AB601: Bill Text

Current administrative rules limit eligibility for adoption assistance to children with "special needs" as described by DHFS in s. HSS 50.03 (1) (b), Wis. adm. code. The description includes children who have at least one of the following special needs at the time of adoptive placement:

1. The child is 10 years of age or older if age is the only factor in determining eligibility.

2. The child is a member of a sibling group of 3 or more children who must be placed together.

3. The child exhibits moderate or intensive difficulty-of-care problems, as defined by DHFS by rule. (These difficulty-of-care problems are described in s. HSS 56.09 (3), Wis. adm. code.)

4. The child belongs to a minority race and children of that minority race cannot be readily placed due to a lack of appropriate placement resources.

This bill makes several changes to the adoption assistance program and creates new provisions relating to that program. As described below, the 2 primary features of the bill relate to: a) providing adoption assistance under a deferred adoption assistance agreement, as discussed below, for a child who is at high risk of developing moderate or intensive difficulty-of-care problems ("at-high-risk child"); and b) allowing the amendment of an adoption assistance agreement if there is a substantial change in circumstances.

As discussed below, the bill also clarifies current law relating to parental liability for substitute care for children receiving adoption assistance. In addition, as discussed in the Notes following the pertinent Sections of the bill, the bill: a) clarifies current law regarding the amount of an adoption assistance monthly maintenance payment; b) requires DHFS to promulgate a rule to reflect current federal law with respect to the extenuating circumstances under which an adoption assistance agreement may be entered into after an adoption; and c) requires DHFS to promulgate a rule regarding photolisting of a child with the adoption information exchange that does not require photolisting under circumstances when photolisting is not required by federal law as a prerequisite for the state to receive federal matching funds for adoption assistance.

Deferred Adoption Assistance Agreements for At-High-Risk Children

The bill requires DHFS to promulgate administrative rules governing the adoption assistance program that include in the definition of a child with "special needs" a child who, at the time of adoptive placement, is at high risk of later developing moderate or intensive difficulty-of-care problems. The bill further provides that if a child is a child with special needs based solely on being at high risk, the following adoption assistance benefits are available:

1. Reimbursement for nonrecurring adoption expenses (currently limited by s. HSS 50.05 (3), Wis. adm. code, to $2,000 maximum).

2. Medical assistance for the child.

3. An adoption assistance monthly maintenance payment that is initially set at $0.

An adoption assistance agreement that provides for an initial monthly maintenance payment of $0 for an at-high-risk child is commonly referred to as a deferred adoption assistance agreement. Under a deferred adoption assistance agreement, if there is a substantial change in circumstances, that is, if the child later develops moderate or intensive difficulty-of-care problems, the adoptive or proposed adoptive parents may then request that the adoption assistance agreement be amended to increase the monthly maintenance payments above the $0 level. The process for requesting an amendment to an adoption assistance agreement is discussed below.

Amendments of an Adoption Assistance Agreement Due to a Substantial Change in Circumstances

The bill provides that if an adoption assistance agreement is in effect, including a deferred adoption assistance agreement for an at-high-risk child, and if the adoptive or proposed adoptive parents believe there has been a substantial change in circumstances, the adoptive or proposed adoptive parents may request that the adoption assistance agreement be amended to increase the amount of the monthly maintenance payment.

The bill requires DHFS to promulgate an administrative rule defining a substantial change in circumstances and requires the definition to include: a) situations in which an at-high-risk child has developed moderate or intensive difficulty-of-care problems; and b) situations in which a child's difficulty-of-care problems have increased from the moderate level to the intensive level under DHFS's schedule of difficulty-of-care levels.

The bill requires DHFS to do all of the following if DHFS receives a request to amend an adoption assistance agreement:

1. Determine whether there has been a substantial change in circumstances.

2. If there has been a substantial change in circumstances, offer to increase the amount of monthly maintenance payments based on criteria established by DHFS by rule.

3. If the increase offered by DHFS is agreed to by the adoptive or proposed adoptive parents, amend the adoption assistance agreement in writing to specify the increased amount of monthly maintenance payments.

The bill also permits DHFS to propose to the adoptive or proposed adoptive parents that an adoption assistance agreement be amended to adjust the amount of monthly maintenance payments. An adjustment proposed by DHFS goes into effect only if an adjustment is agreed to by the adoptive or proposed adoptive parents.

Parental Liability for Substitute Care for Children Receiving Adoption Assistance

Under current law, in general, parental liability for the cost of care and maintenance of a child who has been placed by a court order in a residential, nonmedical facility ("substitute care") is determined by using the percentage standard established by the department of workforce development for child support and by applying the percentage standard under rules promulgated by DHFS under s. 46.247, stats., unless a court modifies the amount based on a consideration of various factors. Current law, however, provides that if a parent who is required to pay for the cost of substitute care is receiving adoption assistance under s. 48.975, stats., for a child who is in substitute care, the parent's liability for the cost of substitute care may not exceed the amount of adoption assistance payments unless the court finds, after considering various factors, that limiting the amount of the parent's liability to the amount of adoption assistance payments is unfair to the child or to either of the child's parents.

The bill:

1. Limits, except as provided, the maximum liability for the cost of substitute care of a child for a parent who is receiving adoption assistance for that child to the amount of the adoption assistance monthly maintenance payments received by the parent. (DHFS currently interprets the statute as applying only to those monthly maintenance payments; thus, this statutory clarification does not affect current practice.)

2. Specifies that if an adoption assistance agreement provides for a $0 monthly maintenance payment, the payment of $0 is considered to be an adoption assistance maintenance payment for purposes of determining parental liability for the cost of substitute care. Thus, parental liability for the cost of substitute care in such cases is limited to $0, unless a court finds that limitation to be unfair to the child or to either of the child's parents. This includes situations in which an adoption assistance agreement is in effect under s. 48.975 (3) (a) 3., stats., as created by the bill, covering a child with special needs based solely on being at high risk of developing moderate or intensive difficulty-of-care problems.

AB601, s. 1 Section 1 . 46.10 (14) (cm) 1. and 2. of the statutes are amended to read:

AB601,4,6 46.10 (14) (cm) 1. Except as provided in subd. 2., if a parent who is required to pay child support under par. (b) or (c) is receiving adoption assistance under s. 48.975 for the child for whom support is ordered, the amount of the child support payments determined under par. (b) or (c) may not exceed the amount of the adoption assistance maintenance payments under s. 48.975 (3) (a).

AB601,4,11 2. Subdivision 1. does not apply if, after considering the factors under par. (c) 1. to 11., the court finds by the greater weight of the credible evidence that limiting the amount of the child support payments to the amount of the adoption assistance maintenance payments under s. 48.975 (3) (a) is unfair to the child or to either of the parents.

AB601, s. 2 Section 2 . 46.10 (14) (cm) 1. of the statutes, as affected by 1997 Wisconsin Act .... (this act), is repealed and recreated to read:

AB601,5,2 46.10 (14) (cm) 1. Except as provided in subd. 2., if a parent who is required to pay child support under par. (b) or (c) is receiving adoption assistance under s. 48.975 for the child for whom support is ordered, the amount of the child support payments determined under par. (b) or (c) may not exceed the amount of the adoption assistance maintenance payments under s. 48.975 (3) (a). If an agreement under s. 48.975 (4) is in effect that provides for a payment of $0 under s. 48.975 (3) (a), the payment of $0 shall be considered to be an adoption assistance maintenance payment for purposes of this subdivision.

Note: Sections 1 and 2:

1. Limit, except as provided, the maximum liability for the cost of substitute care of a child for a parent who is receiving adoption assistance for that child to the amount of the adoption assistance monthly maintenance payments received by the parent.

2. Specify that if an adoption assistance agreement provides for a $0 monthly maintenance payment, the payment of $0 is considered to be an adoption assistance maintenance payment for purposes of determining parental liability for the cost of substitute care. Thus, parental liability for the cost of substitute care in such cases is limited to $0, unless a court finds that limitation to be unfair to the child or to either of the child's parents. This includes situations in which an adoption assistance agreement is in effect under s. 48.975 (3) (a) 3., stats., as created by the bill, covering a child with special needs based solely on being at high risk of developing moderate or intensive difficulty-of-care problems.

AB601, s. 3 Section 3. 48.975 (2) of the statutes is amended to read:

AB601,5,6 48.975 (2) Applicability. The department may provide adoption assistance only for a child with special needs and only when it the department has determined that such assistance is necessary to assure the child's adoption.

Note: Specifies that DHFS may provide adoption assistance only for a child with special needs. Section 48.975 (5) (b) stats., as created by this bill, requires DHFS to promulgate an administrative rule defining a child with special needs.

AB601, s. 4 Section 4 . 48.975 (3) (a) of the statutes is renumbered 48.975 (3) (a) 1. and amended to read:

AB601,5,14 48.975 (3) (a) 1. For Except as provided in subd. 3., for support of a child who was in foster care or treatment foster care immediately prior to placement for adoption, the initial amount of adoption assistance for maintenance shall be equivalent to the amount of that child's foster care or treatment foster care payment. For at the time that the agreement under sub. (4) (a) is signed or a lesser amount if agreed to by the proposed adoptive parents and specified in that agreement.

AB601,6,3 2. Except as provided in subd. 3., for support of a child not in foster care or treatment foster care immediately prior to placement with a subsidy for adoption, the initial amount of adoption assistance for maintenance shall be equivalent to the uniform foster care rate in effect at the time that the agreement under sub. (4) (a) is signed or a lesser amount if agreed to by the proposed adoptive parents and specified in that agreement.

AB601, s. 5 Section 5 . 48.975 (3) (a) 3. of the statutes is created to read:

AB601,6,8 48.975 (3) (a) 3. For support of a child who is defined under rules promulgated by the department under sub. (5) (b) as a child with special needs based solely on being at high risk of developing moderate or intensive difficulty-of-care problems, the initial amount of adoption assistance for maintenance shall be $0.

AB601, s. 6 Section 6 . 48.975 (3) (a) 4. of the statutes is created to read:

AB601,6,15 48.975 (3) (a) 4. The amount of adoption assistance for maintenance may be changed under an amended agreement under sub. (4) (b) or (c). If an agreement is amended under sub. (4) (b) or (c), the amount of adoption assistance for maintenance shall be the amount specified in the amended agreement but may not exceed the uniform foster care rate that would be applicable to the child if the child were in foster care during the time for which the adoption assistance for maintenance is paid.

Note: With respect to adoption assistance maintenance payments, Sections 4 , 5 and 6 do the following:

1. Provide that for a child who is defined as a child with special needs solely on the basis that the child is an at-high-risk child, the initial amount of monthly maintenance payments must be set at $0.

2. Provide that for a child who is not an at-high-risk child and who was in foster care or treatment foster care immediately prior to placement for adoption, the initial amount of adoption assistance monthly maintenance must be equivalent to the amount of that child's foster care or treatment foster care monthly payment at the time that the adoption assistance agreement is signed or a lesser amount if agreed to by the proposed adoptive parents and specified in the adoption assistance agreement.

In contrast, current law requires the amount of adoption assistance monthly maintenance for a child who was in foster care or treatment foster care immediately prior to adoption to be equivalent to that child's foster care or treatment foster care monthly payment.

3. Provide that for a child who is not an at-high-risk child and who was not in foster care or treatment foster care immediately prior to placement for adoption, the initial amount of adoption assistance monthly maintenance must be equivalent to the uniform foster care rate at the time that the adoption assistance agreement is signed or a lesser amount if agreed to by the proposed adoptive parents and specified in the adoption assistance agreement.

In contrast, current law requires the amount of adoption assistance monthly maintenance for a child who was not in foster care or treatment foster care immediately prior to placement with a subsidy to be equivalent to the uniform foster care rate.

4. For all children for whom an adoption assistance agreement is in place, permit the amount of adoption assistance monthly maintenance to be changed under an amended adoption assistance agreement, as described in s. 48.975 (4) (b) to (d), stats., as created by this bill, but specifies that the amount of adoption assistance monthly maintenance specified in the amended agreement may not exceed the uniform foster care rate that would be applicable to the child if the child were in foster care during the time for which adoption assistance maintenance is paid.

AB601, s. 7 Section 7 . 48.975 (3m) of the statutes is created to read:

AB601,7,3 48.975 (3m) Duration. The adoption assistance may be continued after the adoptee reaches the age of 18 if that adoptee is a full-time high school student.

Note: Moves this provision from current s. 48.975 (4), stats., relating to procedure.

AB601, s. 8 Section 8 . 48.975 (4) of the statutes is amended to read:

AB601,7,13 48.975 (4) Procedure. A Except in extenuating circumstances, as defined by the department by rule promulgated under sub. (5) (a), a written agreement to provide adoption assistance shall be made prior to legal adoption. An agreement to provide adoption assistance may be made only for children a child who, at the time of placement for adoption, is in the guardianship of the department or other agency authorized to place children for adoption or for children in the guardianship of an American Indian tribal agency in this state. The adoption assistance may be continued after the child reaches the age of 18 if that child is a full-time high school student.

Note: Does the following:

1. If there are extenuating circumstances (which DHFS must define by administrative rule), provides an exception to the requirement that an adoption assistance agreement be signed prior to adoption. (The addition of this provision changes current statutes to reflect current federal guidelines and current administrative rules that define "extenuating circumstances".)

2. Clarifies that an adoption assistance agreement may be made only for a child who, at the time of placement for adoption, is in the guardianship of DHFS, another agency authorized to place children for adoption or an American Indian tribal agency in this state.

3. Deletes from the subsection on procedure the provision that adoption assistance may be continued after the child reaches the age of 18 if that child is a full-time high school student. This provision is included in s. 48.975 (3m), stats., as created by the bill.

AB601, s. 9 Section 9. 48.975 (4) of the statutes, as affected by 1997 Wisconsin Act .... (this act), is renumbered 48.975 (4) (a).

AB601, s. 10 Section 10 . 48.975 (4) (b), (c) and (d) of the statutes are created to read:

AB601,8,9 48.975 (4) (b) If an agreement to provide adoption assistance is in effect and if the adoptive or proposed adoptive parents believe there has been a substantial change in circumstances, as defined by the department by rule promulgated under sub. (5) (c), the adoptive or proposed adoptive parents may request that the agreement be amended to increase the amount of adoption assistance for maintenance. If a request is received, the department shall do all of the following:

AB601,8,11 1. Determine whether there has been a substantial change in circumstances, as defined by the department by rule promulgated under sub. (5) (c).

AB601,8,14 2. If there has been a substantial change in circumstances, offer to increase the amount of adoption assistance for maintenance based on criteria established by the department by rule promulgated under sub. (5) (d).

AB601,8,17 3. If an increased amount of adoption assistance for maintenance is agreed to by the adoptive or proposed adoptive parents, amend the agreement in writing to specify the increased amount of adoption assistance for maintenance.

AB601,8,23 (c) The department may propose to the adoptive or proposed adoptive parents that an agreement to provide adoption assistance be amended to adjust the amount of adoption assistance for maintenance. If an adjustment in the amount of adoption assistance for maintenance is agreed to by the adoptive or proposed adoptive parents, the agreement shall be amended in writing to specify the adjusted amount of adoption assistance for maintenance.

AB601,8,25 (d) An agreement to provide adoption assistance may be amended more than once under par. (b) or (c).

Note: Does the following:

1. Provides that if an adoption assistance agreement is in effect and if the adoptive or proposed adoptive parents believe there has been a substantial change in circumstances, as defined by DHFS by rule, the adoptive or proposed adoptive parents may request that the adoption assistance agreement be amended to increase the amount of adoption assistance monthly maintenance.

2. Provides that if DHFS receives such a request, DHFS must do all of the following:

a. Determine whether there has been a substantial change in circumstances, as defined by DHFS by rule.

b. If there has been a substantial change in circumstances, offer to increase the amount of adoption assistance monthly maintenance based on criteria established by DHFS by rule for determining the amount of the increase to be offered by DHFS.

c. If the increase offered by DHFS is agreed to by the adoptive or proposed adoptive parents, amend the adoption assistance agreement in writing to specify the increased amount of adoption assistance monthly maintenance.

3. Permits DHFS to propose to the adoptive or proposed adoptive parents that an adoption assistance agreement be amended to adjust the amount of adoption assistance monthly maintenance; and provides that if an adjustment is agreed to by the adoptive or proposed adoptive parents, the agreement must be amended in writing to specify the adjusted amount of adoption assistance monthly maintenance.

4. Permits an adoption assistance agreement to be amended and reamended.

AB601, s. 11 Section 11. 48.975 (5) of the statutes is renumbered 48.975 (5) (intro.) and amended to read:

AB601,9,4 48.975 (5) Rules. (intro.) The department shall promulgate rules necessary to implement this section., which shall include all of the following:

AB601, s. 12 Section 12 . 48.975 (5) (a) to (e) of the statutes are created to read:

AB601,9,13 48.975 (5) (a) A rule defining the extenuating circumstances under which an initial agreement to provide adoption assistance under sub. (4) (a) may be made after adoption. This definition shall include all circumstances under which federal statutes, regulations or guidelines provide that federal matching funds for adoption assistance are available to the state if an initial agreement is made after adoption, but may not include circumstances under which federal statutes, regulations or guidelines provide that federal matching funds for adoption assistance are not available if an initial agreement is made after adoption.

AB601,9,15 (b) A rule defining a child with special needs, which shall include a child who the department determines has, at the time of placement for adoption, moderate or intensive difficulty-of-care problems, as defined by the department, or who the department determines is, at the time of placement for adoption, at high risk of developing those problems.

AB601,10,7 (c) A rule defining the substantial change in circumstances under which adoptive or proposed adoptive parents may request that an agreement made under sub. (4) be amended to increase the amount of adoption assistance for maintenance. The definition shall include all of the following:

AB601,10,10 1. Situations in which a child who was defined as a child with special needs based solely on being at high risk of developing moderate or intensive difficulty-of-care problems has developed those problems.

AB601,10,13 2. Situations in which a child's difficulty-of-care problems have increased from the moderate level to the intensive level as set forth in the department's schedule of difficulty-of-care levels promulgated by rule.

AB601,10,18 (d) Rules establishing requirements for submitting a request under sub. (4) (b), criteria for determining the amount of the increase in adoption assistance for maintenance that the department shall offer if there has been a substantial change in circumstances and the procedure to appeal the decision of the department regarding the request.

AB601,10,23 (e) A rule regarding when a child must be photolisted with the adoption information exchange under s. 48.55 in order to be eligible for adoption assistance. The rule may not require photolisting under any circumstances in which photolisting is not required by federal statutes, regulations or guidelines as a prerequisite for the state to receive federal matching funds for adoption assistance.

Note: Provides that the administrative rules promulgated by DHFS to implement the adoption assistance program must do all of the following:

1. Define the extenuating circumstances under which an initial adoption assistance agreement may be made after adoption. As discussed in the Note following Section 8, above, current statutes do not permit an initial adoption assistance agreement to be made after an adoption, even though current administrative rules do permit such an agreement to be made after adoption in extenuating circumstances. Section 8 of the bill amends the statutes to permit an initial adoption assistance agreement to be made after adoption, and this Section explicitly requires DHFS to promulgate an administrative rule defining the extenuating circumstances under which such an agreement may be made after adoption. Current federal guidelines provide that an initial adoption assistance agreement may be entered into after finalization of an adoption in extenuating circumstances, as set forth in those guidelines. The bill requires the definition of extenuating circumstances in the administrative rules to include all circumstances under which federal statutes, regulations or guidelines provide that federal matching funds for adoption assistance are available to the state if an initial agreement is made after adoption, but prohibits the definition from including circumstances under which federal statutes, regulations or guidelines provide that federal matching funds for adoption assistance are not available if an initial agreement is made after adoption.

2. Define a child with special needs and include in that definition: a) a child who DHFS determines has, at the time of adoptive placement, moderate or intensive difficulty-of-care problems, which DHFS must define by rule; and b) a child who DHFS determines is, at the time of adoptive placement, at high risk of developing those difficulty-of-care problems. The special committee did not intend that definition to be limited to these 2 situations.