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.
Wisconsin Lawyer
