LRBs0379/2
GMM:kjf:rs
2003 - 2004 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO 2003 SENATE BILL 82
March 4, 2004 - Offered by Committee on Health, Children, Families, Aging and
Long Term Care.
SB82-SSA1,2,2
1An Act to renumber 48.57 (3m) (a) 1. and 48.57 (3n) (a) 1.;
to renumber and
2amend 48.57 (3m) (d), 48.57 (3n) (d), 48.57 (3p) (a) and 49.155 (5);
to amend
348.57 (3m) (am) 2., 48.57 (3m) (am) 4., 48.57 (3m) (am) 4m., 48.57 (3m) (f), 48.57
4(3m) (g) 1. (intro.), 48.57 (3m) (g) 2., 48.57 (3n) (am) 4m., 48.57 (3n) (f), 48.57 (3n)
5(g) 1. (intro.), 48.57 (3n) (g) 2., 48.57 (3p) (d), 48.57 (3p) (e) 4., 48.57 (3p) (fm) 1.,
648.57 (3p) (fm) 1m., 48.57 (3p) (fm) 2., 48.57 (3p) (fm) 2m., 48.57 (3p) (g) (intro.),
748.57 (3p) (h) 1., 48.57 (3p) (h) 3., 48.57 (3p) (h) 4., 48.57 (3p) (h) 5., 48.57 (3p)
8(hm), 48.57 (3t) and 880.08 (3) (am) (intro.); and
to create 48.57 (3m) (a) 1d.,
948.57 (3m) (d) 1. to 4., 48.57 (3n) (a) 1d., 48.57 (3n) (d) 1. to 3., 48.57 (3p) (a) 2.,
1048.57 (3p) (h) 2m., 48.57 (3p) (hg), 48.57 (3r), 48.979 and 49.155 (5) (c) and (d)
11of the statutes;
relating to: kinship care, notice of guardianship proceedings,
12creating a health services consent form, requesting the Joint Legislative
1Council to study guardianship and legal custody, granting rule-making
2authority, and providing penalties.
Analysis by the Legislative Reference Bureau
Introduction
This substitute amendment makes various changes relating to kinship care
and long-term kinship care, under which certain relatives of a child who provide care
and maintenance for the child and who meet certain other conditions are eligible to
receive monthly payments from the county department of human services or social
services (county department) or, in Milwaukee County, the Department of Health
and Family Services (DHFS). Those changes include changes relating to eligibility
for kinship care and long-term kinship care, the procedures for discontinuing
kinship care or long-term kinship care payments, copayment liability for child care
provided for a kinship care or long-term kinship care relative, and funding of kinship
care. The substitute amendment also changes the manner in which notice of a
guardianship proceeding in which the proposed ward is a minor must be provided,
creates a health services consent form that a parent may use to authorize a caregiver
to consent to health services for the parent's child, and requests the Joint Legislative
Council to study state laws regarding guardianship and legal custody of children and
the rights and responsibilities of guardians and legal custodians of children.
Kinship care
Under current law, one of the conditions that must be met in order for a relative
who is providing care and maintenance for a child to be eligible to receive kinship
care payments is that the county department or DHFS must determine that the child
meets a criterion for the child or juvenile in need of protection or services jurisdiction
of the court assigned to exercise jurisdiction under the Children's Code and the
Juvenile Justice Code, for example, the child has been the victim of abuse or neglect,
or that the child would be at risk of meeting a criterion for that jurisdiction if the child
were to remain in his or her home.
This substitute amendment provides that a relative who is providing care and
maintenance for a child is eligible to receive kinship care payments if the child has
been living with a relative for two years or longer.
Under current law, another condition that must be met in order for a relative
who is providing care and maintenance for a child to be eligible to receive kinship
care payments or long-term kinship care payments is that the county department
or DHFS must conduct a background investigation of the relative, any employee or
prospective employee of the relative who has or would have regular contact with the
child, and any adult resident of the relative's home to determine if any of those
individuals has any arrests or convictions that is likely to adversely affect the child
or the relative's ability to care for the child. Currently, a county department or DHFS
may consider any arrest in making that determination.
This substitute amendment limits the arrests that a county department or
DHFS may consider in determining eligibility for kinship or long-term kinship care
payments to arrests for a crime against life or bodily security, a crime against sexual
morality, or a crime against children, subject to certain exceptions, including an
exception for an arrest for prostitution, patronizing a prostitute, or pandering that
occurred 20 years or more before the background investigation.
Under current law, at least once every 12 months after a county department or
DHFS begins making kinship care or long-term kinship care payments to a relative
who is providing care and maintenance for a child, the county department or DHFS
is required to determine if the relative is still eligible to receive those payments. If
the relative is no longer eligible to receive those payments, the county department
or DHFS is required to discontinue making those payments.
This substitute amendment requires a county department or DHFS to
discontinue making kinship care or long-term kinship care payments effective
immediately upon notice if the relative is no longer providing care and maintenance
for the child and to discontinue making those payments not less than 10 days after
providing notice of discontinuation if the payments are being discontinued on any
other grounds. The substitute amendment, however, prohibits a county department
or DHFS from discontinuing those payments on the grounds that the relative is no
longer providing care and maintenance for the child if the child is outside the home
of the relative for 90 days or less with the intent of returning to the home and if the
county department or DHFS has approved that absence from the home.
Under current law, a relative whose application for kinship care payments is
denied or whose kinship care payments are discontinued on any grounds other than
conviction record may appeal that denial or discontinuation to DHFS while a relative
whose application for kinship care payments is denied or whose kinship care
payments are discontinued on the grounds of conviction record may request the
director of the county department or, in Milwaukee County, a person designated by
the secretary of health and family services to review the denial or discontinuation
and determine whether the conviction could adversely affect the child or the
relative's ability to care for the child.
This substitute amendment permits a determination by a director of a county
department or, in Milwaukee County, a person designated by the secretary of health
and family services upholding a denial or discontinuation of kinship care payments
based on conviction record to be appealed to DHFS.
Under current law, if a relative whose kinship care or long-term kinship care
payments are discontinued requests a hearing within 10 days after the date of notice
of the discontinuation, those payments may not be discontinued until a decision is
rendered after hearing, subject to certain exceptions and subject to the right of the
county department or DHFS to recover those payments if the discontinuation is
upheld.
This substitute amendment requires DHFS to render its decision no later than
30 days after receipt of the petition for review. The substitute amendment also
permits kinship care and long-term kinship payments to continue pending a
decision rendered after hearing, in the case of a relative whose payments are
discontinued on any grounds other than the grounds that the relative is no longer
providing care and maintenance for the child, if the relative requests a hearing
before the date on which the payments are to be discontinued. The substitute
amendment does not change current law regarding continuation of payments
pending a decision rendered after hearing in the case of a relative whose payments
are discontinued on the grounds that the relative is no longer providing care and
maintenance for the child.
Under current law, a person who is receiving kinship care or long-term kinship
care payments and who is receiving a child care subsidy under the Wisconsin Works
Program is liable for a percentage of the cost of the child care as specified by the
Department of Workforce Development. This substitute amendment exempts a
person who is eligible to receive kinship care or long-term kinship care payments
from that liability.
Finally, with respect to kinship care and long-term kinship care payments, the
substitute amendment permits DHFS to request the secretary of administration to
provide supplemental funding for those payments if the amounts appropriated for
those payments are insufficient to provide those payments to all persons who are
eligible to receive those payments and requires DHFS to study methods to manage
the funding appropriated for kinship care payments in order to minimize the need
for waiting lists for those payments.
Notice of guardianship proceeding
Under current law, if notice of a guardianship proceeding in which the proposed
ward is a minor cannot be served personally on the proposed ward's spouse, parents,
legal custodian, or physical custodian, or the proposed ward, if 14 years of age or over
(interested party), notice of the proceeding must be given by mail, together with
publication of the notice three times in a newspaper that is published in the county
of the proceeding. This substitute amendment permits notice of a guardianship
proceeding in which the proposed ward is a minor to be given by mail, together with
one newspaper publication of the notice, when an interested party cannot be served
personally.
Health services consent form
Under current law, a guardian of a child has the duty and authority to consent
to major medical, psychiatric, and surgical treatment for the child and a legal
custodian of a child has the right and duty to provide ordinary medical and dental
care for the child. In the absence of guardianship or legal custody, however, a person
who resides with a child or provides temporary or permanent care and supervision
for a child (caregiver) does not have the authority to consent to health services for
the child.
This substitute amendment creates a health services consent form that a
parent may use to authorize a caregiver to consent to health services for the parent's
child and to consent to the release of the child's patient health care records. Under
the substitute amendment, a caregiver designated in a health services consent form
has priority over all other individuals, other than a parent who is not currently
denied periods of physical placement with the child, to make health care decisions
as provided in the health services consent form. A health services consent form
remains in effect for the time specified in the form, which may be for up to one year,
may be revoked by the parent at any time, and is invalid if the child no longer lives
with the caregiver or if the caregiver is no longer providing care and supervision for
the child. A health care provider or health care facility is immune from liability for
complying with the decision of a caregiver that is made under a health services
consent form and for acting contrary to a revocation of a health services consent form
or a health services decision of a parent who is not currently denied periods of
physical placement with the child, if the health care provider or health care facility
does not have actual knowledge of the revocation or parent's decision. Similarly, a
caregiver is immune from liability for making a decision in good faith under a health
services consent form.
Guardianship and legal custody study
Finally, the substitute amendment requests the Joint Legislative Council to
study state laws regarding guardianship and legal custody of children and the rights
and responsibilities of guardians and legal custodians of children and, if the Joint
Legislative Council conducts that study, to report its findings, conclusions, and
recommendations to the legislature by January 1, 2005.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB82-SSA1, s. 1
1Section
1. 48.57 (3m) (a) 1. of the statutes is renumbered 48.57 (3m) (a) 1r.
SB82-SSA1, s. 2
2Section
2. 48.57 (3m) (a) 1d. of the statutes is created to read:
SB82-SSA1,5,33
48.57
(3m) (a) 1d. "Arrest" has the meaning given in sub. (3p) (a) 2.
SB82-SSA1, s. 3
4Section
3. 48.57 (3m) (am) 2. of the statutes is amended to read:
SB82-SSA1,5,115
48.57
(3m) (am) 2. The county department or department determines that the
6child meets one or more of the criteria specified in s. 48.13 or 938.13, that the child
7would be at risk of meeting one or more of those criteria if the child were to remain
8in his or her home
, or, if the child is 18 years of age or over, that the child would meet
9or be at risk of meeting one or more of those criteria as specified in this subdivision
10if the child were under 18 years of age
; or the child has been living with the kinship
11care relative for 2 years or longer.
SB82-SSA1, s. 4
12Section
4. 48.57 (3m) (am) 4. of the statutes is amended to read:
SB82-SSA1,6,613
48.57
(3m) (am) 4. The county department or department conducts a
14background investigation under sub. (3p) of the kinship care relative, any employee
1and prospective employee of the kinship care relative who has or would have regular
2contact with the child for whom the payments would be made and any other adult
3resident of the kinship care relative's home to determine if the kinship care relative,
4employee, prospective employee or adult resident has any arrests or convictions that
5could are likely to adversely affect the child or the kinship care relative's ability to
6care for the child.
SB82-SSA1, s. 5
7Section
5. 48.57 (3m) (am) 4m. of the statutes is amended to read:
SB82-SSA1,6,148
48.57
(3m) (am) 4m. Subject to sub. (3p) (fm) 1. and 2., the kinship care relative
9states that he or she does not have any arrests or convictions that
could are likely to 10adversely affect the child or the kinship care relative's ability to care for the child and
11that no adult resident, as defined in sub. (3p) (a), and no employee or prospective
12employee of the kinship care relative who would have regular contact with the child
13has any arrests or convictions that
could are likely to adversely affect the child or the
14kinship care relative's ability to care for the child.
SB82-SSA1, s. 6
15Section
6. 48.57 (3m) (d) of the statutes is renumbered 48.57 (3m) (d) (intro.)
16and amended to read:
SB82-SSA1,7,1217
48.57
(3m) (d) (intro.) A county department or, in a county having a population
18of 500,000 or more, the department shall review a placement of a child for which the
19county department or department makes payments under par. (am) not less than
20every 12 months after the county department or department begins making those
21payments to determine
whether the kinship care relative is still providing care and
22maintenance for the child and whether the conditions specified in par. (am)
1. to 6. 23continue to exist.
If those conditions If the kinship care relative is no longer
24providing care and maintenance for the child, the county department or department
25shall discontinue making those payments effective immediately upon providing
1written notice of the discontinuation to the kinship care relative, except that the
2county department or department may not discontinue making those payments on
3the grounds that the kinship care relative is no longer providing care and
4maintenance for the child if the child is outside the home of the kinship care relative
5for 90 days or less with the intent of returning to the home and if the county
6department or department has approved that absence from the home. If any of the
7conditions specified in par. (am) 1. to 6. do not continue to exist, the county
8department or department shall discontinue making those payments
after providing
9the kinship care relative whose payments are being discontinued with written notice
10of that discontinuation not less than 10 days before the date on which those
11payments are to be discontinued. The notice shall advise the kinship care relative
12of all of the following:
SB82-SSA1, s. 7
13Section
7
. 48.57 (3m) (d) 1. to 4. of the statutes are created to read:
SB82-SSA1,7,1814
48.57
(3m) (d) 1. That, if the payments are being discontinued on the grounds
15that the kinship care relative is no longer providing care and maintenance for the
16child, the kinship care relative may petition the department under par. (g) for a
17review of that discontinuation by submitting a petition for review within 45 days
18after the date of the notice of discontinuation.
SB82-SSA1,7,2319
2. That, if the payments are being discontinued on the grounds that a condition
20specified in par. (am) 1., 2., 5., 5m., or 6. does not continue to exist or based on arrest
21record, the kinship care relative may petition the department under par. (g) for a
22review of that discontinuation by submitting a petition for review within 45 days
23after the date on which those payments are discontinued.
SB82-SSA1,8,224
3. That, if the payments are being discontinued based on conviction record, the
25kinship care relative may request a review of that discontinuation by submitting a
1request for review under sub. (3p) (h) 2. within 45 days after the date on which those
2payments are discontinued.
SB82-SSA1,8,93
4. That, if the kinship care relative submits a petition for review under par. (g)
4or sub. (3p) (h) within the applicable time limit specified in par. (g) 2., or sub. (3p) (h)
52m., the kinship care relative's payments may not be discontinued, except as
6provided in par. (g) 2. a. or b. or sub. (3p) (h) 2m. a. or b., until a final decision is
7rendered on the petition for review, but that payments made pending the decision
8may be recovered by the county department or department if the discontinuation is
9upheld.
SB82-SSA1, s. 8
10Section
8. 48.57 (3m) (f) of the statutes is amended to read:
SB82-SSA1,8,1811
48.57
(3m) (f) Any person whose application for payments under par. (am) is
12not acted on
promptly within 45 days after receipt of a completed application or is
13denied on the grounds that a condition specified in par. (am) 1., 2., 5.
, 5m., or 6. has
14not been met and any person whose payments under par. (am) are discontinued
15under par. (d)
1. or 2. may petition the department under par. (g) for a review of that
16action or failure to act
, denial, or discontinuation. Review is unavailable if the
action
17or failure to act
, denial, or discontinuation arose more than 45 days before
18submission of the petition for review.
SB82-SSA1, s. 9
19Section
9. 48.57 (3m) (g) 1. (intro.) of the statutes is amended to read:
SB82-SSA1,9,1120
48.57
(3m) (g) 1. (intro.) Upon receipt of a timely petition under par. (f) the
21department shall give the applicant or recipient reasonable notice and an
22opportunity for a fair hearing. The department may make such additional
23investigation as it considers necessary. Notice of the hearing shall be given to the
24applicant or recipient and to the county department or subunit of the department
25whose
action or failure to act
, denial, or discontinuation is the subject of the petition.
1That county department or subunit of the department may be represented at the
2hearing. The department shall render its decision
as soon as possible after the
3hearing no later than 30 days after receipt of the petition under par. (f) and shall send
4a certified copy of its decision to the applicant or recipient and to the county
5department or subunit of the department whose
action or failure to act
, denial, or
6discontinuation is the subject of the petition. The decision of the department shall
7have the same effect as an order of the county department or subunit of the
8department whose
action or failure to act
, denial, or discontinuation is the subject
9of the petition. The decision shall be final, but may be revoked or modified as altered
10conditions may require. The department shall deny a petition for review or shall
11refuse to grant relief if any of the following applies:
SB82-SSA1, s. 10
12Section
10
. 48.57 (3m) (g) 2. of the statutes is amended to read:
SB82-SSA1,9,2513
48.57
(3m) (g) 2. If a recipient
whose payments under par. (am) are being
14discontinued on the grounds that the recipient is no longer providing care and
15maintenance for the child requests a hearing within 10 days after the date of notice
16that his or her payments under par. (am) are being discontinued
or if a recipient
17whose payments under par. (am) are being discontinued on the grounds that a
18condition specified in par. (am) 1., 2., 5., 5m., or 6. does not continue to exist or on the
19grounds of arrest record requests a hearing before the date on which his or her
20payments under par. (am) are to be discontinued, those payments may not be
21discontinued
, except as provided in subd. 2. a. or b., until a decision is rendered after
22the hearing
, but payments made pending the hearing decision may be recovered by
23the
county department or department if the
contested action or failure to act 24discontinuation is upheld. The department shall promptly notify the county
25department of the county in which the recipient resides or, if the recipient resides in
1a county having a population of 500,000 or more, the subunit of the department
2administering
of the kinship care
program in that county that the recipient has
3requested a hearing. Payments under par. (am) shall be discontinued
pending a
4hearing decision if any of the following applies:
SB82-SSA1, s. 11
5Section
11. 48.57 (3n) (a) 1. of the statutes is renumbered 48.57 (3n) (a) 1r.
SB82-SSA1, s. 12
6Section
12. 48.57 (3n) (a) 1d. of the statutes is created to read:
SB82-SSA1,10,77
48.57
(3n) (a) 1d. "Arrest" has the meaning given in sub. (3p) (a) 2.