Amendment AA9-ASA1-AB100

AB100-ASA1-AA9,13,7 (5c) (a) Any person who is permitted but fails under sub. (5) to demonstrate to the department that he or she has been rehabilitated may appeal to the secretary of health and family services or his or her designee. Any person who is adversely affected by a decision of the secretary or his or her designee under this paragraph has a right to a contested case hearing under ch. 227.

AB100-ASA1-AA9,13,12 (b) Any person who is permitted but fails under sub. (5) to demonstrate to the county department that he or she has been rehabilitated may appeal to the director of the county department or his or her designee. Any person who is adversely affected by a decision of the director or his or her designee under this paragraph has a right to appeal the decision under ch. 68.

AB100-ASA1-AA9,13,17 (c) Any person who is permitted but fails under sub. (5) to demonstrate to the school board that he or she has been rehabilitated may appeal to the secretary of public instruction or his or her designee. Any person who is adversely affected by a decision of the secretary or his or her designee under this paragraph has a right to a contested case hearing under ch. 227.

AB100-ASA1-AA9,13,25 (5g) Beginning on the first January 1 after the effective date of this subsection .... [revisor inserts date], and annually thereafter, the department shall submit a report to the legislature under s. 13.172 (2) that specifies the number of persons in the previous year who have requested to demonstrate to the department that they have been rehabilitated under sub. (5), the number of persons who successfully demonstrated that they have been rehabilitated under sub. (5) and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.

AB100-ASA1-AA9,14,9 (5m) Notwithstanding s. 111.335, the department may refuse to license a person to operate an entity, a county department may refuse to certify a day care provider under s. 48.651, a school board may refuse to contract with a person under s. 120.13 (14), and an entity may refuse to employ, contract with or permit to reside at the entity a person specified in sub. (2) (ag) (intro.) if the person 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), but that is, in the estimation of the department, county department, school board or entity, substantially related to the care of a client.

AB100-ASA1-AA9,14,16 (6) (a) The department shall require any person who applies for issuance or continuation of a license to operate an entity, a county department shall require any day care provider who applies for initial certification under s. 48.651 or for renewal of that certification and a school board shall require any person who proposes to contract with the school board under s. 120.13 (14) or to renew a contract under that subsection, to complete a background information form that is provided by the department.

AB100-ASA1-AA9,14,19 (am) Every 4 years an entity shall require all of the following persons to complete a background information form that is provided to the entity by the department:

AB100-ASA1-AA9,14,22 1. A person who is an employe, prospective employe, contractor or prospective contractor of the entity, who will be under the entity's control and who has, or is expected to have, access to its clients, other than a person specified in sub. (2) (b) 2.

AB100-ASA1-AA9,14,25 2. A person who is a resident or prospective resident at the entity and who is not a client or prospective client of the entity, if the person has, or is expected to have, access to any client of the entity.

AB100-ASA1-AA9,15,6 (b) For persons specified under par. (a) who are regulated, licensed or certified by, or registered with, the department, for persons specified in par. (am) 2., and for other persons specified by the department by rule, the entity shall send the background information form to the department. For all other persons specified in par. (a) and for persons specified under par. (am) 1., the entity shall maintain the background information form on file for inspection by the department.

AB100-ASA1-AA9,15,9 (c) A person who provides false information on a background information form required under this subsection may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

AB100-ASA1-AA9,15,10 (7) The department shall do all of the following:

AB100-ASA1-AA9,15,19 (a) Establish by rule a definition of "serious crime" for the purpose of this section. The definition shall include only crimes or acts that are substantially related to the care of a client and shall include classes of crimes or acts involving abuse or neglect of a client for which no person who has committed any of those crimes or acts may be permitted to demonstrate under sub. (5) that he or she has been rehabilitated. The definition may also include other crimes or acts that do not involve abuse or neglect of a client but that are substantially related to the care of a client for which no person who committed any of those crimes or acts may be permitted to demonstrate under sub. (5) that he or she has been rehabilitated.

AB100-ASA1-AA9,16,2 (b) Establish by rule a list of crimes or acts that are not included in the definition established under par. (a), that are substantially related to the care of clients and the commission of which warrants a less stringent measure than a bar on employment, residence or similar type of association with an entity. The rule shall be consistent with federal law and regulations and shall include a description of the measures to be taken for the crimes or acts that the department lists under this paragraph.

AB100-ASA1-AA9,16,6 (c) Conduct throughout the state periodic training sessions that cover criminal background investigations; reporting and investigating misappropriation of property or abuse or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.

AB100-ASA1-AA9,16,8 (d) Provide a background information form that requires the person completing the form to include his or her date of birth on the form.

AB100-ASA1-AA9,16,13 (8) The department, a county department or a school board may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a). 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 information if to do so would be inconsistent with federal law.

AB100-ASA1-AA9, s. 1664f Section 1664f. 48.685 (2) (ag) (intro.) of the statutes, as created by 1997 Wisconsin Act .... (this act), is amended to read:

AB100-ASA1-AA9,16,21 48.685 (2) (ag) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), an entity may not hire employ or contract with a person who will be under the entity's control, as defined by the department by rule, and who has, or is expected to have, access to its clients, or permit to reside at the entity a person who is not a client and who has, or is expected to have, access to a client, if the entity knows or should have known any of the following:".

AB100-ASA1-AA9,16,22 14. Page 846, line 3: after that line insert:

AB100-ASA1-AA9,16,23 " Section 1975r. 49.498 (3) (b) 1. of the statutes is amended to read:

AB100-ASA1-AA9,17,6 49.498 (3) (b) 1. Inform each resident, orally and in writing at the time of admission to the nursing facility, of the resident's legal rights during the stay at the nursing facility, including a description of the protection of personal funds under sub. (8) and a statement that a resident may file a complaint with the department under s. 146.40 (4r) (a) concerning neglect, abuse or misappropriation of property or neglect or abuse of a resident.".

AB100-ASA1-AA9,17,7 15. Page 856, line 6: after that line insert:

AB100-ASA1-AA9,17,8 " Section 2004v. 50.01 (1r) of the statutes is created to read:

AB100-ASA1-AA9,17,9 50.01 (1r) "Home health agency" has the meaning given under s. 50.49 (1) (a).".

AB100-ASA1-AA9,17,10 16. Page 868, line 8: after that line insert:

AB100-ASA1-AA9,17,11 " Section 2059d. 50.065 of the statutes is created to read:

AB100-ASA1-AA9,17,13 50.065 Criminal history and patient abuse record search. (1) In this section:

AB100-ASA1-AA9,17,14 (b) "Client" means a person who receives services from an entity.

AB100-ASA1-AA9,17,18 (c) "Entity" means a facility, organization or service that is regulated, licensed or certified by or registered with the department. "Entity" includes a personal care worker agency and a supportive home care service agency. "Entity" does not include any of the following:

AB100-ASA1-AA9,17,19 1. Licensed or certified child care under ch. 48.

AB100-ASA1-AA9,17,20 2. Kinship care under s. 48.57 (3m).

AB100-ASA1-AA9,17,23 3. A person certified as a medical assistance provider, as defined in s. 49.43 (10), who is not otherwise regulated, licensed or certified by or registered with the department.

AB100-ASA1-AA9,17,24 4. An entity, as defined in s. 48.685 (1) (b).

AB100-ASA1-AA9,18,3 5. Foster homes and treatment foster homes under s. 48.62 that are licensed by the department, a county department under s. 46.215, 46.22 or 46.23 or a child welfare agency.

AB100-ASA1-AA9,18,5 (d) "Personal care worker agency" has the meaning specified by the department by rule.

AB100-ASA1-AA9,18,7 (e) "Serious crime" has the meaning specified by the department by rule under sub. (7) (a).

AB100-ASA1-AA9,18,9 (f) "Supportive home care service agency" has the meaning specified by the department by rule.

AB100-ASA1-AA9,18,13 (2) (a) Notwithstanding s. 111.335, and except as provided in sub. (5), the department may not license a person to operate an entity or continue the license of a person to operate an entity if the department knows or should have known any of the following:

AB100-ASA1-AA9,18,14 1. That the person has been convicted of a serious crime.

AB100-ASA1-AA9,18,15 2. That the person has pending against him or her a charge for a serious crime.

AB100-ASA1-AA9,18,18 3. That a unit of government or a state agency, as defined in s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property of any client.

AB100-ASA1-AA9,18,20 4. That a determination has been made under s. 48.981 (3) (c) 4. that the person has abused or neglected a child.

AB100-ASA1-AA9,18,23 5. That, in the case of a position for which the person must be credentialed by the department of regulation and licensing, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.

AB100-ASA1-AA9,19,3 (ag) 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, or permit to reside at the entity a person who is not a client and who is expected to have access to a client, if the entity knows or should have known any of the following:

AB100-ASA1-AA9,19,4 1. That the person has been convicted of a serious crime.

AB100-ASA1-AA9,19,5 2. That the person has pending against him or her a charge for a serious crime.

AB100-ASA1-AA9,19,8 3. That a unit of government or a state agency, as defined in s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property of any client.

AB100-ASA1-AA9,19,10 4. That a determination has been made under s. 48.981 (3) (c) 4. that the person has abused or neglected a child.

AB100-ASA1-AA9,19,13 5. That, in the case of a position for which the person must be credentialed by the department of regulation and licensing, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.

AB100-ASA1-AA9,19,15 (am) The department shall obtain all of the following with respect to a person specified under par. (a) (intro.):

AB100-ASA1-AA9,19,17 1. A criminal history search from the records maintained by the department of justice.

AB100-ASA1-AA9,19,19 2. Information that is contained in the registry under s. 146.40 (4g) regarding any findings against the person.

AB100-ASA1-AA9,19,21 3. Information maintained by the department of regulation and licensing regarding the status of the person's credentials, if applicable.

AB100-ASA1-AA9,19,23 4. Information maintained by the department regarding any substantiated reports of child abuse or neglect against the person.

AB100-ASA1-AA9,19,25 (b) 1. Subject to subds. 2. and 3., every entity shall obtain all of the following with respect to a person specified under par. (ag) (intro.):

AB100-ASA1-AA9,20,2 a. A criminal history search from the records maintained by the department of justice.

AB100-ASA1-AA9,20,4 b. Information that is contained in the registry under s. 146.40 (4g) regarding any findings against the person.

AB100-ASA1-AA9,20,6 c. Information maintained by the department of regulation and licensing regarding the status of the person's credentials, if applicable.

AB100-ASA1-AA9,20,8 d. Information maintained by the department regarding any substantiated reports of child abuse or neglect against the person.

AB100-ASA1-AA9,20,12 2. Subdivision 1. does not apply with respect to a person with whom the entity contracts or whom the entity employs to provide infrequent or sporadic services, including maintenance services and other services that are not directly related to the care of a client.

AB100-ASA1-AA9,20,18 3. Subdivision 1. does not apply 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 the entity for a reason specified in par. (ag) 1. to 5. and with respect to whom the entity otherwise has no reason to believe that the person is ineligible to be employed, contracted with or permitted to reside at the entity for any of those reasons.

AB100-ASA1-AA9,21,2 (bg) If an entity takes an action specified in par. (ag) (intro.) with respect to a person for whom, within the last 4 years, the information required under par. (b) 1. a. to c. has already been obtained, either by another entity or by a temporary employment agency, the entity may obtain the information required under par. (b) 1. a. to c. from that other entity or temporary employment agency, which shall provide the information, if possible, to the entity. If an entity cannot obtain the information required under par. (b) 1. a. to c. from another entity or from a temporary employment agency, the entity shall obtain that information from the sources specified in par. (b) 1. a. to c.

AB100-ASA1-AA9,21,8 (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, the department or entity shall make a good faith effort to obtain from any state 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.

AB100-ASA1-AA9,21,15 (c) If the background information form completed by a person 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) 1. to 5., an entity may employ or contract with the person or permit the person to reside at the entity for not more than 60 days pending the receipt of the information sought under par. (b) 1. An entity shall provide supervision for a person who is employed or contracted with or permitted to reside as permitted under this paragraph.

AB100-ASA1-AA9,21,18 (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. for all persons who are licensed to operate an entity.

AB100-ASA1-AA9,21,21 (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. for all persons specified in sub. (2) (ag) (intro.).

AB100-ASA1-AA9,22,2 (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.) and that person is also an employe, contractor or 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.

AB100-ASA1-AA9,22,4 (4) An entity that violates sub. (2) or (3) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

AB100-ASA1-AA9,22,13 (5) The department may license to operate an entity a person who otherwise may not be licensed for a reason specified in sub. (2) (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) 1. to 5., if the person demonstrates to the department by clear and convincing evidence and in accordance with procedures established by the department by rule 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:

AB100-ASA1-AA9,22,14 (a) First-degree intentional homicide under s. 940.01.

AB100-ASA1-AA9,22,15 (b) First degree sexual assault under s. 940.225 (1).

AB100-ASA1-AA9,22,16 (c) First degree sexual assault of a child under s. 948.02 (1).

AB100-ASA1-AA9,22,19 (d) Second degree sexual assault of a child under s. 948.02 (2) if the person was, at the time of the sexual contact or sexual intercourse, more than 4 years older than the child with whom the person had the sexual contact or sexual intercourse.

AB100-ASA1-AA9,22,24 (e) Repeated acts of sexual assault of the same child under s. 948.025 if the child had not attained the age of 13, or if the child had attained the age of 13 and had not attained the age of 16 and the person was, at the time of the sexual contact or sexual intercourse, more than 4 years older than the child with whom the person had the sexual contact or sexual intercourse.

AB100-ASA1-AA9,23,5 (5c) Any person who is permitted but fails under sub. (5) to demonstrate to the department that he or she has been rehabilitated may appeal to the secretary of health and family services or his or her designee. Any person who is adversely affected by a decision of the secretary or his or her designee under this subsection has a right to a contested case hearing under ch. 227.

AB100-ASA1-AA9,23,13 (5g) Beginning on the first January 1 after the effective date of this subsection .... [revisor inserts date], and annually thereafter, the department shall submit a report to the legislature under s. 13.172 (2) that specifies the number of persons in the previous year who have requested to demonstrate to the department that they have been rehabilitated under sub. (5), the number of persons who successfully demonstrated that they have been rehabilitated under sub. (5) and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.

AB100-ASA1-AA9,23,20 (5m) Notwithstanding s. 111.335, the department may refuse to license a person to operate an entity, and an entity may refuse to employ, contract with or permit to reside at the entity a person specified in sub. (2) (ag) (intro.), if the person 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), but that is, in the estimation of the department or entity, substantially related to the care of a client.

AB100-ASA1-AA9,23,23 (6) (a) The department shall require any person who applies for issuance or continuation of a license to operate an entity to complete a background information form that is provided by the department.

AB100-ASA1-AA9,24,3 (am) Every 4 years an entity shall require all of the following persons to complete a background information form that is provided to the entity by the department:

AB100-ASA1-AA9,24,6 1. A person who is an employe, prospective employe, contractor or prospective contractor of the entity, who will be under the entity's control and who has, or is expected to have, access to its clients, other than a person specified in sub. (2) (b) 2.

AB100-ASA1-AA9,24,9 2. A person who is a resident or prospective resident at the entity and who is not a client or prospective client of the entity, if the person has, or is expected to have, access to any client of the entity.

AB100-ASA1-AA9,24,15 (b) For persons specified under par. (a) who are regulated, licensed or certified by, or registered with, the department, for person specified in par. (am) 2., and for other persons specified by the department by rule, the entity shall send the background information form to the department. For all other persons specified in par. (a) and for persons specified under par. (am) 1., the entity shall maintain the background information form on file for inspection by the department.

AB100-ASA1-AA9,24,18 (c) A person who provides false information on a background information form required under this subsection may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

AB100-ASA1-AA9,24,19 (7) The department shall do all of the following:

AB100-ASA1-AA9,25,3 (a) Establish by rule a definition of "serious crime" for the purpose of this section. The definition shall include only crimes or acts that are substantially related to the care of a client and shall include classes of crimes or acts involving abuse or neglect of a client for which no person who has committed any of those crimes or acts may be permitted to demonstrate under sub. (5) that he or she has been rehabilitated. The definition may also include other crimes or acts that do not involve abuse or neglect of a client but that are substantially related to the care of a client for which no person who committed any of those crimes or acts may be permitted to demonstrate under sub. (5) that he or she has been rehabilitated.

AB100-ASA1-AA9,25,10 (b) Establish by rule a list of crimes or acts that are not included in the definition established under par. (a), that are substantially related to the care of clients and the commission of which warrants a less stringent measure than a bar on employment, residence or similar type of association with an entity. The rule shall be consistent with federal law and regulations and shall include a description of the measures to be taken for the crimes or acts that the department lists under this paragraph.

AB100-ASA1-AA9,25,14 (c) Conduct throughout the state periodic training sessions that cover criminal background investigations; reporting and investigating misappropriation of property or abuse or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.

AB100-ASA1-AA9,25,16 (d) Provide a background information form that requires the person completing the form to include his or her date of birth on the form.