65 Op. Att'y Gen. 49 | Wis. Att'y Gen. | 1976
GLENN L. HENRY, Corporation Counsel Dane County
You have asked my opinion about several aspects of liability, reimbursement and collection for services provided by boards established under secs.
Your first question is whether certain statutory provisions relating to legal settlement apply to programs established under secs.
Sections
I have concluded that the concept of legal settlement is not applicable to any of the services provided through the boards. There are at least three reasons which require this conclusion. First, the elaborate provisions under which these boards operate contain no reference to legal settlement. Reimbursement to the boards for services provided or purchased is based upon a grant-in-aid system whereby the state agreed to pay 60 percent of the approved budget in 1974 and 100 percent in 1975, both amounts subject to the limitations placed upon the state's appropriation under sec.
Second, sec.
Third, sec. 51.002, Stats., now provides that any person committed under ch. 51 (mental health act) shall be committed under the care and custody of a
Under the former system for admission and treatment of the mentally ill, persons without legal settlement in any county were denominated state-at-large charges for which the state assumed the entire cost of treatment. There is no longer a state-at-large charge because the state has provided grants-in-aid regardless of the patient's legal settlement. The only situation presently approximating a state-at-large case is the commitment or admission of a person who is a nonresident of the state. Such a person is enrolled by the Department of Health and Social Services, and the state assumes the entire liability. The reference to nonresidents in sec. 51.002, Stats., is a further indication that legal settlement determinations were not intended to play a part in the
I reach this conclusion despite the general rule that repeals by implication are not favored in the law. An exception to this general rule is made if the earlier act is so manifestly inconsistent and repugnant to the latter act that they cannot reasonably stand together. Pattermann v. Whitewater (1966),
A study of the legislative history of the current law discloses that at no point in the development of the programs under secs.
lt is worth noting that, according to the Department of Health and Social Services, no request for legal settlement adjustments *52 has been received from any county since the establishment of these boards. In contrast, the department received hundreds of requests before the changes discussed herein were effective. This is an acknowledgement by the several counties that no mechanism is available to file legal settlement claims.
The retention of the references to legal settlement in the sections mentioned at the outset of this opinion can best be explained as a "legislatively dropped stitch." See Scharping v.Johnson (1966),
Your second question is whether or not a person must be a legal resident of the county in order to obtain these services or whether it is enough that he physically reside within the county. The Department of Health and Social Services has taken the position that boards should adopt the definition of "residence" found in sec. 49.10 (12) (c), Stats. Legal residence as defined therein is the voluntary concurrence of physical presence and intent to remain, physical presence being prima facie evidence of intent to remain. I agree with the department's position subject to the admonition that this rule, which substantially codifies the common law rule, creates a rebuttable presumption.
It is often difficult to determine residence of an individual who requires emergency care. Though sec. 51.002, Stats., requires committing or admitting patients under the care and custody of a board, as a practical matter emergency patients are committed by judges directly to a particular facility, or directly admitted by a facility. Such action can be justified by the impracticability of physically transferring a person in need of immediate emergency care to his county of residence for enrollment under the care and custody of the appropriate board. In order to comply with the letter and spirit of sec. 51.002 and the entire mental health act as revised, information concerning the person's place of residence should be procured at the earliest possible time. Thereafter, the appropriate board should be instructed to enroll such person in its program. That board then would be liable for the cost of care and treatment. *53
Where counties act jointly, the Department of Health and Social Services is required to approve cooperative agreements pursuant to sec.
In all commitments or admissions, every effort should be made to resolve differences of opinion relative to an applicant's place of residence as soon as possible. I am hereby suggesting to the Department of Health and Social Services that a need exists for prompt legislative action to establish a method for resolving such disputes. Although other methods might be available, the procedures formerly used in legal settlement disputes would appear workable.
Finally, you ask whether a board may refuse care to an eligible person because funds to be provided by the state are insufficient to cover all eligible persons in the county. Under sec.
Both the repealed subsections and the existing provisions expressly limit state funding to that "within the limits of the appropriation" under sec.
The appropriations under sec.
Finally, it is well established that the legislature may properly impose new duties involving financial obligations upon counties without providing any appropriation whatsoever on the theory that the county is a political subdivision or agency of the state. Columbia County v. Wisconsin Retirement Fund (1962),
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