Under s.
48.891 (3) (c) 5p., Stats., a person who is a subject of a final determination that the person has abused or neglected a child has the right to a contested case hearing before the Division of Hearings and Appeals (DHA) on that determination. To receive the hearing, the person must send a written request to DHA within 10 days after the date of the notice of the final determination.
DHA shall commence the contested case hearing within 90 days after the receipt of the request unless the hearing is rescheduled by the person requesting it or DHA holds the case proceeding in abeyance. DHA can hold the case proceeding in abeyance pending the outcome of any criminal proceedings or any proceedings under s.
48.13, Stats., based on the alleged abuse or neglect or the outcome of any investigation that may lead to the filing of a criminal complaint or a petition under s.
48.13, Stats., based on the alleged abuse or neglect. DHA shall issue a final decision within 60 days after the close of the hearing.
The proposed rules provide that a person may request that the division of hearings and appeals expedite his or her appeal if any of the following apply:
• The person currently has, or has applied for, a license or certification that may be revoked or denied as provided in s.
48.685 or
50.065, Stats.
•
The person is currently employed by or contracts with, or the person is actively engaged in seeking employment or a contract with, an entity for duties subject to the record check requirements under s.
48.685 or
50.065, Stats.
•
The person is enrolled in an academic program that leads to license, certification, or employment or contract position that will be subject to the record check requirements under s.
48.685 or
50.065, Stats., and the person can be expected to complete the academic program within 150 days after the date of his or her request for a hearing with the division of hearings and appeals.
A person who requests that the division of hearings and appeals expedite his or her appeal shall indicate the request on his or her request for hearing and provide documentation that he or she qualifies for an expedited appeal. The division of hearings and appeals shall provide an expedited hearing and decision for a qualified person as soon as practicable.
If the contested case hearing or judicial review overturns the agency determination that a specific person has abused or neglected a child, the agency shall update the authorized information available for record checks within 15 days after the decision.
Summary of factual data and analytical methodologies
The rules were developed with an advisory group of representatives from the Wisconsin County Human Services Association.
The framework for the rules is based on the appellate opinion
Dupuy v. Samuels, 397 F.3d 493 (7th Cir. 2005) and the district court opinions
Dupuy v. McDonald,
141 F. Supp. 2d 1090 (N.D. Ill. 2001);
Dupuy v. McDonald, 2003 Westlaw 2155791 (N.D. Ill. July 10, 2003); and
Dupuy v. Samuels, 2005 Westlaw 1498468 (N.D. Ill. June 10, 2005).
The 7
th Circuit is a federal court with appellate jurisdiction over courts in Illinois, Wisconsin, and Indiana.
Dupuy is a class action case that found that specified workers subject to a background check that presumes disqualification based on a determination of child abuse or neglect have a constitutionally protected property interest in pursuing employment in their chosen occupation and are entitled to due process before being deprived of that interest. The series of opinions set forth decision-making, notice and hearing, and disclosure policies that were acceptable to the 7
th Circuit of the U.S. Court of Appeals.
Summary of related federal requirements
The Child Abuse Prevention and Treatment and Adoption Reform Act provides that the federal Department of Health and Human Services shall provide grants to states for the purpose of assisting states in improving their child protective services system. A state plan describing the activities that the state will carry out using funds received under the grant must include an assurance that the state has provisions, procedures, and mechanisms by which individuals who disagree with an official finding of child abuse or neglect can appeal the finding.
42 USC 5106a (b) (2) (B) (xv) (II).
Comparison to rules in adjacent states
Illinois: Illinois has a 2-track process. Persons with an employment interest may request a pre-disclosure conference and a post-disclosure contested case hearing based on the procedures developed in the Dupuy opinions. Persons without an employment interest may request a contested case hearing.
Minnesota: Both persons with an employment interest and persons with no employment interest may request a reconsideration of the agency's determination. A person with an employment interest has more time to request a reconsideration of the agency's determination than a person without an employment interest. For a person with an employment interest, the reconsideration may be based on whether the information that the agency relied on to disqualify is incorrect or on whether the individual poses a risk of harm to persons served by the program, or both. The agency has more time to respond if more issues are involved. Following the reconsideration, a person may request a contested case hearing.
Iowa: Following the conclusion of an assessment, a subject of a child abuse report has the right to examine the report and provide additional information and request that the department revise the report. At the time the report is issued, the department shall provide notice of the right to a contested case hearing to the person named as having abused a child.
Michigan: After a person's name is placed on the Central Registry, the person may write a letter requesting that his or her name be removed from the Central Registry. If that request is denied, the person may request an administrative hearing.
Effect on Small Business
The proposed rule may have an effect on small businesses as defined in s.
227.114 (1), Stats., in the future, but currently does not.
Analysis Used to Determine Effect on Small Business or in Preparation of Economic Impact Analysis
Section
48.981(3) (cm), Stats., allows the department to contract with a licensed child welfare agency to fulfill the department's duties on the review of an initial determination under s.
48.981 (3) (c) 5m., Stats. The Bureau of Milwaukee Child Welfare has been administering appeals of child abuse or neglect determinations itself and has no plans to contract with a licensed child welfare agency for duties under s.
48.981 (3) (c) 5m., Stats., upon implementation of this rule. Section
48.981 (3) (cm), Stats., does not allow counties to contract out its duties under s.
48.981 (3) (c) 5m., Stats.
Agency Contact Person
John Elliott, Deputy Division Administrator, Division of Safety and Permanence,
john.elliott@wisconsin.gov, (608) 266-8988.
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: (608) 267-0372
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ADMINISTRATIVE RULES
Fiscal Estimate & Economic Impact Analysis
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|
1. Type of Estimate and Analysis
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X Original
⍽ Updated
⍽ Corrected
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2. Administrative Rule Chapter, Title and Number
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DCF 40, Review of a determination of child abuse or neglect
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3. Subject
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Review of a determination of child abuse or neglect
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4. Fund Sources Affected
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5. Chapter 20, Stats. Appropriations Affected
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X GPR ⍽ FED
⍽ PRO
⍽ PRS ⍽ SEG ⍽ SEG-S
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20.437(1)(a)
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6. Fiscal Effect of Implementing the Rule
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⍽ No Fiscal Effect
⍽ Indeterminate
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⍽ Increase Existing Revenues
⍽ Decrease Existing Revenues
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X Increase Costs
⍽ Could Absorb Within Agency's Budget
⍽ Decrease Cost
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7. The Rule Will Impact the Following (Check All That Apply)
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⍽ State's Economy
X Local Government Units
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⍽ Specific Businesses/Sectors
⍽ Public Utility Rate Payers
⍽ Small Businesses (if checked, complete Attachment A)
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8. Would Implementation and Compliance Costs Be Greater Than $20 million?
⍽ Yes X
No
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9. Policy Problem Addressed by the Rule
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To implement Section 48.981 (3) (c) 5m., 5p., and 5r., Stats., as affected by 2013 Wisconsin Act 20.
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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.
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The department solicited comments from the Wisconsin County Human Services Association.
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11. Identify the local governmental units that participated in the development of this EIA.
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No comments were received regarding development of the economic impact analysis.
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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)
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Pursuant to s. 48.981 (3) (c) 5m., Stats., as affected by 2013 Wisconsin Act 20, if a final determination has been made that a person has abused or neglected a child, that person has a right to a contested case hearing under ch. 227, Stats. Act 20 provided funding for the Department of Children and Families to compensate the Department of Administration's Division of Hearings and Appeals to conduct these hearings. The annualized cost is $175,400 GPR.
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13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
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Section 48.981 (3) (c), Stats., directs the department to implement the rule.
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14. Long Range Implications of Implementing the Rule
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NA
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15. Compare With Approaches Being Used by Federal Government
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The Child Abuse Prevention and Treatment and Adoption Reform Act provides that the federal Department of Health and Human Services shall provide grants to states for the purpose of assisting states in improving their child protective services system. A state plan describing the activities that the state will carry out using funds received under the grant must include an assurance that the state has provisions, procedures, and mechanisms by which individuals who disagree with an official finding of child abuse or neglect can appeal the finding.
42 USC 5106a (b) (2) (B) (xv) (II).
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16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
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Illinois
Illinois has a 2-track process. Persons with an employment interest may request a pre-disclosure conference and a post-disclosure contested case hearing based on the procedures developed in the Dupuy opinions. Persons without an employment interest may request a contested case hearing.
Minnesota
Both persons with an employment interest and persons with no employment interest may request a reconsideration of the agency's determination. A person with an employment interest has more time to request a reconsideration of the agency's determination than a person without an employment interest. For a person with an employment interest, the reconsideration may be based on whether the information that the agency relied on to disqualify is incorrect or on whether the individual poses a risk of harm to persons served by the program, or both. The agency has more time to respond if more issues are involved. Following the reconsideration, a person may request a contested case hearing.
Iowa
Following the conclusion of an assessment, a subject of a child abuse report has the right to examine the report and provide additional information and request that the department revise the report. At the time the report is issued, the department shall provide notice of the right to a contested case hearing to the person named as having abused a child.
Michigan
After a person's name is placed on the Central Registry, the person may write a letter requesting that his or her name be removed from the Central Registry. If that request is denied, the person may request an administrative hearing.
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17. Contact Name
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18. Contact Phone Number
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DCF/Kim Swissdorf
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261-0616
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This document can be made available in alternate formats to individuals with disabilities upon request.
ATTACHMENT A
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1. Summary of Rule's Economic and Fiscal Impact on Small Businesses (Separately for each Small Business Sector, Include Implementation and Compliance Costs Expected to be Incurred)
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not applicable
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2. Summary of the data sources used to measure the Rule's impact on Small Businesses
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not applicable
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3. Did the agency consider the following methods to reduce the impact of the Rule on Small Businesses?
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⍽ Less Stringent Compliance or Reporting Requirements
⍽ Less Stringent Schedules or Deadlines for Compliance or Reporting
⍽ Consolidation or Simplification of Reporting Requirements
⍽ Establishment of performance standards in lieu of Design or Operational Standards
⍽ Exemption of Small Businesses from some or all requirements
⍽ Other, describe:
not applicable
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4. Describe the methods incorporated into the Rule that will reduce its impact on Small Businesses
|
not applicable
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5. Describe the Rule's Enforcement Provisions
|
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6. Did the Agency prepare a Cost Benefit Analysis (if Yes, attach to form)
|
⍽ Yes X No
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Notice of Hearings
Health Services
Community Services, Chs.
DHS 30—
Medical Assistance, Chs.
DHS 101—
NOTICE IS HEREBY GIVEN that pursuant to ss.
49.45 (10), Stats., and
227.11 (2) (a) 1. to
3., Stats., the Department of Health Services will hold a public hearing to consider the amendment of Chapters
DHS 35 and
107, relating to medical assistance (MA) coverage for outpatient mental health services.
Hearing Information
Date: Tuesday, January 13, 2015
Time: 1:00 p.m. to 3:00 p.m.
Location: 1 West Wilson Street
Room 630
Madison, Wisconsin
Accessibility
English
The Department of Health Services is an equal opportunity employer and service provider. If you need accommodations because of a disability or need an interpreter or translator, or if you need this material in another language or in an alternate format, you may request assistance to participate by contacting Al Matano at (608) 267-6848. You must make your request at least 7 days before the activity.
Spanish
The Department of Health Services es una agencia que ofrece igualdad en las oportunidades de empleo y servicios. Si necesita algún tipo de acomodaciones debido a incapacidad o si necesita un interprete, traductor o esta información en su propio idioma o en un formato alterno, usted puede pedir asistencia para participar en los programas comunicándose con Al Matano al número (608) 267-6848. Debe someter su petición por lo menos 7 días de antes de la actividad.
Hmong
The Department of Health Services yog ib tus tswv hauj lwm thiab yog ib qhov chaw pab cuam uas muab vaj huam sib luag rau sawv daws. Yog koj xav tau kev pab vim muaj mob xiam oob qhab los yog xav tau ib tus neeg pab txhais lus los yog txhais ntaub ntawv, los yog koj xav tau cov ntaub ntawv no ua lwm hom lus los yog lwm hom ntawv, koj yuav tau thov kev pab uas yog hu rau Al Matano ntawm (608) 267-6848. Koj yuav tsum thov qhov kev pab yam tsawg kawg 7 hnub ua ntej qhov hauj lwm ntawd.
Copies of Rule and Fiscal Estimate-Economic Impact Analysis
A copy of the rules, fiscal estimate and economic impact analysis may be obtained from the Department of Health Services at no charge by downloading the documents from
www.adminrules.wisconsin.gov or by contacting Al Matano,
alfred.matano@dhs.wisconsin.gov, Department of Health Services, 1 West Wilson Street, Room 318, Madison, WI 53703.
Place Where Comments are to be Submitted and Deadline for Submission
Analysis Prepared by the Department of Health Services
Statute interpreted
Statutory authority
The department's authority to revise the referenced rules is as follows:
Explanation of agency authority
The department's authority to revise the proposed rules is as follows:
Section 49.45 (10), Stats., reads:
Rule-making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance.
Section 227.11 (2) (a) 1. to 3., Stats. reads: Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Related statute or rule
See the “Statute interpreted" section.
Plain language analysis
Section
DHS 35.16 (4) (b) requires as a condition for MA reimbursement, a physician's prescription for psychotherapy services. Similarly, ss.
DHS 107.02 (2m) (a) 7. and
107.13 (2) (a) (intro.) and
2. and
(b) 4. b., require a physician's prescription for mental health services, alcohol and other drug abuse services, and psychotherapy services as a condition for MA reimbursement. Pursuant to ss.
49.45 (30f) and
49.46 (2) (b) 6. f.,
fm.,
k., and
Lr., Stats., the department is prohibited from requiring a prescription from a physician or other health care provider for psychotherapy services, medical day treatment services, or mental health and alcohol and other drug abuse services as a condition for MA reimbursement. Thus, the department proposes to conform ss.
DHS 35.16 (4) (b),
107.02 (2m) (a) 7., and
107.13 (2) (a) (intro.) and
2. and
(b) 4. b. to existing state law.
2013 Wisconsin Act 20 included funding to expand MA outpatient mental health coverage to in-home psychotherapy services for children. See,
LFB Budget Summary. To effectuate this, the department proposes to revise s.
DHS 107.13 (2) (a) 4. and
(d) 3. to permit in-home psychotherapy services as a covered service for children.
Summary of, and comparison with, existing or proposed federal regulations
There appear to be no existing or proposed federal regulations that address the activities to be regulated by the rules.
Comparison with rules in adjacent states
Illinois: In-home psychotherapy services as a MA covered service for children is implemented by Illinois statutes only. There are no administrative rules.
Iowa: The Iowa Administrative Code provides broad latitude as to the location of service. Iowa administrative code section 441 IAC 78.1 permits payments for all medically necessary services and supplies provided by the physician including services rendered in the physician's office or clinic, the home, in a hospital, nursing home or elsewhere.
Michigan: In-home psychotherapy services as a MA covered service for children is implemented by Michigan statutes only. There are no administrative rules.
Minnesota: In-home psychotherapy services as a MA covered service for children is implemented by Minnesota statutes only. There are no administrative rules.
Summary of factual data and analytical methodologies
The department reviewed ss.
49.45 (30f) and
49.46 (2) (b) 6. f.,
fm.,
k., and
Lr., Stats.;
2013 Wisconsin Act 20 relating to expansion of the MA outpatient mental health coverage to in-home psychotherapy services for children (see,
LFB Budget Summary); and the existing rules affected by this proposed rule to determine the changes required to conform the rules to statute and to effectuate the changes necessary to permit the provision of in-home psychotherapy services for children.
Analysis and supporting documents used to determine effect on small business
The proposed rules do not impose regulatory requirements on businesses, including small businesses.
Effect on Small Business
The proposed rules do not impose requirements on businesses, including small businesses.
Agency Contact Person
Statement on Quality of Agency Data
To prepare the text and analysis of the proposed rules, the department relied on the language in ss.
49.45 (30f) and
49.46 (2) (b) 6. f.,
fm.,
k., and
Lr., Stats.;
2013 Wisconsin Act 20 relating to expansion of the MA outpatient mental health coverage to include in-home psychotherapy services for children (see,
LFB Budget Summary); and the existing rules affected by this proposed rule to determine the changes required to conform the rules to statute and to effectuate the changes necessary to permit the provision of in-home psychotherapy services for children.
Initial Regulatory Flexibility Analysis
The proposed rule will not have an effect on small business.
Small Business Regulatory Review Coordinator
Rosie Greer
608-266-1279
Fiscal Estimate – Economic Impact Analysis
The department has found no fiscal effect from implementing the rule.
