Rule-Making Notices (Hearing Notices)

Department of Children and Families

201 E. Washington Avenue

Madison, WI 53707

[phone]

[e-mail]

Written comments on the proposed rules received at the above address, email, or through the http://adminrules.wisconsin.gov website no later than December 3, 2012, will be given the same consideration as testimony presented at the hearing.

Analysis Prepared by the Department of Children and Families

Statutory authority

Sections 48.623 (7) and 227.11 (2), Stats.

Statutes interpreted

Sections 48.623, 48.685, and 48.977 (3r), Stats., and s. 48.62 (5), 2009 Stats.

Related statutes and rules

Chapters DCF 50 and 56.

Explanation of statutory authority

Section 48.623 (7), Stats., as created by 2011 Wisconsin Act 32, provides that the department shall promulgate rules to implement s. 48.623, Stats. Those rules shall include all of the following:

•   A rule defining the substantial change in circumstances under which a person receiving monthly subsidized guardianship payments may request that an agreement be amended to increase the amount of those payments.

•   Rules establishing requirements for submitting a request and criteria for determining the amount of the increase in monthly subsidized guardianship payments that a county department or the department shall offer if there has been a substantial change in circumstances and if there has been no substantiated report of abuse or neglect of the child by the person receiving those payments.

•   Rules establishing the criteria for determining the amount of the decrease in monthly subsidized guardianship payments that the department shall offer if a substantial change in circumstances no longer exists. The criteria shall provide that the amount of the decrease offered by the department may not result in a monthly subsidized guardianship payment that is less than the initial monthly subsidized guardianship payment provided for the child.

Summary of the proposed and emergency rules

The rules implement a new statewide subsidized guardianship program under s. 48.623, Stats., as created by 2011 Wisconsin Act 32. In general, the subsidized guardianship program provides assistance for the care of a child who has been removed from his or her home if returning home or being adopted is not in the child's best interests and a relative or like-kin individual who is a foster parent has a strong commitment to permanently caring for the child.

The rules include a procedure for agencies to use to inform a prospective guardian of eligibility for assistance and expectations involved with various permanency options for the child. If the prospective guardian decides to pursue subsidized guardianship and the prospective guardian and child are eligible, the agency shall enter into a subsidized guardianship agreement with the prospective guardian before guardianship is established. The rules specify the topics that must be included in the agreement.

The initial subsidized guardianship payment amount that is incorporated into the subsidized guardianship agreement is the same amount that the prospective guardian received as a foster parent in the month before guardianship was established or a lesser amount if agreed to by the prospective guardian. In general, the payment amount may be adjusted based on the circumstances of the guardian and the needs of the child. A payment amount may not be adjusted if the prospective guardian's foster home was certified at Level 1 on the date that the prospective guardian signed the subsidized guardianship agreement. A foster parent who operates a Level 1 foster home is not eligible for supplemental payments.

For a subsidized guardianship agreement entered into on or after July 1, 2011, under s. 48.623, Stats., a supplemental payment amount based on the needs of the child is determined under s. DCF 56.23 (2) (a) in a manner similar to a supplemental payment for foster care and an adoption assistance agreement entered into on or after July 1, 2011. For a subsidized guardianship agreement entered into as part of the Bureau of Milwaukee Child Welfare demonstration project that was authorized by a federal waiver and s. 48.62 (5), 2009 Stats., before July 1, 2011, a supplemental payment is determined under the section of the previous version of ch. DCF 56 that was used for determining a supplemental payment before the standardized assessment tool in s. DCF 56.22 was implemented in 2011. The previous method of determining a supplemental payment is incorporated into the proposed rules at s. DCF 55.09. The previous method of determining a supplemental payment is also used for an adoption assistance agreement entered into before July 1, 2011.

Adjusting the supplemental payment based on the circumstances of the guardian and the needs of the child requires an amendment to the subsidized guardianship agreement. The rules provide the process for determining whether the agreement should be amended. An amendment may not be effective for more than one year. The rules also provide a process for reviewing an amendment shortly before it will expire to determine whether it is appropriate to enter into a new amendment or to return to the amount in the initial subsidized guardianship agreement.

The rules provide for review of the guardian and child's continued eligibility for subsidized guardianship at an annual review date, upon receipt of notification from the guardian of a change in circumstances, if the agency knows or suspects that a change affecting eligibility has occurred, and beginning 6 months before the child's 18th birthday to determine whether eligibility is expected to continue when the child turns 18 years old.

Eligibility may continue when the child is 18 years old if the child is enrolled full-time in high school or an equivalent educational program and no other changes affecting eligibility have occurred. Eligibility may continue when the child is 19 or 20 years old if the child is enrolled full-time in high school or an equivalent educational program; the child has a physical, emotional, or behavioral need; the Social Security Administration has determined that the child is ineligible for Social Security disability insurance or Supplemental Security Income for not meeting the disability standard; the agency determines that the child's physical, emotional, or behavioral need warrants the continuation of assistance; and no other changes affecting eligibility have occurred.

The rules also include the process for a person to petition the Division of Hearings and Appeals for review of an agency action or failure to act. In addition, the rules provide the procedures for determining eligibility of an interim caretaker to receive subsidized guardianship payments upon the death or incapacity of the guardian or termination of a guardianship.

Summary of factual data and analytical methodologies

The procedures for determining whether a subsidized guardianship payment should be adjusted based on a substantial change in circumstances are similar to the procedures used for adoption assistance and foster care. No data was used.

Summary of related federal requirements

The Fostering Connections to Success and Increasing Adoptions Act of 2008 creates an option for states to operate a guardianship assistance program and receive federal reimbursement for a percentage of the expenditures under Title IV-E of the Social Security Act. Once a state adopts the option in the state plan, assistance must be provided to any child who is eligible.

42 USC 671 (a) (28) provides that an agency may enter into kinship guardianship assistance agreements to provide kinship guardianship assistance payments on behalf of children to grandparents and other relatives who have assumed legal guardianship of the children for whom they have cared as foster parents and for whom they have committed to care on a permanent basis.

42 USC 673 (d) provides that a child is eligible for kinship guardianship assistance payments if all of the following apply:

•   The child was removed from his or her home pursuant to a voluntary placement agreement or as a result of a judicial determination that continuation in the home would be contrary to the welfare of the child.

•   The child was eligible for foster care maintenance payments while residing for at least 6 consecutive months in the home of the prospective relative guardian.

•   Being returned home or adopted are not appropriate permanency options for the child.

•   The child demonstrates a strong attachment to the prospective relative guardian and the relative guardian has a strong commitment to caring permanently for the child.

•   With respect to a child who has attained 14 years of age, the child has been consulted regarding the kinship guardianship arrangement.

An agency may provide kinship guardianship assistance payments for a sibling of a child determined eligible, regardless of whether the sibling meets the eligibility requirements, if the agency and the relative agree on the appropriateness of placing the sibling in the home of the relative.

If kinship guardianship assistance payments are provided, an agency is required to enter into a written, binding kinship guardianship assistance agreement with the prospective relative guardian that provides the following:

•   The amount of each kinship guardianship assistance payment and the manner in which the payment may be adjusted periodically based on the circumstances of the relative guardian and the needs of the child, in consultation with the guardian. A kinship guardianship assistance payment on behalf of a child cannot exceed the foster care maintenance payment that would have been paid on behalf of the child if the child had remained in a foster home.

•   Any additional services and assistance that the child and relative guardian will be eligible for under the agreement and the procedure by which the relative guardian may apply for additional services as needed.

•   That the agency will pay nonrecurring expenses associated with obtaining legal guardianship of the child up to $2,000.

•   That the agreement shall remain in effect without regard to the state residency of the relative guardian.

42 USC 671 (a) (20) requires a state to provide procedures for fingerprint-based criminal records checks of relative guardians and child abuse and neglect registry checks of relative guardians and adults living in the guardians' home before kinship guardianship assistance payments may be made.

42 USC 673 (b) (3) (C) provides that a child for whom kinship guardianship assistance payments are being made is categorically eligible for Medicaid in the same manner as a child for whom foster care maintenance payments are made.

Before the Fostering Connections to Success and Increasing Adoptions Act of 2008 was adopted, 11 states operated subsidized guardianship programs as demonstration projects under federal waivers, including a Wisconsin program administered by the Bureau of Milwaukee Child Welfare. The demonstration projects found that the availability of subsidized guardianship increases the number of children who exit foster care to permanent homes, maintains child safety, and saves money through reductions in out-of-home placement days and subsequent decreases in the administrative costs associated with supervising out-of-home care cases. For a synthesis of the findings of the subsidized guardianship demonstration projects, see http://www.acf.hhs.gov/programs/cb/programs_fund/cwwaiver/2011/subsidized.pdf.

Comparison to rules in adjacent states

Illinois and Michigan have subsidized guardianship programs. In Illinois, payment amounts are determined in the same manner as adoption assistance. In Michigan, payments amounts are determined in the same manner as foster care.

Effect on Small Business

The rules will not affect small businesses. The Department's Small Business Regulatory Coordinator is Elaine Pridgen, [e-mail], [phone].

Analysis used to determine effect on small business

The rules will affect children in out-of-home care, relatives of children in out-of-home care, tribes, and county departments of social or human services.

Agency Contact Person

Jonelle Brom, Bureau of Permanence and Out-of-Home Care, Division of Safety and Permanence, [phone], [e-mail].

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: [phone]
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
X Original   Updated   Corrected
2. Administrative Rule Chapter, Title and Number
Chapter DCF 55, Subsidized Guardianship
3. Subject
Chapter DHS 163, Certification for the Identification, Removal and Reduction of Lead-Based Paint Hazards
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
GPR   FED   PRO   PRS   SEG   SEG-S
6. Fiscal Effect of Implementing the Rule
No Fiscal Effect X Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs Could Absorb Within Agency's Budget Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
State's Economy X Local Government Units		Specific Businesses/Sectors Public Utility Rate Payers Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? Yes   X No
9. Policy Problem Addressed by the Rule
Procedures to implement a statewide subsidized guardianship program, including procedures to adjust the payment amount based on the circumstances of the guardian and the needs of the child.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
To revise Ch. DHS 163 relating to training, certification and work practice requirements for lead-safe renovation activities in pre-1978 housing and child-occupied facilities. County Departments of Social Services Directors Tribal Chairpersons Tribal Social Service/Indian Child Welfare Directors Tribal Chairpersons
11. Identify the local governmental units that participated in the development of this EIA.
Walworth County
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The rule's fiscal impact on counties is indeterminate because it will depend on the number of amendments entered into by the counties. The department received comments from Patricia Weeden, Ongoing Case Management Supervisor, Walworth County Department of Human Services. Comment: The level of county responsibility increases over time on cases in which we would normally no longer be involved. The rule requires the county to do a review of eligibility for payments annually or if there is a change of circumstances. This responsibility will increase in number the longer the rule is in effect. Department response: This is a statutory requirement. The annual review ensures guardians continue to meet eligibility requirements and prevents fraud. Comment: Counties will be required to continue to enter information in the ewisacwis system and keep open cases that would normally close. Department response: A subsidized guardianship case remains open for a service payment, not for case management or any other purpose. Comment: The county may be required to file a subsequent CHIPS petition in cases in which a substitute caregiver does not meet standards. Department response: A guardian's ineligibility for subsidized guardianship does not mean a CHIPS petition would need to be filed. A county agency is statutorily required to file a CHIPS petition if a guardian is no longer appropriately caring for a child in any circumstance. Implementation of the subsidized guardianship program does not impact this responsibility. Comment: Counties will also have to pay for background checks for interim caregivers and non-client residents. Department response: Federal law requires these background checks to be completed. County agencies are provided funds through the Children and Families Allocation that can be used to complete the necessary checks. Comment: If caregivers are licensed as a Level 2 provider, the costs of placement could increase and it is difficult for the county to anticipate how much and how often this provision would be used for budgetary purposes. Department response: If the child remained in foster care, the agency would be required to consider an adjustment of the rate every 6 months. For subsidized guardianship, a county is required to consider a rate adjustment on an annual basis if requested by the guardian, and there is a substantial change in the child's circumstances and increased needs as documented by a professional.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Section 48.623 (7), Stats., directs the department to promulgate rules to implement s. 48.623, Stats., including the manner in which those payments may be adjusted periodically, in consultation with the guardian, based on the circumstances of the guardian and the needs of the child. Federal law requires states to adopt a process for guardians to request an adjusted payment amount.
14. Long Range Implications of Implementing the Rule
None.
15. Compare With Approaches Being Used by Federal Government
NA
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Wisconsin, Illinois, and Michigan have subsidized guardianship programs and determine foster care, subsidized guardianship, and adoption assistance payments in a similar manner.
17. Contact Name				18. Contact Phone Number
Jonelle Brom				[phone]

*This document can be made available in alternate formats to individuals with disabilities upon request.

Notice of Proposed RuleMaking
Without Public Hearing

Higher Educational Aids Board

rulemaking_notices CR 12-044 CR 12-044

The Wisconsin Higher Educational Aids Board (HEAB) proposes an order to amend section HEA 5.04 (2) Talent Incentive Grant Eligibility, relating to the Wisconsin Talent Incentive Grant.

Pursuant to section 227.16 (2) (b), Stats., a public hearing is not required as the proposed amendment brings the existing rule into conformity with a statute.

Written Comments

Place Where Comments are to be Submitted and Deadline for Submission: A public hearing and notice are not required under s. 227.16 (2) (b), Stats., however, written comments may be submitted by 4:00 pm on December 7, 2012 to John Reinemann at the Wisconsin Higher Educational Aids Board, 131 West Wilson Street, Suite 902, Box 7885, Madison WI 53707-7885, or by email to [e-mail] at the Higher Educational Aids Board with a subject line of s. HEA 5.04.

Analysis Prepared by the Wisconsin Higher Educational Aids Board

Statutes interpreted

Section 39.435 (2), Stats.

Statutory authority

Section 39.28 (1), Stats.

Explanation of agency authority

Section 39.28 (1) The board shall administer the programs under this subchapter and may promulgate such rules as are necessary to carry out its functions.

Section 39.435 (2) The board shall award Talent Incentive Grants to uniquely needy students enrolled at least half-time as first-time freshmen at public and private nonprofit institutions located in this state and to sophomores, juniors and seniors who received such grants as freshmen. No grant under this subsection may exceed $1,800 for any academic year. The board may not award a grant to the same student for more than 10 consecutive semesters or their equivalent. The board shall promulgate rules establishing eligibility criteria for grants under this subsection.

Related rule

Section HEA 5.04, Wis. Adm. Code, provides eligibility requirements for Talent Incentive Grants. Section HEA 5.04 (2) provides “Non-traditional student status criteria".

Plain language analysis

This proposed rule removes from s. HEA 5.04 the first item (item a) in Section 2 of the rule, which states an eligibility requirement for the Talent Incentive Grant. Item a reads, “The student is a member of one of the minority groups defined in s. 39.44 (1) (a), Stats."

Summary of, and comparison with, existing or proposed federal regulations

Federal law, Title VI of the Civil Rights Act of 1964 and its implementing regulation at 34 CFR Part 100, prohibit discrimination on the basis of race, color or national origin by recipients of Federal financial assistance.

The change being sought is proposed at the request of the United States Department of Education – Office for Civil Rights, which notified HEAB in December 2008 that s. HEA 5.04 is not compliant with Title VI of the Civil Rights Act of 1964. The nature of the noncompliance is based in the lack of justification within s. HEA 5.04 for use of race and national origin as criteria for determining eligibility for the Talent Incentive Program (TIP).

(This notification resulted from a complaint filed with the Office of Civil Rights in September 2006. The nature of the complaint is that s. HEA 5.04 discriminates against non-minority students on the basis of race, by denying them an equal opportunity to participate in a financial aid program.)

After discussions with the Office of Civil Rights, HEAB achieved a resolution with the Office of Civil Rights by agreeing to eliminate the use of the race element in its non-traditional student status criteria, beginning in the 2010-2011 school year. The remaining criteria in s. HEA 5.04 remain in force, allowing the agency to administer the program. In addition, at the suggestion of the Office of Civil Rights, HEAB made changes to its forms, publications and web site which reflected the change in criteria. As an interim measure, HEAB also required that TIP applications submitted for TIP in the 2010-2011 school year include indication of one of the remaining criteria of disadvantage found in s. HEA 5.04. Finally, HEAB began the process of seeking the change now proposed to s. HEA 5.04, obtaining a signed statement of scope for the proposed change from the Governor in December 2011.

HEAB submitted documentation of its steps to the Office of Civil Rights and was notified in April 2012 that it is in compliance with the Title VI regulation cited in the complaint of September 2006.

Comparison with rules in adjacent states

The change being sought is proposed at the request of the United States Department of Education – Office for Civil Rights. Because the US Department of Education is a national agency, the standard that is driving the change to s. HEA 5.04 is applied nationally. The proposed change to the rule is in keeping with HEAB's effort to make its own administrative rules comply with federal law.

All the states adjacent to Wisconsin offer need-based grants or scholarships to post-secondary students, as does Wisconsin; each adjacent state has a program that compares to the Wisconsin Higher Education Grant (WHEG) and the Wisconsin Tuition Grant (WTG) as purely need-based grants.

Like its WHEG and WTG programs, Wisconsin's TIP program offers assistance to students based in part on financial need. The financial-need portion of the TIP program is not at issue and no changes to its criteria are being sought in this proposed rule change.

However, Wisconsin's TIP program also requires students to meet one criteria from a list of non-traditional (non-financial) student classifications that indicate potential disadvantage facing the student in pursuit of higher education. The non-traditional or non-financial criteria for qualifying for TIP could be a handicap, a shortfall in educational preparation, incarceration in (or recent release from) a correctional institution, a lack of family history of higher education, or an environment or academic background that deters the pursuit of educational plans.

Two of the states adjacent to Wisconsin do offer assistance to students based on potential disadvantages that go beyond simple financial need.

•   Iowa offers an “All Iowa Opportunity Foster Care Grant" for students between the ages of 17-24 who age out of Iowa's foster care system or State Training School and students who are adopted after age 16.

•   Michigan offers a “Tuition Incentive Program" or TIP that encourages eligible students to complete high school by providing tuition assistance for the first two years of college and beyond; eligibility requires a history of eligibility for Medicaid. Michigan has also created federally-funded GEAR UP scholarship programs exclusively for qualifying graduates of high schools in three specific urban school districts (Detroit, Flint and Muskegon).