Statement of Scope
Department of
Children and Families
Relating to:
Supporting Normalcy for
Children in Out-of-Home Care
Rule Type:
Emergency and Permanent
This statement of scope was approved by the governor on
May 19, 2016.
1. Finding/nature of emergency (
for
emergency rule
s
only)
Effective October 1, 2016, s.
48.75 (3)
, Stats., as created by
2015 Wisconsin Act
378
,
will provide
that
before issuing a license to operate a foster home,
a child welfare agency or public licensing agency
shall require that each foster parent receive
a favorable report
following an investigation that is conducted in the same manner as an investigation under s.
48.88 (2) (
aj
)
, Stats., as created by
2015 Wisconsin Act
378
.
The emergency rules will incorporate this requirement into the licensing rules for foster homes.
2
.
Detailed description of the objective of the rule
The
emergency and
proposed rules will
amend the department’s licensing rules
for
residential care centers for children and youth,
foster homes, group homes, and shelter care facilities to
implement
the requirements of
ss.
48
.383
,
48.67 (4) (a) 1m.
and
(5)
, and
938.383
, Stats., as
created by
2015 Wisconsin Act 128
, and
Section
111
of
the federal
Preventing Sex Trafficking and Strengthening Families Act
.
In addition, t
he rules will require that the department, county departments, and child welfare agencies use an assessment system that is approved by the department when conducting an investigation of an applicant for a license to operate a foster home.
3. Detailed explanation of statutory authority for the rule
Section
s
48.383
(3)
and
938.383
(3)
, Stats., as created b
y
2015 Wisconsin Act 128
, require
the
department
to
promulgate rules
to
implement the requirement
s regarding
the reasonable and prudent parent standard in s.
48.383
, Stats.
Section
s
48.383 (1)
,
and
938.383 (1)
,
Stats.,
as created b
y
2015 Wisconsin Act 128
, require
out-of-
home care provider
s
to
use the
“
reasonable and prudent parent standard
”
in making decisions concerning a child’s
or juvenile’s
participation in
“
age or developmentally appropriate
”
extracurricular, enrichment,
cultural, and social activities
.
In making decisions using the reasonable
and prudent parent standard, an out−of−home care
provider shall consider the restrictiveness of the child’s
placement and whether the child has the necessary training
and safety equipment to safely
participate in the
a
ctivity under consideration and may not make any decision
that is in violation of any court order or any state or
federal law, rule, or regulation.
Section
s
48.383
(2)
and
938.383 (2)
, Stats., as created by
2015 Wisconsin Act 128
,
provides that the information that a placing agency is required to provide to an out-of-home care provider at the time of placement include child-specific
or juvenile-specific
information that the provider must
consider in making
reasonable and prudent parenting decisions concerning the child’s
participation in age or developmentally appropriate extracurricular,
enrichment, cultural, and social activities.
In preparing that
information or any revisions of that information, the agency shall
do all of the following:
•
If
reasonably possible to do so, consult with the child’s parent
concerning the child’s participation in extracurricular, enrichment,
cultural, and social activities and the child’s cultural,
religious, and tribal values and advise the parent that those values
will be considered, but will not necessarily be the determining factor,
in making decisions concerning the child’s participation in
those activities.
•
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 t
he 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.
Section
s
48.02 (14r)
and
938.02 (14r)
, Stats., as
created by
2015 Wisconsin Act 128
, define
the
“reasonable and prudent parent standard” a
s 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
.
Section
s
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 c
reated 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:
•
T
he
stages in the development of cognitive, emotional, physical, and be
havioral capacities of children.
•
A
pplying
the reasonable and prudent parenting 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
.
•
T
he
signing of permission
slips and the arrangement of transportation to and
from those activities.
•
T
he
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 center
s
for children and youth, all group homes, and all shelter care facilities
to
designate a
n on-site
staff member
to make
decisions
concerning the participation of a child placed in the center, group home, or shelter
care facility in age or develop
mentally 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.
•
I
n 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.
4
.
Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule
300
hours
5
.
List with description of all entities
that
may
be affected by the rule
Division of Milwaukee Child Protective Services
, c
ounty departments of social services and human services, child-placing agencies, residential care centers for children and youth, foster homes, group homes, and shelter care facilities.
6
.
Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule
:
States are required to implement the “reasonable and prudent parent” standard in
Section 111 of the
Preventing Sex Trafficking
and Strengthening Families Act
,
Public Law 113-183
, as a condition of funding under Title IV-E of the Social Security Act.
7
. Anticipated economic impact of implementing the rule
(note if the rule is likely to have a significant economic impact on small businesses)
:
None or minimal
Contact Person:
Jonelle Brom
Bureau of Permanence and Out-of-Home Care
(608) 422
-
6930
Sara Buschman
Department h
ead
or a
uthorized
s
ignature
May 5, 2016
Date s
ubmitted
to Governor
