•
The court may order either or both parents to pay for or contribute to the cost of health insurance. Each parent's payment for or contribution to the cost of health insurance will be considered reasonable if it does not exceed 5% of the parent's monthly income available for child support. In applying the 5% standard, the cost of the health insurance is the cost to add the child or children to existing coverage or the difference between the cost of self-only coverage and the cost to that parent after adding the child or children.
The court may incorporate responsibility for a contribution to the cost of health insurance as an upward or downward adjustment to a payer's child support obligation. If there is no health insurance plan available that is comprehensive, accessible to the child, and available at a cost that does not exceed 5% of the parents' combined income, the court may order that either parent enroll the child in such a plan if one becomes available to the parent in the future.
The court may not order a low-income parent to enroll a child in a health insurance plan or contribute to the cost of health insurance unless the health insurance is available to the parent at no cost. “Low-income parent" will be defined as a parent who has a monthly income available for child support that is below 150% of the federal poverty guidelines.
The court may also establish an order for medical expenses that are not covered by insurance. The court must consider each parent's ability to pay these medical expenses.
Guidelines Review
45 CFR 302.56(e) requires states to review, and revise, if appropriate, the state's child support guidelines at least once every 4 years to ensure that their application results in the determination of appropriate child support award amounts. The Department submitted the latest review of the Wisconsin child support guidelines to the federal Office of Child Support Enforcement in January 2008. This review included the following 3 recommendations for changes to the child support guidelines in DCF 150:
•
Extend the application of the special provision for low-income payers in s.
DCF 150.04 (4) and Appendix
C from up to 125% of the federal poverty guidelines to up to 150% of the federal poverty guidelines. The current rule provides a schedule with reduced percentage rates to be used to determine the child support obligation for payers with an income below approximately 125% of the federal poverty guidelines if the court determines that the payer's total economic circumstances limit his or her ability to pay support at the level determined using the full percentage rates. For income between approximately 75% and 125% of the federal poverty guidelines, the percentage rates gradually increase as income increases
. The proposed rule will extend use of the reduced percentages to payers with an income up to 150% of the federal poverty guidelines.
•
Provide that if a payer could be eligible for the special provision on calculating support for a high-income payer in s.
DCF 150.04 (5) and the special provision on calculating support for shared-placement parents in s.
DCF 150.04 (2), the child support obligation is the lower amount calculated under either formula. The current rule already limits a shared-placement payer who is also a low-income payer to the lower amount calculated under either formula.
•
Change the term “serial-family payer" to “serial-family parent" to conform the rule to the intent for serial family cases with a previous shared-placement obligation. The concept behind the special provision for shared-placement parents is that the order is smaller than a full percentage order because the parent has significant placement and is covering the child's basic support expenses while with that parent. The concept behind the special provision for serial families is to give credit for the amount spent on the first family before determining the order for children in the next family. The current serial family provision refers to the “payer" in a shared-placement order in giving credit for the amount spent on the earlier children. The Department proposes to change “payer" to “parent" so a parent who did not owe child support under the shared-placement provision will still be entitled to credit for pre-existing obligations in the determination of support under the serial family provision.
Statutory Authority
Comparison with Federal Regulations
Background on Medical Support
The first federal requirement that medical support be addressed in child support cases was in the Child Support Amendments of 1984. States were required to petition for medical child support in cases enforced under Section IV-D of the Social Security Act (IV-D cases) if health care coverage was available to the noncustodial parent at a reasonable cost. Reasonable cost was defined as coverage available through the noncustodial parent's employment. The IV-D cases included custodial parents receiving AFDC or Medicaid and non-AFDC cases with the custodial parent's consent.
In 1989, a change to
45 CFR 302.56 required states to establish one set of guidelines for setting and modifying child support award amounts within the state with a rebuttable presumption that the guidelines would apply in all child support cases. Among other things, the regulation required that the guidelines must, at a minimum, provide for the child's health care needs through health insurance coverage or other means. It did not specify how health care needs should be addressed.
The Child Support Performance and Incentive Act of 1998 required health care coverage in IV-D cases, while previous law merely required States to petition for inclusion of health care coverage. This Act also directed the Secretaries of the Department of Labor and the Department of Health and Human Services to establish a Medical Child Support Working Group to identify impediments to the effective enforcement of medical support and to make recommendations to eliminate them. The Working Group released their report,
21 Million Children's Health: Our Shared Responsibility, in August 2000. The report is available at
http://www.acf.hhs.gov/programs/cse/pubs/2000/reports /medrpt/.
New Medical Support Provisions
Several of the key recommendations of the Working Group were adopted in the Deficit Reduction Act of 2005 and new medical support regulations issued on July 21, 2008. (
Child Support Enforcement Program; Medical Support; Final Regulation, 73 Federal
Register 42416). As amended,
42 USC 666(a)(19) provides that all IV-D child support orders shall include a provision for medical support for the child to be provided by either or both parents. State IV-D agencies now have the option of enforcing medical support against a custodial parent if health care coverage is available to the custodial parent at a reasonable cost.
The new regulation on securing and enforcing medical support obligations at
45 CFR 303.31 is more specific than the previous medical support section. It provides that the State IV-D agency must petition the court to include private health insurance that is accessible to the child, as defined by the State, and is available to the parent responsible for providing medical support at a reasonable cost in new or modified court orders for support.
If private health insurance is not available at the time the order is entered or modified, the State must petition to include cash medical support in new or modified orders until health insurance that is accessible and reasonable in cost becomes available. In appropriate cases, as defined by the State, cash medical support may be sought in addition to health insurance coverage.
Cash medical support or the cost of private health insurance is considered “reasonable in cost" if the cost to the parent responsible for providing medical support does not exceed 5% of his or her gross income or, at State option, a reasonable alternative income-based numeric standard defined in the state child support guidelines. In applying the 5% or alternative state standard for the cost of private health insurance, the cost is the cost of adding the child or children to the existing coverage or the difference between self-only and family coverage.
“Health insurance" includes fee for service, health maintenance organization, preferred provider organization, and other types of coverage that is available to either parent, under which medical services could be provided to a dependent child.
“Cash medical support" means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by another parent through employment or otherwise, or for other medical costs not covered by insurance.
On pages 42423-42424 of the preamble to the rule, commenters requested clarification on including unfixed, unreimbursed medical expenses in the definition of cash medical support subject to the reasonable cost limitations because this would unfairly place the burden for these costs on the custodial parent. The Administration for Children and Families responded that they agree it would not be appropriate at the time an order is established to include the cost of future, uncertain, and unspecified medical costs when applying the 5% cost-reasonableness standard. They further state that they do not agree that responsibility for extraordinary medical costs set in a subsequent medical support order should be ordered without any consideration of the obligated parent's ability to pay at the time the cost is incurred or reimbursement is sought.
New Medical Support Provision Affects All Child Support Awards
The new medical support regulations will affect all child support awards, not just IV-D cases. The amended
45 CFR 302.56 requires that state guidelines for setting and modifying all child support amounts within the state address how the parents will provide for a child's health care needs through health insurance coverage or cash medical support, or both, in accordance with
45 CFR 303.31, the new medical support regulation.
Guidelines Review
In addition to the new medical support rule, the existing
45 CFR 302.56(e) requires states to review, and revise, if appropriate, the state's child support guidelines at least once every 4 years to ensure that their application results in the determination of appropriate child support award amounts.
Entities Affected by the Rule
County child support agencies, judges, court commissioners, attorneys, parents, and children
Estimate of Time Needed to Develop the Rule
400 hours.
Contact Information
Connie Chesnik
Office of Legal Counsel
(608) 267-7295
Corrections
Subject
Amends Chapter
DOC 302, relating to assessment and evaluation, security classification, sentence computation, and special action releases.
Objective of the Rule
The objective of the rule is to amend the chapter to reflect a number of changes in the law, including truth in sentencing and case law addressing sentence computation, and changes in the operations and practices of assessing and evaluating inmates upon admission to the prison system, determining the security classification and custody level of inmates, making sentence computations, and special action releases.
Policy Analysis
The current rule chapter provides in detail the procedures for initial assessment and evaluation of inmates as they are received into the prison system. This process identifies security classification, custody level, program or treatment assignments, and institution placement. The chapter also sets forth the procedures followed in computing sentences which information is used in determining eligibility for parole and release dates. The chapter also provides for procedures to address special action releases. The rule chapter has not been fully reviewed for revision since passage of Wisconsin's Truth in Sentencing law in 1998. There have been further statutory amendments and case law developments which have resulted in the need to modify this administrative code chapter.
There is no alternative means to address the need for revisions other than to review the chapter for purposes of amendment.
Statutory Authority
Comparison with Federal Regulations
There are no federal regulations which address the assessment and evaluation, security classification, custody level determination, or sentence computation of persons sentenced to Wisconsin prisons for violations of Wisconsin criminal statutes. However, under 4 USCA § 112, Congress has authorized the Interstate Corrections Compact which Wisconsin adopted and is found in §
302.25, Wis. Stats. The ICC permits participating states to cooperate among themselves in the supervision of inmates and offenders.
Entities Affected by the Rule
This rule affects persons who are committed to adult correctional institutions and department staff.
Estimate of Time Needed to Develop the Rule
The Department estimates that it will take approximately 400 hours to develop this rule, including drafting the rule and complying with rulemaking requirements.
Contact Information
Kathryn R. Anderson, Chief Legal Counsel, Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 73707-7925, Phone: (608) 240-5049, FAX: (608) 240-3306,
kathryn.anderson@wisconsin.gov
Corrections
Subject
Creates s.
DOC 302.33, relating to department's review of petitions to the sentencing court for modification of bifurcated sentences of inmates who are over a certain age and have served a portion of their bifurcated sentences or who are terminally ill.
Objective of the Rule
The objective of the rule is to create s.
DOC 302.33, to establish procedures for the department to exercise its authority under s.
302.113 (9g), Stats., to review petitions of certain inmates for modification of their bifurcated sentences. Under this statutory section, an inmate who is serving a bifurcated sentence for a crime other than a Class B felony may seek modification of the bifurcated sentence if the inmate meets one of three criteria. Specifically, those three criteria are: (1) the inmate is 65 years of age or older and has served at least 5 years of the term of confinement in the prison portion of the bifurcated sentence; (2) the inmate is 60 years of age or older and has served at least 10 years of the term of confinement in the prison portion of the bifurcated sentence; and (3) the inmate has a terminal condition. Under the statutory scheme, the department is required to review the petition to determine whether the public interest would be served by the requested modification of the inmate's bifurcated sentence. If the department determines the public interest would be served by the requested modification of the inmate's bifurcated sentence, the department must then refer the inmate's petition to the sentencing court for further action. An inmate who files a petition under s.
302.113 (9g), Stats., is entitled to representation.
Policy Analysis
In order to act under this statutory provision the department must promulgate rules to establish the procedures for receiving and acting on petitions filed by inmates. There are no alternative means to address the need for the rule.
Statutory Authority
Comparison with Federal Regulations
There are no federal regulations which address releases under s.
302.113 (9g), Stats.
Entities Affected by the Rule
This rule affects inmates who wish to petition the sentencing court for a modification of their bifurcated sentences under s.
302.113 (9g), Stats., sentencing courts, prosecutors, victims, and department staff.
Estimate of Time Needed to Develop the Rule
The Department estimates that it will take approximately 100 hours to develop this rule, including drafting the rule and complying with rulemaking requirements.
Contact Information
Kathryn R. Anderson, Chief Legal Counsel, Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 73707-7925, Phone: (608) 240-5049, FAX: (608) 240-3306,
kathryn.anderson@wisconsin.gov
Corrections
Subject
Amends Chapter
DOC 308, relating to administrative confinement.
Objective of the Rule
The objective of the rule is to amend the rule to reflect changes in the operations and practices of the department in placing inmates in administrative confinement status.
Policy Analysis
The current rule establishes a procedure for placing inmates in administrative confinement which is an involuntary nonpunitive status. The procedure includes the steps for placement in the status and periodic review and appeal. This proposed rule would make the process for placing inmates in administrative confinement more efficient but retain a review and appeal process.
Statutory Authority
Comparison with Federal Regulations
There are no federal regulations which address administrative confinement of persons sentenced to Wisconsin prisons for violations of Wisconsin criminal statutes. However, under 4 USCA § 112, Congress has authorized the Interstate Corrections Compact which Wisconsin adopted and is found in s.
302.25, Wis. Stats. The ICC permits participating states to cooperate among themselves in the supervision of inmates and offenders.
Entities Affected by the Rule
The Department expects that the proposed rule will affect its staff and inmates housed in prisons under s.
302.01, Stats.
Estimate of Time Needed to Develop the Rule
It is anticipated that 400 hours of staff time may be necessary to review and revise the administrative rule, including drafting, cost estimates, public hearings and complying with rule making requirements.
Contact Information
Kathryn R. Anderson, Chief Legal Counsel, Department of Corrections, 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 73707-7925, Phone: (608) 240-5049, FAX: (608) 240-3306,
kathryn.anderson@wisconsin.gov
