Wisconsin Lawyer: Definitions of Caregiver Misconduct - Abuse, Neglect, and Misappropriation:

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    Definitions of Caregiver Misconduct - Abuse, Neglect, and Misappropriation

    Wisconsin's Department of Health and Family Services has various tools to ensure that entities and individuals provide appropriate care to vulnerable individuals. Through its regulatory approval, inspection, and investigations, the department oversees the operation of health care entities and service providers, investigates allegations of individual caregiver misconduct, and provides technical support and coordinates its efforts with other county and local agencies that protect and advocate for the disabled elderly in Wisconsin.

    Linda Dawson

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    Wisconsin Lawyer
    Vol. 77, No. 8, August 2004

    Definitions of Caregiver Misconduct - Abuse, Neglect, and Misappropriation

    HFS 13.03 Definitions.

    (1)(a) "Abuse" means any of the following:

    1. An act or repeated acts by a caregiver or nonclient resident, including but not limited to restraint, isolation, or confinement, that, when contrary to the entity's policies and procedures, not a part of the client's treatment plan and done intentionally to cause harm, does any of the following:

    a. Causes or could reasonably be expected to cause pain or injury to a client or the death of a client, and the act does not constitute self-defense as defined in s. 939.48, Stats.

    b. Substantially disregards a client's rights under ch. 50 or 51, Stats., or a caregiver's duties and obligations to a client.

    c. Causes or could reasonably be expected to cause mental or emotional damage to a client, including harm to the client's psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward aggressive behavior, agitation, or a fear of harm or death, or a combination of these behaviors. This subdivision does not apply to permissible restraint, isolation, or confinement implemented by order of a court or as permitted by statute.

    2. An act or acts of sexual intercourse or sexual contact under s. 940.225, Stats., by a caregiver and involving a client.

    3. The forcible administration of medication to or the performance of psychosurgery, electroconvulsive therapy, or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.

    4. A course of conduct or repeated acts by a caregiver that serve no legitimate purpose and that, when done with intent to harass, intimidate, humiliate, threaten, or frighten a client, causes or could reasonably be expected to cause the client to be harassed, intimidated, humiliated, threatened, or frightened.

    (b) "Abuse" does not include an act or acts of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or
    discretion.

    (12) "Misappropriation of property" means any of the following:

    (a) The intentional taking, carrying away, using, transferring, concealing, or retaining possession of a client's movable property without the client's consent and with the intent to deprive the client of possession of the property.

    (b) Obtaining property of a client by intentionally deceiving the client with a false representation that is known to be false, made with the intent to defraud, and that does defraud the person to whom it is made. In this paragraph, "false representation" includes a promise made with the intent not to perform it if it is a part of a false and fraudulent scheme.

    (c) By virtue of his or her office, business, or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper, or other negotiable writing of another, intentionally using, transferring, concealing, or retaining possession of the money, security, instrument, paper, or writing without the owner's consent, contrary to his or her authority, and with the intent to convert it to his or her own use or to the use of any other person except the owner.

    (d) Intentionally using or attempting to use personal identifying information as defined in s. 943.201(1)(b), Stats., or an individual's birth certificate or financial transaction card as defined in s. 943.41(1)(em), Stats., to obtain credit, money, goods, services, or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual.

    (e) Violating s. 943.38, Stats., involving the property of a client, or

    s. 943.41, Stats., involving fraudulent use of a client's financial transaction card.

    (14) (a) "Neglect" means an intentional omission or intentional course of conduct by a caregiver or nonclient resident, including but not limited to restraint, isolation, or confinement, that is contrary to the entity's policies and procedures, is not part of the client's treatment plan and, through substantial carelessness or negligence, does any of the following:

    1. Causes or could reasonably be expected to cause pain or injury to a client or the death of a client.

    2. Substantially disregards a client's rights under either ch. 50 or 51, Stats., or a caregiver's duties and obligations to a client.

    3. Causes or could reasonably be expected to cause mental or emotional damage to a client, including harm to the client's psychological or intellectual functioning that is exhibited by anxiety, depression, withdrawal, regression, outward behavior, agitation, fear of harm or death, or a combination of these behaviors. This paragraph does not apply to permissible restraint, isolation, or confinement implemented by order of a court or as permitted by statute.

    (b) "Neglect" does not include an act or acts of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion.

    CLE Seminars Presents "Legal Issues of the Aging"

    The annual Legal Issues of the Aging seminar on Sept. 8 in Madison, presented by State Bar CLE Seminars and the Elder Law Section, will offer an in-depth look at various federal and state government programs such as Supplemental Security Income; Social Security retirement, disability, and dependent's and survivor's benefits; and Medicaid waiver programs. Knowledgeable practitioners will share the most up-to-date information on the eligibility requirements for each program and the benefits granted, and tips on maintaining eligibility, including recent case law and regulatory, administrative, and legislative developments.

    The live seminar will be presented on Sept. 8 in Madison from 8 a.m. to 4:15 p.m. The video seminar is scheduled for Oct. 19 at statewide locations. This seminar has been submitted for up to 7.5 CLE credits, does not qualify for EPR credits, and will be submitted for Minnesota CLE credits. Tuition is $199. For more information or to register, call the State Bar of Wisconsin, (800) 728-7788, or visit www.wisbar.org.




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