SB82: Bill Text

LRB-2361/1

GMM:kjf:pg

2003 - 2004 LEGISLATURE

2003 Senate BILL 82

March 20, 2003 - Introduced by Joint Legislative Council. Referred to Committee on Health, Children, Families, Aging and Long Term Care.

SB82,2,2 An Act to repeal 48.57 (3p) (h) 5.; to renumber 48.57 (3m) (am) 2.; to renumber and amend 48.57 (3m) (am) 1., 48.57 (3m) (d), 48.57 (3n) (d) and 49.155 (5); to amend 48.57 (3m) (am) 4. and 4m., 48.57 (3m) (f), 48.57 (3m) (g) 2., 48.57 (3n) (am) 4. and 4m., 48.57 (3n) (f), 48.57 (3n) (g) 2., 48.57 (3p) (d), 48.57 (3p) (e) 4., 48.57 (3p) (fm) 1., 48.57 (3p) (fm) 1m., 48.57 (3p) (fm) 2., 48.57 (3p) (fm) 2m., 48.57 (3p) (g) (intro.), 48.57 (3p) (h) 1., 48.57 (3p) (h) 3., 48.57 (3p) (hm), 48.57 (3t) and 880.08 (3) (am) (intro.); to repeal and recreate 48.57 (3p) (h) 2. and 48.57 (3p) (h) 4.; and to create 48.57 (3m) (am) 1. b., 48.57 (3m) (d) 1., 2. and 3., 48.57 (3n) (d) 1. and 2., 48.57 (3r), 48.979 and 49.155 (5) (c) and (d) of the statutes; relating to: kinship care, notice of guardianship proceedings, creating a health services consent form, requesting the Joint Legislative Council to study guardianship and legal custody, granting rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the Joint Legislative Council in the bill.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

For further information see the state and local 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:

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council's Special Committee on Relative Caregivers. The special committee was directed to study: (1) current law relating to relative caregivers under the Children's Code and under current law relating to guardianship and kinship care; (2) relatives who care for children under an informal agreement between the child's parent and the relative and whether such relatives should be granted decision-making authority with respect to the child's care; and (3) third-party visitation law and enforcement of third-party visitation orders.

The bill does the following:

1. Makes the following changes to current law relating to kinship care:

• Modifies the eligibility criteria so that a child does not need to be a child or juvenile in need of protection or services (CHIPS or JIPS) in order for a kinship care relative to receive payments. In addition, a county department of human services or social services (county department) or, in Milwaukee County, the department of health and family services (DHFS) must find, for purposes of determining eligibility for kinship care payments, that a child needs to be placed with the relative if the child is CHIPS or JIPS or if the child has lived with the relative for 2 years or longer and the placement is voluntary and appropriate.

• Limits the arrests that a county department or DHFS may consider in conducting a criminal background check for purposes of determining eligibility for kinship care payments to arrests for which a criminal charge is pending.

• Requires a county department or DHFS to provide notice of discontinuation of kinship care payments to a relative at least 10 days before the payments are to be discontinued along with notice of the relative's rights to appeal the discontinuation and to continue receiving payments pending a hearing on the appeal of the discontinuation decision.

• Provides that a kinship care relative who receives notice that his or her payments are being discontinued may continue receiving payments pending a hearing on the appeal of the discontinuation decision if the relative requests a hearing before the payments are discontinued.

• Requires a county department or DHFS to determine that a kinship care relative's conviction record is likely to adversely affect the child or the relative's ability to care for the child in order to deny payments on the basis of the conviction record. This change also applies to conviction records of employees of the relative who would have regular contact with the child and adult residents of the relative's home.

• Requires DHFS to provide applicants who are denied kinship care payments on the basis of a conviction record the right to a fair hearing to appeal the denial.

• Prohibits the department of workforce development from requiring a kinship care relative to pay a copayment for child care subsidies received on behalf of a child for whom the relative is receiving kinship care payments.

• Permits DHFS to request supplemental funding for kinship care payments if funding for kinship care payments is insufficient.

• Requires DHFS to study methods to manage funding for kinship care payments in order to minimize the need for waiting lists for those payments and to report the results of its study to the legislature by June 30, 2004.

2. Creates a health services consent form that parents may use to transfer decision-making authority for routine and emergency health services to an adult with whom a child lives.

3. Requires notice of a hearing to appoint a guardian to be published as a class 1 notice (i.e., published once) instead of as a class 3 notice (i.e., published 3 times), if personal service is not possible.

4. Requests the joint legislative council to study state laws regarding guardianship and legal custody of minors and the rights and responsibilities of guardians and legal custodians.

SB82, s. 1 Section 1 . 48.57 (3m) (am) 1. of the statutes is renumbered 48.57 (3m) (am) 1. (intro.) and amended to read:

SB82,3,9 48.57 (3m) (am) 1. (intro.) The kinship care relative applies to the county department or department for payments under this subsection and the county department or department determines that there is a need for the child to be placed with the kinship care relative and that the placement with the kinship care relative is in the best interests of the child. The county department or department shall determine that there is a need for the child to be placed with the kinship care relative if any of the following conditions is met:

SB82, s. 2 Section 2 . 48.57 (3m) (am) 1. b. of the statutes is created to read:

SB82,3,14 48.57 (3m) (am) 1. b. The child has been living with the kinship care relative for 2 years or longer, and the county department or department determines that the child's parents have consented to the living arrangement and that the living arrangement is not contrary to the health, safety, or welfare of the child.

SB82, s. 3 Section 3 . 48.57 (3m) (am) 2. of the statutes is renumbered 48.57 (3m) (am) 1. a.

Note: Under current law, one of the criteria required for receipt of kinship care payments is a finding that the child in the relative's care is a child or juvenile in need of protection or services (CHIPS or JIPS) or would be at risk of being CHIPS or JIPS if the child were to remain in the child's home. Section 3 eliminates that requirement for kinship care payment eligibility. Also, under current law, a county department of human services or social services (county department) or, in Milwaukee County, the department of health and family services (DHFS), must find that there is a need for the child to be placed with the kinship care relative and that placement with the relative is in the best interests of the child in order for a relative to receive kinship care payments. Sections 1 and 3 require a county department or DHFS to find that a child meets the eligibility requirement that there is a need for the child to be placed with the kinship care relative if the county department or DHFS determines that the child is CHIPS or JIPS or would be at risk of being CHIPS or JIPS if the child were to remain in the child's home.

Also, under Section 2, if a child has been living with a relative for 2 years or longer and the county department or DHFS determines that the child's parents have consented to the living arrangement and that the living arrangement is not contrary to the child's health, safety, or welfare, the county department or DHFS must find that there is a need for the child to be placed with the relative.

SB82, s. 4 Section 4 . 48.57 (3m) (am) 4. and 4m. of the statutes are amended to read:

SB82,4,11 48.57 (3m) (am) 4. The county department or department conducts a background investigation under sub. (3p) of the kinship care relative, any employee and prospective employee of the kinship care relative who has or would have regular contact with the child for whom the payments would be made, and any other adult resident of the kinship care relative's home to determine if the kinship care relative, employee, prospective employee, or adult resident has any arrests for which a criminal charge is pending or convictions that could adversely affect the child or the kinship care relative's ability to care for the child.

SB82,5,3 4m. Subject to sub. (3p) (fm) 1. and 2., the kinship care relative states that he or she does not have any arrests for which a criminal charge is pending or convictions that could adversely affect the child or the kinship care relative's ability to care for the child and that no adult resident, as defined in sub. (3p) (a), and no employee or prospective employee of the kinship care relative who would have regular contact with the child has any arrests for which a criminal charge is pending or convictions that could adversely affect the child or the kinship care relative's ability to care for the child.

Note: Under current law, a county department or, in Milwaukee County, DHFS must conduct a criminal background check to determine whether an applicant for kinship care payments, an employee of the applicant who would have regular contact with the child, or an adult resident of the applicant's home has any arrests or convictions that could adversely affect the child or the applicant's ability to care for the child. In addition, to be eligible for kinship care payments, an applicant must state that none of those persons have any arrests or convictions that could adversely affect the child or the applicant's ability to care for the child.

Section 4 limits the arrests that must be considered, in determining eligibility for kinship care payments to arrests for which a criminal charge is pending.

SB82, s. 5 Section 5 . 48.57 (3m) (d) of the statutes is renumbered 48.57 (3m) (d) (intro.) and amended to read:

SB82,5,16 48.57 (3m) (d) (intro.) A county department or, in a county having a population of 500,000 or more, the department shall review a placement of a child for which the county department or department makes payments under par. (am) not less than every 12 months after the county department or department begins making those payments to determine whether the conditions specified in par. (am) continue to exist. If those conditions do not continue to exist, the county department or department shall discontinue making those payments after providing the kinship care relative whose payments are being discontinued with written notice of that discontinuation not less than 10 days before the date on which those payments are to be discontinued. The notice shall advise the kinship care relative of all of the following:

SB82, s. 6 Section 6 . 48.57 (3m) (d) 1., 2. and 3. of the statutes are created to read:

SB82,6,2 48.57 (3m) (d) 1. That, if the payments are being discontinued on the grounds that a condition specified in par. (am) 1., 5., 5m., or 6. does not continue to exist, the kinship care relative may petition the department under par. (g) for a review of that discontinuation by submitting a petition for review within 45 days after the date on which those payments are discontinued.

SB82,6,6 2. That, if the payments are being discontinued based on arrest or conviction record, the kinship care relative may petition the department under sub. (3p) (h) for a review of that discontinuation by submitting a petition for review within 45 days after the date on which those payments are discontinued.

SB82,6,12 3. That, if the kinship care relative submits a petition for review under par. (g) or sub. (3p) (h) before the date on which his or her payments to be discontinued, the kinship care relative's payments may not be discontinued, except as provided in par. (g) 2. a. or b., until a final decision is rendered on the petition for review, but that payments made pending the decision may be recovered by the county department or department if the discontinuation is upheld.

Note: Sections 5 and 6 require a county department or DHFS to notify a kinship care relative of the discontinuation of payments at least 10 days in advance. The notice must include notice of the kinship care relative's rights to appeal the discontinuation and to continue receiving payments while the appeal is pending, subject to the right of the county department or DHFS to recover those payments if the discontinuation is upheld.

SB82, s. 7 Section 7. 48.57 (3m) (f) of the statutes is amended to read:

SB82,6,21 48.57 (3m) (f) Any person whose application for payments under par. (am) is not acted on promptly within 45 days after receipt of a completed application or is denied on the grounds that a condition specified in par. (am) 1., 2., 5., 5m., or 6. has not been met and any person whose payments under par. (am) are discontinued under par. (d) may petition the department under par. (g) for a review of that action or failure to act, denial, or discontinuation. Review is unavailable if the action or failure to act, denial, or discontinuation arose more than 45 days before submission of the petition for review.

SB82, s. 8 Section 8 . 48.57 (3m) (g) 2. of the statutes is amended to read:

SB82,7,12 48.57 (3m) (g) 2. If a recipient requests a hearing within 10 days after the date of notice that his or her payments under par. (am) are being discontinued before the date on which his or her payments under par. (am) are to be discontinued, those payments may not be discontinued, except as provided in subd. 2. a. or b., until a decision is rendered after the hearing, but payments made pending the hearing decision may be recovered by the county department or department if the contested action or failure to act discontinuation is upheld. The department shall promptly notify the county department of the county in which the recipient resides or, if the recipient resides in a county having a population of 500,000 or more, the subunit of the department administering of the kinship care program in that county that the recipient has requested a hearing. Payments under par. (am) shall be discontinued pending a hearing decision if any of the following applies:

Note: Under current law, if a county department or DHFS determines that a kinship care relative is no longer eligible to receive kinship care payments, the county department or DHFS must discontinue those payments. In general, if the recipient requests a hearing on the discontinuation within 10 days of the date of the notice that payments will be discontinued, the payments may not be discontinued pending the hearing decision. Under Section 8, a kinship care relative must request a hearing before the date the payments are to be discontinued, in order to continue receiving payments pending the hearing decision.

SB82, s. 9 Section 9 . 48.57 (3n) (am) 4. and 4m. of the statutes are amended to read:

SB82,8,2 48.57 (3n) (am) 4. The county department or department conducts a background investigation under sub. (3p) of the long-term kinship care relative, the employees and prospective employees of the long-term kinship care relative who have or would have regular contact with the child for whom the payments would be made, and any other adult resident, as defined in sub. (3p) (a), of the long-term kinship care relative's home to determine if the long-term kinship care relative, employee, prospective employee, or adult resident has any arrests for which a criminal charge is pending or convictions that are likely to adversely affect the child or the long-term kinship care relative's ability to care for the child.

SB82,8,11 4m. Subject to sub. (3p) (fm) 1m. and 2m., the long-term kinship care relative states that he or she does not have any arrests for which a criminal charge is pending or convictions that could adversely affect the child or the long-term kinship care relative's ability to care for the child and that, to the best of the long-term kinship care relative's knowledge, no adult resident, as defined in sub. (3p) (a), and no employee or prospective employee of the long-term kinship care relative who would have regular contact with the child has any arrests for which a criminal charge is pending or convictions that could adversely affect the child or the long-term kinship care relative's ability to care for the child.

Note: Section 9 limits the arrests that must be considered in a criminal background check to determine eligibility for long-term kinship care payments to arrests for which a criminal charge is pending.

SB82, s. 10 Section 10 . 48.57 (3n) (d) of the statutes is renumbered 48.57 (3n) (d) (intro.) and amended to read:

SB82,8,23 48.57 (3n) (d) (intro.) The county department or, in a county having a population of 500,000 or more, the department shall, at least once every 12 months after the county department or department begins making payments under this subsection, determine whether any of the events specified in par. (am) 6. a. to f. have has occurred. If any such events have event has occurred, the county department or department shall discontinue making those payments after providing the long-term kinship care relative whose payments are being discontinued with written notice of that discontinuation not less than 10 days before the date on which those payments are to be discontinued. The notice shall advise the long-term kinship care relative of all of the following:

SB82, s. 11 Section 11 . 48.57 (3n) (d) 1. and 2. of the statutes are created to read:

SB82,9,5 48.57 (3n) (d) 1. That the long-term kinship care relative may petition the department under par. (g) for a review of that discontinuation by submitting a petition for review within 45 days after the date on which those payments are discontinued.

SB82,9,11 2. That, if the long-term kinship care relative submits a petition for review under par. (g) before the date on which his or her payments are to be discontinued, the long-term kinship care relative's payments may not be discontinued, except as provided in par. (g) 2. a. or b., until a final decision is rendered on the petition for review, but that payments made pending the decision may be recovered by the county department or department if the discontinuation is upheld.

Note: Sections 10 and 11 require a county department or DHFS to notify a long-term kinship care relative of the discontinuation of payments at least 10 days in advance. The notice must include notice of the long-term kinship care relative's rights to appeal and to continue receiving payments while the appeal is pending, subject to the right of the county department or DHFS to recover those payments if the discontinuation is upheld.

SB82, s. 12 Section 12. 48.57 (3n) (f) of the statutes is amended to read:

SB82,9,20 48.57 (3n) (f) Any person whose application for payments under par. (am) is not acted on promptly within 45 days after receipt of a completed application or is denied on the grounds that a condition specified in par. (am) 1., 2., 5., 5m., or 5r. has not been met and any person whose payments under par. (am) are discontinued under par. (d) may petition the department under par. (g) for a review of that action or failure to act, denial, or discontinuation. Review is unavailable if the action or failure to act, denial, or discontinuation arose more than 45 days before submission of the petition for review.

SB82, s. 13 Section 13 . 48.57 (3n) (g) 2. of the statutes is amended to read:

SB82,10,12 48.57 (3n) (g) 2. If a recipient requests a hearing within 10 days after the date of notice that his or her payments under par. (am) are being discontinued before the date on which his or her payments under par. (am) are to be discontinued, those payments may not be discontinued, except as provided in subd. 2. a. or b., until a decision is rendered after the hearing, but payments made pending the hearing decision may be recovered by the county department or department if the contested action or failure to act discontinuation is upheld. The department shall promptly notify the county department of the county in which the recipient resides or, if the recipient resides in a county having a population of 500,000 or more, the subunit of the department administering of the long-term kinship care program in that county that the recipient has requested a hearing. Payments under par. (am) shall be discontinued pending a hearing decision if any of the following applies:

Note: Under Section 13, a long-term kinship care relative whose payments are discontinued must request a hearing before the date the payments are to be discontinued in order to continue receiving payments pending the hearing decision.

SB82, s. 14 Section 14 . 48.57 (3p) (d) of the statutes is amended to read:

SB82,11,2 48.57 (3p) (d) If the person being investigated under par. (b) or (c) is a nonresident, or at any time within the 5 years preceding the date of the application has been a nonresident, or if the county department or, in a county having a population of 500,000 or more, the department of health and family services determines that the person's employment, licensing, or state court records provide a reasonable basis for further investigation, the county department or department of health and family services shall require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrest and conviction arrests for which a criminal charge is pending and convictions.

SB82, s. 15 Section 15. 48.57 (3p) (e) 4. of the statutes is amended to read:

SB82,11,8 48.57 (3p) (e) 4. Information regarding the conviction record of the person person's record of arrests for which a criminal charge is pending and convictions under the law of this state or any other state or under federal law. This information shall be provided on a notarized background verification form that the department shall provide by rule.

SB82, s. 16 Section 16. 48.57 (3p) (fm) 1. of the statutes is amended to read:

SB82,12,2 48.57 (3p) (fm) 1. The county department or, in a county having a population of 500,000 or more, the department of health and family services may provisionally approve the making of payments under sub. (3m) based on the applicant's statement under sub. (3m) (am) 4m. The county department or department of health and family services may not finally approve the making of payments under sub. (3m) unless the county department or department of health and family services receives information from the department of justice indicating that the arrest and conviction record of the applicant under the law of this state is satisfactory according to the criteria specified in par. (g) 1. to 3. does not include any arrest for which a criminal charge is pending or conviction that could adversely affect the child or the ability of the applicant to care for the child or payment is approved under par. (h) 4. The county department or department of health and family services may make payments under sub. (3m) conditioned on the receipt of information from the federal bureau of investigation indicating that the person's arrest and conviction record under the law of any other state or under federal law is satisfactory according to the criteria specified in par. (g) 1. to 3 does not include any arrest for which a criminal charge is pending or conviction that could adversely affect the child or the ability of the applicant to care for the child.

SB82, s. 17 Section 17. 48.57 (3p) (fm) 1m. of the statutes is amended to read:

SB82,13,3 48.57 (3p) (fm) 1m. The county department or, in a county having a population of 500,000 or more, the department of health and family services may not enter into the agreement under sub. (3n) (am) 6. unless the county department or department of health and family services receives information from the department of justice relating to the indicating that the arrest and conviction record of the applicant under the law of this state and that record indicates either that the applicant has not been arrested or convicted or that the applicant has been arrested or convicted but does not include any arrest for which a criminal charge is pending or conviction that the director of the county department or, in a county having a population of 500,000 or more, the person designated by the secretary of health and family services to review arrest and conviction records under this subdivision determines that the conviction record is satisfactory because it does not include any arrest or conviction that the director or person designated by the secretary determines is likely to adversely affect the child or the long-term kinship care relative's applicant's ability to care for the child. The county department or, in a county having a population of 500,000 or more, the department of health and family services may make payments under sub. (3n) conditioned on the receipt of information from the federal bureau of investigation indicating that the person's arrest and conviction record under the law of any other state or under federal law is satisfactory because the conviction record does not include any arrest for which a criminal charge is pending or conviction that the director of the county department or, in a county having a population of 500,000 or more, the person designated by the secretary of health and family services to review arrest and conviction records under this subdivision determines is likely to adversely affect the child or the long-term kinship care relative's person's ability to care for the child.

SB82, s. 18 Section 18. 48.57 (3p) (fm) 2. of the statutes is amended to read: