Rule-Making Notices
Notice of Hearing
Children and Families
NOTICE IS HEREBY GIVEN that pursuant to sections
48.623 (7) and
227.11 (2), Stats., the Department of Children and Families proposes to hold a public hearing to consider emergency rules and proposed permanent rules creating Chapter
DCF 55, relating to subsidized guardianship.
Hearing Information
Date: Friday, November 30, 2012
Time: 1:30 p.m.
Location: GEF 1 Building
Room D203
201 E. Washington Avenue
Madison, WI 53703
Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
Accessibility
If you have special needs or circumstances regarding communication or accessibility at a hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audio format will be made available on request to the fullest extent possible.
Written Comments and Copy of Rule
A copy of the proposed rules is available at
http://adminrules.wisconsin.gov. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule or fiscal estimate by contacting:
Elaine Pridgen
Department of Children and Families
201 E. Washington Avenue
Madison, WI 53707
(608) 267-9403
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
Statutes interpreted
Related statutes and rules
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
