Chapter 49

49.32 Annotation Sections 46.03 (18) and 46.10 do not constitute an unlawful delegation of legislative power. Klisurich v. DHSS, 98 Wis. 2d 274, 296 N.W.2d 742 (1980).

49.32 Annotation Sections 46.03 (18) and 46.10 (3) permit the Department of Health and Social Services to promulgate rules that consider non-liable family members’ incomes in determining a liable family member’s ability to pay. J.G.W. v. Outagamie County Department of Social Services, 153 Wis. 2d 412, 451 N.W.2d 416 (1990).

49.32 Annotation Section 46.03 (18) (b) imposes liability upon minors and parents for the costs of services but does not give counties an automatic right of recovery. Section 46.10 governs enforcement procedure and allows courts to exercise discretion. S.E. v. Waukesha County, 159 Wis. 2d 709, 465 N.W.2d 231 (Ct. App. 1990).

49.32 Annotation The uniform fee system under ss. 46.03 (18) and 46.10 allows imputing income and, consequently, looking beyond tax returns to determine ability to pay. Daniel R.C. v. Waukesha County, 181 Wis. 2d 146, 510 N.W.2d 746 (Ct. App. 1993).

49.32 Note NOTE: The above annotations relate to uniform fee schedules for services provided by predecessor agencies to the Department of Children and Families under s. 46.03 (18).

49.325 49.325 County department budgets and contracts.

49.325(1) (1) Budget.

49.325(1)(a) (a) Each county department under s. 46.215, 46.22, or 46.23 shall submit its final budget for services purchased or directly provided under this subchapter or ch. 48 and for community-based juvenile delinquency-related services purchased or directly provided under ch. 938 to the department by December 31 annually.

49.325(1)(b) (b) The department shall submit a model of the contract under sub. (2g) (a) to each county department under s. 46.215, 46.22 or 46.23 by May 1 annually.

49.325(2) (2) Assessment of needs. Before developing and submitting a proposed budget for services purchased or directly provided under this subchapter or ch. 48 and for community-based juvenile delinquency-related services purchased or directly provided under ch. 938 to the county executive or county administrator or the county board, the county departments listed in sub. (1) shall assess needs and inventory resources and services, using an open public participation process.

49.325(2g) (2g) Contract.

49.325(2g)(a) (a) The department shall annually submit to the county board of supervisors in a county with a single-county department or the county boards of supervisors in counties with a multicounty department a proposed written contract containing the allocation of funds for services purchased or directly provided under this subchapter or ch. 48, for community-based juvenile delinquency-related services purchased or directly provided under ch. 938, and for such administrative requirements as necessary. The contract as approved may contain conditions of participation consistent with federal and state law. The contract may also include provisions necessary to ensure uniform cost accounting of services. Any changes to the proposed contract shall be mutually agreed upon. The county board of supervisors in a county with a single-county department or the county boards of supervisors in counties with a multicounty department shall approve the contract before January 1 of the year in which it takes effect unless the department grants an extension. The county board of supervisors in a county with a single-county department or the county boards of supervisors in counties with a multicounty department may designate an agent to approve addenda to any contract after the contract has been approved.

49.325(2g)(b) (b) The department may not approve contracts for amounts in excess of available revenues. The county board of supervisors in a county with a single-county department or the county boards of supervisors in counties with a multicounty department may appropriate funds for community-based juvenile delinquency-related services. Actual expenditure of county funds shall be reported in compliance with procedures developed by the department.

49.325(2g)(c) (c) The joint committee on finance may require the department to submit contracts between county departments under ss. 46.215, 46.22, and 46.23 and providers of services under this subchapter or ch. 48 or of community-based juvenile delinquency-related services under ch. 938 to the committee for review and approval.

49.325(2r) (2r) Withholding funds.

49.325(2r)(a) (a) The department, after reasonable notice, may withhold a portion of the appropriation allocated to a county department under s. 46.215, 46.22 or 46.23 if the department determines that that portion of the allocated appropriation is any of the following:

49.325(2r)(a)1. 1. For services under this subchapter or ch. 48 or community-based juvenile delinquency-related services under ch. 938 that duplicate or are inconsistent with services being purchased or provided by the department or other county departments receiving grants-in-aid or reimbursement from the department.

49.325(2r)(a)2. 2. Inconsistent with state or federal statutes, rules, or regulations, in which case the department may also arrange for the provision of services under this subchapter or ch. 48 or community-based juvenile delinquency-related services under ch. 938 by an alternate agency. The department may not arrange for the provision of those services by an alternate agency unless the joint committee on finance or a review body designated by the committee reviews and approves the department’s determination.

49.325(2r)(a)5. 5. Inconsistent with the provisions of the county department’s contract under sub. (2g).

49.325(2r)(b) (b) If the department withholds a portion of the allocable appropriation under par. (a), the county department under s. 46.215, 46.22 or 46.23 that is affected by the action of the department may submit to the county board of supervisors in a county with a single-county department or to its designated agent or the county boards of supervisors in counties with a multicounty department or their designated agents a plan to rectify the deficiency found by the department. The county board of supervisors or its designated agent in a county with a single-county department or the county boards of supervisors in counties with a multicounty department or their designated agents may approve or amend the plan and may submit for departmental approval the plan as adopted. If a multicounty department is administering a program, the plan may not be submitted unless each county board of supervisors which participated in the establishment of the multicounty department, or its designated agent, adopts it.

49.325(3) (3) Open public participation process.

49.325(3)(a) (a) Citizen advisory committee. Except as provided in par. (b), the county board of supervisors of each county or the county boards of supervisors of 2 or more counties jointly shall establish a citizen advisory committee to the county departments under ss. 46.215, 46.22 and 46.23. The citizen advisory committee shall advise in the formulation of the budget under sub. (1). Membership on the committee shall be determined by the county board of supervisors in a county with a single-county committee or by the county boards of supervisors in counties with a multicounty committee and shall include representatives of those persons receiving services, providers of services and citizens. A majority of the members of the committee shall be citizens and consumers of services. At least one member of the committee shall be chosen from the governing or administrative board of the community action agency serving the county or counties under s. 49.265, if any. The committee’s membership may not consist of more than 25 percent county supervisors, nor of more than 20 percent services providers. The chairperson of the committee shall be appointed by the county board of supervisors establishing it. In the case of a multicounty committee, the chairperson shall be nominated by the committee and approved by the county boards of supervisors establishing it. The county board of supervisors in a county with a single-county committee or the county boards of supervisors in counties with a multicounty committee may designate an agent to determine the membership of the committee and to appoint the committee chairperson or approve the nominee.

49.325(3)(b) (b) Alternate process. The county board of supervisors or the boards of 2 or more counties acting jointly may submit a report to the department on the open public participation process used under sub. (2). The county board of supervisors may designate an agent, or the boards of 2 or more counties acting jointly may designate an agent, to submit the report. If the department approves the report, establishment of a citizen advisory committee under par. (a) is not required.

49.325(3)(c) (c) Yearly report. The county board of supervisors or its designated agent, or the boards of 2 or more counties acting jointly or their designated agent, shall submit to the department a list of members of the citizen advisory committee under par. (a) or a report on the open public participation process under par. (b) on or before July 1 annually.

49.325 History History: 1995 a. 27; 2007 a. 20; 2015 a. 55.

49.34 49.34 Purchase of care and services.

49.34(1) (1) All services under this subchapter and ch. 48 and all community-based juvenile delinquency-related services under ch. 938 purchased by the department or by a county department under s. 46.215, 46.22, or 46.23 shall be authorized and contracted for under the standards established under this section. The department may require the county departments to submit the contracts to the department for review and approval. For purchases of $10,000 or less the requirement for a written contract may be waived by the department. No contract is required for care provided by foster homes that are required to be licensed under s. 48.62. When the department directly contracts for services, the department shall follow the procedures in this section in addition to meeting purchasing requirements established in s. 16.75.

49.34(2) (2) All services purchased under this subchapter and ch. 48 and all community-based juvenile delinquency-related services purchased under ch. 938 shall meet standards established by the department and other requirements specified by the purchaser in the contract. Based on these standards the department shall establish standards for cost accounting and management information systems that shall monitor the utilization of the services, and document the specific services in meeting the service plan for the client and the objective of the service.

49.34(3) (3) 

49.34(3)(a) (a) Purchase of service contracts shall be written in accordance with rules promulgated and procedures established by the department. Contracts for client services shall show the total dollar amount to be purchased and for each service the number of clients to be served, number of client service units, the unit rate per client service and the total dollar amount for each service.

49.34(3)(b) (b) Payments under a contract may be made on the basis of actual allowable costs or on the basis of a unit rate per client service multiplied by the actual client units furnished each month. The contract may be renegotiated when units vary from the contracted number. The purchaser shall determine actual marginal costs for each service unit less than or in addition to the contracted number.

49.34(3)(c) (c) For proprietary agencies, contracts may include a percentage add-on for profit according to rules promulgated by the department.

49.34(3)(d) (d) Reimbursement to an agency may be based on total costs agreed to by the parties regardless of the actual number of service units to be furnished, when the agency is entering into a contract for a new or expanded service that the purchaser recognizes will require a start-up period not to exceed 180 days. This reimbursement applies only if identified client needs necessitate the establishment of a new service or expansion of an existing service.

49.34(3)(e) (e) If the purchaser finds it necessary to terminate a contract prior to the contract expiration date for reasons other than nonperformance by the provider, the actual cost incurred by the provider may be reimbursed in an amount determined by mutual agreement of the parties.

49.34(4) (4) For purposes of this section and as a condition of reimbursement, each provider under contract shall:

49.34(4)(a) (a) Except as provided in this subsection, maintain a uniform double entry accounting system and a management information system that are compatible with cost accounting and control systems prescribed by the department.

49.34(4)(b) (b) Cooperate with the department and purchaser in establishing costs for reimbursement purposes.

49.34(4)(c) (c) Unless waived by the department, biennially, or annually if required under federal law, provide the purchaser with a certified financial and compliance audit report if the care and services purchased exceed $100,000. The audit shall follow standards that the department prescribes.

49.34(4)(d) (d) Transfer a client from one category of care or service to another only with the approval of the purchaser.

49.34(4)(e) (e) Charge a uniform schedule of fees as specified under s. 49.32 (1) unless waived by the purchaser with the approval of the department. Whenever providers recover funds attributed to the client, such funds shall offset the amount paid under the contract.

49.34(5) (5) Except as provided in sub. (5m), the purchaser shall recover from provider agencies money paid in excess of the conditions of the contract from subsequent payments made to the provider.

49.34(5m) (5m) 

49.34(5m)(a) (a) In this subsection:

49.34(5m)(a)1. 1. “Provider” means a nonstock corporation organized under ch. 181 that is a nonprofit corporation, as defined in s. 181.0103 (17), and that contracts under this section to provide client services on the basis of a unit rate per client service or a county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437 that contracts under this section to provide client services on the basis of a unit rate per client service.

49.34(5m)(a)2. 2. “Rate-based service” means a service or a group of services, as determined by the department, that is reimbursed through a prospectively set rate and that is distinguishable from other services or groups of services by the purpose for which funds are provided for that service or group of services and by the source of funding for that service or group of services.

49.34(5m)(b) (b)

49.34(5m)(b)1. 1. If revenue under a contract for the provision of a rate-based service exceeds allowable costs incurred in the contract period, the contract shall allow the provider to retain from the surplus up to 5 percent of the revenue received under the contract unless a uniform rate is established by rule under subd. 5., in which case the contract shall allow the provider to retain the uniform percentage rate established by the rule. The retained surplus is the property of the provider.

49.34(5m)(b)4. 4. If on December 31 of any year the provider’s accumulated surplus from all contract periods ending during that year for a rate-based service exceeds the allowable retention rate under subd. 1., the provider shall provide written notice of that excess to all purchasers of the rate-based service. Upon the written request of such a purchaser received no later than 6 months after the date of the notice, the provider shall refund the purchaser’s proportional share of that excess. If the department determines based on an audit or fiscal review that the amount of the excess identified by the provider was incorrect, the department may seek to recover funds after the 6-month period has expired. The department shall commence any audit or fiscal review under this subdivision within 6 years after the end of the contract period.

49.34(5m)(b)5. 5. The department, in consultation with the department of health services and the department of corrections, shall promulgate rules to implement this subsection including all of the following:

49.34(5m)(b)5.a. a. Requiring that contracts for rate-based services under this subsection allow a provider to retain from any surplus revenue up to 5 percent of the total revenue received under the contract, or a different percentage rate determined by the department. The percentage rate established under this subd. 5. a. shall apply uniformly to all rate-based service contracts under this subsection.

49.34(5m)(b)5.b. b. Establishing a procedure for reviewing rate-based service contracts to determine whether a contract complies with the provisions of this subsection.

49.34(5m)(em) (em) Notwithstanding par. (b), a county department under s. 46.215, 51.42, or 51.437 providing client services in a county having a population of 750,000 or more or a nonstock, nonprofit corporation providing client services in such a county may not retain a surplus generated by a rate-based service or accumulate funds from more than one contract period for a rate-based service from revenues that are used to meet the maintenance-of-effort requirement under the federal temporary assistance for needy families program under 42 USC 601 to 619.

49.34(5m)(f) (f) All providers that are subject to this subsection shall comply with any financial reporting and auditing requirements that the department may prescribe. Those requirements shall include a requirement that a provider provide to any purchaser and the department any information that the department needs to claim federal reimbursement for the cost of any services purchased from the provider and a requirement that a provider provide audit reports to any purchaser and the department according to standards specified in the provider’s contract and any other standards that the department may prescribe.

49.34(6) (6) Contracts may be renegotiated by the purchaser under conditions specified in the contract.

49.34(7) (7) The service provider under this section may appeal decisions of the purchaser in accordance with terms and conditions of the contract and ch. 68 or 227.

49.34 History History: 1995 a. 27; 1997 a. 79; 2007 a. 20; 2009 a. 28, 335; 2015 a. 55, 128, 172; 2017 a. 59.

49.343 49.343 Rates for residential care centers, group homes, and child welfare agencies.

49.343(1d) (1d) Definitions. In this section:

49.343(1d)(a) (a) “Administrative rate” means the difference between the rate charged by a child welfare agency to a purchaser of foster care services and the rate paid by the child welfare agency to a foster parent for the care and maintenance of a child.

49.343(1d)(b) (b) “Child welfare agency” means a child welfare agency that is authorized under s. 48.61 (7) to license foster homes.

49.343(1d)(c) (c) “Group home” has the meaning given in s. 48.02 (7).

49.343(1d)(cg) (cg) “Performance-based contracting system” means a system of paying a provider for services based on the achievement of specified measurable outcomes.

49.343(1d)(cr) (cr) “Provider” means a residential care center for children and youth, a group home, or a child welfare agency.

49.343(1d)(d) (d) “Residential care center for children and youth” has the meaning given in s. 48.02 (15d).

49.343(1g) (1g) Establishment of rates. For services provided beginning on January 1, 2011, the department shall establish the per client rate that a residential care center for children and youth or a group home may charge for its services, and the per client administrative rate that a child welfare agency may charge for the administrative portion of its foster care services, as provided in this section. In establishing rates for a placement specified in s. 938.357 (4) (c) 1. or 2., the department shall consult with the department of corrections. A residential care center for children and youth and a group home shall charge all purchasers the same rate for the same services and a child welfare agency shall charge all purchasers the same administrative rate for the same foster care services. The department shall determine the levels of care created under the rules promulgated under s. 48.62 (8) to which this section applies.

49.343(2) (2) Determination of rates.

49.343(2)(a) (a) By October 1, annually, a residential care center for children and youth or a group home shall submit to the department the per client rate that it proposes to charge for services provided in the next year and a child welfare agency shall submit to the department the proposed per client administrative rate that it proposes to charge for foster care services provided in the next year. The department shall provide forms and instructions for the submission of proposed rates under this paragraph and a residential care center for children and youth, group home, or child welfare agency that is required to submit a proposed rate under this paragraph shall submit that proposed rate using those forms and instructions.

49.343(2)(b) (b) The department shall review a proposed rate submitted under par. (a) and audit the provider submitting the proposed rate to determine whether the proposed rate is appropriate to the level of services to be provided, the qualifications of the provider to provide those services, and the reasonable and necessary costs of providing those services. In reviewing a proposed rate, the department shall consider all of the following factors:

49.343(2)(b)1. 1. Changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on June 30 of the year in which the proposed rate is submitted.

49.343(2)(b)1m. 1m. Changes in the consumer price index for all urban consumers, U.S. city average, for the medical care group, as determined by the U.S. department of labor, for the 12 months ending on June 30 of the year in which the proposed rate is submitted.

49.343(2)(b)2. 2. Changes in the allowable costs of the residential care center for children and youth, group home, or child welfare agency based on current actual cost data or documented projections of costs.

49.343(2)(b)3. 3. Changes in program utilization that affect the per client rate or per client administrative rate.

49.343(2)(b)4. 4. Changes in the department’s expectations relating to service delivery.

49.343(2)(b)5. 5. Changes in service delivery proposed by the provider and agreed to by the department.

49.343(2)(b)6. 6. The loss of any source of revenue that had been used to pay expenses, resulting in a lower per client rate or per client administrative rate for services.

49.343(2)(b)6m. 6m. Whether the agency is accredited by a national accrediting body that has developed child welfare standards.

49.343(2)(b)7. 7. Changes in any state or federal laws, rules, or regulations that result in any change in the cost of providing services, including any changes in the minimum wage, as defined in s. 49.141 (1) (g).

49.343(2)(b)8. 8. Competitive factors.

49.343(2)(b)9. 9. The availability of funding to pay for the services to be provided under the proposed rate.

49.343(2)(b)10. 10. Any other factor relevant to the setting of a rate that the department may determine by rule promulgated under sub. (4).

49.343(2)(c) (c) If the department determines under par. (b) that a proposed rate submitted under par. (a) is appropriate, the department shall approve the proposed rate. If the department does not approve a proposed rate, the department shall negotiate with the provider to determine an agreed to rate. If after negotiations a rate is not agreed to, the department and the provider shall engage in mediation under the rate resolution procedure promulgated by rule under sub. (4) to arrive at an agreed to rate. If after mediation a rate is not agreed to, the department shall order a rate for the service after considering the factors under par. (b). A provider may appeal the rate set by the department as a contested case under ch. 227 by filing with the department a request for a hearing within 30 days after the date of the order.

49.343(3) (3) Audit. The department may require an audit of any provider for the purpose of collecting federal funds.

49.343(4) (4) Rules. The department shall promulgate rules to implement this section. Those rules shall include rules providing for all of the following:

49.343(4)(a) (a) Standards for determining whether a proposed rate is appropriate to the level of services to be provided, the qualifications of a provider to provide those services, and the reasonable and necessary costs of providing those services.

49.343(4)(b) (b) Factors for the department to consider in reviewing a proposed rate.

49.343(4)(c) (c) Procedures for reviewing proposed rates, including procedures for ordering a rate when negotiations and mediation fail to produce an agreed to rate.

49.343(5) (5) Advisory committee. The secretary shall create an advisory committee under s. 15.04 (1) (c) consisting of representatives of purchasers; county departments; the department, in a county having a population of 750,000 or more; tribes; consumers; and a statewide association of private, incorporated family and children’s social service agencies representing all groups of providers that are affected by the rate regulation process. The committee shall advise the department on all of the following:

49.343(5)(a) (a) The development of administrative rules under sub. (4).

49.343(5)(b) (b) The implementation of rate regulation for providers as authorized under this section.