CR 25-043 Rule Text

State of Wisconsin

Department of Children and Families

Foster Home Licensing

DCF 56

The statement of scope for this rule, SS 097-23, was approved by the governor on November 2, 2023, published in Register 815A1 on November 6, 2023, and approved by Secretary Emilie Amundson on November 29, 2023.

The Wisconsin Department of Children and Families proposes an order to repeal ss. DCF 56.01 (2) (Note), 56.02, 56.03 (1), (3) (a) and (Note), (4), (5), (6), (6m), (8), (10m), (11m), (17), (18), (23), (25), (26), (28), (31), (32), (33), (34d), and (35m), 56.08, 56.09 (1) (am) to (dm) and (em) to (o), (1g), and (1m), 56.13 (1), (3) (Note), (4) (a) 1. b., (6t), (7), and (8), 56.14 (1), (2), (5) (b), (6) (h), (7) (a) 1. to 9. and (Note), (c), (d) and (Note), and (8) (a)., 56.17 (2) (q), 56.18, 56.19, 56.20, 56.22 (6) (a) 3. and (b), and (Note), 56.23 (3) (a) 5.; to renumber ss. 56.17 (2) (a), 2., 4., 5., (d); to renumber and amend ss. DCF 56.13 (4) (a) 1. a., 56.14 (4) (a) 1. a., (7) (a) (intro.), 56.17 (2) (a) (intro.), 1., 3.; to consolidate, renumber, and amend ss. DCF 56.03 (3) (intro.) and (b) and 56.22 (6) (a) (intro.), 1., and 2.; to amend ss. DCF 50.05 (10) (a) 5. and 6., 51.07, 56.03 (1d), (2), 10), (11r), (12), (13), (20), (21g), (21r), (24), (27r), (30), (34h), (34m), (36), (37), (37e), (37m), (37s), 56.055 (1) (a) 1. and 2. and (b), (3) (a), (b), (c) and (Note), (4) (intro.), and (5), 56.13 (title), (4) (title) and (b), (5) (b) 1., (6) (b) 1., 56.14 (3), (4), (5) (a), (6p) (title), (intro.), and (k), (7) (b) 2., (7s) (title) and (intro.), (8) (b) 1., 1r., 2. a., 3., and 4., 56.16 (2) (a), 56.17 (1) (a), (2) (b) (intro.), 1., 3. (intro.) and g. and 4., (c), (e), (g), (h), (i), (k), (L) 1. and 2., (n), and (o), 56.22 (1) (a) and (b), (3) (a) and (b), (4) (a) (intro.), 1. (intro.), a., g., 2. e., (b) 1., 2., and 3., (c) (intro.), 1. (intro.), and 2. (intro.), (d) (intro.), and (5) (a), (intro.), 1. to 6., and (b), (7), 56.23 (1) (c), (2) (intro.), (a) 1. (intro.), 2. a. to d., and (b), (3) (a) 1., 3., and 4., and (5); to repeal and recreate ss. DCF 56.03 (11), (15m), (16), (29), (33m), (34p), and (34t), 56.04 (1) to (5), (7), and (8); 56.05, 56.055 (2), 56.06, 56.07, 56.09 (title), (1), (title), (intro.), (a), and (2) to (12), 56.10, 56.12, 56.13 (2), (3), (5) (title), (a), (c), (6) (title), (a), (c), 56.14 (6), (6d), (7) (b) 1., 56.15, 56.16 (1), 56.17 (1) (b), 56.21, and 56.23 (4) (Note); and to create ss. DCF 56.03 (1b), (3m), (8m), (10g), (10n), (19) (Note), (20d), (20h), (20p), (20t), (24m), (26m) and (Note), (34n), (35s), and (37u), 56.04 (9) to (14), 56.055 (6) and (Note), 56.072, 56.074, 56.076, 56.078, 56.085, 59.09 (13) to (16), 56.135, 56.14 (3) (Note) and (6p) (L), 56.185, 56.24, and 56.25, relating to foster home licensing.

Analysis Prepared by the Department of Children and Families

Statutory authority: Sections 48.383 (3), 48.62 (1) and (8) (a), 48.627 (2) (b), 48.67 (intro.) and (4) (a), 938.383 (3), and 227.11 (2) (a), Stats.

Statutes interpreted: Sections 48.383, 48.62, (4) 48.627 (2), 48.67 (intro.) and (4), 48.685, 48.75 (3), 48.88, 938.383

Explanation of Agency Authority

Section 48.67 (intro.), Stats., provides that the department shall promulgate rules establishing minimum requirements for the issuance of licenses to, and establishing standards for the operation of, child welfare agencies, child care centers, foster homes, group homes, shelter care facilities, and county departments. Those rules shall be designed to protect and promote the health, safety, and welfare of the children in the care of all licensees.

Section 48.67 (4) (a), Stats., provides that all foster parents successfully complete training in the care and support needs of children who are placed in foster care that has been approved by the department. The department shall promulgate rules prescribing the training that is required under this subsection and shall monitor compliance with this subsection according to those rules. The training shall include training topics specified in s. 48.67 (4) (a), Stats.

Section 48.62 (1), Stats., provides that any person who receives, with or without transfer of legal custody, 4 or fewer children or, if necessary to enable a sibling group to remain together, 6 or fewer children or, if the department promulgates rules permitting a different number of children, the number of children permitted under those rules, to provide care and maintenance for those children shall obtain a license to operate a foster home from the department, a county department or a licensed child welfare agency as provided in s. 48.75, Stats.

Section 48.62 (8), Stats., provides that the department shall promulgate rules providing levels of care that a foster home is licensed to provide. Those levels of care shall be based on the level of knowledge, skill, training, experience, and other qualifications that are required of the licensee, the level of responsibilities that are expected of the licensee, the needs of the children who are placed with the licensee, and any other requirements relating to the ability of the licensee to provide for those needs that the department may promulgate by rule.

Sections 48.383 (3) and 938.383 (3), Stats., require the department to promulgate rules to implement requirements regarding the reasonable and prudent parent standard.

Section 48.627 (2) (a), Stats., requires that a foster parent have homeowner’s or renter’s liability insurance that provides coverage for negligent acts or omissions by children placed in a foster home that result in bodily injury or property damage to 3rd parties. Section 48.627 (2) (b), Stats., provides that a licensing agency may, in accordance with rules promulgated by the department, waive the requirement under par. (a) if the applicant shows that they are unable to obtain the required insurance, that they had a homeowner’s or renter’s liability insurance policy canceled or that payment of the premium for the required insurance would cause undue financial hardship.

Section 48.64 (4) (a), Stats., provides that, except as provided in par. (d), any decision or order issued by an agency that affects the head of a foster home or the child involved may be appealed to the department under fair hearing procedures established under rules promulgated by the department.

Section 227.11 (2) (a), 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 proposed rule makes the following changes to the foster home license requirements in ch. DCF 56:

Licensing

• •Revises the requirement of a physical exam of the applicant from within the past 6 months to within the past 12 months.

• •Repeals the requirement of a physical exam for household members and instead requires a statement from either the household member or a medical provider who performed an exam within the previous 12 months indicating any physical or mental conditions that would threaten the health or safety of a foster child.

Foster parent qualifications

• •Revises the requirement that a nonrelative foster parent be at least age 21 and a relative foster parent be at least age 18 to instead require that all foster parents be at least age 18.

• •Revises the wording of the foster parent characteristics for clarity and repeals those that are difficult to assess, such as “a satisfactory self-concept.”

• •Repeals the foster parent responsibility of notifying the licensing agency of any change in their job or work schedule.

• •Creates a foster parent responsibility of engaging in shared parenting with the foster child’s parent, guardian, or Indian custodian and including them in meetings and appointments.

Background checks

• ·Requires review of any final substantiated findings in Wisconsin, review of any child protective services records for the person in the department’s child welfare automation system or in county records from the 5-year period before the search, and review of any child protective services records for the person or findings comparable to a final substantiated findings in another state in which the applicant or nonclient resided during the 5-year period before the search.

• ·Requires that a licensing agency inform an applicant whether they are eligible for a rehabilitation review.

Notification requirements

• ·Revises reporting timeframes for serious incidents involving a foster child or the foster home from “immediately” to within 24 hours after the incident.

• ·Revises the reporting timeframe for changes related to the background check from “immediately” to within 5 days.

• ·Requires notification within 5 days if a foster parent no longer has vehicle liability insurance or homeowner’s or renter’s liability insurance.

• ·Repeals requirement that the licensing agency notify the department exceptions panel of any serious incident reports by the foster parent of a Level 5 foster home.

Physical environment

• •Revises the provision allowing the licensing agency to require a fence around a play area when there is a safety hazard on the premises or nearby to instead allowing the licensing agency to require that the foster parent take specific actions or have a safety plan to address the safety hazard.

• •Repeals quantitative requirements on the minimum square feet of living area per household member, minimum square feet per child in a bedroom, minimum floor space in a bedroom, number of feet between beds, number of children that may share a bedroom, number of feet between a top bunk and the ceiling, maximum space between crib slats, maximum space between a crib mattress and the side of a crib, and minimum temperature of the foster home during waking and sleeping hours.

• •Repeals the prohibition on any foster child over 6 years of age sharing a bedroom with a child of the opposite sex and instead provides that a foster child may share a bedroom with another child if the supervising agency approves and any foster child who is age 6 years or older consents.

• •Revises the conditions when a foster child one year of age or older may regularly share a bedroom with an adult from only when a medical provider determines it is medically necessary and the licensing agency approves to instead allow a foster child one year of age or older to regularly share a bedroom with a nonparent adult if the foster child and the adult are siblings; the foster child and the adult were sharing a bedroom before the adult turned 18 years of age; or based on the foster child’s needs if the supervising agency approves, the foster child has a sleeping space in another bedroom to return to when the needs subside, and, if the foster child is 6 years of age or over, the foster child consents.

• •Repeals the prohibition of triple bunk beds.

• •Modifies the requirement for a safety railing on a top bunk from only if occupied by a foster child under 8 years of age to instead requiring a safety railing when any foster child sleeps in a top or middle bunk.

• •Revises the prohibition on access to dangerous materials and objects to add the qualifier “as appropriate for a foster child’s age and developmental, emotional, and behavioral needs.”

• •Repeals the minimum age requirement of 12 years of age for operating hazardous machinery or equipment unless permitted by statute to instead provide that no foster child may operate any hazardous machinery or equipment in violation of a law that specifies a minimum age or that is beyond the foster child’s knowledge or mental or physical capacity.

Emergency preparedness

• •Requires that the foster parent have an emergency plan that specifies where a foster child will shelter during a tornado warning.

• •Repeals the requirements of agency approval and specified details of a fire safety evacuation plan and instead require that a foster parent have a written plan for the immediate and safe evacuation of the foster home in the event of a fire.

Firearms and other dangerous weapons

• •Repeals the prohibition on a loaded firearm in the foster home and instead allows a foster parent to carry a concealed handgun in the presence of a foster child if the foster parent has a license to carry a concealed weapon and carries the handgun using a holster or carry system that ensures that the firearm is in the control of the foster parent at all times.

• •Maintains the requirement that a firearm be stored unloaded and locked in an area not readily accessible to a foster child and modifies additional storage provisions from requiring that ammunition be stored in a separate locked area to instead requiring that a firearm either be stored in a gun safe with ammunition allowed or one or more of the following: with ammunition locked in a container separate from the firearm, with the trigger lock engaged on the firearm, or with the cable lock engaged on the firearm.

Transportation

• •Revises the current requirement that the foster parent provide or arrange a foster child’s necessary transportation to instead require that foster parent provide transportation or ensure a foster child’s access to other private transportation, public transportation, taxi, or ride share, so the foster child can attend medical appointments; visit family; get to school; and engage in social, religious, and cultural activities.

Capacity

• •Clarifies that a child receiving respite care should be included when determining the maximum number of persons that may be receiving care in a foster home and adds that a child of the foster parent who is under 19 years of age and in high school should be included in addition to minor children of the foster parent.

• •Increases the maximum number of foster children who may be cared for in a foster home from 4 to 6, unless an exception is granted.