1999 Wisconsin Act 9

9,1521b Section 1521b. 50.065 (1) (ag) of the statutes is created to read:

50.065 (1) (ag) 1. "Caregiver" means any of the following:

a. A person who is, or is expected to be, an employe or contractor of an entity, who is or is expected to be under the control of an entity, as defined by the department by rule, and who has, or is expected to have, regular, direct contact with clients of the entity.

b. A person who has, or is seeking, a license, certification, registration, or certificate of approval issued or granted by the department to operate an entity.

c. A person who is, or is expected to be, an employe of the board on aging and long-term care and who has, or is expected to have, regular, direct contact with clients.

2. "Caregiver" does not include a person who is certified as an emergency medical technician under s. 146.50 if the person is employed, or seeking employment, as an emergency medical technician.

9,1521c Section 1521c. 50.065 (1) (bm) of the statutes is created to read:

50.065 (1) (bm) "Contractor" means, with respect to an entity, a person, or that person's agent, who provides services to the entity under an express or implied contract or subcontract, including a person who has staff privileges at the entity.

9,1521cm Section 1521cm. 50.065 (1) (br) of the statutes is created to read:

50.065 (1) (br) "Direct contact" means face-to-face physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or to misappropriate the property of a client.

9,1521d Section 1521d. 50.065 (1) (c) (intro.) of the statutes is amended to read:

50.065 (1) (c) (intro.) "Entity" means a facility, organization or service that is licensed or certified by or registered with the department to provide direct care or treatment services to clients. "Entity" includes a hospital, a personal care worker agency and, a supportive home care service agency, a temporary employment agency that provides caregivers to another entity and the board on aging and long-term care. "Entity" does not include any of the following:

9,1521dm Section 1521dm. 50.065 (1) (c) 2. of the statutes is amended to read:

50.065 (1) (c) 2. Kinship care under s. 48.57 (3m) or long-term kinship care under s. 48.57 (3m), (3n) or (3o).

9,1521e Section 1521e. 50.065 (1) (cn) of the statutes is created to read:

50.065 (1) (cn) "Nonclient resident" means a person who resides, or is expected to reside, at an entity, who is not a client of the entity and who has, or is expected to have, regular, direct contact with clients of the entity.

9,1521em Section 1521em. 50.065 (1) (dm) of the statutes is created to read:

50.065 (1) (dm) "Reservation" means land in this state within the boundaries of a reservation of a tribe or within the bureau of Indian affairs service area for the Ho-Chunk Nation.

9,1521f Section 1521f. 50.065 (1) (e) of the statutes is repealed and recreated to read:

50.065 (1) (e) 1. "Serious crime" means a violation of s. 940.01, 940.02, 940.03, 940.05, 940.12, 940.19 (2), (3), (4), (5) or (6), 940.22 (2) or (3), 940.225 (1), (2) or (3), 940.285 (2), 940.29, 940.295, 948.02 (1), 948.025 or 948.03 (2) (a), or a violation of the law of any other state or United States jurisdiction that would be a violation of s. 940.01, 940.02, 940.03, 940.05, 940.12, 940.19 (2), (3), (4), (5) or (6), 940.22 (2) or (3), 940.225 (1), (2) or (3), 940.285 (2), 940.29, 940.295, 948.02 (1), 948.025 or 948.03 (2) (a) if committed in this state.

2. For the purposes of an entity that serves persons under the age of 18, "serious crime" includes a violation of s. 948.02 (2), 948.03 (2) (b) or (c), 948.05, 948.055, 948.06, 948.07, 948.08, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21 (1) or 948.30 or a violation of the law of any other state or United States jurisdiction that would be a violation of s. 948.02 (2), 948.03 (2) (b) or (c), 948.05, 948.055, 948.06, 948.07, 948.08, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21 (1) or 948.30 if committed in this state.

9,1521fm Section 1521fm. 50.065 (1) (g) of the statutes is created to read:

50.065 (1) (g) "Tribe" means a federally recognized American Indian tribe or band in this state.

9,1521g Section 1521g. 50.065 (2) (a) (intro.) of the statutes is renumbered 50.065 (4m) (a) (intro.).

9,1521h Section 1521h. 50.065 (2) (a) 1. of the statutes is renumbered 50.065 (4m) (a) 1.

9,1521i Section 1521i. 50.065 (2) (a) 2. of the statutes is repealed.

9,1521j Section 1521j. 50.065 (2) (a) 3. of the statutes is renumbered 50.065 (4m) (a) 3.

9,1521k Section 1521k. 50.065 (2) (a) 4. of the statutes is renumbered 50.065 (4m) (a) 4.

9,1521L Section 1521L. 50.065 (2) (a) 5. of the statutes is renumbered 50.065 (4m) (a) 5.

9,1521m Section 1521m. 50.065 (2) (ag) (intro.) of the statutes is renumbered 50.065 (4m) (b) (intro.) and amended to read:

50.065 (4m) (b) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), an entity may not hire or contract with a person who will be under the entity's control, as defined by the department by rule, and who is expected to have access to its clients, caregiver or permit to reside at the entity a person who is not a client and who is expected to have access to a client nonclient resident, if the entity knows or should have known any of the following:

9,1521n Section 1521n. 50.065 (2) (ag) 1. of the statutes is renumbered 50.065 (4m) (b) 1.

9,1521p Section 1521p. 50.065 (2) (ag) 2. of the statutes is repealed.

9,1521q Section 1521q. 50.065 (2) (ag) 3. of the statutes is renumbered 50.065 (4m) (b) 3.

9,1521r Section 1521r. 50.065 (2) (ag) 4. of the statutes is renumbered 50.065 (4m) (b) 4.

9,1521s Section 1521s. 50.065 (2) (ag) 5. of the statutes is renumbered 50.065 (4m) (b) 5.

9,1521t Section 1521t. 50.065 (2) (am) (intro.) of the statutes is amended to read:

50.065 (2) (am) (intro.) Subject to subd. 5. and par. (bd), the The department shall obtain all of the following with respect to a person specified under par. (a) (intro.) sub. (1) (ag) 1. b. and a person specified under par. (ag) (intro.) who is a nonclient resident or prospective nonclient resident of an entity:

9,1521u Section 1521u. 50.065 (2) (am) 5. of the statutes is amended to read:

50.065 (2) (am) 5. Information maintained by the department under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration to operate an entity for a reason specified in par. sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract with or permission to reside at an entity for a reason specified in par. (ag) sub. (4m) (b) 1. to 5. If the information obtained under this subdivision indicates that the person has been denied a license, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subdivision, the department need not obtain the information specified in subds. 1. to 4.

9,1521v Section 1521v. 50.065 (2) (b) 1. of the statutes is renumbered 50.065 (2) (b), and 50.065 (2) (b) (intro.) and 5., as renumbered, are amended to read:

50.065 (2) (b) (intro.) Subject to subds. 1. e. and 2. and par. (bd), every Every entity shall obtain all of the following with respect to a person specified under par. (ag) (intro.) who is an employe or contractor or a prospective employe or contractor caregiver of the entity:

5. Information maintained by the department under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration to operate an entity for a reason specified in par. sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract with or permission to reside at an entity for a reason specified in par. (ag) sub. (4m) (b) 1. to 5. If the information obtained under this subd. 1. e. subdivision indicates that the person has been denied a license, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subd. 1. e. subdivision, the entity need not obtain the information specified in subd. subds. 1. a. to d. to 4.

9,1521w Section 1521w. 50.065 (2) (b) 2. of the statutes is repealed.

9,1521xd Section 1521xd. 50.065 (2) (bb) of the statutes is created to read:

50.065 (2) (bb) If information obtained under par. (am) or (b) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department or entity shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If a background information form under sub. (6) (a) or (am) indicates a charge or a conviction of a serious crime, but information obtained under par. (am) or (b) does not indicate such a charge or conviction, the department or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and the final disposition of the complaint. If information obtained under par. (am) or (b), a background information form under sub. (6) (a) or (am) or any other information indicates a conviction of a violation of s. 940.19 (1), 940.195, 940.20, 941.30, 942.08, 947.01 or 947.013 obtained not more than 5 years before the date on which that information was obtained, the department or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and judgment of conviction relating to that violation.

9,1521y Section 1521y. 50.065 (2) (bd) of the statutes is amended to read:

50.065 (2) (bd) Notwithstanding pars. (am) and (b) 1., the department is not required to obtain the information specified in par. (am) 1. to 5., and an entity is not required to obtain the information specified in par. (b) 1. a. to e. to 5., with respect to a person under 18 years of age whose background information form under sub. (6) (am) indicates that the person is not ineligible to be employed, contracted with or permitted to reside at an entity for a reason specified in par. (ag) sub. (4m) (b) 1. to 5. and with respect to whom the department or entity otherwise has no reason to believe that the person is ineligible to be employed, contracted with or permitted to reside at an entity for any of those reasons. This paragraph does not preclude the department from obtaining, at its discretion, the information specified in par. (am) 1. to 5. with respect to a person described in this paragraph who is a nonclient resident or a prospective nonclient resident of an entity.

9,1521z Section 1521z. 50.065 (2) (bg) of the statutes is amended to read:

50.065 (2) (bg) If an entity takes an action specified in par. (ag) (intro.) with respect to an employe, prospective employe, contractor or prospective contractor hires or contracts with a caregiver for whom, within the last 4 years, the information required under par. (b) 1. a. to c. 3. and e. 5. has already been obtained , either by another entity or by a temporary employment agency, the entity may obtain the that information required under par. (b) 1. a. to c. and e. from that other entity or temporary employment agency, which shall provide the information, if possible, to the requesting entity. If an entity cannot obtain the information required under par. (b) 1. a. to c. 3. and e. 5. from another entity or from a temporary employment agency or if an entity has reasonable grounds to believe that any information obtained from another entity or from a temporary employment agency is no longer accurate, the entity shall obtain that information from the sources specified in par. (b) 1. a. to 3. and e. 5.

9,1521zb Section 1521zb. 50.065 (2) (bm) of the statutes is amended to read:

50.065 (2) (bm) If the person who is the subject of the search under par. (am) or (b) 1. is not a resident of this state, or if at any time within the 3 years preceding the date of the search that person has not been a resident of this state, or if the department or entity determines that the person's employment, licensing or state court records provide a reasonable basis for further investigation, the department or entity shall make a good faith effort to obtain from any state or other United States jurisdiction in which the person is a resident or was a resident within the 3 years preceding the date of the search information that is equivalent to the information specified in par. (am) 1. or (b) 1. a. The department or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions.

9,1521zc Section 1521zc. 50.065 (2) (c) of the statutes is renumbered 50.065 (4m) (c) and amended to read:

50.065 (4m) (c) If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be employed or contracted with for a reason specified in par. (ag) (b) 1. to 5., an entity may employ or contract with the person for not more than 60 days pending the receipt of the information sought under par. sub. (2) (b) 1. If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be permitted to reside at an entity for a reason specified in par. (ag) (b) 1. to 5. and if an entity otherwise has no reason to believe that the person is ineligible to be permitted to reside at an entity for any of those reasons, the entity may permit the person to reside at the entity for not more than 60 days pending receipt of the information sought under par. sub. (2) (am). An entity shall provide supervision for a person who is employed or contracted with or permitted to reside as permitted under this paragraph.

9,1521zd Section 1521zd. 50.065 (2) (d) of the statutes is created to read:

50.065 (2) (d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver under par. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.

9,1521ze Section 1521ze. 50.065 (3) (a) of the statutes is amended to read:

50.065 (3) (a) Every 4 years or at any time within that period that the department considers appropriate, the department shall request the information specified in sub. (2) (am) 1. to 4. 5. for all persons who are licensed to operate an entity and for all persons specified in par. (ag) (intro.) who are nonclient residents of an entity.

9,1521zf Section 1521zf. 50.065 (3) (b) of the statutes is amended to read:

50.065 (3) (b) Every 4 years or at any other time within that period that an entity considers appropriate, the entity shall request the information specified in sub. (2) (b) 1. a. to d. 5. for all persons specified in sub. (2) (ag) (intro.) who are employes or contractors caregivers of the entity.

9,1521zg Section 1521zg. 50.065 (3m) of the statutes is amended to read:

50.065 (3m) Notwithstanding subs. (2) (b) 1. and (3) (b), if the department obtains the information required under sub. (2) (am) or (3) (a) with respect to a person specified in sub. (2) (a) (intro.) who is a caregiver specified under sub. (1) (ag) 1. b. and that person is also an employe, contractor or nonclient resident of the entity, the entity is not required to obtain the information specified in sub. (2) (b) 1. or (3) (b) with respect to that person.

9,1521zh Section 1521zh. 50.065 (4) of the statutes is amended to read:

50.065 (4) An entity that violates sub. (2) or, (3) or (4m) (b) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

9,1521zi Section 1521zi. 50.065 (4m) (b) (intro.) of the statutes, as affected by 1999 Wisconsin Act .... (this act), is amended to read:

50.065 (4m) (b) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), an entity may not hire employ or contract with a caregiver or permit to reside at the entity a nonclient resident, if the entity knows or should have known any of the following:

9,1521zj Section 1521zj. 50.065 (5) (intro.) of the statutes is renumbered 50.065 (5) and amended to read:

50.065 (5) The department may license, certify, issue a certificate of approval to or register to operate an entity a person who otherwise may not be licensed, certified, issued a certificate of approval or registered for a reason specified in sub. (2) (4m) (a) 1. to 5., and an entity may employ, contract with or permit to reside at the entity a person who otherwise may not be employed, contracted with or permitted to reside at the entity for a reason specified in sub. (2) (ag) (4m) (b) 1. to 5., if the person demonstrates to the department, or, in the case of an entity that is located within the boundaries of a reservation, to the person or body designated by the tribe under sub. (5d) (a) 3., by clear and convincing evidence and in accordance with procedures established by the department by rule, or by the tribe, that he or she has been rehabilitated. No person who has been convicted of any of the following offenses may be permitted to demonstrate that he or she has been rehabilitated:

9,1521zk Section 1521zk. 50.065 (5) (a) to (e) of the statutes are repealed.

9,1521zL Section 1521zL. 50.065 (5d) of the statutes is created to read:

50.065 (5d) (a) Any tribe that chooses to conduct rehabilitation reviews under sub. (5) shall submit to the department a rehabilitation review plan that includes all of the following:

1. The criteria to be used to determine if a person has been rehabilitated.

2. The title of the person or body designated by the tribe to whom a request for review must be made.

3. The title of the person or body designated by the tribe to determine whether a person has been rehabilitated.

3m. The title of the person or body designated by the tribe to whom a person may appeal an adverse decision made by the person specified under subd. 3. and whether the tribe provides any further rights of appeal.

4. The manner in which the tribe will submit information relating to a rehabilitation review to the department so that the department may include that information in its report to the legislature required under sub. (5g).

5. A copy of the form to be used to request a review and a copy of the form on which a written decision is to be made regarding whether a person has demonstrated rehabilitation.

(b) If, within 90 days after receiving the plan, the department does not disapprove the plan, the plan shall be considered approved. If, within 90 days after receiving the plan, the department disapproves the plan, the department shall provide notice of that disapproval to the tribe in writing, together with the reasons for the disapproval. The department may not disapprove a plan unless the department finds that the plan is not rationally related to the protection of clients. If the department disapproves the plan, the tribe may, within 30 days after receiving notice of the disapproval, request that the secretary review the department's decision. A final decision under this paragraph is not subject to further review under ch. 227.

9,1521zm Section 1521zm. 50.065 (5m) of the statutes is amended to read:

50.065 (5m) Notwithstanding s. 111.335, the department may refuse to license, certify or register, or issue a certificate of approval to, a person to operate an entity, caregiver and an entity may refuse to employ, or contract with a caregiver or to permit a nonclient resident to reside at the entity a person specified in sub. (2) (ag) (intro.), if the person caregiver or nonclient resident has been convicted of an offense that the department has not defined as a "serious crime" by rule promulgated under sub. (7) (a), or specified in the list established by rule under sub. (7) (b) is not a serious crime, but that is, in the estimation of the department or entity, substantially related to the care of a client.

9,1521zn Section 1521zn. 50.065 (6) (am) (intro.) of the statutes is renumbered 50.065 (6) (am) and amended to read:

50.065 (6) (am) Every 4 years an entity shall require all of the following persons its caregivers and nonclient residents to complete a background information form that is provided to the entity by the department:.

9,1521zp Section 1521zp. 50.065 (6) (am) 1. and 2. of the statutes are repealed.

9,1521zq Section 1521zq. 50.065 (6) (b) of the statutes is amended to read:

50.065 (6) (b) For persons specified under par. (a) caregivers who are licensed, issued a certificate of approval or certified by, or registered with, the department, for person specified in par. (am) 2. nonclient residents, and for other persons specified by the department by rule, the entity shall send the background information form to the department. For persons specified under par. (am) 1., the entity shall maintain the background information form on file for inspection by the department.

9,1521zr Section 1521zr. 50.065 (7) (a) and (b) of the statutes are repealed.

9,1522 Section 1522. 50.065 (8) of the statutes is amended to read:

50.065 (8) The department may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a) or for providing information to an entity to enable the entity to comply with sub. (2) (b) or (3) (b). The fee may not exceed the reasonable cost of obtaining the information. No fee may be charged to a nurse's assistant, as defined in s. 146.40 (1) (d), for obtaining or maintaining the information if to do so would be inconsistent with federal law.

9,1522w Section 1522w. 50.135 (1) of the statutes is amended to read: