LRB-4398/4
GMM&ISR:jlg:kjf
1999 - 2000 LEGISLATURE
March 2, 2000 - Introduced by Representatives Musser, Underheim and Pettis,
cosponsored by Senator Moen. Referred to Committee on Health.
AB823,1,11 1An Act to amend 48.685 (1) (bm), 48.685 (2) (b) 4., 48.685 (3) (a), 48.685 (4m) (a)
2(intro.), 48.685 (5) (a), 48.685 (5c) (c), 48.685 (6) (b) 1., 50.065 (1) (cn), 50.065 (5),
3146.40 (4g) (a) 4., 146.40 (4r) (a), 146.40 (4r) (am) 1., 146.40 (4r) (c), 146.40 (4r)
4(d) and 146.40 (4r) (e); and to create 48.685 (5d) (c), 48.685 (5d) (d), 48.685 (7)
5(bm), 50.065 (5d) (c), 50.065 (5d) (d), 50.065 (7) (bm) and 146.40 (1) (cn) of the
6statutes; relating to: tribal administration of rehabilitation reviews for
7persons who otherwise may not operate, be employed at, contract with or reside
8at an entity that provides care for children or adults, reporting certain
9individuals to the department of health and family services who are alleged to
10have neglected or abused a client or misappropriated the property of a client
11and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Under current law, the department of health and family services (DHFS) may
not license, certify, issue a certificate of approval to or register a person to operate
an adult treatment facility, organization or service and may not license a person to
operate a foster home, treatment foster home, group home, shelter care facility, child

welfare agency or day care center; a county department of human services or social
services (county department) or a child welfare agency may not license a person to
operate a foster home or treatment foster home; a county department may not certify
a person as a day care provider for purposes of reimbursement under the Wisconsin
works program; and a school board may not contract with a person to operate a day
care program; if the person has been convicted of certain serious crimes, has abused
or neglected a client or misappropriated the property of a client, has abused or
neglected a child or has credentials that are not current or that are limited so as to
restrict the person from providing adequate care to a client. Currently, a facility,
organization or service that provides care for adults or children and that is subject
to this law is defined as an "entity". Current law also prohibits an entity from
employing, contracting with or permitting to reside at the entity a nonclient resident
if any of those factors apply to the person. A "nonclient resident" is defined as 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 the entity.
Current law, however, permits DHFS, a county department, a child welfare
agency, a school board or an entity to license, certify, issue a certificate of approval
to, register, employ, contract with or permit to reside at an entity a person who has
been convicted of certain serious crimes, has abused or neglected a client or
misappropriated the property of a client, has abused or neglected a child or has
credentials that are not current if the person demonstrates that the person has been
rehabilitated. Current law permits DHFS, a county department, a child welfare
agency, a school board or, in the case of an entity that is located within the boundaries
of a reservation, a person or body designated by the tribe to conduct rehabilitation
reviews.
This bill permits a tribe to request DHFS to grant the tribe the authority to
conduct rehabilitation reviews with respect to some, but not all, entities within the
boundaries of the tribe's reservation, and requires DHFS to grant that authority if
the criteria that DHFS is required under the bill to establish by rule are satisfied.
The bill also permits a tribe to request DHFS to grant the tribe the authority to
conduct rehabilitation reviews with respect to an entity located outside the
boundaries of the tribe's reservation that is owned or operated by the tribe or a tribal
corporation and, if that authority is granted, to conduct rehabilitation reviews with
respect to that off-reservation tribal entity. The bill requires DHFS to consider
factors such as the proximity of the off-reservation tribal entity to the reservation
and the population to be served by the off-reservation tribal entity in evaluating a
tribe's request for the authority to conduct rehabilitation reviews of an
off-reservation tribal entity, and permits DHFS to grant that authority if DHFS
determines that the conduct of rehabilitation reviews by the tribe with respect to the
off-reservation tribal entity is rationally related to the protection of clients.
Also under current law, an individual may report to DHFS that he or she
believes an individual who is employed by or under contract with an entity has
neglected or abused a client or misappropriated the property of a client. In addition,
an entity is required to report to DHFS any allegation made that an individual who
is employed by or under contract with the entity has neglected or abused a client or

misappropriated the property of a client. If, after providing an individual with an
opportunity for a hearing, DHFS or a hearing examiner finds there is reasonable
cause to believe the allegations, DHFS is required to enter the name of the individual
in a registry maintained by DHFS. The registry must also contain the findings of
DHFS or the hearing examiner with respect to the allegations made against the
individual and, if the individual makes a statement disputing DHFS's or the hearing
examiner's findings, the individual's statement. This bill expands the reporting and
registry listing requirements to include nonclient residents ten years of age or older.
Finally, the bill makes various technical changes to the reporting and registry
listing law and to the law governing who may operate, be employed at, contract with
or reside at an entity, including a change specifying that the latter law does not apply
to nonclient residents under ten years of age.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB823, s. 1 1Section 1. 48.685 (1) (bm) of the statutes, as created by 1999 Wisconsin Act
29
, is amended to read:
AB823,3,53 48.685 (1) (bm) "Nonclient resident" means a person 10 years of age or over who
4resides, or is expected to reside, at an entity, who is not a client of the entity and who
5has, or is expected to have, regular, direct contact with clients of the entity.
AB823, s. 2 6Section 2. 48.685 (2) (b) 4. of the statutes, as affected by 1999 Wisconsin Act
79
, is amended to read:
AB823,3,138 48.685 (2) (b) 4. Subdivision 1. does not apply with respect to a person under
918 years of age, but not under 12 years of age, who is a caregiver or nonclient resident
10of a day care center that is licensed under s. 48.65 or established or contracted for
11under s. 120.13 (14) or of a day care provider that is certified under s. 48.651 and with
12respect to whom the department, a county department or a school board is required
13under par. (am) (intro.) to obtain the information specified in par. (am) 1. to 5.
AB823, s. 3
1Section 3. 48.685 (3) (a) of the statutes, as affected by 1999 Wisconsin Act 9,
2is amended to read:
AB823,4,113 48.685 (3) (a) Every 4 years or at any time within that period that the
4department, a county department, a child welfare agency or a school board considers
5appropriate, the department, county department, child welfare agency or school
6board shall request the information specified in sub. (2) (am) 1. to 5. for all persons
7who are licensed, certified or contracted to operate an entity, for all persons who are
8nonclient residents of an entity and for all persons under 18 years of age, but not
9under 12 years of age, who are caregivers of a day care center that is licensed under
10s. 48.65 or established or contracted for under s. 120.13 (4) (14) or of a day care
11provider that is certified under s. 48.651.
AB823, s. 4 12Section 4. 48.685 (4m) (a) (intro.) of the statutes, as affected by 1999 Wisconsin
13Act 9
, is amended to read:
AB823,4,2214 48.685 (4m) (a) (intro.) Notwithstanding s. 111.335, and except as provided in
15par. (ad) and sub. (5), the department may not license, or continue or renew the
16license of, a person to operate an entity, a county department may not certify, or
17continue or renew the certification of,
a day care provider under s. 48.651, a county
18department or a child welfare agency may not license, or continue or renew the
19license of, a foster home or treatment foster home under s. 48.62 and a school board
20may not contract with, or continue, extend or renew a contract with, a person under
21s. 120.13 (14), if the department, county department, child welfare agency or school
22board knows or should have known any of the following:
AB823, s. 5 23Section 5. 48.685 (5) (a) of the statutes, as affected by 1999 Wisconsin Act 9,
24is amended to read:
AB823,5,15
148.685 (5) (a) The Except as provided in par. (bm), the department may license
2to operate an entity, a county department may certify under s. 48.651, a county
3department or a child welfare agency may license under s. 48.62 and a school board
4may contract with under s. 120.13 (14) a person who otherwise may not be licensed,
5certified or contracted with for a reason specified in sub. (4m) (a) 1. to 5., and an entity
6may employ, contract with or permit to reside at the entity a person who otherwise
7may not be employed, contracted with or permitted to reside at the entity for a reason
8specified in sub. (4m) (b) 1. to 5., if the person demonstrates to the department, the
9county department, the child welfare agency or the school board or, in the case of an
10entity located outside the boundaries of a reservation that is owned or operated by
11a tribe or tribal corporation and that is subject to rehabilitation reviews by the tribe
12under sub. (5d) (d) or
an entity that is located within the boundaries of a reservation,
13to the person or body designated by the tribe under sub. (5d) (a) 3., by clear and
14convincing evidence and in accordance with procedures established by the
15department by rule or by the tribe that he or she has been rehabilitated.
AB823, s. 6 16Section 6. 48.685 (5c) (c) of the statutes is amended to read:
AB823,5,2217 48.685 (5c) (c) Any person who is permitted but fails under sub. (5) (a) to
18demonstrate to the school board that he or she has been rehabilitated may appeal to
19the secretary superintendent of public instruction or his or her designee. Any person
20who is adversely affected by a decision of the secretary superintendent of public
21instruction
or his or her designee under this paragraph has a right to a contested case
22hearing under ch. 227.
AB823, s. 7 23Section 7. 48.685 (5d) (c) of the statutes is created to read:
AB823,6,324 48.685 (5d) (c) A tribe may request the department to grant the tribe the
25authority to conduct rehabilitation reviews under sub. (5) with respect to some, but

1not all, entities within the boundaries of the tribe's reservation. The department
2shall grant that authority if the criteria established by rule under sub. (7) (bm) are
3satisfied.
AB823, s. 8 4Section 8. 48.685 (5d) (d) of the statutes is created to read:
AB823,6,145 48.685 (5d) (d) A tribe may request the department to grant the tribe the
6authority to conduct rehabilitation reviews under sub. (5) with respect to an entity
7located outside the boundaries of the tribe's reservation that is owned or operated by
8the tribe or a tribal corporation. The department shall evaluate the tribe's request,
9considering factors such as the proximity of the off-reservation tribal entity to the
10reservation and the population to be served by the off-reservation tribal entity, and,
11if the department determines that the conduct of rehabilitation reviews by the tribe
12with respect to the off-reservation tribal entity is rationally related to the protection
13of clients, the department may authorize the tribe to conduct rehabilitation reviews
14with respect to the off-reservation tribal entity.
AB823, s. 9 15Section 9. 48.685 (6) (b) 1. of the statutes, as affected by 1999 Wisconsin Act
169
, is amended to read:
AB823,6,2317 48.685 (6) (b) 1. For caregivers who are licensed by the department, for persons
18under 18 years of age, but not under 12 years of age, who are caregivers of a day care
19center that is licensed under s. 48.65 or established or contracted for under s. 120.13
20(4) (14) or of a day care provider that is certified under s. 48.651, for persons who are
21nonclient residents of an entity that is licensed by the department, and for other
22persons specified by the department by rule, the entity shall send the background
23information form to the department.
AB823, s. 10 24Section 10. 48.685 (7) (bm) of the statutes is created to read:
AB823,7,4
148.685 (7) (bm) Establish by rule criteria for the department to use in
2determining whether a tribe whose plan is approved under sub. (5d) (b) may be
3authorized to conduct rehabilitation reviews under sub. (5) for some, but not all,
4entities within the boundaries of the tribe's reservation.
AB823, s. 11 5Section 11. 50.065 (1) (cn) of the statutes, as created by 1999 Wisconsin Act
69
, is amended to read:
AB823,7,97 50.065 (1) (cn) "Nonclient resident" means a person 10 years of age or older who
8resides, or is expected to reside, at an entity, who is not a client of the entity and who
9has, or is expected to have, regular, direct contact with clients of the entity.
AB823, s. 12 10Section 12. 50.065 (5) of the statutes, as affected by 1999 Wisconsin Act 9, is
11amended to read:
AB823,7,2412 50.065 (5) The department may license, certify, issue a certificate of approval
13to or register to operate an entity a person who otherwise may not be licensed,
14certified, issued a certificate of approval or registered for a reason specified in sub.
15(4m) (a) 1. to 5., and an entity may employ, contract with or permit to reside at the
16entity a person who otherwise may not be employed, contracted with or permitted
17to reside at the entity for a reason specified in sub. (4m) (b) 1. to 5., if the person
18demonstrates to the department, or, in the case of an entity located outside the
19boundaries of a reservation that is owned or operated by a tribe or tribal corporation
20and that is subject to rehabilitation reviews by the tribe under sub. (5d) (d) or
an
21entity that is located within the boundaries of a reservation, to the person or body
22designated by the tribe under sub. (5d) (a) 3., by clear and convincing evidence and
23in accordance with procedures established by the department by rule, or by the tribe,
24that he or she has been rehabilitated.
AB823, s. 13 25Section 13. 50.065 (5d) (c) of the statutes is created to read:
AB823,8,5
150.065 (5d) (c) A tribe may request the department to grant the tribe the
2authority to conduct rehabilitation reviews under sub. (5) with respect to some, but
3not all, entities within the boundaries of the tribe's reservation. The department
4shall grant that authority if the criteria established by rule under sub. (7) (bm) are
5satisfied.
AB823, s. 14 6Section 14. 50.065 (5d) (d) of the statutes is created to read:
AB823,8,167 50.065 (5d) (d) A tribe may request the department to grant the tribe the
8authority to conduct rehabilitation reviews under sub. (5) with respect to an entity
9located outside the boundaries of the tribe's reservation that is owned or operated by
10the tribe or a tribal corporation. The department shall evaluate the tribe's request,
11considering factors such as proximity of the off-reservation tribal entity to the
12reservation and the population to be served by the off-reservation tribal entity, and,
13if the department determines that the conduct of rehabilitation reviews by the tribe
14with respect to the off-reservation tribal entity is rationally related to the protection
15of clients, the department may authorize the tribe to conduct rehabilitation reviews
16with respect to the off-reservation tribal entity.
AB823, s. 15 17Section 15. 50.065 (7) (bm) of the statutes is created to read:
AB823,8,2118 50.065 (7) (bm) Establish by rule criteria for the department to use in
19determining whether a tribe whose plan is approved under sub. (5d) (b) may be
20authorized to conduct rehabilitation reviews under sub. (5) for some, but not all,
21entities within the boundaries of the tribe's reservation.
AB823, s. 16 22Section 16. 146.40 (1) (cn) of the statutes is created to read:
AB823,8,2323 146.40 (1) (cn) "Nonclient resident" has the meaning given in s. 50.065 (1) (cn).
AB823, s. 17 24Section 17. 146.40 (4g) (a) 4. of the statutes is amended to read:
AB823,9,4
1146.40 (4g) (a) 4. A brief statement, if any, of an individual about whom the
2department is notified lists on the registry under sub. (4) subd. 2. and who disputes
3the department's findings under sub. (4r) (b) or the hearing officer's findings under
4sub. (4r) (d).
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