Department of Children and Families
Qualified Residential Treatment Programs
Emergency Rule
The statement of scope for this rule, SS 056-21, was approved by the governor on June 3, 2021, published in Register 786A2, on June 7, 2021, and approved by Secretary Emilie Amundson on June 18, 2021. This emergency rule was approved by the governor on September 3, 2021. The Wisconsin Department of Children and Families adopts an order to create ch. DCF 61, relating to qualified residential treatment programs. Exemption from Finding of Emergency
2021 Wisconsin Act 42, Section 92, provides that notwithstanding s. 227.24 (1) (a) and (3), Stats., the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. 2021 Wisconsin Act 42, Section 92, also provides that notwithstanding s. 227.24 (1) (c) and (2), Stats., emergency rules promulgated under this subsection remain in effect until July 1, 2023, or the date on which permanent rules take effect, whichever is sooner. Analysis Prepared by the Department of Children and Families
Explanation of Agency Authority
Section 48.675 (1), Stats., as created by 2021 Wisconsin Act 42, provides that the department may certify a residential care center for children and youth, group home, or shelter care facility to operate a qualified residential treatment program if it determines that the program meets the requirements of 42 USC 672 (k) (4) and any other requirements established by the department under this section. Section 48.675 (2), Stats., provides that the department may promulgate rules for the establishment, certification, operation, and monitoring of, and the placement of a child in, a qualified residential treatment program under sub. (1). Section 227.11 (2) (a) (intro.), Stats., expressly confers rule-making authority on each agency to promulgate rules interpreting the provisions of any statute enforced or administered by the agency. Summary of the Rule
The Family First Prevention Services Act of 2018 significantly changes the ways in which states may use federal funds for child welfare services, including new restrictions on federal reimbursement of state expenditures for the care and maintenance of children who are placed in congregate care settings.
Effective September 29, 2021, federal payments for the care and maintenance of a child placed in a residential care center for children and youth, group home, or shelter care facility, will only be available for 2 weeks, unless the child is placed in a qualified residential treatment program or other federally-authorized treatment program. The requirements of a qualified residential treatment program are specified in 42 USC 672 (k) (4). The emergency rule provides the requirements that a congregate care facility must meet to be certified to operate a qualified residential treatment program (QRTP). The requirements in the rule are the same as the requirements in 42 USC 672 (k) (4) with the following minor additions: -A definition of “trauma-informed treatment model” based on information provided by the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration.
-A definition of an Indian child’s family for purposes of the requirements on family participation in the child’s treatment program. The rule provides that an Indian child’s family includes the child’s extended family members, others identified in accordance with the laws or customs of the child’s Indian tribe, and, if applicable, the child’s Indian custodian.
-A requirement that a QRTP have policies and procedures on how to implement the federal requirements on family participation in a child’s treatment program.
-A requirement that the discharge planning and family-based aftercare support provided for 6 months after a child’s discharge is in partnership and collaboration with the placing agency, with an invitation for the tribal child welfare agency to participate, if applicable.
The emergency rule provides that the licensee of a congregate care facility may apply for certification to operate a QRTP by submitting an application form and specified information documenting that the facility’s program meets the QRTP requirements. The department will issue or deny a QRTP certification within 60 days after receiving a complete application.
After the initial certification, the department will review a facility’s certification for continuation when the department reviews the facility’s license under s. 48.66 (5), Stats. To apply for continuation of a QRTP certification, the licensee will submit a continuation application form, updated versions of the documentation required for the initial certification application, and any other information requested by the department with the licensee’s application for license continuation. The department may review a facility’s compliance with QRTP certification requirements by visiting and inspecting the facility at any time. The department will have unrestricted access to the QRTP, including the records of any child placed in the QRTP and any other materials and children and other individuals who have information on the facility’s compliance with QRTP requirements.
A congregate care facility operating a QRTP must notify the department in writing within one week after any change that may affect the facility’s compliance with QRTP requirements.
The department may order a plan of correction or deny, suspend, restrict, refuse to renew, revoke, or otherwise withhold a QRTP certification if the facility’s program does not comply with the QRTP requirements, the licensee has violated any provision under ch. 48 or 938, Stats., or the facility is in substantial non-compliance with applicable licensing requirements. Any person aggrieved by the department’s decision may request a hearing on the decision under ch. 227, Stats. Summary of Related Federal Law
Foster care maintenance payments; limitation on federal financial participation
42 USC 672 (k) (1) and (2) provide that beginning with the 3rd week for which foster care maintenance payments are made on behalf of a child placed in a child-care institution, no federal payments shall be made to the State for amounts expended for foster care maintenance payments on behalf of the child unless the child is placed in any of the following: -A qualified residential treatment program as specified in 42 USC 672 (k) (4). -A setting specializing in providing prenatal, post-partum, or parenting supports for youth.
-For a child who has attained 18 years of age, a supervised setting in which the child is living independently.
-A setting providing high-quality residential care and supportive services to children and youth who have been found to be, or are at risk of becoming, sex trafficking victims.
Qualified residential treatment program
42 USC 672 (k) (4) provides that the term “qualified residential treatment program” means a program that meets all of the following conditions: -Has a trauma-informed treatment model that is designed to address the needs, including clinical needs as appropriate, of children with serious emotional or behavioral disorders or disturbances and, with respect to a child, is able to implement the treatment identified for the child by the assessment of the child.
-Has registered or licensed nursing staff and other licensed clinical staff who provide care in the scope of their practice as defined by state law, are available 24 hours a day and 7 days a week, and are onsite according to the facility’s treatment model. The nursing and behavioral health staff are not required to be employees.
-Facilitates participation of family members in the child’s treatment program if it is in the child’s best interests.
-Facilitates outreach to the family members of the child, including siblings; documents how the outreach is made (including contact information); and maintains contact information for any known biological family and fictive kin of the child.
-Documents how family members are integrated into the treatment process for the child, including post-discharge, and how sibling connections are maintained.
Provides discharge planning and family-based aftercare support for at least 6 months post-discharge.
-Is licensed in accordance with 42 USC 671(a) (10) and is accredited by any of the following: -The Commission on Accreditation of Rehabilitation Facilities.
-The Joint Commission on Accreditation of Healthcare Organizations.
-The Council on Accreditation.
-Any other independent, not-for-profit accrediting organization approved by the Department of Health and Human Services.
In informal guidance, the Department of Health and Human Services has approved the Teaching-Family Association and the Educational Assessment Guidelines Leading toward Excellence as additional accrediting organizations.
Assessment to determine appropriateness of placement in a qualified residential treatment program
42 USC 672 (k) (3) provides if the assessment required under 42 USC 675a (c) (1) is not completed within 30 days after the placement of a child in a qualified residential treatment program is made, no federal payment shall be made to the State for any amounts expended for foster care maintenance payments on behalf of the child during the placement. 42 USC 675a (c) (1) (A) requires that within 30 days of the start of each placement in a qualified residential treatment program, a qualified individual shall do all of the following: -Assess the strengths and needs of the child using an age-appropriate, evidence-based, validated, functional assessment tool approved by the Department of Health and Human Services.
-Determine whether the needs of the child can be met with family members or through placement in a foster family home or, if not, which setting from among the settings specified in 42 USC 672 (k) (2) would provide the most effective and appropriate level of care for the child in the least restrictive environment and be consistent with the short- and long-term goals for the child, as specified in the permanency plan for the child. -Develop a list of child-specific short- and long-term mental and behavioral health goals.
-Under 42 USC 675a (c) (1) (B), the State is required to assemble a family and permanency team for the child that consists of all appropriate biological family members, relative, and fictive kin of the child, as well as, as appropriate, professionals who are a resource to the family of the child, such as teachers, medical or mental health providers who have treated the child, or clergy. In the case of a child who has attained age 14, the family and permanency team shall include the members of the permanency planning team for the child that are selected by the child. The qualified individual conducting the assessment shall work in conjunction with the family of, and permanency team for, the child while conducting and making the assessment. Extended placements in a qualified residential treatment program
42 USC 675a (c) (4) provides that as long as a child remains placed in a qualified residential treatment program, the State agency shall submit evidence at each status review and each permanency hearing held with respect to the child that does all of the following: -Supports the determination that a qualified residential treatment program continues to be the most effective and appropriate level of care for the child in the least restrictive environment, and that the placement is consistent with the short- and long-term goals for the child, as specified in the permanency plan for the child.
-Documents the specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services.
-Documents the efforts made by the State agency to prepare the child to return home or to be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home.
42 USC 675a (c) (5) provides that in the case of any child who is placed in a qualified residential treatment program for more than 12 consecutive months or 18 nonconsecutive months (or, in the case of a child who has not attained age 13, for more than 6 consecutive or nonconsecutive months), the State agency shall submit to the Department of Health and Human Services all of the following: -The most recent versions of the evidence that the State submitted to the court as required under 42 USC 675a (c) (4). -The signed approval of the head of the State agency for the continued placement of the child in the qualified residential treatment program.
In informal guidance, the Department of Health and Human Services has advised that in states with county-administered child welfare systems, the director of the local social or human services agency is responsible for approving the continued placement of a child in a qualified residential treatment program. Informal guidance has also specified that the director may not appoint a designee to sign the approvals.
Summary of Data and Analytical Methodologies
The rule adopts the federal definition of a QRTP and provides the procedures needed for the establishment, certification, and operation of a QRTP.
Comparison to Adjacent States
Illinois: 705 ILCS 405/2-28a (1.6) includes a requirement regarding court review of the placement of a child that includes a reference to “a qualified residential treatment program, as defined by the federal Social Security Act.”
Iowa: The department was unable to locate any mention of a qualified residential treatment program in Iowa statutes or rules.
Michigan: MCLA 722.111, Sec. 1, (w) provides a definition of a “qualified residential treatment program” that is similar to the federal definition in 42 USC 672 (k) (4). The term is used in statutory language on placement and permanency plan hearings and reviews. Minnesota. M.S.A. 245a.25 specifies the conditions a program must meet to be certified as a QRTP, including the federal QRTP requirements and various conditions of the required trauma-informed treatment model related to the process for identifying and addressing trauma in youth; the provision of services; the physical, social, and emotional environment; staff training requirements; and the program’s policies and procedures. The program must also have at least monthly contact with a youth and the youth’s caregivers during aftercare. A licensee who is denied QRTP certification may request department reconsideration, but a certification denial is not appealable beyond the department.
