Section 328.28. Psychotropic medication as a condition of supervision.

  The purpose of this section is to provide a process for imposing a condition of supervision that requires compliance with prescribed psychotropic medications.

(1)   Psychotropic medication as a condition of supervision. Psychotropic medication may be made a condition of supervision only when one of the following applies:

(a) Following commitment proceedings during which the offender has been found not competent to refuse psychotropic medication.

(b) With the consent of a guardian who is able to authorize treatment of the offender with psychotropic medication.

(c) Following a department hearing under this section, approving a condition requiring the offender's compliance with prescribed psychotropic medication.

(d) When the offender waives a department psychotropic medication hearing under this section.

(e) When ordered by a court of law.

(2)   Criteria for requesting a hearing. An agent shall request approval for a hearing from a regional chief to determine the need for requiring psychotropic medication as a condition of supervision when all of the following apply:

(a) The use of psychotropic medication is medically indicated.

(b) The offender refuses to take psychotropic medication.

(c) The offender does not waive the hearing.

(3)   Notice of hearing. The offender shall receive written notice of the hearing at least 24 hours in advance. The notice shall include all of the following:

(a) The basis for the allegations that use of psychotropic medication is medically indicated and necessary.

(b) The date, time, place, and purpose of the hearing.

(c) The right to be represented by an advocate.

(d) The right to be heard and present evidence and relevant witnesses.

(e) The right to cross-examine department witnesses.

(f) The right to a written decision within 10 working days of the hearing, including the reason for the decision.

(4)   Access to departmental offender health care records. Department employees directly involved in the decision regarding psychotropic medication as a condition of supervision shall have access to the minimum necessary amount of protected health care information to enable them to make an informed decision relating to whether compliance with psychotropic medications should be required as a condition of supervision.

(5)   Psychotropic medication hearing. When an offender does not waive the hearing and refuses to take prescribed psychotropic medication, the department shall hold a hearing. The hearing may be conducted in person or by telephone.

(a) The department has the burden of proof to establish, by a preponderance of the evidence, that treatment with psychotropic medication is medically indicated and necessary to accomplish the goals of supervision.

(b) The hearing examiner is not bound by common law or statutory rules of evidence other than attorney-client privilege. The hearing examiner shall admit all evidence, including testimony, which has reasonable probative value and is not unduly repetitious or cumulative.

(c) The hearing examiner shall do all of the following:

1. Administer oaths or affirmations.

2. Take an active role in questioning witnesses and eliciting testimony as necessary.

3. Regulate the course of the hearing.

4. Keep summary notes of the hearing.

5. Render a written decision whether to impose a condition of supervision requiring compliance with prescribed psychotropic medication upon a finding that psychotropic medication is medically indicated and necessary to accomplish the goals of supervision.

(6)   Appeal of decision. The offender may appeal a decision ordering compliance with prescribed psychotropic medication to the secretary within 10 days of the written decision. The decision of the hearing examiner shall remain in effect while the appeal is pending.

(7)   Annual review. A hearing examiner shall review the decision ordering compliance with prescribed psychotropic medication on an annual basis.

(a) A different hearing examiner from the examiner who made the original determination may perform the annual review.

(b) The hearing examiner under par. (a) shall give the offender notice of the date of the annual review, what evidence is being considered, and the offender's right to respond.

(c) The hearing examiner may continue the order requiring compliance with prescribed psychotropic medication if evidence since the time of the last review shows that psychotropic medication is medically indicated and necessary to accomplish the goals of supervision.

CR 10-126 : cr. Register June 2013 No. 690 , eff. 7-1-13.