Wisconsin Legislature: Text

Chapter DHS 85 establishes standards for the approval of non-profit corporate guardians or unincorporated associations as guardians of a person or an estate.

In this order, the Department proposes to repeal and recreate ch. DHS 85 as follows:

1. To update the rules to reflect current standards of practice of corporate guardianships in the areas of staff qualifications and training, caregiver background checks, duties and powers of the guardian, adequacy of staff, rights of wards, contacts with wards, wards records, and conflict of interest standards.

2. Require corporate guardians to maintain policies in the areas of abuse and neglect misappropriation of property, grievance procedure for use by wards and interested parties, and complaint and grievance investigation.

3. Reflect the increasing number of adults in need of guardianship and increase in their acuity level.

4. Incorporate provisions limiting the number of wards a corporate guardian may have.

5. Establish standards for approval, changing ownership and closing a corporate guardianship agency and to determine whether a person is fit and qualified to operate as a corporate guardian.

Comparison with federal regulations

There appear to be no existing or proposed federal regulations that address the activities to be regulated by the proposed rule.

Comparison with rules in adjacent states

Illinois

There are no administrative codes governing guardianship services in Illinois.

Iowa

In Iowa, counties provide guardianship services for individuals who do not have a suitable family member or interested person who will act as guardian. The rules governing guardianship are found in probate laws and include general provisions concerning the determination of incompetency of the proposed ward, the petition of appointment of guardian, the notice to the proposed ward and representation of the ward at the hearing. In addition, the rules provide for the notification of guardianship powers including providing for the care of the ward, managing the ward's personal property, assisting the ward in developing self-reliance and receiving professional care, counseling, treatment or services as needed and ensuring that the ward receives necessary emergency medical services. The rule also provides for the appointment of a conservator, temporary conservator, standby conservator and liability of conservators.

Iowa code, 633.551 to 633.701 contains rules governing the provision of guardianships and conservatorships.

Michigan

Michigan has established administrative rule governing the provision of public guardianship services for persons with mental retardation. The rule establishes standards for the determination of the need for guardianship, standards for informed consent and the admission procedures into a facility. The rule provides for emergency guardianship, the circumstances the provision may be applied and the powers of the emergency guardian. The rule also includes standards for a facility or program in guardianship proceeding, guardianship for minors and termination or modification of guardianship orders.

Administrative Code Section: Mich. Adm. Code R. 330.6006 to 330.6031 contains rules governing the provision of guardianship to persons who are designated mentally retarded.

Minnesota

Minnesota has established administrative rule governing the provision of public guardianship services for a person with mental retardation. The rule establishes standards related to the process used to appoint a public guardian, the limitations of the guardian's powers and duties and standards for consent determinations. The duties of the public guardian are outlined in rule and include determining the ward's place of residence consistent with the ward's best interests, making provisions for the ward's care, comfort, medical, social and recreational needs, taking reasonable care of the ward's property and approving or withholding approval of any contract the ward makes. Special duties of the guardian such as visiting the ward at least twice a year, taking action and making decisions encouraging the least restrictive effect on the ward's personal freedom and encouraging maximum self-reliance on the part of the ward are also included in the rule. The rule provides standards related to non-delegated consent, non-delegated consent requiring a court order and the process for modification or termination of public guardianship. No administrative rule could be found for guardians for persons who are not mentally retarded.

Administrative Code Section: Minn. R. 9525.3010 to 9525.3100.

Summary of factual data and analytical methodologies

The Department relied on all of the following sources to draft the proposed rule and to determine the impact on small businesses.

• The Department formed an advisory committee consisting of representatives from the Disability Rights Wisconsin, Inc., the Wisconsin Guardianship Association, the Coalition of Wisconsin Aging Groups, the Board on Aging and Long Term Care, County Adult Protective Services staff including County Departments of Social Services, Human Services, Community Programs, County Registers in Probate and Department staff. The advisory committee reviewed the initial draft of the rule and provided comments. The rule was revised based upon the comments made by the advisory committee.

• The Department held four listening sessions with wards in Eau Claire, Fort Atkinson, Green Bay and Milwaukee to gain their perspective on corporate guardianship services. The information obtained from wards was shared with the advisory committee for comment. The views of wards were given the same consideration as the views expressed by other members of the Advisory Committee when drafting rule language. For example, comments from wards related to frequency and location of visits with their guardian, notification of rights and grievance procedure, involvement of wards in decision making and other areas in which wards expressed comment, are reflected in the proposed rules.

• The 2002 Economic Census – Wisconsin Geographic Series, compiled by the U.S. Census Bureau every 5 years for each year ending in “2" or “7" contains the latest available economic data compiled from businesses located in Wisconsin.

• Criteria adopted by the Department and approved by the Wisconsin Small Business Regulatory Review Board to determine whether the Department's proposed rules have a significant economic impact on a substantial number of small businesses. Pursuant to the Department's criteria, a proposed rule will have a significant economic impact on a substantial number of small businesses and if operating expenditures, including annualized capital expenditures, increase by more than the prior year's consumer price index or revenues are reduced by more that the prior year's consumer price index. For the purposes of the rulemaking, 2007 is the index year. The consumer price index is compiled by the U. S. Department of Labor, Bureau of Labor Statistics and for 2007 is 4.2 percent.

• Section 227.114 (1) (a), Stats., defines “small business" as a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has a gross annual sales of less than $5,000,000.

• The DHS database that contains demographic, program and approval information for non-profit corporate guardians.

Analysis and supporting documents used to determine effect on small business

The North American Industry Classification System (NAICS) includes Corporate Guardianships in the Professional, Scientific, and Technical Services sector (sector 54) and further defined in sub-sector 54119 Other Legal Services. This industry comprises establishments of legal practitioners (except lawyers and attorneys) primarily engaged in providing specialized legal or paralegal services. The 2002 census lists 216 entities with total revenue over $25 million. Corporate guardians are a small portion of this sub-sector.

In November 2006, the Division of Quality Assurance (DQA) conducted a survey of the 72 corporate guardianship agencies operating in Wisconsin at that time. Partnering with the Wisconsin Guardianship Association, Coalition of Wisconsin Aging Groups and Disability Rights Wisconsin, Inc., DQA developed a survey that focused on key sections of the rule that had been identified for possible revision. The survey asked questions about the number and type of wards served, services provided, agency staffing, contact with wards, staff training, criminal background checks conducted by the agency and the operational structure. Over 50 percent of the agencies responded to the survey.

Data from DHS datasets lists 72 corporate guardians in Wisconsin.

Available data implies that most corporate guardians should be considered small business as defined in Section 227.114 (1) (a), Stats. Guardianships must be chartered as a non-profit entity authorized to conduct business in Wisconsin. DHS conducted a survey of corporate guardians with more then 50 percent of the agencies responding. DHS approves the number of wards that an agency can serve. The results of the survey reveal that 80 percent of agencies serve less then 100 wards.

Number of Wards Served	Percent of Agencies
20 Wards or less	52.00%
21 - 99 Wards	30.00%
100 or more Wards	18.00%

Financial data for corporate guardianships is not readily available. Based on an agency with 100 wards and 6 guardian representatives the following potential increased costs from DHS 85 were identified:

• The proposed rule requires agencies to conduct criminal background checks for all employees who have contact with wards. The cost for the background check and staff time to complete the review is estimated at $22.00 per review. For an agency with 6 guardian representatives the cost will be $132.00 every 4 years (6 x $22) or $33.00 annually. The proposed rule requires background checks on paid staff only, volunteers are exempt. Based on DQA survey results, over half of the responding agencies indicated that background checks are already being performed on paid staff. Some agencies also complete criminal background checks on their volunteers.

• The proposed rule will require that each new guardian representative receive initial training regarding their job responsibilities including information about the needs and services for wards they are assigned to, information about local resources to meet the needs of wards, prevention and reporting of abuse, neglect and misappropriation of property, ward's rights and the agency's policies and procedures including their grievance procedure. The rule does not require a specific number of hours for this training, however, initial training is estimated to require up to 40 hours. The cost of training is estimated at $28.00 per hour totaling $1,200 for each new guardian representative (40x$28). It is estimated that one new guardian representative will need this training at an average agency each year.

• The proposed rule will require that each guardian representative complete 20 hours of continuing education training every 24 calendar months. Costs for training are estimated on 10 hours of continuing education training provided each year for 6 guardian representatives. Continuing education training is estimated to cost $56.00 per hour each for 6 guardian representatives totaling $3,360.00 (60x$56) annually. A large number of guardian representatives hold assorted credentials (social workers, attorneys, etc.) and are required by their licensure status to accrue a number of continuing education credits annually. These continuing education credits may be used to meet the requirement for continuing education in the proposed rule. Based on DQA survey results, many agencies already provide between 17-20 hours of training annually, exceeding the proposed rule.

• The proposed rule will require agencies to have a photograph of each ward in its file. It is estimated that this requirement will cost $3.00 per ward. Options include a digital camera at $100.00, a disposable camera and 24 prints at $15.00, or individual passport photos at $3.00 per photo.

The Wisconsin Guardianship Association (WGA) is planning to offer training and workshops to all nonprofit corporate guardian agencies on meeting the new standards in the proposed rule. This training will include sample policies and procedures that agencies may choose to use and adapt to meet their agency's program. The WGA will also sponsor regular training/educational conferences for guardian representatives to meet the continuing education training requirement.

Many corporate guardians charge fees to wards or to counties for services provided. As costs for providing these services increase, including additional costs from revisions in DHS 85, fees may also be adjusted. It is unknown if the costs identified above will exceed the current consumer price index of 4.2 percent for any given agency, no single requirement appears to exceed this criteria. The fiscal impact of these additional requirements does not appear to be significant and will vary directly with the size of the agency. Agencies have the ability to increase fees charged to the wards or via the county court system; the overall effect of these proposed increases on corporate guardian agencies should be minimal.

Small Business Impact

Data from DHS data sets list 72 Corporate Guardianships in Wisconsin at this time. These entities must be “Nonprofit Corporations" as defined in s. 181.0103 (17) Stats., namely a corporation, no part of the income which is distributed to its members, officers, or directors. The Department of Financial Institutions also requires Corporate Guardianships to be Non-stock corporations. The fiscal impact of the requirements noted above does not appear to be significant and will vary directly with the size of the agency. Agencies have the ability to increase fees charged to their wards or via the county court system; the overall effect of these proposed increases on corporate guardian agencies should be minimal. It is unknown if the costs identified above will exceed the current consumer price index of 4.2 percent for any given agency, no single requirement appears to exceed this criteria.

Small Business Regulatory Coordinator

Rosie Greer

rosie.greer@dhs.wisconsin.gov

608-266-1279

Fiscal Estimate

Summary

Number of Wards Served	Percent of Agencies
20 Wards or less	52.00%
21 - 99 Wards	30.00%
100 or more Wards	18.00%

• The proposed rule requires agencies to conduct criminal background checks for all employees who have contact with wards. The cost for the background check and staff time to complete the review is estimated at $22.00 per review. For an agency with 6 guardian representatives, the cost will be $132.00 every 4 years (6 x $22) or $33.00 annually. The proposed rule requires background checks on paid staff only; volunteers are exempt. Based on DQA survey results, over half of the responding agencies indicated that background checks are already being performed on paid staff. Some agencies also complete criminal background checks on their volunteers.

• The proposed rule will require that each new guardian representative receive initial training regarding their job responsibilities including information about the needs and services for wards they are assigned to, information about local resources to meet the needs of wards, prevention and reporting of abuse, neglect and misappropriation of property, ward's rights and the agency's policies and procedures including the their grievance procedure. The rule does not require a specific number of hours for this training, however, initial training is estimated to require up to 40 hours. The cost of training is estimated at $28.00 per hour totaling $1,200 for each new guardian representative (40x$28). It is estimated that one new guardian representative will need this training at an average agency each year.

• The proposed rule will require that each guardian representative complete 20 hours of continuing education training every 24 calendar months. Costs for training are estimated on 10 hours of continuing education training provided each year for 6 guardian representatives. Continuing education training is estimated to cost $56.00 per hour each for 6 guardian representatives totaling $3,360.00 (60x$56) annually. A large number of guardian representatives hold assorted credentials (social workers, attorneys, etc.) and are required by their licensure status to accrue a number of continuing education credits annually. These continuing education credits may be used to meet the requirement for continuing education in the proposed rule. Based on DQA survey results, many agencies already provide between 17 – 20 hours of training annually, exceeding the proposed rule.

• The proposed rule will require agencies to have a photograph of each ward in its file. It is estimated that this requirement will cost $3.00 per ward. Options include an inexpensive digital camera at $100.00, a disposable camera and 24 prints at $15.00, or individual passport photos at $3.00 per photo.

State fiscal effect

None.

Local government fiscal effect

Indeterminate. Increase costs.

Local government units affected

Counties.

Private sector fiscal effect

Indeterminate. Increase revenues and Increase costs. Costs will not have significant economic impact on a substantial number of small businesses.

Long-range fiscal implications

None anticipated.

Text of Proposed Rule

SECTION 1. Chapter DHS 85 is repealed and recreated to read:

Chapter DHS 85
Private Non-profit Corporations and Unincorporated Associations as Guardians

Subchapter I — General Provisions

DHS 85.01 Purpose and authority. This chapter is promulgated under the authority of s. 54.15 (7), Stats., and ch. 227.11 (2) (a), Stats., to establish the criteria by which the department determines whether a private nonprofit corporation organized under ch. 181, 187, or 188, Stats., or an unincorporated association is suitable to perform the duties of a guardian of the person, or of the estate, or both, of a proposed ward.

DHS 85.02 Applicability. This rule applies to private non-profit corporations or unincorporated associations applying to the department for consideration of suitability to perform the duties of guardian of a person or of an estate, or both, of a proposed ward.

DHS 85.03 Definitions. As used in this chapter:

(1) “Applicant" means a private nonprofit corporation or an unincorporated association that applies to the department for a finding of suitability to perform the duties of a corporate guardian.

(2) “Corporate guardian" or “guardian" means a private nonprofit corporation or an unincorporated association appointed by a court to serve as guardian of the person, or of the estate, or both, of an individual who is found by a court to be in need of a guardian.

(3) “Department" means the Wisconsin department of health services.

(4) “Guardian of the estate" has the meaning given under s. 54.01 (11), Stats.,

(5) “Guardian of the person" has the meaning given under s. 54.01 (12), Stats.

(6) “Guardianship program" means a system that is established by a corporate guardian to manage the income and assets and provide for the essential requirements for health and safety and the personal needs of its wards under ch. 54, Stats.

(7) “Guardianship program manager" means an employee designated by a corporate guardian, who is responsible for the management and day–to-day operation of the guardianship program.

(8) “Guardian representative" means an individual assigned by a guardian to perform the functions of the guardian of the person under s. 54.25 (1) and (2), Stats., or of the estate under s. 54.19 and 54.20, Stats., or both, of a ward.

(9) “Successor guardian" has the meaning given in s. 54.01 (35), Stats.

(10) “Unincorporated association" is an organization organized under ch. 184, Stats.

(11) “Ward" has the meaning given under s. 54.01(37), Stats.

DHS 85.04 Waivers and variances. (1) DEFINITIONS. In this section:

(a) “Variance" means the granting of an alternate requirement in place of a requirement of this chapter.

(b) “Waiver" means the granting of an exemption from a requirement of this chapter.

(2) REQUIREMENTS FOR WAIVERS AND VARIANCES. The department may grant a waiver or variance of a requirement of this chapter to the corporate guardian if the department finds that the waiver or variance will not adversely affect the health, safety, or welfare of any ward and that: