48.68(1)(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. 48.685, 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.
48.68(2)
(2) Before continuing the license of any child welfare agency to operate a residential care center for children and youth or of any group home, the department shall consider all formal complaints filed under
s. 48.745 (2) and the disposition of each during the previous 2-year period.
48.68(3)
(3) Within 10 working days after receipt of an application for initial licensure of a child welfare agency to operate a residential care center for children and youth or of a group home, the department shall notify the city, town, or village planning commission, or other appropriate city, town, or village agency if there is no planning commission, of receipt of the application. The department shall request that the planning commission or agency send to the department, within 30 days, a description of any specific hazards that may affect the health and safety of the residents of the residential care center for children and youth or group home. No license may be issued to a child welfare agency to operate a residential care center for children and youth or to a group home until the 30-day period has expired or until the department receives the response of the planning commission or agency, whichever is sooner. In issuing a license the department shall give full consideration to such hazards determined by the planning commission or agency.
48.68(4)
(4) Prior to initial licensure of a residential care center for children and youth operated by a child welfare agency or of a group home, the applicant for licensure shall make a good faith effort to establish a community advisory committee consisting of representatives from the child welfare agency or proposed group home, the neighborhood in which the proposed residential care center for children and youth or group home will be located and a local unit of government. The community advisory committee shall provide a forum for communication for those persons interested in the proposed residential care center for children and youth or group home. Any committee established under this subsection shall continue in existence after licensure to make recommendations to the licensee regarding the impact of the residential care center for children and youth or group home on the neighborhood. The department shall determine compliance with this subsection both prior to and after initial licensure.
48.68 Cross-reference
Cross Reference: See also ch.
DCF 56, Wis. adm. code.
48.685
48.685
Criminal history and child abuse record search. 48.685(1)(ag)1.a.
a. A person who is, or is expected to be, an employee or contractor of an entity, who is or is expected to be under the control of the entity, as defined by the department by rule, and who has, or is expected to have, regular, direct contact with clients of the entity.
48.685(1)(ag)1.b.
b. A person who has, or is seeking, a license, certification or contract to operate an entity.
48.685(1)(ag)2.
2. "Caregiver" does not include a person who is certified as an emergency medical technician under
s. 256.15 if the person is employed, or seeking employment, as an emergency medical technician and does not include a person who is certified as a first responder under
s. 256.15 if the person is employed, or seeking employment, as a first responder.
48.685(1)(am)
(am) "Client" means a child who receives direct care or treatment services from an entity.
48.685(1)(ar)
(ar) "Contractor" means, with respect to an entity, a person, or that person's agent, who provides services to the entity under an express or implied contract or subcontract, including a person who has staff privileges at the entity.
48.685(1)(av)
(av) "Direct contact" means face-to-face physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or to misappropriate the property of a client.
48.685(1)(b)
(b) "Entity" means a child welfare agency that is licensed under
s. 48.60 to provide care and maintenance for children, to place children for adoption or to license foster homes or treatment foster homes; a foster home or treatment foster home that is licensed under
s. 48.62; a group home that is licensed under
s. 48.625; a shelter care facility that is licensed under
s. 938.22; a day care center that is licensed under
s. 48.65 or established or contracted for under
s. 120.13 (14); a day care provider that is certified under
s. 48.651; or a temporary employment agency that provides caregivers to another entity.
48.685(1)(bm)
(bm) "Nonclient resident" means a person who resides, or is expected to reside, at an entity, who is not a client of the entity and who has, or is expected to have, regular, direct contact with clients of the entity.
48.685(1)(br)
(br) "Reservation" means land in this state within the boundaries of a reservation of a tribe or within the bureau of Indian affairs service area for the Ho-Chunk Nation.
48.685(1)(c)
(c) "Serious crime" means any of the following:
48.685(1)(c)2.
2. A violation of
s. 940.01,
940.02,
940.03,
940.05,
940.12,
940.19 (2),
(4),
(5) or
(6),
940.22 (2) or
(3),
940.225 (1),
(2) or
(3),
940.285 (2),
940.29,
940.295,
948.02 (1) or
(2),
948.025,
948.03 (2),
948.05,
948.051,
948.055,
948.06,
948.07,
948.08,
948.085,
948.11 (2) (a) or
(am),
948.12,
948.13,
948.21 (1),
948.30, or
948.53.
48.685(1)(c)4.
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. if committed in this state.
48.685(1)(e)
(e) "Tribe" means a federally recognized American Indian tribe or band in this state.
48.685(2)(am)(am) The department, a county department, 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:
48.685(2)(am)1.
1. A criminal history search from the records maintained by the department of justice.
48.685(2)(am)3.
3. Information maintained by the department of regulation and licensing regarding the status of the person's credentials, if applicable.
48.685(2)(am)4.
4. Information maintained by the department regarding any substantiated reports of child abuse or neglect against the person.
48.685(2)(am)5.
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, a child welfare agency or a school board need not obtain the information specified in
subds. 1. to
4.
48.685(2)(b)1.a.
a. A criminal history search from the records maintained by the department of justice.
48.685(2)(b)1.c.
c. Information maintained by the department of regulation and licensing regarding the status of the person's credentials, if applicable.
48.685(2)(b)1.d.
d. Information maintained by the department regarding any substantiated reports of child abuse or neglect against the person.
48.685(2)(b)1.e.
e. 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
subd. 1. e. 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
subd. 1. e., the entity need not obtain the information specified in
subd. 1. a. to
d.
48.685(2)(b)4.
4. Subdivision 1. does not apply with respect to a 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 or a school board is required under
par. (am) (intro.) to obtain the information specified in
par. (am) 1. to
5.
48.685(2)(bb)
(bb) If information obtained under
par. (am) or
(b) 1. indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department, county department, child welfare agency, school board or entity shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If a background information form under
sub. (6) (a) or
(am) indicates a charge or a conviction of a serious crime, but information obtained under
par. (am) or
(b) 1. does not indicate such a charge or conviction, the department, county department, child welfare agency, school board or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and the final disposition of the complaint. If information obtained under
par. (am) or
(b) 1., a background information form under
sub. (6) (a) or
(am) or any other information indicates a conviction of a violation of
s. 940.19 (1),
940.195,
940.20,
941.30,
942.08,
947.01 or
947.013 obtained not more than 5 years before the date on which that information was obtained, the department, county department, child welfare agency, school board or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and judgment of conviction relating to that violation.
48.685(2)(bd)
(bd) Notwithstanding
pars. (am) and
(b) 1., the department, a county department, a child welfare agency or a school board is not required to obtain the information specified in
par. (am) 1. to
5., and an entity is not required to obtain the information specified in
par. (b) 1. a. to
e., 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 an entity for a reason specified in
sub. (4m) (b) 1. to
5. and with respect to whom the department, county department, child welfare agency, school board or entity otherwise has no reason to believe that the person is ineligible to be employed, contracted with or permitted to reside at an entity for any of those reasons. This paragraph does not preclude the department, a county department, a child welfare agency or a school board from obtaining, at its discretion, the information specified in
par. (am) 1. to
5. with respect to a person described in this paragraph who is a nonclient resident or a prospective nonclient resident of an entity.
48.685(2)(bg)
(bg) If an entity employs or contracts with a caregiver for whom, within the last 4 years, the information required under
par. (b) 1. a. to
c. and
e. has already been obtained by another entity, the entity may obtain that information from that other entity, which shall provide the information, if possible, to the requesting entity. If an entity cannot obtain the information required under
par. (b) 1. a. to
c. and
e. from another entity or if an entity has reasonable grounds to believe that any information obtained from another entity is no longer accurate, the entity shall obtain that information from the sources specified in
par. (b) 1. a. to
c. and
e.
48.685(2)(bm)
(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, or if the department, county department, child welfare agency, school board or entity determines that the person's employment, licensing or state court records provide a reasonable basis for further investigation, the department, county department, child welfare agency, school board or entity shall make a good faith effort to obtain from any state or other United States jurisdiction 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. The department, county department, child welfare agency, school board or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions.
48.685(2)(c)1.1. If the person who is the subject of the search under
par. (am) is seeking an initial license to operate a foster home or treatment foster home or is seeking relicensure after a break in licensure, the department, county department, or child welfare agency shall request under
42 USC 16962 (b) a fingerprint-based check of the national crime information databases, as defined in
28 USC 534 (f) (3) (A). The department, county department, or child welfare agency may release any information obtained under this subdivision only as permitted under
42 USC 16962 (e).
48.685(2)(c)2.
2. If the person who is the subject of the search under
par. (am) is seeking a license to operate a foster home or treatment foster home or is an adult nonclient resident of the foster home or treatment foster home and if the person is not, or at any time within the 5 years preceding the date of the search has not been, a resident of this state, the department, county department, or child welfare agency shall check any child abuse or neglect registry maintained by any state or other U.S. jurisdiction in which the person is a resident or was a resident within those 5 years for information that is equivalent to the information specified in
par. (am) 4. The department, county department, or child welfare agency may not use any information obtained under this subdivision for any purpose other than a search of the person's background under
par. (am).
48.685(2)(d)
(d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver under
par. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.
48.685(3)(a)(a) Every 4 years or at any time within that period that the department, a county department, a child welfare agency, or a school board considers appropriate, the department, county department, child welfare agency, or school board shall request the information specified in
sub. (2) (am) 1. to
5. for all caregivers specified in
sub. (1) (ag) 1. b. who are licensed, certified, or contracted to operate an entity, for all persons who are nonclient residents of such a caregiver, and for all persons under 18 years of age, but not under 12 years of age, who are caregivers of a day care center that is licensed under
s. 48.65 or established or contracted for under
s. 120.13 (4) or of a day care provider that is certified under
s. 48.651.
48.685(3)(b)
(b) Every 4 years or at any time within that period that an entity considers appropriate, the entity shall request the information specified in
sub. (2) (b) 1. a. to
e. for all persons who are caregivers specified in
sub. (1) (ag) 1. a. of the entity other than persons under 18 years of age, but not under 12 years of age, who are caregivers 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.
48.685(3m)
(3m) Notwithstanding
subs. (2) (b) 1. and
(3) (b), if the department, a county department, a child welfare agency or a school board has obtained the information required under
sub. (2) (am) or
(3) (a) with respect to a person who is a caregiver specified in
sub. (1) (ag) 1. b. and that person is also an employee, contractor or nonclient resident of an entity, the entity is not required to obtain the information specified in
sub. (2) (b) 1. or
(3) (b) with respect to that person.
48.685(4)
(4) An entity that violates
sub. (2),
(3) or
(4m) (b) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.
48.685(4m)(a)(a) Notwithstanding
s. 111.335, and except as provided in
par. (ad) and
sub. (5), the department may not license, or continue or renew the license of, a person to operate an entity, a county department may not certify a day care provider under
s. 48.651, a county department or a child welfare agency may not license, or renew the license of, a foster home or treatment foster home under
s. 48.62 and a school board may not contract with a person under
s. 120.13 (14), if the department, county department, child welfare agency or school board knows or should have known any of the following:
48.685(4m)(a)1.
1. That the person has been convicted of a serious crime or, if the person is an applicant for issuance or continuation of a license to operate a day care center or for initial certification under
s. 48.651 or for renewal of that certification or if the person is proposing to contract with a school board under
s. 120.13 (14) or to renew a contract under that subsection, that the person has been convicted of a serious crime or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime.
48.685(4m)(a)3.
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.
48.685(4m)(a)5.
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.
48.685(4m)(ad)
(ad) The department, a county department or a child welfare agency may license a foster home or treatment foster home under
s. 48.62, a county department may certify a day care provider under
s. 48.651 and a school board may contract with a person under
s. 120.13 (14), conditioned on the receipt of the information specified in
sub. (2) (am) indicating that the person is not ineligible to be licensed, certified or contracted with for a reason specified in
par. (a) 1. to
5.
48.685(4m)(b)
(b) Notwithstanding
s. 111.335, and except as provided in
sub. (5), an entity may not employ or contract with a caregiver specified in
sub. (1) (ag) 1. a. or permit a nonclient resident to reside at the entity if the entity knows or should have known any of the following:
48.685(4m)(b)1.
1. That the person has been convicted of a serious crime or, if the person 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, that the person has been convicted of a serious crime or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime.
48.685(4m)(b)3.
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.
48.685(4m)(b)5.
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.
48.685(4m)(c)
(c) If the background information form completed by a person under
sub. (6) (am) indicates that the person is not ineligible to be employed or contracted with for a reason specified in
par. (b) 1. to
5., an entity may employ or contract with the person for not more than 60 days pending the receipt of the information sought under
sub. (2) (am) 1. to
5. or
(b) 1. If the background information form completed by a person under
sub. (6) (am) indicates that the person is not ineligible to be permitted to reside at an entity for a reason specified in
par. (b) 1. to
5. and if an entity otherwise has no reason to believe that the person is ineligible to be permitted to reside at an entity for any of those reasons, the entity may permit the person to reside at the entity for not more than 60 days pending receipt of the information sought under
sub. (2) (am). An entity shall provide supervision for a person who is employed, contracted with or permitted to reside as permitted under this paragraph.
48.685(5)(a)(a) Subject to
par. (bm), the department may license to operate an entity, a county department may certify under
s. 48.651, a county department or a child welfare agency may license under
s. 48.62 and a school board may contract with under
s. 120.13 (14) a person who otherwise may not be licensed, certified or contracted with for a reason specified in
sub. (4m) (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. (4m) (b) 1. to
5., if the person demonstrates to the department, the county department, the child welfare agency, or the school board or, in the case of an entity that is located within the boundaries of a reservation, to the person or body designated by the tribe under
sub. (5d) (a) 3., by clear and convincing evidence and in accordance with procedures established by the department by rule or by the tribe that he or she has been rehabilitated.
48.685(5)(bm)
(bm) For purposes of licensing a foster home or treatment foster home for the placement of a child on whose behalf foster care maintenance payments under
s. 48.62 (4) will be provided, no person who has been convicted of any of the following offenses may be permitted to demonstrate that he or she has been rehabilitated:
48.685(5)(bm)3.
3. A violation of s.
943.23 (1m) or
(1r), 1999 stats., or of
s. 940.01,
940.02,
940.03,
940.05,
940.06,
940.21,
940.225 (1),
(2) or
(3),
940.23,
940.305,
940.31,
941.20 (2) or
(3),
941.21,
943.10 (2),
943.23 (1g) or
943.32 (2).
48.685(5)(bm)4.
4. A violation of s.
940.19 (3), 1999 stats., or of
s. 125.075 (1),
125.085 (3) (a) 2.,
125.105 (2) (b),
125.66 (3),
125.68 (12),
940.09,
940.19 (2),
(4),
(5), or
(6),
940.20,
940.203,
940.205,
940.207, or
940.25, a violation of
s. 346.63 (1),
(2),
(5), or
(6) that is a felony under
s. 346.65 (2) (am) 5.,
6., or
7., or
(f),
(2j) (d), or
(3m), or an offense under
ch. 961 that is a felony, if committed not more than 5 years before the date of the investigation under
sub. (2) (am).
48.685(5c)(a)(a) Any person who is permitted but fails under
sub. (5) (a) to demonstrate to the department or a child welfare agency that he or she has been rehabilitated may appeal to the secretary 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.
48.685(5c)(b)
(b) Any person who is permitted but fails under
sub. (5) (a) 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.
48.685(5c)(c)
(c) Any person who is permitted but fails under
sub. (5) (a) to demonstrate to the school board that he or she has been rehabilitated may appeal to the state superintendent of public instruction or his or her designee. Any person who is adversely affected by a decision of the state superintendent or his or her designee under this paragraph has a right to a contested case hearing under
ch. 227.
48.685(5d)(a)(a) Any tribe that chooses to conduct rehabilitation reviews under
sub. (5) shall submit to the department a rehabilitation review plan that includes all of the following:
48.685(5d)(a)1.
1. The criteria to be used to determine if a person has been rehabilitated.
48.685(5d)(a)2.
2. The title of the person or body designated by the tribe to whom a request for review must be made.
48.685(5d)(a)3.
3. The title of the person or body designated by the tribe to determine whether a person has been rehabilitated.
48.685(5d)(a)3m.
3m. The title of the person or body, designated by the tribe, to whom a person may appeal an adverse decision made by the person specified under
subd. 3. and whether the tribe provides any further rights to appeal.
48.685(5d)(a)4.
4. The manner in which the tribe will submit information relating to a rehabilitation review to the department so that the department may include that information in its report to the legislature required under
sub. (5g).
48.685(5d)(a)5.
5. A copy of the form to be used to request a review and a copy of the form on which a written decision is to be made regarding whether a person has demonstrated rehabilitation.
48.685(5d)(b)
(b) If, within 90 days after receiving the plan, the department does not disapprove the plan, the plan shall be considered approved. If, within 90 days after receiving the plan, the department disapproves the plan, the department shall provide notice of that disapproval to the tribe in writing, together with the reasons for the disapproval. The department may not disapprove a plan unless the department finds that the plan is not rationally related to the protection of clients. If the department disapproves the plan, the tribe may, within 30 days after receiving notice of the disapproval, request that the secretary review the department's decision. A final decision under this paragraph is not subject to further review under
ch. 227.
48.685(5g)
(5g) Beginning on January 1 1999, 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 that they have been rehabilitated under
sub. (5) (a), the number of persons who successfully demonstrated that they have been rehabilitated under
sub. (5) (a) and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.
48.685(5m)
(5m) Notwithstanding
s. 111.335, the department may refuse to license a person to operate an entity, a county department or a child welfare agency may refuse to license a foster home or treatment foster home under
s. 48.62, and an entity may refuse to employ or contract with a caregiver or permit a nonclient resident to reside at the entity if the person has been convicted of an offense that is not a serious crime, but that is, in the estimation of the department, county department, child welfare agency or entity, substantially related to the care of a client. Notwithstanding
s. 111.335, the department may refuse to license a person to operate a day care center, 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), a day care center that is licensed under
s. 48.65 or established or contracted for under
s. 120.13 (14) and a day care provider that is certified under
s. 48.651 may refuse to employ or contract with a caregiver or permit a nonclient resident to reside at the day care center or day care provider if the person has been convicted of or adjudicated delinquent on or after his or her 12th birthday for an offense that is not a serious crime, but that is, in the estimation of the department, county department, school board, day care center or day care provider, substantially related to the care of a client.
