committed to state institutions did not apply to persons committed in violation of due process. Jankowski v. Milwaukee County, 104 Wis. 2d 431 , 312 N.W.2d 45 (1981). Subs. (2) and (2m) violate neither the guarantees of equal protection nor due process. Matter of Care & Maintenance of K.C., 142 Wis. 2d 906 , 420 N.W.2d 337 (1988). Sub. (3) and s. 46.03 (18) permit the department to promulgate rules that consider non-liable family members' incomes in determining a liable family member's ability to pay. In Interest of A.L.W. 153 Wis. 2d 412 , 451 N.W.2d 416 (1990). Section 46.03 (18) (b) imposes liability upon minors and parents for the costs of services, but does not give counties an automatic right of recovery; Section 46.10 governs enforcement procedure and allows courts to exercise discretion. In Matter of S.E. Trust, 159 Wis. 2d 709 , 465 N.W.2d 231 (Ct. App. 1990). The uniform fee system under ss. 46.03 (18) and 46.10 allows imputing income and, consequently, looking beyond tax returns to determine ability to pay. In Interest of Kevin C. 181 Wis. 2d 146 , 510 N.W.2d 746 (Ct. App. 1993). A circuit court may order parents to pay toward a child's support when a CHIPS child is placed in residential treatment, but the court may not assess any of the facility's education-related costs against the parents. Calumet County Department of Human Services v. Randall H. 2002 WI 126 , 257 Wis. 2d 57 , 653 N.W.2d 503 , 01-1272 .