With the same circumstances under the proposed rule, the kinship care agency in the area of the relative caregiver’s old residence will be required to continue making the kinship care payments to the relative caregiver until the department amends or renews the contract with the kinship care agency in the area of the relative caregiver’s new residence or the agency otherwise has kinship care funding available to make the payments. The kinship care agency in the area of the relative caregiver’s new residence is required to place the relative caregiver’s name at the top of the agency’s waiting list. 2019 Wisconsin Act 9 increases kinship care funding to allow for a higher caseload by $3,399,400 in SFY20 and by $4,392,300 in SFY21, so fewer waiting lists are expected in this biennium. Criminal History Background Check
The proposed rule extends the timeframe for kinship care agencies to begin a criminal history background check from 5 days to 10 working days after the agency receives a complete application from a relative caregiver.
The rule also provides that a director may designate an individual to fulfill the director’s responsibilities of making the background check determinations for long-term kinship care and conducting the review of a barred offense for kinship care, which is the first-level appeal. A designee of the director must be a manager in the kinship care agency that does not directly supervise the agency staff that make eligibility determinations for kinship care or long-term kinship care. If a director designates an individual to these determinations, the kinship agency shall submit the name of the designee and the designee’s position in the agency to the department each January.
In addition, the proposed rule includes the following clarifications regarding the criminal history background check:
Section 48.57 (3p) (d), Stats., requires that kinship care agencies submit the fingerprints of a relative caregiver, prospective adult resident, or prospective employee to the Department of Justice for a search of the databases maintained by the FBI if the person is not a resident of this state; the person has resided outside the state at any time within the preceding 5 years; or the kinship care agency determines that the person’s employment, licensing, or state court records provide a reasonable basis for further investigation.
Barred offenses for kinship care are specified under s. 48.57 (3p) (g), Stats., and these are the only offenses for which a review by the director is available before a hearing with the division of hearings and appeals. Statutory Updates
The proposed rule incorporates the following statutory updates:
2015 Wisconsin Act 55 amends the definition of “child” to provide that the relative caregiver of a child that is 19 or 20 years of age and has an individualized education program under s. 115.787, Stats., in effect may be eligible for kinship care or long-term kinship care only if the child is placed in the relative caregiver’s home under an order under s. 48.355, 48.357, 48.365, 938.355, 938.357, or 938.365, Stats., that terminates under s. 48.355 (4) (b) or 938.355 (4) (am), Stats., after the person attains 18 years of age or under a voluntary transition-to-independent-living agreement under s. 48.366 (3) or 938.366 (3), Stats.
2015 Wisconsin Act 166 authorizes a hearing with the Division of Hearings and Appeals for background check denials. Summary of Data and Analytical Methodologies
In response to a number of legislative inquiries on behalf of constituents that were placed on a waiting list for kinship care following a move to a new county or tribal area, the department is proposing that the kinship care agency in the county or tribal area of the relative caregiver’s old residence continue making voluntary kinship care payments to a relative caregiver that moves to a new county or tribal area where the kinship care agency has a waiting list until other funding is arranged.
The department also reviewed local agency policies and procedures and addressed commonly-asked questions by kinship care agencies when developing the proposed rule. The department received comments on various drafts of the proposed rule from the Out-of-Home Care Committee, kinship care agency coordinators, Indian Child Welfare Directors, and the Relative Caregivers Stakeholder Group.
Summary of Related Federal Law
Funding for kinship care and long-term kinship care is through the federal Temporary Assistance for Needy Families (TANF) program.
Social security number. Under 45 CFR 205.52, the state’s TANF plan must require that each individual applying for receiving TANF funds furnish a social security number as a condition of eligibility. An individual that does not have a social security number is required to apply to the Social Security Administration with assistance from the state or local agency, provide verification of the application, and provide the number when it is received. Assistance may not be denied or delayed pending the issuance or verification of the number. Child support cooperation. 42 USC 654 (29) (A) requires cooperation with the child support agency’s efforts at enforcing support, subject to good cause as defined by the agency administering the TANF program. Comparison to Adjacent States
Comparable programs in adjacent states appear to offer child-only TANF grants for relative caregivers with few eligibility conditions beyond the TANF requirements for child support cooperation and provision of the child’s social security number. Michigan may also require that a child under 6 years of age receives scheduled immunizations with limited exemptions and a child 6 years of age and over attends school full-time.
Effect on Small Businesses
The department is not aware of any small businesses affected by the proposed rule.
Analysis Used to Determine Effect on Small Businesses
In general, the program is administered by county and tribal agencies, except in Milwaukee where the department’s Milwaukee Division of Child Protective Services contracts with the Professional Services Group, Children’s Hospital, and SaintA to perform assessments. None of these entities is a small business.
Agency Contacts
Jonelle Brom, Section Chief Holly Telfer, Kinship Care Coordinator
Out-of-Home Care Section Out-of-Home Care Section
(608) 422-6930 (608) 422-6921
SECTION 1. DCF 58 is repealed and recreated to read:
KINSHIP CARE AND LONG-TERM KINSHIP CARE
DCF 58.01 Purpose. This chapter is promulgated under the authority of ss. 48.57 (3m) (h) and (i) and (3n) (h) and (i) and 227.11 (2), Stats., to establish criteria and procedures for determining initial and continuing eligibility of a relative providing care and maintenance for a child for a monthly payment to assist with the expenses involved in providing that care and maintenance and for recovering overpayments. DCF 58.02 Definitions. In this chapter:
(1) “Adult resident” means a person 18 years of age or over who meets any of the following conditions:
(a) Lives at the home of a relative caregiver with the intent of making that home the person’s home.
(b) Lives at the home of a relative caregiver for more than 30 days cumulative in any 6−month period.
(2) “Background check” means the requirements under s. 48.57 (3p), Stats., and s. DCF 58.05. (3) “Background information disclosure” means the form prescribed by the department on which a person provides information for purposes of the background check under s. 48.57 (3p), Stats., and s. DCF 58.05. (4) “Child” means a person under 18 years of age. “Child” also includes a person 18 years of age or over if any of the following applies:
(a) The person is under 19 years of age, is a full−time student in good academic standing at a secondary school or its vocational or technical equivalent, and is reasonably expected to complete the program of study and be granted a high school or high school equivalency diploma.
(b) The person is under 21 years of age and meets all of the following conditions:
1. The person is a full−time student at a secondary school or its vocational or technical equivalent.
2. There is an individualized education program under s. 115.787, Stats., in effect for the person. 3. The person is placed in the home of the relative caregiver under any of the following:
a. A court order under s. 48.355, 48.357, 48.365, 938.355, 938.357, or 938.365, Stats., that terminates under s. 48.355 (4) (b) or 938.355 (4) (am), Stats., after the person attains 18 years of age, or a substantially similar Wisconsin tribal law. b. A voluntary transition-to-independent-living agreement.
c. The placement and care responsibility of another state under 42 USC 675 (8) (B) (iv) until that state provides reimbursement for the placement of the child in a relative caregiver’s home in Wisconsin. (5) “Child support agency” means a county or tribal office, officer, board, department, or agency designated by the county board or elected tribal council to administer the child support, spousal support, and establishment of paternity program on behalf of the department pursuant to s. 59.53 (5), Stats., or a cooperative agreement with the department. (6) “Child welfare agency” means a county department of social services under s. 46.22, Stats.; a county department of human services under s. 46.23, Stats.; the department in a county having a population of 750,000 or more; a tribal agency appointed by the tribal governing body; or another state that has placement and care responsibility under 42 USC 675 (8) (B) (iv) of a child in Wisconsin until the other state provides reimbursement for the child’s placement in a relative caregiver’s home in Wisconsin. (7) “Conviction record” means the record of a person’s arrests and convictions.
(8) “Court order” means a court order under s. 48.21, 48.355, 48.217, 48.357, 48.365, 938.21, 938.217, 938.355, 938.357, or 938.365, Stats., that terminates under s. 48.355 (4) (b) or 938.355 (4) (am), Stats., after the person attains 18 years of age, or a substantially similar Wisconsin tribal law. (9) “Custodial parent” means a parent that has legal custody of a child.
(10) “Department” means the department of children and families.
(11) “Director” means the director of a county department of social services under s. 46.22, Stats., or a county department of human services under s. 46.23, Stats.; the division administrator of the department’s division of Milwaukee child protective services; or the person designated by the governing body of a Wisconsin tribe. (12) “Division of hearings and appeals” means the division of hearings and appeals in the department of administration.
(13) “Employee” means a person hired by a relative caregiver to work in a position in which the person has contact with the child on a regular basis.
(14) “Final substantiated finding” means all of the following:
(a) A final determination made after January 1, 2015, that a person has abused or neglected a child under s. 48.981 (3) (c) 5m., Stats., and s. DCF 40.04 if the final determination has not been reversed or modified on appeal. (b) A determination made before January 1, 2015, that a person has abused or neglected a child under s. 48.981 (3) (c) 4., 2013 Stats., if the determination has not been reversed or modified on appeal. (c) A finding that is comparable to a final substantiated finding in any other jurisdiction.
(15) “Kinship care” means the program under s. 48.57 (3m), Stats. (16) “Kinship care agency” or “agency” means a county department of social services under s. 46.22, Stats.; a county department of human services under s. 46.23, Stats.; the department in a county having a population of 750,000 or more; a tribal agency appointed by the tribal governing body that has entered an agreement with the department to administer kinship care or long-term kinship care as provided under s. 48.57 (3t), Stats.; or a public or private agency under contract with a county department, the department, or a tribal agency for the purpose of administering all or part of kinship care or long−term kinship care. (17) “Kinship care payment” means a monthly payment in an amount specified in s. 48.57 (3m) (am), Stats., that is paid to a relative caregiver that has been determined eligible for payments under s. 48.57 (3m) and (3p), Stats., and this chapter. (18) “Legal custody” means, with respect to an individual with legal custody of a child, the right and responsibility to make major decisions, as defined under s. 767.001 (2m), Stats., concerning the child. Note: Section 767.001 (5), Stats., defines “physical placement” as the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody. (19) “Long−term kinship care” means the program under s. 48.57 (3n), Stats. (20) “Long−term kinship care payment” means a monthly payment in an amount specified in s. 48.57 (3n) (am), Stats., that is paid to a relative caregiver that has been determined eligible under s. 48.57 (3n) and (3p), Stats., and this chapter. (21) “Medical assistance” means the assistance program under 42 USC, ch. 7, subch. XIX, and ch. 49, Stats., subch. IV. (22) “Relative” means an adult that is the child’s stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, nephew, niece, uncle, aunt, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce.
(23) “Relative caregiver” means a relative that is providing care and maintenance for a child and is applying for, or receiving, kinship care payments or long-term kinship care payments.
(24) “Voluntary kinship care” means the program under s. 48.57 (3m), Stats., when the child is not placed in the relative caregiver’s home under a court order or a voluntary transition-to-independent-living agreement and is not under the placement and care responsibility of a child welfare agency. (25) “Voluntary transition−to−independent−living agreement” means a voluntary agreement under s. 48.366 (3) or 938.366 (3), Stats.
