Section 48.623. Subsidized guardianships.

 

(1)   Eligibility. A county department or, as provided in sub. (3) (a) , the department shall provide monthly subsidized guardianship payments in the amount specified in sub. (3) (b) to a guardian of a child under s. 48.977 (2) or under a substantially similar tribal law if the county department or department determines that the conditions specified in pars. (a) to (d) have been met. A county department or, as provided in sub. (3) (a) , the department shall also provide those payments for the care of a sibling of such a child, regardless of whether the sibling meets the conditions specified in par. (a) , if the county department or department and the guardian agree on the appropriateness of placing the sibling in the home of the guardian. A guardian of a child under s. 48.977 (2) or under a substantially similar tribal law is eligible for monthly subsidized guardianship payments under this subsection if the county department or the department, whichever will be providing those payments, determines that all of the following apply:

(a) The child meets all of the following conditions:

1. The child has been removed from his or her home under a voluntary agreement under s. 48.63 or under a substantially similar tribal law or under a court order containing a finding that continued placement of the child in his or her home would be contrary to the welfare of the child.

2. The child has been residing in the home of the guardian for not less than 6 consecutive months.

3. The child's situation precludes return of the child to his or her home or adoption as appropriate permanency options for the child.

4. The child demonstrates a strong attachment to the guardian.

5. If the child is 14 years of age or over, the child has been consulted with regarding the guardianship arrangement.

(b) The guardian meets all of the following conditions:

1. The guardian is any of the following:

a. A relative of the child.

b. A person who has a significant emotional relationship with the child or the child's family and who, prior to the child's placement in out-of-home care, had an existing relationship with the child or the child's family that is similar to a familial relationship.

c. Subject to the rules promulgated under sub. (7) (dm) , a person who has a significant emotional relationship with the child or the child's family and who, during the child's placement in out-of-home care, developed a relationship with the child or the child's family that is similar to a familial relationship.

2. The guardian has a strong commitment to caring permanently for the child.

3. The guardian is licensed as the child's foster parent and the guardian and all adults residing in the guardian's home meet the requirements specified in s. 48.685 .

5. Prior to being named as the guardian of the child, the guardian entered into a subsidized guardianship agreement under sub. (2) with the county department or department.

(c) An order under s. 48.345 , 48.357 , 48.363 , 48.365 , 938.345 , 938.357 , 938.363 , or 938.365 placing the child, or continuing the placement of the child, outside of the child's home has been terminated, or any proceeding in which the child has been adjudged to be in need of protection or services specified in s. 48.977 (2) (a) has been dismissed, as provided in s. 48.977 (3r) (a) .

(d) If the county department or department knows or has reason to know that the child is an Indian child, the Indian child's parent, Indian custodian, and tribe have been provided with notice of the child's placement in the home of the guardian under s. 48.977 (4) (c) 2m. and the court has found under s. 48.977 (4) (g) 4. that the home of the guardian is in compliance with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c) , unless the court found good cause, as described in s. 48.028 (7) (e) , for departing from that order.

(1m)   Duration of eligibility. Subsidized guardianship payments under sub. (1) or (6) may be continued after the child attains 18 years of age if any of the following applies:

(a) The child is under 19 years of age, is a full-time student at a secondary school or its vocational or technical equivalent, and is reasonably expected to complete the program before reaching 19 years of age.

(b) The child is under 21 years of age, is a full-time student at a secondary school or its vocational or technical equivalent, has a mental or physical disability that warrants the continuation of those payments as determined by the county department or, in a county having a population of 750,000 or more, the department, is not eligible for social security disability insurance under 42 USC 401 to 433 or supplemental security income under 42 USC 1381 to 1385 based on disability, and otherwise lacks adequate resources to continue in secondary school or its vocational or technical equivalent.

(c) The child is under 21 years of age, is a full-time student at a secondary school or its vocational or technical equivalent, an individualized education program under s. 115.787 is in effect for the child, and the subsidized guardianship agreement for the child became effective on or after the date on which the child attained 16 years of age.

(2)   Subsidized guardianship agreement. Before a county department or the department may approve the provision of subsidized guardianship payments under sub. (1) to a proposed guardian, the county department or department shall negotiate and enter into a written, binding subsidized guardianship agreement with the proposed guardian and provide the proposed guardian with a copy of the agreement. A subsidized guardianship agreement or an amended subsidized guardianship agreement may also name a prospective successor guardian of the child to assume the duty and authority of guardianship on the death or incapacity of the guardian. A successor guardian is eligible for monthly subsidized guardianship payments under this section only if the successor guardian is named as a prospective successor guardian of the child in a subsidized guardianship agreement or amended subsidized guardianship agreement that was entered into before the death or incapacity of the guardian, the conditions specified in sub. (6) (bm) are met, and the court appoints the successor guardian to assume the duty and authority of guardianship as provided in s. 48.977 (5m) . A subsidized guardianship agreement shall specify all of the following:

(a) The amount of the monthly subsidized guardianship payments that will be provided under the agreement and the manner in which those payments may be adjusted periodically, in consultation with the guardian, based on the circumstances of the guardian and the needs of the child.

(b) Any additional services and assistance for which the child or guardian will be eligible under the agreement, a description of those additional services and that additional assistance, and the procedures by which the guardian may apply for those additional services and that additional assistance.

(c) That the county department or department will pay the total cost of the nonrecurring expenses that are associated with obtaining guardianship of the child, not to exceed $2,000.

(d) That the agreement shall remain in effect without regard to the state of residence of the guardian.

(e) That, in determining eligibility for adoption assistance under s. 48.975 and 42 USC 673 for the care of the child, the placement of the child in the home of the guardian and any payments made under sub. (1) shall be considered never to have been made.

(3)   Payments.

(a) Except as provided in this paragraph, the county department shall provide the monthly payments under sub. (1) or (6) . The county department shall provide those payments from moneys received under s. 48.48 (8p) or 48.569 (1) (d) . In a county having a population of 750,000 or more or in the circumstances specified in s. 48.43 (7) (a) or 48.485 (1) , the department shall provide the monthly payments under sub. (1) or (6) . The department shall provide those payments from the appropriations under s. 20.437 (1) (dd) and (pd) .

(b) The county department or, as provided in par. (a) , the department shall determine the initial amount of a monthly payment under sub. (1) or (6) for the care of a child based on the circumstances of the guardian and the needs of the child. That amount may not exceed the amount received under s. 48.62 (4) by the guardian of the child for the month immediately preceding the month in which the guardianship order was granted. A guardian or an interim caretaker who receives a monthly payment under sub. (1) or (6) for the care of a child is not eligible to receive a payment under s. 48.57 (3m) or (3n) or 48.62 (4) for the care of that child.

(c)

1. If a person who is receiving monthly subsidized guardianship payments under an agreement under sub. (2) believes that there has been a substantial change in circumstances, as defined by the department by rule promulgated under sub. (7) (a) , he or she may request that the agreement be amended to increase the amount of those payments. If a request is received under this subdivision, the county department or department shall determine whether there has been a substantial change in circumstances and whether there has been a substantiated report of abuse or neglect of the child by the person receiving those payments. If there has been a substantial change in circumstances and if there has been no substantiated report of abuse or neglect of the child by that person, the county department or department shall offer to increase the amount of those payments based on criteria established by the department by rule promulgated under sub. (7) (b) . If an increased monthly subsidized guardianship payment is agreed to by the person receiving those payments, the county department or department shall amend the agreement in writing to specify the increased amount of those payments.

2. Annually, a county department or the department shall review an agreement that has been amended under subd. 1. to determine whether the substantial change in circumstances that was the basis for amending the agreement continues to exist. If that substantial change in circumstances continues to exist, the agreement, as amended, shall remain in effect. If that substantial change in circumstances no longer exists, the county department or department shall offer to decrease the amount of the monthly subsidized guardianship payments provided under sub. (1) based on criteria established by the department under sub. (7) (c) . If the decreased amount of those payments is agreed to by the person receiving those payments, the county department or department shall amend the agreement in writing to specify the decreased amount of those payments. If the decreased amount of those payments is not agreed to by the person receiving those payments, that person may appeal the decision of the county department or department regarding the decrease under sub. (5) .

3. A county department or the department may propose to a person receiving monthly subsidized guardianship payments that the agreement under sub. (2) be amended to adjust the amount of those payments. If an adjustment in the amount of those payments is agreed to by the person receiving those payments, the agreement shall be amended in writing to specify the adjusted amount of those payments.

4. An agreement under sub. (2) may be amended more than once under subd. 1. or 3.

(d) The department or a county department may recover an overpayment made under sub. (1) or (6) from a guardian or interim caretaker who continues to receive those payments by reducing the amount of the person's monthly payment. The department may by rule specify other methods for recovering those overpayments. A county department that recovers an overpayment under this paragraph due to the efforts of its officers and employees may retain a portion of the amount recovered, as provided by the department by rule.

(4)   Annual review. A county department or the department shall review a placement of a child for which the county department or department makes payments under sub. (1) not less than every 12 months after the county department or department begins making those payments to determine whether the child and the guardian remain eligible for those payments. If the child or the guardian is no longer eligible for those payments, the county department or department shall discontinue making those payments.

(5)   Appeal.

(a) Any person whose application for payments under sub. (1) is not acted on promptly or is denied on the grounds that a condition specified in sub. (1) has not been met and any person whose payments under sub. (1) are decreased under sub. (3) (c) 2. or discontinued under sub. (4) may petition the department under par. (b) for a review of that action or failure to act. Review is unavailable if the action or failure to act arose more than 45 days before submission of the petition for review.

(b)

1. Upon receipt of a timely petition described in par. (a) the department shall give the applicant or recipient reasonable notice and an opportunity for a fair hearing. The department may make such additional investigation as it considers necessary. Notice of the hearing shall be given to the applicant or recipient and to the county department or subunit of the department whose action or failure to act is the subject of the petition. That county department or subunit of the department may be represented at the hearing. The department shall render its decision as soon as possible after the hearing and shall send a certified copy of its decision to the applicant or recipient and to the county department or subunit of the department whose action or failure to act is the subject of the petition. The decision of the department shall have the same effect as an order of the county department or subunit of the department whose action or failure to act is the subject of the petition. The decision shall be final, but may be revoked or modified as altered conditions may require. The department shall deny a petition for review or shall refuse to grant relief if any of the following applies:

a. The petitioner withdraws the petition in writing.

b. The sole issue in the petition concerns an automatic payment adjustment or change that affects an entire class of recipients and is the result of a change in state law.

c. The petitioner abandons the petition. Abandonment occurs if the petitioner fails to appear in person or by a representative at a scheduled hearing without good cause, as determined by the department.

2. If a recipient requests a hearing within 10 days after the date of notice that his or her payments under sub. (1) are being decreased or discontinued, those payments may not be decreased or discontinued until a decision is rendered after the hearing but payments made pending the hearing decision may be recovered by the department if the contested action or failure to act is upheld. The department shall promptly notify the county department or the subunit of the department whose action is the subject of the hearing that the recipient has requested a hearing. Payments under sub. (1) shall be decreased or discontinued if the recipient is contesting a state law or a change in state law and not the determination of the payment made on the recipient's behalf.

3. The recipient shall be promptly informed in writing if his or her payments under sub. (1) are to be decreased or discontinued pending the hearing decision.

(6)   Interim caretaker; successor guardian.

(am) On the death, incapacity, resignation, or removal of a guardian receiving payments under sub. (1) , the county department or the department providing those payments shall provide monthly subsidized guardianship payments in the amount specified in sub. (3) (b) for a period of up to 12 months to an interim caretaker if all of the following conditions are met:

1. The county department or department inspects the home of the interim caretaker, interviews the interim caretaker, and determines that placement of the child with the interim caretaker is in the best interests of the child. In the case of an Indian child, the best interests of the Indian child shall be determined in accordance with s. 48.01 (2) .

2. The county department or department conducts a background investigation under s. 48.685 of the interim caretaker and any nonclient resident, as defined in s. 48.685 (1) (bm) , of the home of the interim caretaker and determines that those individuals meet the requirements specified in s. 48.685 . The county department or department shall provide the department of health services with information about each person who is denied monthly subsidized guardianship payments or permission to reside in the home of an interim caretaker for a reason specified in s. 48.685 (4m) (a) 1. to 5. or (b) 1. to 5.

3. The interim caretaker cooperates with the county department or department in finding a permanent placement for the child.

4. If the county department or department knows or has reason to know that the child is an Indian child, the county department or department provides notice of the Indian child's placement in the home of the interim caretaker to the Indian child's parent, Indian custodian, and tribe and determines that the home of the interim caretaker complies with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c) , unless the county department or department finds good cause, as described in s. 48.028 (7) (e) , for departing from that order.

(bm) On the death or incapacity of a guardian receiving payments under sub. (1) , the county department or the department providing those payments shall provide monthly subsidized guardianship payments in the amount specified in sub. (3) (b) to a person named as a prospective successor guardian of the child in a subsidized guardianship agreement or amended subsidized guardianship agreement that was entered into before the death or incapacity of the guardian if all of the following conditions are met and the court appoints the person as successor guardian to assume the duty and authority of guardianship as provided in s. 48.977 (5m) :

1. The county department or department determines that the child, if 14 years of age or over, has been consulted with regarding the successor guardianship arrangement.

2. The county department or department determines that the person has a strong commitment to caring permanently for the child.

3. The county department or department inspects the home of the person, interviews the person, and determines that placement of the child with the person is in the best interests of the child. In the case of an Indian child, the best interests of the Indian child shall be determined in accordance with s. 48.01 (2) .

4. Prior to being appointed as successor guardian to assume the duty and authority of guardianship, the person enters into a subsidized guardianship agreement under sub. (2) with the county department or department.

5. Prior to the person entering into the subsidized guardianship agreement, the county department or department conducts a background investigation under s. 48.685 of the person and any nonclient resident, as defined in s. 48.685 (1) (bm) , of the home of the person and determines that those individuals meet the requirements specified in s. 48.685 . The county department or department shall provide the department of health services with information about each person who is denied monthly subsidized guardianship payments or permission to reside in the home of a person receiving those payments for a reason specified in s. 48.685 (4m) (a) 1. to 5. or (b) 1. to 5.

6. Any order under s. 48.345 , 48.357 , 48.363 , 48.365 , 938.345 , 938.357 , 938.363 , or 938.365 placing the child, or continuing the placement of the child, outside of the child's home has been terminated, or any proceeding in which the child has been adjudged to be in need of protection or services specified in s. 48.977 (2) (a) has been dismissed, as provided in s. 48.977 (3r) (b) .

7. If the county department or department knows or has reason to know that the child is an Indian child, the county department or department provides notice of the Indian child's placement in the home of the person to the Indian child's parent, Indian custodian, and tribe and determines that the home of the person complies with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c) , unless the county department or department finds good cause, as described in s. 48.028 (7) (e) , for departing from that order.

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

(a) A rule defining the substantial change in circumstances under which a person receiving monthly subsidized guardianship payments under sub. (1) may request that an agreement made under sub. (2) be amended to increase the amount of those payments.

(b) Rules establishing requirements for submitting a request under sub. (3) (c) 1. and criteria for determining the amount of the increase in monthly subsidized guardianship payments that a county department or the department shall offer if there has been a substantial change in circumstances and if there has been no substantiated report of abuse or neglect of the child by the person receiving those payments.

(c) Rules establishing the criteria for determining the amount of the decrease in monthly subsidized guardianship payments that the department shall offer under sub. (3) (c) 2. if a substantial change in circumstances no longer exists. The criteria shall provide that the amount of the decrease offered by the department under sub. (3) (c) 2. may not result in a monthly subsidized guardianship payment that is less than the initial monthly subsidized guardianship payment provided for the child under sub. (1) .

(d) Rules governing the provision of subsidized guardianship payments for the care of a child after the child attains 18 years of age.

(dm) Rules establishing the conditions that must be met in order for a person specified in sub. (1) (b) 1. c. to be eligible for monthly subsidized guardianship payments under sub. (1) .

(e) Rules governing the payment of monthly subsidized guardianship payments to a successor guardian of a child.

2011 a. 32 ss. 1332n , 1332q to 1332u , 1332w ; Stats. 2011 s. 48.623; 2013 a. 20 ; 2015 a. 55 , 129 , 143 ; s. 13.92 (1) (bm) 2.

Note

The cross-reference to sub. (7) (dm) was changed from sub. (7) (d) by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of s. 48.623 (7) (d), as created by 2015 Wis. Act 143 . Microsoft Windows NT 6.1.7601 Service Pack 1 Par. (dm) was created as par. (d) by 2015 Wis. Act 143 and renumbered to par. (dm) by the legislative reference bureau under s. 13.92 (1) (bm) 2. Microsoft Windows NT 6.1.7601 Service Pack 1 Cross-reference: See also ch. DCF 55 , Wis. adm. code. Microsoft Windows NT 6.1.7601 Service Pack 1