Section 52.61. Determination of need for additional beds.

 

(1)   Authority and purpose. This section is promulgated pursuant to s. 48.60 (3) , Stats., to regulate the establishment of new residential care centers for children and youth and to control the expansion of existing residential care centers in order to ensure an adequate number and variety of facilities to meet the needs of Wisconsin children who require out-of-home residential care and to prevent unnecessary expansion of residential care centers and the resulting increase in costs to Wisconsin citizens.

(2)   To whom the rules apply. This section applies to any new applicant for a license to operate a residential care center for children and youth and to existing residential care centers for children and youth wishing to expand the capacity of their facilities.

(3)   Definition. In this section, "applicant" means any person wishing to apply for a license to begin operation of a new residential care center for children and youth or any person wishing to expand the capacity of an existing residential care facility for children and youth. "Applicant" does not include a person who by reason of consolidation or other acquisition acquires control or ownership of beds when the consolidation or other acquisition results in no increase in or a reduction of the existing state-wide residential care center bed capacity.

(4)   Certification of need requirement. No person may apply for a license under s. DCF 52.62 (1) to operate a new residential care center for children and youth or for a license amendment under s. DCF 52.62 (3) to expand the bed capacity of an existing residential care center until the department has reviewed the need for the additional placement resources which would be created and has certified to the applicant in writing that a need exists for the proposed new placement resources.

(5)   Demonstration of need. To enable the department to make a determination of need for a new residential care center for children and youth or for additional beds at an existing residential care center for children and youth, the applicant shall submit all of the following documents and information to the department:

(a) A detailed plan for the operation of the proposed residential care center which includes all of the following:

1. The number, sex, and age range of the children to be served.

2. The type or types of needs or disabilities of children to be served.

3. The center staffing, including a list of full-time and part-time positions by job titles and numbers.

4. A description of the proposed program and treatment goals.

5. A proposed budget, including the current or projected per diem rate.

6. The location of the center and a drawing of the layout of the physical plant.

(b) A detailed written description of the methodology and findings which document the reasons why the unserved children under par. (a) cannot be served satisfactorily in less restrictive settings such as is in their own homes with treatment services provided to the children and their families, in specialized treatment foster homes or in group homes.

(c) Documentation meeting the criteria in sub. (7) (a) 2. that existing Wisconsin residential care center placement resources are not adequate to meet the needs of Wisconsin children who require the type or types of care and treatment services the applicant proposes to provide. No beds occupied or to be occupied by children who are placed primarily for educational purposes may be considered in determining need under this section. Of the remaining beds, for purposes of determining need and establishing waiting lists, not more than 40% shall be considered available for out-of-state children.

(d) Information that supports the probability that a new or expanded center will be used by Wisconsin placement resources, and that an expanded center will attain and maintain an average monthly occupancy rate of 80% or more over the first 2 years of operation and that a new center will have an average monthly occupancy rate of not less than 80% at the end of the second year.

(6)   Publication of notice — party status.

(a) Upon receipt of the documents and information listed in sub. (5) , the department shall publish a class 2 notice under ch. 985 , Stats. , in the official state newspaper designated under s. 985.04 , Stats., and in a newspaper likely to give notice in the area of the proposed center. The notice shall include a statement that the department has received an application for a certificate of need to operate a new residential care center or to expand the bed capacity of an existing residential care center. The notice shall also include the number of additional beds, the geographic area to be served, the types of young people to be accepted for care, the services to be provided and program objectives.

(b) The notice shall invite the submission of written comments, factual data and reasons why the application should be granted or denied from any person within 30 days after the publication of the notice. The notice shall advise persons submitting written comments to indicate their interest in the application and whether the individual commentator wants to be considered for party status in any later proceedings.

(7)   Need determination.

(a) Evaluation procedures.

1. The department shall review the applicant's documents and information for completeness and may ask the applicant for additional materials or information that the department considers necessary for evaluation purposes.

2. Except as provided under subd. 3. , the administrator of the department's division of children and family services or his or her designee shall make the need determination decision based on the following criteria:

a. The compatibility of the applicant's proposed plan of operation or expansion with the stated treatment goals for the program.

b. The validity of the research methodology used to document need for the proposed program.

c. The congruence of the conclusions reached in the applicant's needs research with department data on current county placement needs and available beds in existing residential care centers for children and youth providing similar services.

d. The correctness of the applicant's contention that the proposed center is more appropriate than less restrictive care arrangements for children.

e. The applicant's documentation supporting the argument that existing Wisconsin residential care centers for children and youth are not adequate to meet the needs of Wisconsin children who require the type or types of care and treatment services the applicant proposes to provide.

f. The applicant's documentation of the probability that the center, if expanded, will attain and maintain an average monthly occupancy rate of at least 80% for the first 2 years of operation or, if new, will attain an average monthly occupancy rate of at least 80% at the end of the second year of operation.

3. An application for expansion of an existing residential care center for children and youth by 3 or fewer additional beds shall be presumed to meet the criterion under subd. 2. d. unless at least one of the following is true:

a. The center submitted another application for expansion of bed capacity in the previous 2 years and that application was approved.

b. There is clear and convincing evidence that the criteria under subd. 2. have not been met.

(b) Notice of determination.

1. Within 90 calendar days after the date on which all required documents and information were received from an applicant, the department shall send written notice of its determination of need to the applicant and to anyone who commented under sub. (6) (b) on the application. The notice shall state the specific reason for the determination.

2. If the department determines that there is need for additional beds, the notice shall be accompanied by the department's certification that a need exists for the proposed new placement resources which entitles the person to apply for a license to operate a new center or to apply for an amended license that will permit the addition of beds at an existing center.

3. The duration of the approval under subd. 2. shall be limited to 18 months from the date that it is issued, except that the department may grant one 6-month extension if the approved applicant has a good reason for the delay in becoming operational and documents to the satisfaction of the department that it will be operational within that 6-month period. Any request for extension shall be filed before expiration of the initial 18-month period. If the proposed center is not operational during that 18-month time period, or the extended period, the need determination shall be considered invalid and the approval shall be cancelled. In this subdivision, "operational" means in regard to a new center that the center has been licensed under s. DCF 52.62 and that all approved beds meet requirements for operation, and in regard to expansion of an existing center that all additional beds meet requirements for operation and the center is licensed under s. DCF 52.62 to operate with the additional beds. An acceptable reason for an extension under this subdivision shall include unforeseen delay in obtaining adequate financing approval, in staffing or in construction.

(c) Appeal.

1. An applicant or a party adversely affected by a determination issued under par. (b) 1. may request an administrative hearing under s. 227.42 , Stats., from the department of administration's division of hearings and appeals by submitting a written request for hearing to that office so that it arrives there within 30 days after the date of the notice under par. (b) .

2. The standard of review for the hearing shall be whether the record contains the quantity and quality of evidence that a reasonable person could accept as adequate to support the decision.

History: Cr. Register, February, 2000, No. 530 , eff. 9-1-00; corrections in (4) and (7) (b) 3. made under s. 13.92 (4) (b) 7. , Stats., Register November 2008 No. 635 ; EmR1414 : emerg. am. (7) (a) 2. c. to e., eff. 8-1-14; CR 14-054 : am. (1), (7) (a) 2. c. to e. Register April 2015 No. 712 , eff. 5-1-15.

Note

The documents and information required by the Department to make a determination of need should be sent to the Bureau of Permanence and Out-of-Home Care, P.O. Box 8916, Madison, WI 53708. Microsoft Windows NT 6.1.7601 Service Pack 1 To request a hearing, submit the request to: Division of Hearings and Appeals, P.O. Box 7875, Madison, Wisconsin 53707-7875, or deliver it to the Division at 5005 University Ave., Room 201, Madison, WI. Microsoft Windows NT 6.1.7601 Service Pack 1