Amendment SSA1-SB82

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 An Act to renumber 48.57 (3m) (a) 1. and 48.57 (3n) (a) 1.; to renumber and amend 48.57 (3m) (d), 48.57 (3n) (d), 48.57 (3p) (a) and 49.155 (5); to amend 48.57 (3m) (am) 2., 48.57 (3m) (am) 4., 48.57 (3m) (am) 4m., 48.57 (3m) (f), 48.57 (3m) (g) 1. (intro.), 48.57 (3m) (g) 2., 48.57 (3n) (am) 4m., 48.57 (3n) (f), 48.57 (3n) (g) 1. (intro.), 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) (h) 4., 48.57 (3p) (h) 5., 48.57 (3p) (hm), 48.57 (3t) and 880.08 (3) (am) (intro.); and to create 48.57 (3m) (a) 1d., 48.57 (3m) (d) 1. to 4., 48.57 (3n) (a) 1d., 48.57 (3n) (d) 1. to 3., 48.57 (3p) (a) 2., 48.57 (3p) (h) 2m., 48.57 (3p) (hg), 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

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 Section 1. 48.57 (3m) (a) 1. of the statutes is renumbered 48.57 (3m) (a) 1r.

SB82-SSA1, s. 2 Section 2. 48.57 (3m) (a) 1d. of the statutes is created to read:

SB82-SSA1,5,3 48.57 (3m) (a) 1d. "Arrest" has the meaning given in sub. (3p) (a) 2.

SB82-SSA1, s. 3 Section 3. 48.57 (3m) (am) 2. of the statutes is amended to read:

SB82-SSA1,5,11 48.57 (3m) (am) 2. The county department or department determines that the child meets one or more of the criteria specified in s. 48.13 or 938.13, that the child would be at risk of meeting one or more of those criteria if the child were to remain in his or her home, or, if the child is 18 years of age or over, that the child would meet or be at risk of meeting one or more of those criteria as specified in this subdivision if the child were under 18 years of age; or the child has been living with the kinship care relative for 2 years or longer.

SB82-SSA1, s. 4 Section 4. 48.57 (3m) (am) 4. of the statutes is amended to read:

SB82-SSA1,6,6 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 or convictions that could are likely to adversely affect the child or the kinship care relative's ability to care for the child.

SB82-SSA1, s. 5 Section 5. 48.57 (3m) (am) 4m. of the statutes is amended to read:

SB82-SSA1,6,14 48.57 (3m) (am) 4m. Subject to sub. (3p) (fm) 1. and 2., the kinship care relative states that he or she does not have any arrests or convictions that could are likely to 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 or convictions that could are likely to adversely affect the child or the kinship care relative's ability to care for the child.

SB82-SSA1, s. 6 Section 6. 48.57 (3m) (d) of the statutes is renumbered 48.57 (3m) (d) (intro.) and amended to read:

SB82-SSA1,7,12 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 kinship care relative is still providing care and maintenance for the child and whether the conditions specified in par. (am) 1. to 6. continue to exist. If those conditions If the kinship care relative is no longer providing care and maintenance for the child, the county department or department shall discontinue making those payments effective immediately upon providing written notice of the discontinuation to the kinship care relative, except that the county department or department may not discontinue making those payments on the grounds that the kinship care relative is no longer providing care and maintenance for the child if the child is outside the home of the kinship care relative for 90 days or less with the intent of returning to the home and if the county department or department has approved that absence from the home. If any of the conditions specified in par. (am) 1. to 6. 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-SSA1, s. 7 Section 7 . 48.57 (3m) (d) 1. to 4. of the statutes are created to read:

SB82-SSA1,7,18 48.57 (3m) (d) 1. That, if the payments are being discontinued on the grounds that the kinship care relative is no longer providing care and maintenance for the child, 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 of the notice of discontinuation.

SB82-SSA1,7,23 2. That, if the payments are being discontinued on the grounds that a condition specified in par. (am) 1., 2., 5., 5m., or 6. does not continue to exist or based on arrest record, 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-SSA1,8,2 3. That, if the payments are being discontinued based on conviction record, the kinship care relative may request a review of that discontinuation by submitting a request for review under sub. (3p) (h) 2. within 45 days after the date on which those payments are discontinued.

SB82-SSA1,8,9 4. That, if the kinship care relative submits a petition for review under par. (g) or sub. (3p) (h) within the applicable time limit specified in par. (g) 2., or sub. (3p) (h) 2m., the kinship care relative's payments may not be discontinued, except as provided in par. (g) 2. a. or b. or sub. (3p) (h) 2m. 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.

SB82-SSA1, s. 8 Section 8. 48.57 (3m) (f) of the statutes is amended to read:

SB82-SSA1,8,18 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) 1. or 2. 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-SSA1, s. 9 Section 9. 48.57 (3m) (g) 1. (intro.) of the statutes is amended to read: