• Consult with the child in an age-appropriate manner about the opportunities of the child to participate in age or developmentally appropriate activities.
The placing agency shall explain to the out-of-home care provider the parameters of the considerations that the out-of-home care provider is required to take into account when making decisions concerning the child’s or juvenile’s participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities. In explaining those parameters, the agency shall explain the considerations and prohibitions and shall advise the out-of-home care provider that in case of any disagreement over the application of the reasonable and prudent parent standard, the agency having placement and care responsibility for the child is ultimately responsible for decisions concerning the care of the child.
Sections 48.02 (14r) and 938.02 (14r), Stats., as created by 2015 Wisconsin Act 128, define the “reasonable and prudent parent standard” as a standard for an out-of-home care provider to use when making decisions concerning a child’s or juvenile’s participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the child or juvenile while at the same time encouraging the emotional and developmental growth of the child or juvenile. Sections 48.02 (1dm) and 938.02 (1g), Stats., as created by 2015 Wisconsin Act 128, define “age or developmentally appropriate activities” as activities that are generally accepted as suitable for children or juveniles of a given chronological age or level of maturity or that are determined to be developmentally appropriate for a child or juvenile based on the cognitive, emotional, physical, and behavioral capacities that are typical for children or juveniles of a given age or age group or, in the case of a specific child or juvenile, activities that are suitable for the child or juvenile based on the cognitive, emotional, physical, and behavioral capacities of that child or juvenile. Section 48.67 (4) (a) 1m., Stats., as created by 2015 Wisconsin Act 128, directs the department to promulgate rules that require all foster parents to successfully complete training on the use of the reasonable and prudent parent standard in making decisions about a child’s participation in age or developmentally appropriate activities, including all of the following: • The stages in the development of cognitive, emotional, physical, and behavioral capacities of children.
• Applying the reasonable and prudent parent standard in making decisions on all of the following:
• A child’s participation in extracurricular, enrichment, cultural, or social activities, such as sports, field trips, overnight, and other recreational activities.
• The signing of permission slips and the arrangement of transportation to and from those activities.
• The child’s choices with respect to transportation, employment, peer relationships, and personal expression.
Those rules shall require a foster parent who has received that training to make reasonable and prudent parenting decisions in accordance with the reasonable and prudent parent standard.
Section 48.67 (5), Stats., as created by 2015 Wisconsin Act 128, directs the department to promulgate rules that require all residential care centers for children and youth, all group homes, and all shelter care facilities employ on the site of the center, group home, or shelter care facility at all times a staff member designated as an out−of−home care provider for purposes of making decisions concerning the participation of a child placed in the center, group home, or shelter care facility in age or developmentally appropriate activities. The designated staff member will be required to successfully complete the training described in s. 48.67 (4) (a) 1m., Stats. Those rules shall require the trained staff member to make reasonable and prudent parenting decisions in accordance with the reasonable and prudent parent standard. Section 48.75 (3), Stats., as created by 2015 Wisconsin Act 378, provides that before a child welfare agency or public licensing agency issues a license to operate a foster home, the agency shall require that each foster parent receive a favorable report following an investigation that is conducted in the same manner as the investigation under s. 48.88 (2) (aj), Stats., as created by 2015 Wisconsin Act 378, is conducted. • In determining whether the petitioner’s home is suitable for the child, the agency or tribal child welfare department making the investigation shall consider whether the petitioner is fit and qualified to care for the child, exercises sound judgment, does not abuse alcohol or drugs, and displays the capacity to successfully nurture the child.
• The investigation shall be conducted using an assessment system that is approved by the department. The assessment system shall provide a reliable, comprehensive, and standardized qualitative evaluation of a petitioner’s personal characteristics, civil and criminal history, age, health, financial stability, and ability to responsibly meet all requirements of the department.
• If the agency or tribal child welfare department making the investigation has special concern as to the welfare of the child or the suitability of the placement, the investigation may include a clinical assessment of the petitioner’s mental health or alcohol or other drug use by an employee of the agency or tribal child welfare department who is not employed in the unit of the agency or tribal child welfare department that is making the investigation or by a person who is not employed by that agency or tribal child welfare department. A person who provides such an assessment shall be a licensed psychologist, licensed psychiatrist, certified advanced practice social worker, certified independent social worker, licensed clinical social worker, or licensed professional counselor.
Summary of the Proposed Rules
Reasonable and Prudent Parent Standard
The rule-making order implements the requirement in ss. 48.383 and 938.383, Stats., as created by 2015 Wisconsin Act 128, that out-of-home care providers use the reasonable and prudent parent standard when making decisions regarding the participation by a child placed in the provider’s home or facility in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities. The rule-making order incorporates this requirement into the licensing rules for residential care centers, foster homes, group homes, and shelter care facilities. The reasonable and prudent parent standard is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the child while at the same time encouraging the emotional and developmental growth of the child. The rule-making order requires an out-of-home care provider to consider decision-making factors specified in the rule to ensure that the provider is making an informed decision that complies with the requirements of the standard.
The child-specific factors to be considered when making a reasonable and prudent parenting decision are the child’s wishes, as gathered by engaging the child in age-appropriate discussions about participation in the activity; the age, maturity, and development of the child; whether participating in the activity is in the best interest of the child; the child’s behavioral history; court orders and other legal considerations affecting the child; and cultural, religious, and tribal values of the child and the child’s family. The licensing rules for residential care centers and group homes also require the provider to consider the child’s treatment plan.
The activity-specific factors to be considered when making a decision are the potential risk factors of the situation, including whether the child has the necessary training and safety equipment to safely participate in the activity under consideration; how the activity will help the child grow; whether participating in the activity will provide experiences that are similar to the experiences of other children in the home or facility; other information regarding the parent’s or guardian’s wishes and values; any other concerns regarding the safety of the child, other children in the home or facility, or the community; and information on the forms required under ch. DCF 37. The placing agency provides the forms required under ch. DCF 37 to residential care centers, foster parents, group homes, and shelter care facilities at or near the time of the child’s placement. The forms include information on the child’s skills, needs, and activities. The requirement to use the forms for children placed in facilities other than foster homes became effective July 1, 2016. Residential care centers and group homes are also required to incorporate the information on the forms into the child’s treatment plan. An out-of-home care provider may not use the reasonable and prudent standard to permit a child to participate in an activity that would violate a court order or any federal or state statute, rule, or regulation; make decisions that conflict with the child’s permanency plan or family interaction plan; consent to the child’s marriage; authorize the child’s enlistment in the U.S. armed forces; authorize medical, psychiatric, or surgical treatment for the child beyond the terms of the consent for medical services authorized by the child’s parent or guardian; represent the child in legal actions or make other decisions of substantial legal significance; determine which school the child attends or make decisions concerning the child regarding an educational right or requirement that is provided in federal or state law; require or prohibit a child’s participation in an age or developmentally appropriate activity solely for convenience or, in the foster care rules, based on the foster parent’s values and, in the facility rules, for personal reasons not applicable to the decision-making factors in the rules.
An out-of-home care provider is required to complete training on the application of the reasonable and prudent parent standard prior to making reasonable and prudent parenting decisions. Residential care centers, group homes, and shelter care facilities are required to designate a person to make reasonable prudent parenting decisions and to have at least one decision maker present on-site at all times. The rules define this person as an “RPPS decision maker.” An RPPS decision maker may be a licensee, authorized representative of the licensee, or staff members specified in each rule.
Residential care centers, group homes, and shelter care facilities are required to have policies and procedures on how the facility complies with the requirements of the reasonable and prudent parent standard. The policies and procedures will include how a communication log will be used to document reasonable and prudent parenting decisions for activities that do not take place in the out-of-home care facility and are not supervised by a staff person. The communication log will also include significant incidents involving a child; staff arrival and departure times; and each resident’s location, behavior, and program participation during the shift. If an RPPS decision maker makes a decision that involves the facility providing written permission in lieu of a child’s parent or guardian, the RPPS decision maker is required to complete a department-prescribed form and place the form in the child’s facility record.
Home Study
The rule-making order also incorporates into the foster care and child-placing agency rules the provision in 2015 Wisconsin Act 378 that requires that an agency use all components of a standardized assessment tool prescribed by the department to conduct a home study required for approval of a placement for adoption, recognition of a foreign adoption, and issuance of a license to operate a foster home. The standardized assessment tool prescribed by the department is Structured Analysis Family Evaluation (SAFE). Summary of Factual Data and Analytical Methodologies
The rule is based on information provided to states to assist with implementation of the federal requirement that out-of-home care providers use the reasonable and prudent parent standard to support normalcy for children in out-of-home care by promoting participation in age or developmentally appropriate activities.
Summary of Related Federal Law
One of the purposes of the “Preventing Sex Trafficking and Strengthening Families Act” (Public Law 113-183) is to prevent and address sex trafficking of children who are in out-of-home care. Section 111 of the Act on “Supporting Normalcy for Children in Foster Care” requires states to promote participation of children in out-of-home care in age or developmentally appropriate activities and to permit out-of-home care providers to use the reasonable and prudent parent standard when determining whether to consent to a child’s participation in these activities. These requirements are conditions of federal funding for a state’s out-of-home programs under Title IV-E of the Social Security Act (42 USC 670 to 42 USC 679c). Definitions used in Title IV-E, 42 USC 675, as affected by The “Preventing Sex Trafficking and Strengthening Families Act” (Public Law 113-183): Reasonable and prudent parent standard: The term “reasonable and prudent parent standard” means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child. This standard is to be used when the out-of-home care provider is determining whether to allow a child in out-of-home care to participate in extracurricular, enrichment, cultural, and social activities. 42 USC 675 (10). Age or developmentally-appropriate: The term “age or developmentally-appropriate” means activities or items that meet either of the following conditions:
• Activities or items that are generally accepted as suitable for children of the same chronological age or level of maturity or that are determined to be developmentally-appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group.
• In the case of a specific child, activities or items that are suitable for the child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the child. 42 USC 675 (11) (A). State Plan Requirements for Title IV-E funding of a state’s out-of-home care programs, 42 USC 671, as affected by The “Preventing Sex Trafficking and Strengthening Families Act” (Public Law 113-183): Before a child is placed with prospective foster parents, the prospective foster parents shall receive training on the reasonable and prudent parent standard for the participation of the child in age or developmentally-appropriate activities. The training shall include the following:
• Knowledge and skills relating to the developmental stages of the cognitive, emotional, physical, and behavioral capacities of a child.
• Knowledge and skills relating to applying the standard to decisions such as whether to allow the child to engage in social, extracurricular, enrichment, cultural, and social activities, such as sports, field trips, and overnight activities that last one or more days and involve the signing of permission slips and arranging of transportation for the child to and from these activities.
(A) Foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for the institutions or homes, including standards related to admission policies, safety, sanitation, and protection of civil rights, and which shall permit use of the reasonable and prudent parent standard;
(B) The standards established pursuant to subparagraph (A) shall be applied by the State to any foster family home or child care institution receiving funds under this part or part B of this subchapter and shall require, as a condition of each contract entered into by a child care institution to provide foster care, the presence on-site of at least 1 official who, with respect to any child placed at the child care institution, is designated to be the caregiver who is authorized to apply the reasonable and prudent parent standard to decisions involving the participation of the child in age or developmentally-appropriate activities, and who is provided with training in how to use and apply the reasonable and prudent parent standard in the same manner as prospective foster parents are provided the training pursuant to paragraph (24);
(C) The standards established pursuant to subparagraph (A) shall include policies related to the liability of foster parents and private entities under contract by the State involving the application of the reasonable and prudent parent standard, to ensure appropriate liability for caregivers when a child participates in an approved activity and the caregiver approving the activity acts in accordance with the reasonable and prudent parent standard.
Comparison to Adjacent States
Michigan, Minnesota, Iowa, and Illinois comply with the federal law that requires all states to implement the reasonable and prudent parent standard and to have a process for determining approval for foster and adoptive parents.
Effect on Small Businesses
The proposed rules will affect small businesses as defined in s. 227.114 (1), Stats., but will not have a significant economic effect on small businesses, including residential care centers, group homes, and child-placing agencies. Analysis Used to Determine Effect on Small Businesses
The rules implement statutory requirements.
Agency Contacts
