Wisconsin Legislative Council
AMENDMENT MEMO
One Ea st Ma in Stre e t, Suite 401 • Ma dison, W I 53703 • (608) 266-1304 • le g.council@le gis.wisconsin.gov • http://www.le gis.wisconsin.gov/lc
Memo published: February 15, 2024 Contact: Amber Otis, Senior Staff Attorney
2023 Assembly Bill 1088 Assembly Amendment 1
As an overview, 2023 Assembly Bill 1088 generally does all of the following: (1) modifies certain aspects
of current law allowing certain next of kin to consent to an incapacitated individual’s admission from a
hospital to certain facilities and to make decisions regarding, and authorize expenditures for, the health
care of the incapacitated individual; (2) requires the Department of Health Services (DHS) to allocate
nursing home beds and oversee an application process for those beds; and (3) requires DHS to award
grants to partnership groups to be designated as participating sites for a complex patient pilot program.
2023 ASSEMBLY BILL 1088
Next of Kin Authority to Consent to Admission and Make Decisions
Current law allows certain family members and next of kin, based on a hierarchical order of priority,
to consent to an incapacitated
1
individual’s admission to a nursing home or a community based
residential facility (CBRF) directly from a hospital, if all of the following requirements are met:
The incapacitated individual does not have a valid power of attorney for health care.
The incapacitated individual has not been adjudicated incompetent in this state.
No person who is listed in the same order of priority, or higher priority, disagrees with the proposed
admission.
No person in any level of priority who resides with the incapacitated individual disagrees with the
proposed admission, unless the person consenting also resides with, or is the spouse or domestic
partner of, the incapacitated individual.
The individual for whom admission is sought is not diagnosed as developmentally disabled or as
having a mental illness at the time of the proposed admission.
A petition for guardianship and a petition for a protective placement of the individual are filed prior
to the proposed admission.
The incapacitated individual does not verbally object to or otherwise actively protest the admission.
2
Under current law, an individual who consents to an admission may, for the incapacitated individual,
make health care decisions to the same extent as a guardian of the person and authorize expenditures
related to health care to the same extent as a guardian of the estate, unless the incapacitated individual
1
Current law specifies the standard for “incapacitated” and the procedural requirements for that determination.
2
Note that if such an objection or protest occurs, the individual may be admitted to the facility, but notice to and an
investigation by a county department will be commenced using a procedure specified in current law. - 2 -
has an agent under a durable power of attorney who is authorized to make expenditures for health care.
This authority is in effect until the earliest of the following occurs:
Sixty days have passed since the incapacitated individual’s admission to the facility, though if no
guardian has been appointed, the authority may be extended for another 30 days to allow the
facility to initiate discharge planning for the incapacitated individual.
The incapacitated individual is discharged from the facility.
A guardian has been appointed for the incapacitated individual.
Assembly Bill 1088 creates the option for a “patient’s representative”
3
to consent to an incapacitated
individual’s admission directly from a hospital to a nursing home or CBRF subject to the same
requirements under current law, with the following exceptions: (1) a petition for guardianship or
protective placement is not required to be filed for the patient’s representative to consent to admission;
and (2) the authority of a patient’s representative to make health care decisions and authorize
expenditures relating to health care does not end until a court appoints a guardian to make such
decisions for the incapacitated individual.
In order for the bill’s exceptions to apply, the patient’s representative must do all of the following:
Acknowledge in writing his or her agreement to make health care decisions on the incapacitated
individual’s behalf and provide the acknowledgment to the discharging hospital and the accepting
facility.
Promptly notify all of the incapacitated individual’s family members that can be readily contacted
that the patient’s representative may make decisions or authorize expenditures as provided under
the bill.
Provide a written statement to the discharging hospital and the accepting facility stating: (1) to his
or her best knowledge, a family member in a higher priority class does not exist, or no family
member in a higher priority class is willing to make health care decisions on the incapacitated
individual’s behalf; (2) to his or her best knowledge, the incapacitated individual does not have a
health care agent or guardian of the person; and (3) the family members who have received notice
as provided under the bill.
The discharging hospital and accepting facility must include a copy of the written acknowledgement
and written statement in the incapacitated individual’s health care record. The bill requires the
admitting facility to notify a representative of the Board on Aging and Long-Term Care of an admission
under the bill’s provisions no later than 72 hours after the admission. The bill also identifies certain
obligations under federal law applicable to hospitals and nursing homes relating to patient’s rights.
The bill creates a judicial remedy under which any interested party may petition the court to review
whether the patient’s representative is acting in accordance with the known wishes or in the best
interest of the incapacitated individual, and is exercising the degree of care, diligence, and good faith
when acting on behalf of the incapacitated individual that an ordinarily prudent person exercises in his
or her own affairs. The bill authorizes a court to issue orders that the court determines necessary to
protect the incapacitated individual, including a non-exhaustive list of potential remedies.
3
The bill defines “patient’s representative” to mean the individual who may consent to an admission using the same
hierarchical order of priority among family members and next of kin that exists under current law. - 3 -
Nursing Home Bed Allocation
The bill requires DHS to allocate 250 nursing home beds beginning on July 1, 2024, using an
application process specified in the bill. Specifically, DHS must request applications for the allocated
beds, and applications submitted to DHS must include a plan for the applicant to satisfy all of the
following criteria within 18 months of DHS approval:
Become licensed for the nursing home beds requested in the application.
Become certified as a provider under the Medical Assistance program.
Hire sufficient health care personnel and expend sufficient resources to provide 24-hour nursing
services.
Under the bill, no application may be for more than 50 beds and, as a condition of being awarded the
allocated beds, an applicant must agree to prioritize admissions of patients with complex needs and
conditions, as well as patients who have been unable to find appropriate placement at another facility.
The bill specifies certain information that bed awardees must provide to DHS biennially or upon
request, and further requires DHS to report biennially to the Legislature beginning no later than
September 1, 2025, on the performance of the program, including the total number of patients served,
the complex conditions addressed, the number of patients served and the number of patient days for
each complex condition, and any cost savings associated with the program.
Complex Patient Pilot Program
The bill requires DHS to use a competitive grant selection process to award grants to partnership
groups to be designated as participating sites for a complex patient pilot program. The bill defines
“partnership group” as one or more hospitals in partnership with one or more post-acute facilities.
Under the bill, DHS must solicit feedback regarding the complex patient pilot program from
representatives of various stakeholder organizations. In addition, DHS must require an applicant
seeking site designation under the pilot program to address all of the following issues in its application:
The number of complex patient care beds that will be set aside in a post-acute facility or through
implementation of an innovative model of patient care in a post-acute facility to which participating
hospitals agree, such as dedicated staffing for dementia or a behavioral health unit.
The partnership group’s defined goals and measurable outcomes during and after the pilot program.
The types of complex patients for whom care will be provided, which may include patients needing
total care for multiple conditions or comorbidities, such as cardiac and respiratory diseases, obesity,
mental health, substance use, or dementia.
An operating budget for the proposed site that details how fiscal responsibility will be shared among
members of the partnership group and includes estimated patient revenues from other sources and
a margin to account for reserved beds.
The partnership group’s expertise to successfully implement the proposal, which may include a
discussion of several issues specified in the bill.
When implementing the grant for the pilot program, the bill requires DHS to do all of the following:
Reserve 10 percent of the funding appropriated for the pilot program for reconciliation to help
address unanticipated costs. - 4 -
Develop a methodology to evaluate the pilot program and contract with an independent
organization to complete the evaluation, the fee for which may be paid from the pilot program’s
appropriation.
Give additional weight to partnership groups that would ensure geographic diversity.
ASSEMBLY AMENDMENT 1
Assembly Amendment 1 modifies the bill, as follows:
Requires the Board on Aging and Long-Term Care to, by April 1, 2025 and annually thereafter,
report to the Joint Committee on Finance (JCF) on the number of patients admitted into a facility
with the consent of a patient’s representative as provided under the bill.
Deletes the requirement that DHS reserve 10 percent of the funding appropriated for the complex
patient pilot program for reconciliation to help address unanticipated costs.
Requires that the independent organization provide its evaluation of the complex patient pilot
program to DHS upon completion, and that DHS promptly further submit the evaluation to JCF.
Requires DHS, by April 1, 2025, to report to the Legislature on the performance of the complex
patient pilot program, including the total number of patients served, the complex conditions
addressed, the number of patients served and the number of patient days for each complex
condition, and any cost savings associated with the program.
BILL HISTORY
Representative Snyder offered Assembly Amendment 1 on February 15, 2024. That same day, the
Assembly Committee on Family Law recommended adoption of the amendment, and passage of the bill,
as amended, on votes of Ayes, 6; Noes, 3.
For a full history of the bill, visit the Legislature’s bill history page.
AO:ksm