Section 55.16. Modification of an order for protective placement or protective services.

 

(1)   Use of transfer provisions. If a petitioner is an entity authorized under s. 55.15 (2) to transfer an individual under a protective placement and the modification sought is a transfer of an individual between protective placement units, between protective placement facilities, or from a protective placement unit to a medical facility that is not a psychiatric facility, the petitioner may utilize the procedure in s. 55.15 in lieu of the procedure under this subsection.

(2)   Petition.

(a) Filing; services. Subject to par. (d) , an individual under protective placement or receiving protective services, the individual's guardian, the individual's legal counsel or guardian ad litem, if any, the department, the county department that placed the individual or provided the protective services under an order of the court, an agency with which the county department contracts under s. 55.02 (2) , or any interested person may file a petition at any time for modification of an order for protective services or protective placement. The petition shall be served on the individual, the individual's guardian, the individual's legal counsel and guardian ad litem, if any, and the county department.

(b) Modification of an order for protective placement; allegations. A petition for modification of an order for protective placement shall make one of the following allegations:

1. That the protective placement is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3) , (4) , and (5) .

2. That a protective placement in a facility with a higher level of restrictiveness would be more consistent with the requirements of s. 55.12 (3) , (4) , and (5) .

3. That a protective placement in a different facility with the same level of restrictiveness as the current placement would be more consistent with the requirements of s. 55.12 (4) and (5) for reasons unrelated to the level of restrictiveness.

(c) Modification of an order for protective services; allegations.

1. A petition for modification of an order for protective services, other than an order under s. 55.14 , shall allege that the protective services are not provided in the least restrictive environment or manner that is consistent with the requirements of s. 55.12 (3) , (4) , and (5) .

2. A petition for modification of an order under s. 55.14 shall allege that modification of the order or the treatment plan for the individual would be in his or her best interests.

(d) Residents of southern center. The department may not file a petition under par. (a) for modification of an order for protective placement to transfer a resident of the southern center for the developmentally disabled to a less restrictive setting unless the resident's guardian provides explicit written approval and consent for the transfer under s. 51.35 (1) (dm) .

(3)   Hearing.

(a) The court shall order a hearing within 21 days after the filing of a petition under sub. (2) , except that the court is not required to order a hearing if a hearing on a court-ordered protective placement for the individual or on a petition for court-ordered protective services or transfer of protective placement with respect to the individual has been held within the previous 6 months.

(b) The court may extend the 21-day limitation in par. (a) if requested by the individual or the individual's guardian, guardian ad litem, or legal counsel.

(c) The hearing shall be subject to s. 55.10 .

(4)   Order modification for individual under protective placement. After a hearing under sub. (3) on a petition for modification of an order for protective placement, the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

(a) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the individual's protective placement is in the least restrictive environment that is consistent with the requirements of s. 55.12 (3) , (4) , and (5) , the court shall order continuation of the protective placement in the facility in which the individual resides at the time of the hearing.

(b) If the court finds that the individual continues to meet the standards under s. 55.08 (1) and the protective placement of the individual is not in the least restrictive environment that is consistent with the requirements of s. 55.12 (3) , (4) , and (5) , the court shall order transfer of the individual to a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3) , (4) , and (5) . In lieu of ordering transfer of the individual to a specific facility, the court may order the county department of the individual's residence to develop or recommend a protective placement that is in the least restrictive environment consistent with the requirements of s. 55.12 (3) , (4) , and (5) , and arrange for the individual's transfer to that protective placement within 60 days after the court's order. The court may extend this time period to permit development of a protective placement. The court may order protective services along with transfer of protective placement.

(c) If the court finds that the individual no longer meets the standards under s. 55.08 (1) , the court shall terminate the protective placement, as provided in s. 55.17 (3) (c) .

(5)   Order modification for individual receiving court-ordered protective services.

(a) After a hearing under sub. (3) on a petition for modification of an order for protective services, other than an order under s. 55.14 , the court shall make one of the following orders and shall include in the order the information relied on as a basis for that order:

1. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the current protective services are provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3) , (4) , and (5) , the court shall continue the order for protective services.

2. If the court finds that the individual continues to meet the standards under s. 55.08 (2) and the protective services ordered for the individual are not provided in the least restrictive manner that is consistent with the requirements of s. 55.12 (3) , (4) , and (5) , the court shall order protective services that are more consistent with those requirements. The services shall be provided in the least restrictive manner consistent with the requirements of s. 55.12 (3) , (4) , and (5) .

3. If the court finds that the individual no longer meets the standards for protective services under s. 55.08 (2) , the court shall terminate the order for protective services, as provided in s. 55.17 (4) (a) 3.

(b) After a hearing under sub. (3) on a petition for modification of an order under s. 55.14 , the court shall make one of the orders required under s. 55.19 (3) (e) and shall include in the order the information relied on as a basis for that order.

2005 a. 264 ; 2007 a. 45 ; 2009 a. 28 .