SB37: Bill Text

Analysis by the Legislative Reference Bureau

Sale of unsafe children's products

This bill regulates sales of products that are designed principally for the care of, or use by, children under 12 years of age (children's products), including children's furniture, apparel, and toys. The provisions of the bill apply to persons who sell, lease, manufacture, or remanufacture children's products (commercial suppliers). Under the bill, a commercial supplier includes a person in the business of selling or leasing used merchandise, but does not include a person who sells or leases a children's product on an occasional basis, as defined by the Department of Agriculture, Trade and Consumer Protection (DATCP) by rule.

The bill prohibits the sale of a children's product by a commercial supplier if any of the following apply: 1) the children's product fails to conform to any state or federal safety law or regulation; 2) the children's product has been recalled by DATCP, by a federal agency, or by the manufacturer, distributor, or importer, and the recall has not been rescinded; or 3) DATCP or a federal agency has issued a warning that the intended use of the product presents a safety hazard and the warning has not been rescinded. The bill requires DATCP to maintain a list of such products and to make the list available to the public on the Internet. The bill also prohibits the sale by commercial suppliers of baby cribs that fail to meet certain requirements under federal regulations. The bill requires a commercial supplier to post a conspicuous notice to customers if a children's product the commercial supplier has sold is included in the list of unsafe children's products maintained by DATCP.

Also under the bill, a product that is subject to a recall may be retrofitted if the retrofit is approved by the agency that recalled the product. A retrofitted product may be sold to a consumer only if the product is accompanied by a notice containing certain information including a description of the problem that required the recall and an explanation of how the retrofit has eliminated the problem.

The bill requires DATCP to promulgate rules to ensure the safety of children's products. The rules must be consistent with nationally recognized industry standards for children's products, and must include certain design and performance requirements for baby cribs.

Under the bill, DATCP, the Department of Justice, the district attorney, or any other person may bring an action for an injunction against a commercial supplier who sells a children's product or baby crib in violation of the prohibitions in the bill. The bill also provides for a forfeiture of $100 to $10,000 for each violation.

Use of unsafe children's products

Under current law, no person may operate a residential care center for children and youth, group home, day care center, or shelter care facility unless the person is licensed by the Department of Health and Family Services (DHFS). Similarly, no person may operate a foster home or treatment foster home unless the person is licensed by DHFS, a county department of human services or social services (county department), or a child welfare agency. Also, under current law, a county department must certify a day care provider who is not required to be licensed by DHFS in order for the day care provider to be eligible for reimbursement under the Wisconsin Works (W-2) Program. In addition, under current law, a school board may establish or contract for day care programs for children.

This bill prohibits a residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility from using or having on a premises where care for children is provided a children's product or baby crib whose commercial use is prohibited under the bill. That prohibition, however, does not apply to an antique or collectible children's product or baby crib that is not used by, or accessible to, any child on the premises where the care is provided.

Under the bill, before DHFS may issue an initial license to operate a residential care center for children and youth, foster home, treatment foster home, group home, day care center, or shelter care facility; before a county department may issue an initial license to operate a foster home or treatment foster home or initially certify a day care provider; before a child welfare agency may issue an initial license to operate a foster home or treatment foster home; and before a school board may initially contract with a day care program; all of the following must occur:

1. DHFS, the county department, the child welfare agency, or the school board must inspect the premises where care for children is provided to ensure compliance with the bill.

2. DHFS, the county department, the child welfare agency, or the school board must provide the residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility with notice of the prohibitions and requirements under the bill and with the list maintained by DATCP under the bill of all children's products whose commercial use is prohibited under the bill. The notice and list must be provided in plain, nontechnical language that will enable the recipient of the notice and list to inspect the children's products and baby cribs on its premises and identify those children's products and baby cribs that are unsafe. A list provided under the bill must be retained by its recipient for one year after the date of its receipt.

3. The recipient of the notice and list must review the notice and list, immediately remove from its premises any children's products and baby cribs that are unsafe, and certify that all unsafe children's products and baby cribs have been removed from its premises.

The notice and list must also be provided, and the recipient of the notice and list must also immediately remove any unsafe children's products and baby cribs from its premises, before DHFS may continue the license of a residential care center for children and youth, group home, day care center, or shelter care facility or renew the license of a foster home or treatment foster home; before a county department may renew the license of a foster home or treatment foster home or recertify a day care provider; before a child welfare agency may renew the license of a foster home or treatment foster home; before a school board may renew a contract with a day care program; and whenever personnel of DHFS, the county department, the child welfare agency, or the school board visit or inspect the premises where care for children is provided.

Finally, the bill requires a residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility to maintain a file of all notices provided and lists retained under the bill and to permit the parent, guardian, or legal custodian of any child who is receiving care, or who is a prospective recipient of care, to inspect those notices and lists during its hours of operation.

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:

SB37, s. 1 Section 1. 48.60 (1) of the statutes is amended to read:

SB37,4,10 48.60 (1) No person may receive children, with or without transfer of legal custody, to provide care and maintenance for 75 days in any consecutive 12 months' period for 4 or more such children at any one time unless that person obtains a license to operate a child welfare agency from the department. To obtain a license under this subsection to operate a child welfare agency, a person must meet the minimum requirements for a license established by the department under s. 48.67, meet the requirements specified in s. ss. 48.685 and 48.687, and pay the applicable license fee under s. 48.615 (1) (a) or (b). A license issued under this subsection is valid until revoked or suspended, but shall be reviewed every 2 years as provided in s. 48.66 (5).

SB37, s. 2 Section 2. 48.625 (1) of the statutes is amended to read:

SB37,4,20 48.625 (1) Any person who receives, with or without transfer of legal custody, 5 to 8 children, not including children who under sub. (1m) are not counted toward that number, to provide care and maintenance for those children shall obtain a license to operate a group home from the department. To obtain a license under this subsection to operate a group home, a person must meet the minimum requirements for a license established by the department under s. 48.67, meet the requirements specified in s. ss. 48.685 and 48.687, and pay the license fee under sub. (2). A license issued under this subsection is valid until revoked or suspended, but shall be reviewed every 2 years as provided in s. 48.66 (5).

SB37, s. 3 Section 3. 48.65 (1) of the statutes is amended to read:

SB37,5,4 48.65 (1) No person may for compensation provide care and supervision for 4 or more children under the age of 7 for less than 24 hours a day unless that person obtains a license to operate a day care center from the department. To obtain a license under this subsection to operate a day care center, a person must meet the minimum requirements for a license established by the department under s. 48.67, meet the requirements specified in s. ss. 48.685 and 48.687, and pay the license fee under sub. (3). A license issued under this subsection is valid until revoked or suspended, but shall be reviewed every 2 years as provided in s. 48.66 (5).

SB37, s. 4 Section 4. 48.651 (1) (intro.) of the statutes is amended to read:

SB37,5,15 48.651 (1) (intro.) Each county department shall certify, according to the standards adopted by the department of workforce development under s. 49.155 (1d), each day care provider reimbursed for child care services provided to families determined eligible under s. 49.155, unless the provider is a day care center licensed under s. 48.65 or is established or contracted for under s. 120.13 (14). Each county may charge a fee to cover the costs of certification. To be certified under this section, a person must meet the minimum requirements for certification established by the department of workforce development under s. 49.155 (1d), meet the requirements specified in s. ss. 48.685 and 48.687, and pay the fee specified in this section. The county shall certify the following categories of day care providers:

SB37, s. 5 Section 5. 48.657 (1) (a) of the statutes is amended to read:

SB37,5,20 48.657 (1) (a) Violations of statutes, rules promulgated by the department under s. 48.687 (3) or 48.67, or provisions of licensure under s. 48.70 (1) by the day care center. In providing information under this paragraph, the department may not disclose the identity of any employee of the day care center.

SB37, s. 6 Section 6. 48.657 (1) (b) of the statutes is amended to read:

SB37,5,25 48.657 (1) (b) A telephone number at the department that a person may call to complain of any alleged violation of a statute, rule promulgated by the department under s. 48.687 (3) or 48.67, or provision of licensure under s. 48.70 (1) by the day care center.

SB37, s. 7 Section 7. 48.657 (2g) of the statutes is amended to read:

SB37,6,5 48.657 (2g) If the report under sub. (1) indicates that the day care center is in violation of a statute, a rule promulgated by the department under s. 48.687 (3) or 48.67, or a provision of licensure under s. 48.70 (1), the day care center shall post with the report any notices received from the department relating to that violation.

SB37, s. 8 Section 8. 48.66 (5) of the statutes is amended to read:

SB37,6,21 48.66 (5) A child welfare agency, group home, day care center or shelter care facility license, other than a probationary license, is valid until revoked or suspended, but shall be reviewed every 2 years after the date of issuance as provided in this subsection. At least 30 days prior to the continuation date of the license, the licensee shall submit to the department an application for continuance of the license in the form and containing the information that the department requires. If the minimum requirements for a license established under s. 48.67 are met, the application is approved, the applicable fees referred to in ss. 48.68 (1) and 48.685 (8) are paid and, any forfeiture under s. 48.715 (3) (a) or penalty under s. 48.76 that is due is paid, and the actions required under s. 48.658 (2) (b) are completed, the department shall continue the license for an additional 2-year period, unless sooner suspended or revoked. If the application is not timely filed, the department shall issue a warning to the licensee. If the licensee fails to apply for continuance of the license within 30 days after receipt of the warning, the department may revoke the license as provided in s. 48.715 (4) and (4m) (b).

SB37, s. 9 Section 9. 48.68 (1) of the statutes is amended to read:

SB37,7,13 48.68 (1) After receipt of an application for a license, the department shall investigate to determine if the applicant meets the minimum requirements for a license adopted by the department under s. 48.67 and meets the requirements specified in s. ss. 48.685 and 48.687, if applicable. In determining whether to issue or continue a license, the department may consider any action by the applicant, or by an employee of the applicant, that constitutes a substantial failure by the applicant or employee to protect and promote the health, safety, and welfare of a child. Upon satisfactory completion of this investigation and payment of the fee required under s. 48.615 (1) (a) or (b), 48.625 (2) (a), 48.65 (3) (a) or 938.22 (7) (b), the department shall issue a license under s. 48.66 (1) (a) or, if applicable, a probationary license under s. 48.69 or, if applicable, shall continue a license under s. 48.66 (5). At the time of initial licensure and license renewal, the department shall provide a foster home licensee with written information relating to the age-related monthly foster care rates and supplemental payments specified in s. 48.62 (4), including payment amounts, eligibility requirements for supplemental payments and the procedures for applying for supplemental payments.

SB37, s. 10 Section 10. 48.687 of the statutes is created to read:

SB37,7,25 48.687 Unsafe children's products. (1) (a) Except as provided in par. (b), a child welfare agency that is licensed to operate a residential care center for children and youth under s. 48.60 (1), a foster home or treatment foster home that is licensed under s. 48.62 (1), a group home that is licensed under s. 48.625 (1), a day care center that is licensed under s. 48.65 (1), a day care provider that is certified under s. 48.651 (1), a day care program that is established or contracted for under s. 120.13 (14), or a shelter care facility that is licensed under s. 938.22 (7) (a) may not use or have on the premises where care for children is provided a children's product, as defined in s. 100.375 (1) (b), whose commercial use is prohibited under s. 100.375 (2) (a), or a baby crib, as defined in s. 100.375 (1) (a), whose commercial use is prohibited under s. 100.375 (4).

SB37,8,5 (b) Paragraph (a) does not apply to an antique or collectible children's product or baby crib that is not used by, or accessible to, any child on the premises of the residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility.

SB37,8,15 (2) (a) Before the department may issue an initial license for a child welfare agency to operate a residential care center for children and youth under s. 48.60 (1) or issue an initial license to operate a foster home or treatment foster home under s. 48.62 (1), group home under s. 48.625 (1), day care center under s. 48.65 (1), or shelter care facility under s. 938.22 (7) (a); before a county department may issue an initial license to operate a foster home or treatment foster home under s. 48.62 (1) or initially certify a day care provider under s. 48.651 (1); before a child welfare agency may issue an initial license to operate a foster home or treatment foster home under s. 48.62 (1); and before a school board may initially contract with a day care program under s. 120.13 (14); all of the following shall occur:

SB37,8,18 1. The department, county department, child welfare agency, or school board shall inspect the premises where care for children is provided to ensure compliance with sub. (1).

SB37,9,5 2. The department, county department, child welfare agency, or school board shall provide the residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility with notice of the prohibitions under sub. (1), the requirements under s. 100.375 (2) (a) relating to children's products, and the requirements under s. 100.375 (4) and (5) relating to baby cribs and with a copy of the list of unsafe children's products maintained under s. 100.375 (2) (c) in plain, nontechnical language that will enable the recipient of the notice and list to inspect children's products and baby cribs on its premises and identify children's products and baby cribs that are unsafe. The notice and list provided under this subdivision may be provided by electronic mail. A list provided under this subdivision shall be retained by the recipient of the list for one year after the date of receipt of the list.

SB37,9,12 3. The recipient of the notice and list under subd. 2. shall review the notice and list, immediately remove from its premises any children's products and baby cribs that are unsafe, certify on a form prescribed under sub. (3) that it has reviewed that notice and list and that all unsafe children's products and baby cribs have been removed from its premises, and return the completed form to the department, county department, child welfare agency, or school board that provided the notice and list, which shall retain the completed form in its files.

SB37,9,25 (b) Before the department may continue a license for a child welfare agency to operate a residential care center for children and youth, renew a license to operate a foster home or treatment foster home, or continue a license to operate a group home, day care center, or shelter care facility; before a county department may renew a license to operate a foster home or treatment foster home or recertify a day care provider; before a child welfare agency may renew a license to operate a foster home or treatment foster home; before a school board may renew a contract with a day care program; and whenever personnel of the department, county department, child welfare agency, or school board visit or inspect the premises where care for children is provided; the department, county department, child welfare agency, or school board shall provide the residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility with the notice and list under par. (a) 2., and the person provided with the notice and list shall take the actions specified in par. (a) 3. A list produced under this paragraph shall be retained by the recipient of the list for one year after the date of receipt of the list.

SB37,10,11 (c) A residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility shall maintain a file of all notices provided and lists retained under par. (a) 2. or (b) and shall permit the parent, guardian, or legal custodian of any child who is receiving care, or who is a prospective recipient of care, from the residential care center for children and youth, foster home, treatment foster home, group home, day care center, day care provider, day care program, or shelter care facility to inspect those notices and lists during its hours of operation.

SB37,10,17 (3) Except as provided in this subsection, the department of health and family services shall promulgate rules to implement this section and prescribe a form for the certification under sub. (2) (a) 3. The department of workforce development shall promulgate rules to implement this section and prescribe a form for the certification under sub. (2) (a) 3. with respect to day care providers that are certified under s. 48.651 (1).

SB37, s. 11 Section 11. 48.69 of the statutes is amended to read:

SB37,11,9 48.69 Probationary licenses. Except as provided under s. 48.715 (6) and (7), if any child welfare agency, shelter care facility, group home, or day care center that has not been previously issued a license under s. 48.66 (1) (a) applies for a license, meets the minimum requirements for a license established under s. 48.67, meets the requirements specified in s. 48.687, and pays the applicable fee referred to in s. 48.68 (1), the department shall issue a probationary license to that child welfare agency, shelter care facility, group home, or day care center. A probationary license is valid for up to 6 months after the date of issuance unless renewed under this section or suspended or revoked under s. 48.715. Before a probationary license expires, the department shall inspect the child welfare agency, shelter care facility, group home, or day care center holding the probationary license and, except as provided under s. 48.715 (6) and (7), if the child welfare agency, shelter care facility, group home, or day care center meets the minimum requirements for a license established under s. 48.67 and meets the requirements specified in s. 48.687, the department shall issue a license under s. 48.66 (1) (a). A probationary license issued under this section may be renewed for one 6-month period.

SB37, s. 12 Section 12. 48.715 (2) (c) of the statutes is amended to read:

SB37,11,12 48.715 (2) (c) That a licensee stop violating any provision of licensure under s. 48.70 (1) or rules promulgated by the department under s. 48.687 (3) or 48.67.

SB37, s. 13 Section 13. 48.715 (2) (d) of the statutes is amended to read:

SB37,11,16 48.715 (2) (d) That a licensee submit a plan of correction for violation of any provision of licensure under s. 48.70 (1) or rule promulgated by the department under s. 48.687 (3) or 48.67.

SB37, s. 14 Section 14. 48.715 (2) (f) of the statutes is amended to read:

SB37,11,20 48.715 (2) (f) That a licensee close the intake of any new children until all violations of the provisions of licensure under s. 48.70 (1) and the rules promulgated by the department under s. 48.687 (3) or 48.67 are corrected.

SB37, s. 15 Section 15. 48.715 (3) (intro.) of the statutes is amended to read:

SB37,12,3 48.715 (3) (intro.) If the department provides written notice of the grounds for a penalty, an explanation of the types of penalties that may be imposed under this subsection, and an explanation of the process for appealing a penalty imposed under this subsection, the department may impose any of the following penalties against a licensee or any other person who violates a provision of licensure under s. 48.70 (1) or rule promulgated by the department under s. 48.687 (3) or 48.67 or who fails to comply with an order issued under sub. (2) by the time specified in the order:

SB37, s. 16 Section 16. 48.715 (4) (a) of the statutes is amended to read:

SB37,12,9 48.715 (4) (a) The department has imposed a penalty on the licensee under sub. (3) and the licensee or a person under the supervision of the licensee either continues to violate or resumes violation of a rule promulgated under s. 48.687 (3) or 48.67, a provision of licensure under s. 48.70 (1), or an order under this section forming any part of the basis for the penalty.

SB37, s. 17 Section 17. 48.715 (4) (b) of the statutes is amended to read:

SB37,12,14 48.715 (4) (b) The licensee or a person under the supervision of the licensee has committed a substantial violation, as determined by the department, of a rule promulgated under s. 48.687 (3) or 48.67, a provision of licensure under s. 48.70 (1), or an order under this section.

SB37, s. 18 Section 18. 48.715 (4) (d) of the statutes is amended to read:

SB37,12,21 48.715 (4) (d) The licensee or a person under the supervision of the licensee has violated, as determined by the department, a rule promulgated under s. 48.687 (3) or 48.67, a provision of licensure under s. 48.70 (1), or an order under this section that is the same as or similar to a rule promulgated under s. 48.687 (3) or 48.67, a provision of licensure under s. 48.70 (1), or an order under this section that the licensee or a person under the supervision of the licensee has violated previously.

SB37, s. 19 Section 19. 100.375 of the statutes is created to read:

SB37,12,23 100.375 Children's products. (1) Definitions. In this section:

SB37,12,24 (a) "Baby crib" means a full-size baby crib or a nonfull-size baby crib.

SB37,13,7 (b) "Children's product" means a product that is designed principally for the care of, or use by, children under 12 years of age. "Children's products" include baby cribs; baby and toddler furniture; apparel; bath seats; baby walkers, baby jumpers, and similar devices; gates for containing children; car seats; strollers and other devices for transporting children; play equipment; and toys. "Children's products" do not include food, medicine, or any other products that are designed to be ingested, injected, or otherwise applied to the human body.

SB37,13,13 (c) "Commercial supplier" means a person who is in the business of selling, leasing, manufacturing, remanufacturing, retrofitting, or otherwise putting into commercial use a children's product. "Commercial supplier" includes a person who is in the business of selling or leasing used merchandise, if the merchandise regularly includes children's products, but does not include a person who sells or leases a children's product on an occasional basis.

SB37,13,17 (d) "Consumer" means an individual who purchases or otherwise acquires a children's product for personal or family use or a child care provider, as defined in s. 49.001 (1), that purchases or otherwise acquires a children's product for use in providing child care.

SB37,13,19 (e) "Full-size baby crib" means a full-size baby crib, as defined in 16 CFR Part 1508.

SB37,13,20 (f) "Infant" means any child less than 35 inches tall and less than 3 years of age.

SB37,13,22 (g) "Lease" means to lease or sublease, offer to lease or sublease, or contract to lease or sublease.

SB37,13,24 (h) "Nonfull-size baby crib" means a nonfull-size baby crib, as defined in 16 CFR Part 1509.

SB37,14,2 (i) "Sell" means to sell, to resell, or to offer to sell or resell, or to contract to sell or resell.

SB37,14,5 (2) Prohibition; general. (a) Except as provided in par. (b), no commercial supplier may sell, lease, remanufacture, retrofit, or otherwise put into commercial use a children's product to which any of the following applies:

SB37,14,7 1. The children's product fails to conform to any state or federal safety law or regulation.

SB37,14,10 2. The children's product has been recalled by the department, by an agency of the federal government, or by the children's product's manufacturer, distributor, or importer, and the recall has not been rescinded.

SB37,14,13 3. The department or an agency of the federal government has issued a warning that the intended use of the children's product constitutes a safety hazard and the warning has not been rescinded.

SB37,14,17 (b) Paragraph (a) does not apply to a children's product that was not included on the list maintained under par. (c) on the day immediately prior to the day on which the product was sold, leased, remanufactured, retrofitted, or otherwise put into commercial use.

SB37,14,20 (c) The department shall maintain and quarterly update a list of all children's products to which par. (a) applies. Notwithstanding s. 20.908, the department shall make the list available to the public at no charge on the Internet.

SB37,14,25 (d) If a children's product that has been sold by a commercial supplier is included in the list maintained under par. (c), the commercial supplier shall post in a conspicuous location at the commercial supplier's place of business a notice to customers indicating that the product is unsafe and providing instructions for customers who purchased the product.

SB37,15,6 (3) Retrofitting. (a) Notwithstanding sub. (2) (a), a commercial supplier may retrofit a children's product that has been recalled as described under sub. (2) (a) 2. or for which a warning described under sub. (2) (a) 3. has been issued if the retrofit is approved by the state agency or agency of the federal government that issued the recall or warning or by a state agency or agency of the federal government that is responsible for approving the retrofit.

SB37,15,10 (b) Notwithstanding sub. (2) (a), a commercial supplier may sell or lease to a consumer a children's product that has been retrofitted under par. (a) if the commercial supplier ensures that a notice accompanies the children's product at the time of sale or lease.

SB37,15,11 (c) The notice under par. (b) shall include all of the following:

SB37,15,12 1. The name and model of the children's product.

SB37,15,14 2. A declaration that the children's product is safe for use by a child who meets the conditions specified by the manufacturer of the children's product.

SB37,15,17 3. A description of the original problem that required that the children's product be recalled or that required a warning to be issued concerning the children's product.