LRB-2808/1
GMM:kmg:rs
2003 - 2004 LEGISLATURE
June 5, 2003 - Introduced by Joint Legislative Council. Referred to Committee
on Health, Children, Families, Aging and Long Term Care.
SB192,1,7
1An Act to amend 48.685 (1) (br), 48.685 (5) (a), 50.065 (1) (dm) and 50.065 (5);
2and
to create 48.685 (1) (dr), 48.685 (1) (g), 48.685 (5d) (c), 48.685 (5d) (d),
348.685 (7) (bm), 50.065 (1) (fm), 50.065 (1) (h), 50.065 (5d) (c), 50.065 (5d) (d) and
450.065 (7) (bm) of the statutes;
relating to: tribal administration of
5rehabilitation reviews for persons who otherwise may not operate, be employed
6at, contract with, or reside at an entity that provides care for children or adults
7and granting rule-making authority.
Analysis by the Legislative Reference Bureau
This bill is explained in the Prefatory note provided by the Joint Legislative
Council in the bill.
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:
Prefatory note: This bill was prepared for the Joint Legislative Council's Special
Committee on State-tribal Relations. The bill is identical to 2001 Assembly Bill 223,
which was introduced by the 2001-02 Joint Legislative Council on the recommendation
of the 2000-02 Special Committee on State-tribal Relations. 2001 Assembly Bill 223
passed the Assembly on a vote of Ayes, 98, Noes, 0. The senate did not vote on concurrence
before adjournment, thus the bill failed to be enacted.
CURRENT LAW
General Background
Under current law, except as discussed below, if a person has been convicted of
certain serious crimes, has abused or neglected a client or a child, has misappropriated
the property of a client, or must be credentialed and has credentials that are not current
or that are limited so as to restrict the person from providing adequate care to a client,
then the following apply:
1. The Department of Health and Family Services (DHFS) may not license, certify,
issue a certificate of approval to, or register the person to operate an adult treatment
facility, organization, or service or continue the license, certification, certificate of
approval, or registration. Adult treatment facilities, services, and organizations include,
for example, nursing homes, community-based residential facilities, home health
agencies, community mental health programs, and community alcohol and other drug
abuse programs. Also, DHFS may not license or continue or renew the license of the
person to operate a foster home, treatment foster home, group home, shelter care facility,
child welfare agency, or day care center. A facility, organization, or service that provides
care for adults or children and that is subject to this law is defined as an "entity."
2. A county department of human services or county department of social services
(county department) or a child welfare agency may not license or renew the license of the
person to operate a foster home or treatment foster home.
3. A county department may not certify the person as a day care provider for
purposes of reimbursement under the Wisconsin Works (W-2) program.
4. A school board may not contract with the person to operate a day care program.
5. An entity may not employ or contract with the person as a caregiver, or permit
the person to reside at the entity as a nonclient resident, if the person has or is expected
to have regular direct contact with clients of the entity.
These provisions apply if the appropriate regulatory agency or entity knew or
should have known about the person's record.
Rehabilitation Exception
Under current law, the prohibitions discussed above do not apply to a person who
has such a record if the person demonstrates to the appropriate regulatory agency by
clear and convincing evidence and in accordance with procedures established by DHFS
by administrative rule that he or she has been rehabilitated. For purposes of licensing
a foster home or treatment foster home, however, a person convicted of certain crimes
specified in s. 48.685 (5) (bm), stats., is not permitted to demonstrate rehabilitation.
Tribal Administration of Rehabilitation Exception
Under current law, a federally recognized American Indian tribe or band in
Wisconsin (tribe) may choose to conduct rehabilitation reviews with respect to entities
located within the boundaries of the tribe's reservation. A reservation is defined for this
purpose as land in the state within the boundaries of a reservation of a tribe or within the
Bureau of Indian Affairs service area for the Ho-Chunk Nation.
A tribe that chooses to do so must submit to DHFS a rehabilitation review plan that
includes all of the following:
1. The criteria to be used to determine if a person has been rehabilitated.
2. The title of the person or body designated by the tribe to whom a request for
review must be made.
3. The title of the person or body designated by the tribe to determine whether a
person has been rehabilitated.
4. The title of the person or body designated by the tribe to whom a person may
appeal an adverse decision and whether the tribe provides any further rights of appeal.
5. The manner in which the tribe will submit information relating to a
rehabilitation review to DHFS so that DHFS may include that information in its annual
rehabilitation report to the legislature.
6. A copy of the form to be used to request a rehabilitation review and a copy of the
form on which a written decision is to be made regarding whether a person has
demonstrated rehabilitation.
Current law provides that, if DHFS does not disapprove the plan within 90 days
after receiving the plan from the tribe, the plan is considered approved. If, during that
90-day period, DHFS disapproves the plan, DHFS must provide written notice of that
disapproval to the tribe, together with the reasons for disapproval. DHFS may not
disapprove a plan unless it finds that the plan is not rationally related to the protection
of clients. If DHFS disapproves the plan, the tribe may, within 30 days after receiving
the notice of disapproval, request that the secretary of health and family services review
DHFS's decision. A final decision by the secretary is not subject to further review.
THE BILL
The bill does the following:
1. Amends the definition of "reservation" by deleting the reference to the Bureau
of Indian Affairs service area for the Ho-Chunk Nation so that "reservation" means land
in Wisconsin within the boundaries of a reservation of a tribe. The bill defines "trust land"
as land in Wisconsin held in trust by the federal government for the benefit of a tribe or
a member of a tribe. The bill then replaces references to reservation with references to
reservation or trust land.
2. Specifies that if a tribe's rehabilitation review plan has been approved by DHFS,
the tribe may conduct rehabilitation reviews with respect to all entities on the tribe's
reservation or trust land.
3. Permits a tribe to request that DHFS grant the tribe authority to conduct
rehabilitation reviews with respect to some, but not all, entities on the tribe's reservation
or trust land. Under current law, it is arguable that a tribe may only request authority
to conduct rehabilitation reviews for all, but not some, entities on its reservation.
The bill requires DHFS to establish by administrative rule the criteria to be used
to determine whether a tribe may be authorized to conduct rehabilitation reviews for
some, but not all, entities on the tribe's reservation or trust land. The bill also requires
DHFS to grant the tribe's request if those criteria are met.
4. Permits a tribe to request that DHFS grant the tribe authority to conduct
rehabilitation reviews with respect to an entity located outside the boundaries of the
tribe's reservation or trust land that is owned or operated by the tribe or a tribal
enterprise (tribal entity). The bill defines "tribal enterprise" as a business that is at least
51% owned and controlled by the governing body of one or more tribes, is actively
managed by the governing body, or by the designee of the governing body of one or more
Indian tribes, and is currently performing a useful business function.
In evaluating the tribe's request, DHFS must consider factors such as the
proximity of the tribal entity to the reservation or trust land and the population to be
served by the tribal entity. The bill permits DHFS to grant rehabilitation review
authority to the tribe with respect to that tribal entity if DHFS determines that the
conduct of rehabilitation reviews by the tribe with respect to that tribal entity is
rationally related to the protection of clients.
SB192, s. 1
1Section
1. 48.685 (1) (br) of the statutes is amended to read:
SB192,4,3
148.685
(1) (br) "Reservation" means land in this state within the boundaries
2of a reservation of a tribe
or within the bureau of Indian affairs service area for the
3Ho-Chunk Nation.
SB192, s. 2
4Section
2. 48.685 (1) (dr) of the statutes is created to read:
SB192,4,65
48.685
(1) (dr) "Tribal enterprise" has the meaning given in s. 71.07 (2di) (b)
62.
SB192, s. 3
7Section
3. 48.685 (1) (g) of the statutes is created to read:
SB192,4,98
48.685
(1) (g) "Trust land" means land in this state held in trust by the federal
9government for the benefit of a tribe or a member of a tribe.
SB192, s. 4
10Section
4. 48.685 (5) (a) of the statutes is amended to read:
SB192,4,2411
48.685
(5) (a)
The Except as provided in par. (bm), the department may license
12to operate an entity, a county department may certify under s. 48.651, a county
13department or a child welfare agency may license under s. 48.62
, and a school board
14may contract with under s. 120.13 (14) a person who otherwise may not be licensed,
15certified
, or contracted with for a reason specified in sub. (4m) (a) 1. to 5., and an
16entity may employ, contract with
, or permit to reside at the entity a person who
17otherwise may not be employed, contracted with
, or permitted to reside at the entity
18for a reason specified in sub. (4m) (b) 1. to 5., if the person demonstrates to the
19department, the county department, the child welfare agency
, or the school board
, 20or, in the case of an entity that is
located within the boundaries of a reservation 21subject to rehabilitation reviews by a tribe under sub. (5d) (c) or (d), to the person or
22body designated by the tribe under sub. (5d) (a) 3., by clear and convincing evidence
23and in accordance with procedures established by the department by rule or by the
24tribe that
he or she the person has been rehabilitated.
SB192, s. 5
25Section
5. 48.685 (5d) (c) of the statutes is created to read:
SB192,5,3
148.685
(5d) (c) 1. Subject to subd. 2., a tribe whose rehabilitation review plan
2has been approved by the department may conduct reviews under sub. (5) with
3respect to all entities on the tribe's reservation or trust land.
SB192,5,74
2. A tribe may request the department to grant the tribe the authority to
5conduct rehabilitation reviews under sub. (5) with respect to some, but not all,
6entities on the tribe's reservation or trust land. The department shall grant that
7authority if the criteria established by rule under sub. (7) (bm) are satisfied.
SB192, s. 6
8Section
6. 48.685 (5d) (d) of the statutes is created to read:
SB192,5,199
48.685
(5d) (d) A tribe whose rehabilitation review plan has been approved by
10the department may request the department to grant the tribe the authority to
11conduct rehabilitation reviews under sub. (5) with respect to an entity located
12outside the boundaries of the tribe's reservation or trust land that is owned or
13operated by the tribe or a tribal enterprise. The department shall evaluate the tribe's
14request, considering factors such as the proximity of the tribal entity to the
15reservation or trust land and the population to be served by the tribal entity. If the
16department determines that the conduct of rehabilitation reviews by the tribe with
17respect to the tribal entity is rationally related to the protection of clients, the
18department may authorize the tribe to conduct rehabilitation reviews with respect
19to the tribal entity.