LRB-3547/2
GMM:mfd:arm
1997 - 1998 LEGISLATURE
November 11, 1997 - Introduced by
Joint Legislative Council. Referred to
Committee on Children and Families.
AB601,1,6
1An Act to renumber 48.975 (4);
to renumber and amend 48.975 (3) (a) and
248.975 (5);
to amend 46.10 (14) (cm) 1. and 2., 48.975 (2) and 48.975 (4);
to
3repeal and recreate 46.10 (14) (cm) 1.; and
to create 48.975 (3) (a) 3., 48.975
4(3) (a) 4., 48.975 (3m), 48.975 (4) (b), (c) and (d) and 48.975 (5) (a) to (e) of the
5statutes;
relating to: adoption assistance, granting rule-making authority
6and making appropriations.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the joint legislative council in
the bill.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Prefatory note: This bill was prepared for the joint legislative council's special
committee on adoption laws (special committee).
Introduction
Under current law, adoption assistance is provided by the department of health
and family services (DHFS) to the adoptive or proposed adoptive parents of a child to
assist in the care of that child after an agreement between the adoptive or proposed
adoptive parents and DHFS (adoption assistance agreement) has been signed and the
child has been placed for adoption with the adoptive or proposed adoptive parents. DHFS
may provide adoption assistance only if DHFS has determined that adoption assistance
is necessary to assure the child's adoption. DHFS currently provides adoption assistance
for maintenance, medical care and nonrecurring adoption expenses.
Under Title IV-E of the federal Social Security Act,
42 USC 670 to
679a, matching
federal funds are available to states for most adoption assistance benefits. Federal
statutes and regulations set forth certain requirements with respect to adoption
assistance programs. Section 48.975 (5), stats., requires DHFS to promulgate
administrative rules to implement the adoption assistance program, and most aspects of
the adoption assistance program are set forth in administrative rules. [See ch. HSS 50,
subch. II, Wis. adm. code.]
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
1Section
1
. 46.10 (14) (cm) 1. and 2. of the statutes are amended to read:
AB601,4,62
46.10
(14) (cm) 1. Except as provided in subd. 2., if a parent who is required to
3pay child support under par. (b) or (c) is receiving adoption assistance under s. 48.975
4for the child for whom support is ordered, the amount of the child support payments
5determined under par. (b) or (c) may not exceed the amount of the adoption assistance
6maintenance payments
under s. 48.975 (3) (a).
AB601,4,117
2. Subdivision 1. does not apply if, after considering the factors under par. (c)
81. to 11., the court finds by the greater weight of the credible evidence that limiting
9the amount of the child support payments to the amount of the adoption assistance
10maintenance payments
under s. 48.975 (3) (a) is unfair to the child or to either of the
11parents.
AB601, s. 2
12Section
2
. 46.10 (14) (cm) 1. of the statutes, as affected by 1997 Wisconsin Act
13.... (this act), is repealed and recreated to read:
AB601,5,214
46.10
(14) (cm) 1. Except as provided in subd. 2., if a parent who is required to
15pay child support under par. (b) or (c) is receiving adoption assistance under s. 48.975
16for the child for whom support is ordered, the amount of the child support payments
17determined under par. (b) or (c) may not exceed the amount of the adoption assistance
18maintenance payments under s. 48.975 (3) (a). If an agreement under s. 48.975 (4)
19is in effect that provides for a payment of $0 under s. 48.975 (3) (a), the payment of
1$0 shall be considered to be an adoption assistance maintenance payment for
2purposes 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
3Section
3. 48.975 (2) of the statutes is amended to read:
AB601,5,64
48.975
(2) Applicability. The department may provide adoption assistance
5only
for a child with special needs and only when
it the department has determined
6that 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
7Section
4
. 48.975 (3) (a) of the statutes is renumbered 48.975 (3) (a) 1. and
8amended to read:
AB601,5,149
48.975
(3) (a) 1.
For Except as provided in subd. 3., for support of a child who
10was in foster care or treatment foster care immediately prior to
placement for 11adoption, the
initial amount of adoption assistance for maintenance shall be
12equivalent to the amount of that child's foster care or treatment foster care payment
.
13For at the time that the agreement under sub. (4) (a) is signed or a lesser amount if
14agreed to by the proposed adoptive parents and specified in that agreement.
AB601,6,3
152. Except as provided in subd. 3., for support of a child not in foster care or
16treatment foster care immediately prior to placement
with a subsidy for adoption,
17the
initial amount of adoption assistance for maintenance shall be equivalent to the
1uniform foster care rate
in effect at the time that the agreement under sub. (4) (a)
2is signed or a lesser amount if agreed to by the proposed adoptive parents and
3specified in that agreement.
AB601, s. 5
4Section
5
. 48.975 (3) (a) 3. of the statutes is created to read:
AB601,6,85
48.975
(3) (a) 3. For support of a child who is defined under rules promulgated
6by the department under sub. (5) (b) as a child with special needs based solely on
7being at high risk of developing moderate or intensive difficulty-of-care problems,
8the initial amount of adoption assistance for maintenance shall be $0.
AB601, s. 6
9Section
6
. 48.975 (3) (a) 4. of the statutes is created to read:
AB601,6,1510
48.975
(3) (a) 4. The amount of adoption assistance for maintenance may be
11changed under an amended agreement under sub. (4) (b) or (c). If an agreement is
12amended under sub. (4) (b) or (c), the amount of adoption assistance for maintenance
13shall be the amount specified in the amended agreement but may not exceed the
14uniform foster care rate that would be applicable to the child if the child were in foster
15care 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
1Section
7
. 48.975 (3m) of the statutes is created to read: