AB479: Bill Text

LRB-3596/1

GMM:kjf:ph

2009 - 2010 LEGISLATURE

2009 Assembly BILL 479

October 6, 2009 - Introduced by Representatives Gundrum, Honadel, Ziegelbauer, Suder, Kleefisch, Gottlieb, Vos, Kerkman, Zipperer, Davis, Knodl, Huebsch, Lothian, A. Ott, Nass, Petersen, LeMahieu, Vukmir, Spanbauer, Montgomery, Ballweg, Gunderson, Kestell, Kramer, Newcomer, Petrowski, Tauchen, Townsend, Strachota, Stone, Nygren, J. Ott, Brooks, Meyer and Kaufert, cosponsored by Senators Darling, Lazich, Plale, Carpenter, Kanavas, Cowles, A. Lasee, Olsen, Hopper and Sullivan. Referred to Committee on Children and Families.

AB479,2,9 An Act to renumber 49.133 (3), 49.133 (4) and 120.13 (14); to renumber and amend 49.133 (intro.), 49.133 (1), 49.133 (2) and 49.845 (4); to amend 20.435 (6) (jm), 48.685 (1) (c) 4., 48.685 (2) (am) (intro.), 48.685 (2) (am) 5., 48.685 (2) (b) 4., 48.685 (2) (bb), 48.685 (2) (bd), 48.685 (2) (bg), 48.685 (2) (bm), 48.685 (3) (a), 48.685 (3) (b), 48.685 (3m), 48.685 (4m) (a) 1., 48.685 (4m) (ad), 48.685 (4m) (b) 1., 48.685 (5) (a), 48.685 (5c) (a), 48.685 (6) (am), 48.685 (6) (b) 2. and 48.685 (8); to repeal and recreate 48.685 (4m) (ad) and 49.155 (7); and to create 48.651 (3), 48.685 (1) (c) 3m., 48.685 (2) (ar), 48.685 (2) (b) 2., 48.685 (3) (am), 48.685 (3) (bm), 48.685 (5) (br), 48.715 (4g), 49.133 (1m) (a), 49.133 (1m) (c), 49.133 (1m) (d), 49.133 (2m) (intro.), 49.197 (6), 49.895 (4) (b), (c) and (d), 106.54 (9), 111.322 (2m) (bm) and 120.13 (14) (b) of the statutes; relating to: prohibiting a person who has been convicted or adjudicated delinquent for committing certain serious crimes, who is the subject of a pending criminal charge or delinquency petition for committing a serious crime, or who has had entered against him or her a domestic abuse, child abuse, individual-at-risk abuse, or harassment temporary restraining order or injunction in the preceding 15 years from being licensed, certified, or contracted with to provide child care, from being employed or contracted as a caregiver of a child care provider, or from being permitted to reside at a premises where child care is provided; requiring suspected fraudulent activity on the part of a participant in the Wisconsin Works Program, including a person receiving a child care subsidy under that program, to be reported to the district attorney; making an appropriation; and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, the Department of Children and Families (DCF) may not license a person to operate a day care center; DCF in a county having a population of 500,000 or more, a county department of human services or social services (county department), or an agency contracted by DCF to certify day care providers for purposes of reimbursement under the Wisconsin Works Program (contracted agency) may not certify a day care provider for those purposes; and a school board may not contract with a person to provide a day care program (collectively "child care provider") if the person has been convicted or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime, as defined under current law, unless the person shows that he or she has been rehabilitated.

Similarly, a child care provider may not employ or contract with a caregiver or permit a nonclient resident to reside at a premises where child care is provided if the caregiver or nonclient resident has been convicted or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime, as defined under current law, unless the caregiver or nonclient resident shows that he or she has been rehabilitated. Currently, "serious crime" is defined to include certain crimes against life or bodily security and certain crimes against children that are felonies.

This bill prohibits any person who has been convicted or adjudicated delinquent on or after his or her 12th birthday for committing any of the following serious crimes or who is the subject of a pending criminal charge or delinquency petition alleging that the person has committed any of the following serious crimes on or after his or her 12th birthday from being licensed, certified, or contracted with to provide child care, from being employed or contracted as a caregiver of a child care provider, or from being permitted to be a nonclient resident of a premises where child care is provided and prohibits such a person from showing that he or she has been rehabilitated:

1. Any crime against children, other than failure to pay child support or hazing.

2. Felony battery, if the victim is the spouse of the person.

3. First-degree or second-degree intentional or reckless homicide, felony murder, mayhem, felony sexual assault, reckless injury, taking hostages, kidnapping, felony endangering safety by use of a dangerous weapon, disarming a police officer, armed burglary, carjacking, or armed robbery.

4. A misdemeanor involving sexual abuse, child abuse, or domestic abuse, if the person has ever been convicted or adjudicated delinquent for committing any felony.

5. Any drug or alcohol-related felony, felony battery, sexual exploitation by a therapist, abuse of an adult-at-risk, abuse or neglect of a patient, video voyeurism, felony failure to pay child support, or felony hazing, if the person has ever been convicted or adjudicated delinquent for committing any other crime.

6. Any drug or alcohol-related felony, felony battery, sexual exploitation by a therapist, abuse of an adult-at-risk, abuse or neglect of a patient, video voyeurism, felony failure to pay child support, or felony hazing, if the person has never been convicted or adjudicated delinquent for committing any other crime and the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the Department of Corrections (DOC), less than ten years before the date of the background investigation of the person.

7. A misdemeanor involving sexual abuse, child abuse, or domestic abuse, if the person has never been convicted or adjudicated delinquent for committing a felony, but has ever been convicted or adjudicated delinquent for committing any other misdemeanor, and the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the DOC, less than ten years before the date of the background investigation of the person.

8. A misdemeanor involving sexual abuse, child abuse, or domestic abuse, if the person has never been convicted or adjudicated delinquent for committing any other misdemeanor, and the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the DOC, less than five years before the date of the background investigation of the person.

The bill also prohibits a person who has had entered against him or her a domestic abuse, child abuse, individual-at-risk abuse, or harassment temporary restraining order or injunction (TRO or injunction) in the 15 years preceding the background investigation of the person from being licensed, certified, or contracted with to provide child care, from being employed or contracted as a caregiver of a child care provider, or from being permitted to be a nonclient resident of a premises where child care is provided, but permits such a person to show that he or she has been rehabilitated.

Current law requires DCF, a county department, a contracting agency, or a school board, prior to licensing, certifying, or contracting with a child care provider and every four years after that, to conduct a criminal history search of the child care provider, of all nonclient residents of the premises where the child care is provided, and of all persons under 18 years of age who are caregivers of the child care provider and to obtain certain other information with respect to those individuals, specifically: 1) information from the client abuse registry maintained by the Department of Health Services (DHS); 2) information maintained by the Department of Regulation and Licensing regarding the individual's credentials; 3) information maintained by DCF regarding any substantiated reports of child abuse or neglect against the individual; and 4) information maintained by DHS regarding any denial of a license, certification, or contract to provide child care, of employment as a caregiver of a child care provider, or of permission to reside at a premises where child care is provided. Similarly, current law also requires a child care provider to conduct such a criminal history search and to obtain that information with respect to a caregiver 18 years of age or over prior to employing or contracting with the caregiver and every four years after that.

This bill requires DCF, a county department, a contracting agency, or a school board to conduct that criminal history search and to obtain that information every 90 days after a child care provider is licensed, certified, or contracted with and requires a child care provider to conduct that criminal history search and to obtain that information every 90 days after a caregiver 18 years of age or over is employed or contracted with. In addition, the bill requires DCF, a county department, a contracting agency, or a school board, prior to licensing, certifying, or contracting with a child care provider and every 90 days after that, to obtain information that is contained in the sex offender registry maintained by DOC regarding whether the person has committed a sex offense that is a serious crime and information that is contained in the circuit court automated information system regarding any pending criminal charge or delinquency petition alleging that a child care provider, a nonclient resident of the premises where the child care is provided, or a person under 18 years of age who is a caregiver of the child care provider has committed a serious crime and regarding any TRO or injunction entered against such a provider, nonclient resident, or caregiver, and requires a child care provider to obtain that information with respect to a caregiver 18 years of age or over prior to employing or contracting with the caregiver and every 90 days after that.

Under current law, DCF may revoke the license of a person to operate a day care center if the licensee or a person under the supervision of the licensee commits certain actions, including a repeated or substantial violation of a rule or order of DCF or of a condition of licensure or an action that directly threatens the health, safety, or welfare of any child under the care of the licensee. Similarly, under current law, DCF or a county department may refuse to pay a child care provider for child care provided under the Wisconsin Works Program if the child care provider, an employee of the child care provider, or a person living on the premises where child care is provided is convicted of a felony or misdemeanor that substantially relates to the care of children, is the subject of a pending charge that substantiality relates to the care of children, or has been determined to have abused or neglected a child.

This bill requires all of the following:

1. DCF to revoke the license of a day care center; DCF in a county having a population of 500,000 or more, a county department, or a contracted agency to revoke the certification of a day care provider for purposes of reimbursement under the Wisconsin Works Program; and a school board to rescind the contract of the person to operate a day care program; if the person licensed to operate the day care center, the person certified as a child care provider, or the person contracting to provide the day care program is convicted of a serious crime or if a caregiver or nonclient resident of the day care center, child care provider, or day care program is convicted or adjudicated delinquent for committing a serious crime on or after his or her 12th birthday. The bill also requires DCF or a county department to refuse to pay a child care provider in those circumstances or if the child care provider has been convicted of a crime involving financial dishonestly beginning on the date of the conviction or delinquency adjudication.

2. DCF to immediately suspend the license of a day care center; DCF in a county having a population of 500,000 or more, a county department, or a contracted agency to immediately suspend the certification of a day care provider for purposes of reimbursement under the Wisconsin Works Program; and a school board to immediately suspend the contract of a person to operate a day care program; if the person licensed to operate the day care center, the person certified as a child care provider, or the person contracting to provide the day care program is the subject of a pending criminal charge alleging that the person has committed a serious crime or if a caregiver or nonclient resident of the day care center, child care provider, or day care program is the subject of a pending charge or delinquency petition alleging that the person has committed a serious crime on or after his or her 12th birthday. The bill also requires DCF or a county department to immediately suspend payment to a child care provider for any child care provided under the Wisconsin Works Program in those circumstances or if the child care provider is the subject of a pending criminal charge alleging that he or she has committed a crime involving financial dishonesty until DCF or the county department obtains information regarding the final disposition of the charge or delinquency proceeding indicating that the person is not ineligible to receive such a payment.

3. DCF to investigate the circumstances giving rise to a TRO or injunction entered against a day care center; DCF in a county having a population of 500,000 or more, a county department, or a contracted agency to investigate the circumstances giving rise to a TRO or injunction entered against a day care provider who is certified for purposes of reimbursement under the Wisconsin Works Program; and a school board to investigate the circumstances giving rise to a TRO or injunction entered against a person contracted to operate a day care program. DCF, the county department, the agency, or the school board may then suspend or revoke the license, certification, or contract, depending on the gravity of those circumstances. DCF or a county department may also suspend or discontinue payment to a child care provider for any child care provided under the Wisconsin Works Program in those circumstances, depending on the gravity of those circumstances.

Finally, the bill requires any employee of DCF, DHS, a county, or a tribal governing body who reasonably suspects fraudulent activity on the part of a participant in the Wisconsin Works Program, including a person receiving a child care subsidy under that program, to immediately report the facts and circumstances contributing to that suspicion to the district attorney, who must keep the identity of the reporter confidential until the district attorney determines whether the report merits further investigation. If the district attorney conducts a full investigation, the district attorney must keep the identity of the reporter confidential if it is reasonably possible to do so. Any person who fails to report as required under the bill may be fined $1,000 or imprisoned not more than six months or both. Any person who participates in good faith in making a report as required under the bill or in imitating, participating in, or testifying in, any action or proceeding in which such fraudulent activity is alleged is immune from any liability, civil or criminal, that results by reason of that action. The bill also prohibits DCF, DHS, a county, a tribal governing body, or an employee of DCF, DHS, a county, or a tribal governing body from taking disciplinary action against, or threatening to take disciplinary action against, any person because the person in good faith reported as required under the bill or initiated, participated in, or testified in, any action or proceeding in which such fraudulent activity was alleged or because DCF, DHS, the county, the tribal governing body, or the employee believes that the person reported in good faith as required under the bill or initiated, participated in, or testified in, such an action or proceeding.

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:

AB479, s. 1 Section 1. 20.435 (6) (jm) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB479,7,6 20.435 (6) (jm) Licensing and support services. The amounts in the schedule for the purposes specified in ss. 48.685 (2) (am), (ar), and (b) 1., (3) (a), (am), and (b), and (5) (a), 49.45 (47), 50.02 (2), 50.025, 50.031, 50.065 (2) (am) and (b) 1., (3) (a) and (b), and (5), 50.13, 50.135, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.981, and 146.40 (4r) (b) and (er), and subch. IV of ch. 50 and to conduct health facilities plan and rule development activities, for accrediting nursing homes, convalescent homes, and homes for the aged, to conduct capital construction and remodeling plan reviews under ss. 50.02 (2) (b) and 50.36 (2), and for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection. All moneys received under ss. 48.685 (8), 49.45 (42) (c), 49.45 (47) (c), 50.02 (2), 50.025, 50.031 (6), 50.065 (8), 50.13, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.93 (1) (c), and 50.981, all moneys received from fees for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection, and all moneys received under s. 50.135 (2) shall be credited to this appropriation account.

AB479, s. 2 Section 2. 48.651 (3) of the statutes is created to read:

AB479,7,16 48.651 (3) (a) If a day care provider certified under sub. (1) is convicted of a serious crime, as defined in s. 48.685 (1) (c) 3m., or if a caregiver specified in s. 48.685 (1) (ag) 1. a. or a nonclient resident, as defined in s. 48.685 (1) (bm), of the day care provider is convicted or adjudicated delinquent for committing a serious crime on or after his or her 12th birthday, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under sub. (2) shall revoke the certification of the day care provider immediately upon providing written notice of revocation and the grounds for revocation and an explanation of the process for appealing the revocation.

AB479,8,2 (b) If a day care provider certified under sub. (1) is the subject of a pending criminal charge alleging that the person has committed a serious crime, as defined in s. 48.685 (1) (c) 3m., or if a caregiver specified in s. 48.685 (1) (ag) 1. a. or a nonclient resident, as defined in s. 48.685 (1) (bm), of the day care provider is the subject of a pending criminal charge or delinquency petition alleging that the person has committed a serious crime on or after his or her 12th birthday, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under sub. (2) shall immediately suspend the certification of the day care provider until the department, county department, or agency obtains information regarding the final disposition of the charge or delinquency petition indicating that the person is not ineligible to be certified under sub. (1).

AB479,8,12 (c) If a day care provider certified under sub. (1) or a caregiver specified in s. 48.685 (1) (ag) 1. a. or a nonclient resident, as defined in s. 48.685 (1) (bm), of the day care provider has entered against him or her a temporary restraining order or injunction under s. 813.12, 813.122, 813.123, 813.125, 813.127, or 813.128, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under sub. (2) shall investigate the circumstances giving rise to the temporary restraining order or injunction and may suspend or revoke the certification of the day care provider, depending on the gravity of those circumstances, as determined by the department, county department, or agency.

AB479, s. 3 Section 3. 48.685 (1) (c) 3m. of the statutes is created to read:

AB479,8,18 48.685 (1) (c) 3m. For purposes of licensing a person to operate a day care center under s. 48.65, certifying a day care provider under s. 48.651, or contracting with a person under s. 120.13 (14) to operate a day care center, or of permitting a person to be a caregiver or nonclient resident of such a day care center or day care provider, any violation listed in subds. 1. to 3. or sub. (5) (br) 1. to 8.

AB479, s. 4 Section 4. 48.685 (1) (c) 4. of the statutes is amended to read:

AB479,8,22 48.685 (1) (c) 4. A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1., 2., or, 3., or 3m. if committed in this state.

AB479, s. 5 Section 5. 48.685 (2) (am) (intro.) of the statutes is amended to read:

AB479,9,5 48.685 (2) (am) (intro.) The department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. b., a nonclient resident of an entity, and a person under 18 years of age, but not under 12 years of age, who is a caregiver of a day care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a day care provider that is certified under s. 48.651:

AB479, s. 6 Section 6. 48.685 (2) (am) 5. of the statutes is amended to read:

AB479,9,18 48.685 (2) (am) 5. Information maintained by the department of health services under this section and under ss. 48.651 (2m), 48.75 (1m), and 120.13 (14) regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity for a reason specified in 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 sub. (4m) (b) 1. to 5. If the information obtained under this subdivision indicates that the person has been denied a license, continuation or renewal of a license, certification, a contract, employment, or permission to reside as described in this subdivision, the department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board need not obtain the information specified in subds. 1. to 4.

AB479, s. 7 Section 7. 48.685 (2) (ar) of the statutes is created to read:

AB479,9,25 48.685 (2) (ar) In addition to obtaining the information specified in par. (am) with respect to a person who has, or is seeking, a license to operate a day care center under s. 48.65, certification as a day care provider under s. 48.651, or a contract under s. 120.13 (14) to operate a day care center, a nonclient resident of such an entity, or a person under 18 years of age, but not under 12 years of age, who is a caregiver of such an entity, the department, a county department, an agency contracted with under s. 48.651 (2), or a school board shall obtain information that is contained in the sex offender registry under s. 301.45 regarding whether the person has committed a sex offense that is a serious crime and information that is contained in the circuit court automated information system under s. 758.19 (4) regarding any pending criminal charge or delinquency petition alleging that the person has committed a serious crime and any temporary restraining order or injunction under s. 813.12, 813.122, 813.123, 813.125, or 813.127 entered against the person.

AB479, s. 8 Section 8. 48.685 (2) (b) 2. of the statutes is created to read:

AB479,10,20 48.685 (2) (b) 2. In addition to obtaining the information specified in subd. 1. with respect to a caregiver specified in sub. (1) (ag) 1. a. of a day care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a day care provider that is certified under s. 48.651, the day care center or day care provider shall obtain information that is contained in the sex offender registry under s. 301.45 regarding whether the person has committed a sex offense that is a serious crime and information that is contained in the circuit court automated information system under s. 758.19 (4) regarding any pending criminal charge alleging that the person has committed a serious crime and any temporary restraining order or injunction under s. 813.12, 813.122, 813.123, 813.125, or 813.127 entered against the person.

AB479, s. 9 Section 9. 48.685 (2) (b) 4. of the statutes is amended to read:

AB479,11,4 48.685 (2) (b) 4. Subdivision 1. does Subdivisions 1. and 2. do not apply with respect to a nonclient resident or person under 18 years of age, but not under 12 years of age, who is a caregiver or nonclient resident of a day care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a day care provider that is certified under s. 48.651 and with respect to whom the department, a county department, an agency contracted with under s. 48.651 (2), or a school board is required under par. (am) (intro.) to obtain the information specified in par. (am) 1. to 5.