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 Indian 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 Indian 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 Indian 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 Indian tribe, to whom a person may appeal an adverse decision made by the person specified under
subd. 3. and whether the Indian tribe provides any further rights to appeal.
48.685(5d)(a)4.
4. The manner in which the Indian 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 Indian 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 Indian 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 under
s. 48.62, the department in a county having a population of 750,000 or more or a county department may refuse to provide subsidized guardianship payments to a person under
s. 48.623 (6), and an entity may refuse to employ or contract with a caregiver or permit a nonclient resident to reside at the entity or with a caregiver specified in
sub. (1) (ag) 1. am. of 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 child care center, the department in a county having a population of 750,000 or more, a county department, or an agency contracted with under
s. 48.651 (2) may refuse to certify a child care provider under
s. 48.651, a school board may refuse to contract with a person under
s. 120.13 (14), and a child care center that is licensed under
s. 48.65 or established or contracted for under
s. 120.13 (14) or a child 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 child care center or child 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, contracted agency, school board, child care center, or child care provider, substantially related to the care of a client.
48.685(6)(a)(a) Except as provided in this paragraph, the department shall require any person who applies for issuance, continuation, or renewal of a license to operate an entity, [750,000] a county department or a child welfare agency shall require any person who applies for issuance or renewal of a license to operate a foster home under
s. 48.62, and the department in a county having a population of 750,000 or more or a county department shall require any person who applies for subsidized guardianship payments under
s. 48.623 (6) to complete a background information form that is provided by the department. The department shall require any person who applies for issuance, but not continuation, of a license to operate a child care center under
s. 48.65, a school board shall require any person who proposes to contract, but not renew a contract, with the school board under
s. 120.13 (14), and the department in a county having a population of 750,000 or more, a county department, or an agency contracted with under
s. 48.651 (2) shall require any child care provider who applies for initial certification, but not renewal of that certification, under
s. 48.651 to complete a background information form that is provided by the department.
48.685 Note
NOTE: Par. (a) is shown as affected by
2015 Wis. Acts 55 and
172 and as merged by the legislative reference bureau under s. 13.92 (2) (i). “750,000" in brackets was inserted by
2015 Wis. Act 172 but was rendered surplusage by the treatment by
2015 Wis. Act 55.
48.685(6)(am)
(am) Except as provided in this paragraph, every 4 years an entity shall require all of its caregivers and all nonclient residents of the entity or of a caregiver specified in
sub. (1) (ag) 1. am. of the entity to complete a background information form that is provided to the entity by the department. A child care center that is licensed under
s. 48.65 or established or contracted for under
s. 120.13 (14) or a child care provider that is certified under
s. 48.651 is exempt from the 4-year requirement, but shall require any new caregiver or nonclient resident to complete a background information form that is provided to the child care center or child care provider by the department.
48.685(6)(b)1.1. For caregivers who are licensed by the department, for persons under 18 years of age, but not under 12 years of age, who are caregivers of a child care center that is licensed under
s. 48.65 or established or contracted for under
s. 120.13 (14) or of a child care provider that is certified under
s. 48.651, for persons who are nonclient residents of an entity that is licensed by the department, and for other persons specified by the department by rule, the entity shall send the background information form to the department.
48.685(6)(b)2.
2. For caregivers who are licensed or certified by a county department or an agency contracted with under
s. 48.651 (2), for persons who are nonclient residents of an entity that is licensed or certified by a county department or an agency contracted with under
s. 48.651 (2), and for other persons specified by the department by rule, the entity shall send the background information form to the county department or contracted agency.
48.685(6)(b)3.
3. For caregivers who are licensed by a child welfare agency, for persons who are nonclient residents of an entity that is licensed by a child welfare agency and for other persons specified by the department by rule, the entity shall send the background information form to the child welfare agency.
48.685(6)(b)4.
4. For caregivers who are contracted with by a school board, for persons who are nonclient residents of an entity that is contracted with by a school board and for other persons specified by the department by rule, the entity shall send the background information form to the school board.
48.685(6)(c)
(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.
48.685(7)
(7) The department shall do all of the following:
48.685(7)(c)
(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.
48.685(7)(d)
(d) Provide a background information form that requires the person completing the form to include his or her date of birth on the form.
48.685(8)
(8) The department, the department of health services, a county department, an agency contracted with under
s. 48.651 (2), a child welfare agency, or a school board may charge a fee for obtaining the information required under
sub. (2) (am) or
(ar) or
(3) (a) or
(am), for providing information to an entity to enable the entity to comply with
sub. (2) (b) 1. or
(3) (b), or for obtaining and submitting fingerprints under
sub. (2) (bm) or
(br). The fee may not exceed the reasonable cost of obtaining the information or of obtaining and submitting fingerprints. No fee may be charged to a nurse aide, as defined in
s. 146.40 (1) (d), for obtaining or maintaining information or for obtaining and submitting fingerprints if to do so would be inconsistent with federal law.
48.685 History
History: 1997 a. 27,
237,
281;
1999 a. 9,
32,
56,
185,
186;
2001 a. 109;
2003 a. 321;
2005 a. 149,
184,
277;
2007 a. 20 ss.
1346 to
1358,
9121 (6) (a);
2007 a. 97,
111,
116,
130,
153;
2009 a. 28,
76,
94,
185;
2011 a. 32,
35,
87,
258;
2013 a. 20,
165,
170,
334;
2015 a. 55,
129,
172,
366,
371; s. 13.92 (2) (i).
48.685 Cross-reference
Cross-reference: See also ch.
DHS 12, Wis. adm. code.
48.685 Annotation
Wisconsin's caregiver law, as enforced in this case under sub. (5) (br) 5., is constitutional. The caregiver law did not violate the petitioner's due process rights because the state provided adequate post-deprivation remedies. Petitioner's equal protection claim failed because the law does pass the rational basis test. Regardless of whether the law is rationally related to the goal of protecting children, the law is rationally related to the legitimate purpose of prohibiting individuals who dishonestly benefitted from government welfare in the past from obtaining government funding in the form of childcare subsidies. Brown v. Department of Children and Families,
2012 WI App 61,
341 Wis. 2d 449,
819 N.W.2d 827,
11-1350. See also Blake v. Jossart,
2016 WI 57,
370 Wis. 2d 1, ___ N.W.2d ___,
12-2578.
48.685 Annotation
Sections 48.72 and 227.44 governed the appeal of the revocation of a child care license under sub. (5) (br) and granted the license holder the right to a contested case hearing on the appeal of the revocation. Jamerson v. Department of Children & Families,
2013 WI 7,
345 Wis. 2d 205,
824 N.W.2d 822,
11-0593.
48.685 Annotation
Jamerson instructs that prior to establishing that a conviction satisfies the requirements of sub. (5) (br) 5., evidence must clearly show that the conviction was for fraudulent activity. The title of the conviction and an uncorroborated criminal complaint presented at the administrative appeal hearing were insufficient to meet this standard. Blake v. Racine County Human Services Department,
2013 WI App 45,
347 Wis. 2d 499,
831 N.W.2d 439,
12-0031.
48.69
48.69
Probationary licenses. Except as provided under
s. 48.715 (6) and
(7), if any child welfare agency, shelter care facility, group home, or child care center that has not been previously issued a license under
s. 48.66 (1) (a) applies for a license, meets the minimum requirements for a license established under
s. 48.67, and pays the applicable fee referred to in
s. 48.68 (1), the department shall issue a probationary license to that child welfare agency, shelter care facility, group home, or child care center. A probationary license is valid for up to 6 months after the date of issuance unless renewed under this section or suspended or revoked under
s. 48.715. Before a probationary license expires, the department shall inspect the child welfare agency, shelter care facility, group home, or child care center holding the probationary license and, except as provided under
s. 48.715 (6) and
(7), if the child welfare agency, shelter care facility, group home, or child care center meets the minimum requirements for a license established under
s. 48.67, the department shall issue a license under
s. 48.66 (1) (a). A probationary license issued under this section may be renewed for one 6-month period.
48.70
48.70
Provisions of licenses. 48.70(1)
(1)
General. Each license shall state the name of the person licensed, the premises included under the license, the maximum number of children who can be received and their age and sex and such additional information and special conditions as the department may prescribe.
48.70(2)
(2) Special provisions for child welfare agency licenses. A license to a child welfare agency shall also specify the kind of child welfare work the agency is authorized to undertake, whether the agency may accept guardianship of children, whether the agency may place children in foster homes, and if so, the area the agency is equipped to serve.
48.70(4)
(4) Special provisions for county departments. Licenses to county departments shall specify whether the county department may accept guardianship of children and place children for adoption.
48.715
48.715
Sanctions and penalties. 48.715(1)
(1) In this section, “licensee" means a person who holds a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child welfare agency, shelter care facility, group home, or child care center.
48.715(2)
(2) If the department provides written notice of the grounds for a sanction, an explanation of the types of sanctions that may be imposed under this subsection and an explanation of the process for appealing a sanction imposed under this subsection, the department may order any of the following sanctions:
48.715(2)(a)
(a) That a person stop operating a child welfare agency, shelter care facility, group home, or child care center if the child welfare agency, shelter care facility, group home, or child care center is without a license in violation of
s. 48.66 (1) (a) or a probationary license in violation of
s. 48.69.
48.715(2)(b)
(b) That a person who employs a person who has had a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 revoked within the previous 5 years terminate the employment of that person within 30 days after the date of the order. This paragraph includes employment of a person in any capacity, whether as an officer, director, agent or employee.
48.715(2)(e)
(e) That a licensee implement and comply with a plan of correction provided by the department or previously submitted by the licensee and approved by the department.
48.715(2)(f)
(f) That a licensee close the intake of any new children until all violations of the provisions of licensure under
s. 48.70 (1) and the rules promulgated by the department under
s. 48.658 (4) (a) or
48.67 are corrected.
48.715(2)(g)
(g) That a licensee provide training for the licensee's staff members as specified by the department.
48.715(3)
(3) If the department provides written notice of the grounds for a penalty, an explanation of the types of penalties that may be imposed under this subsection, and an explanation of the process for appealing a penalty imposed under this subsection, the department may impose any of the following penalties against a licensee or any other person who violates a provision of licensure under
s. 48.70 (1) or rule promulgated by the department under
s. 48.658 (4) (a) or
48.67 or who fails to comply with an order issued under
sub. (2) by the time specified in the order:
48.715(3)(a)
(a) A daily forfeiture amount per violation of not less than $10 nor more than $1,000. All of the following apply to a forfeiture under this paragraph:
48.715(3)(a)1.
1. Within the limits specified in this paragraph, the department may, by rule, set daily forfeiture amounts and payment deadlines based on the size and type of facility or agency and the seriousness of the violation. The department may set daily forfeiture amounts that increase periodically within the statutory limits if there is continued failure to comply with an order issued under
sub. (2).
48.715(3)(a)2.
2. The department may directly assess a forfeiture imposed under this paragraph by specifying the amount of that forfeiture in the notice provided under this subsection.
48.715(3)(a)3.
3. A person against whom the department has assessed a forfeiture shall pay that forfeiture to the department within 10 days after receipt of notice of the assessment or, if that person contests that assessment under
s. 48.72, within 10 days after receipt of the final decision after exhaustion of administrative review or, if that person petitions for judicial review under
ch. 227, within 10 days after receipt of the final decision after exhaustion of judicial review. The department shall remit all forfeitures paid under this subdivision to the secretary of administration for deposit in the school fund.
48.715(3)(a)4.
4. The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this paragraph that has not been paid as provided in
subd. 3. The only contestable issue in an action under this subdivision is whether or not the forfeiture has been paid.
48.715(3)(b)
(b) Suspension of the licensee's license for not more than 2 weeks.
48.715(3)(c)
(c) Refusal to continue a license or a probationary license.
48.715(3)(d)
(d) Revocation of a license or a probationary license as provided in
sub. (4).
48.715(4)
(4) If the department provides written notice of revocation and the grounds for revocation as provided in
sub. (4m) and an explanation of the process for appealing a revocation under this subsection, the department may revoke a license issued under
s. 48.66 (1) (a) or a probationary license issued under
s. 48.69 for any of the following reasons:
48.715(4)(a)
(a) The department has imposed a penalty on the licensee under
sub. (3) and the licensee or a person under the supervision of the licensee either continues to violate or resumes violation of a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section forming any part of the basis for the penalty.
48.715(4)(b)
(b) The licensee or a person under the supervision of the licensee has committed a substantial violation, as determined by the department, of a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section.
48.715(4)(c)
(c) The licensee or a person under the supervision of the licensee has committed an action or has created a condition relating to the operation or maintenance of the child welfare agency, shelter care facility, group home, or child care center that directly threatens the health, safety, or welfare of any child under the care of the licensee.
48.715(4)(d)
(d) The licensee or a person under the supervision of the licensee has violated, as determined by the department, a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section that is the same as or similar to a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section that the licensee or a person under the supervision of the licensee has violated previously.
48.715(4)(e)
(e) The licensee has failed to apply for a continuance of the license within 30 days after receipt of the warning under
s. 48.66 (5).
48.715(4g)(a)(a) If a person who has been issued a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child care center 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 child care center is convicted or adjudicated delinquent for committing a serious crime on or after his or her 12th birthday, the department shall revoke the license of the child care center immediately upon providing written notice of revocation and the grounds for revocation and an explanation of the process for appealing the revocation.
48.715(4g)(b)
(b) If a person who has been issued a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child care center 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 child care center 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 shall immediately suspend the license of the child care center until the department obtains information regarding the final disposition of the charge or delinquency petition indicating that the person is not ineligible to be licensed to operate a child care center.
48.715(4m)(a)(a) For a revocation under
sub. (4) (a) or
(d), the department shall provide to the licensee written notice of the revocation and the grounds for revocation not less than 30 days before the date of the revocation. The revocation will take effect only if the violation on which the revocation is based remains substantially uncorrected at the end of the 30-day notice period.
48.715(4m)(b)
(b) For revocations under
sub. (4) (b),
(c) or
(e), the department may revoke the license or probationary license immediately upon written notice to the licensee of the revocation and the grounds for revocation.
48.715(5)
(5) The department may deny a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to any person who has had a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 revoked within the previous 5 years.
48.715(6)
(6) The department shall deny, suspend, restrict, refuse to renew, or otherwise withhold a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child welfare agency, group home, shelter care facility, or child care center, and the department of corrections shall deny, suspend, restrict, refuse to renew, or otherwise withhold a license under
s. 48.66 (1) (b) to operate a secured residential care center for children and youth, for failure of the applicant or licensee to pay court-ordered payments of child or family support, maintenance, birth expenses, medical expenses, or other expenses related to the support of a child or former spouse or for failure of the applicant or licensee to comply, after appropriate notice, with a subpoena or warrant issued by the department or a county child support agency under
s. 59.53 (5) and related to paternity or child support proceedings, as provided in a memorandum of understanding entered into under
s. 49.857. Notwithstanding
s. 48.72, an action taken under this subsection is subject to review only as provided in the memorandum of understanding entered into under
s. 49.857 and not as provided in
s. 48.72.
48.715(7)
(7) The department shall deny an application for the issuance or continuation of a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child welfare agency, group home, shelter care facility, or child care center, or revoke such a license already issued, if the department of revenue certifies under
s. 73.0301 that the applicant or licensee is liable for delinquent taxes or if the department of workforce development certifies under
s. 108.227 that the applicant or licensee is liable for delinquent unemployment insurance contributions. An action taken under this subsection is subject to review only as provided under
s. 73.0301 (5) or
108.227 (5) and not as provided in
s. 48.72.
48.72
48.72
Appeal procedure. Except as provided in
s. 48.715 (6) and
(7), any person aggrieved by the department's refusal or failure to issue, renew, or continue a license or by any action taken by the department under
s. 48.715 has the right to an administrative hearing provided for contested cases in
ch. 227. To receive an administrative hearing under
ch. 227, the aggrieved person shall send to the department a written request for a hearing under
s. 227.44 within 10 days after the date of the department's refusal or failure to issue, renew, or continue a license or the department's action taken under
s. 48.715. The department shall hold an administrative hearing under
s. 227.44 within 30 days after receipt of the request for the administrative hearing unless the aggrieved person consents to an extension of that time period. Judicial review of the department's decision may be had by any party in the contested case as provided in
ch. 227.
48.73
48.73
Inspection of licensees. The department may visit and inspect each child welfare agency, foster home, group home, and child care center licensed by the department, and for that purpose shall be given unrestricted access to the premises described in the license.
48.735
48.735
Immunization requirements; child care centers. The department, after notice to a child care center licensee, may suspend, revoke, or refuse to continue a child care center license in any case in which the department finds that there has been a substantial failure to comply with the requirements of
s. 252.04.
48.737
48.737
Lead screening, inspection and reduction requirements; child care centers. The department, after notice to a child care provider certified under
s. 48.651, or a child care center that holds a license under
s. 48.65 or a probationary license under
s. 48.69, may suspend, revoke, or refuse to renew or continue a license or certification in any case in which the department finds that there has been a substantial failure to comply with any rule promulgated under
s. 254.162,
254.168, or
254.172.
48.74
48.74
Authority of department to investigate alleged violations. Whenever the department is advised or has reason to believe that any person is violating any of the provisions of
ss. 48.60,
48.62,
48.625 or
48.65, it shall make an investigation to determine the facts. For the purposes of this investigation, it shall have authority to inspect the premises where the violation is alleged to occur. If it finds that the person is violating any of the specified sections, it may either issue a license if the person is qualified or may institute a prosecution under
s. 48.76.
48.74 History
History: 1979 c. 300.
48.743
48.743
Community living arrangements for children. 48.743(1)(1) In this section, “community living arrangement for children" means a residential care center for children and youth or a group home.
48.743(2)
(2) Community living arrangements for children shall be subject to the same building and housing ordinances, codes, and regulations of the municipality or county as similar residences located in the area in which the facility is located.
48.743(3)
(3) The department shall designate a subunit to keep records and supply information on community living arrangements for children under
ss. 59.69 (15) (f),
60.63 (7), and
62.23 (7) (i) 6. The subunit shall be responsible for receiving all complaints regarding community living arrangements for children and for coordinating all necessary investigatory and disciplinary actions under the laws of this state and under the rules of the department relating to the licensing of community living arrangements for children.
48.743(4)
(4) A community living arrangement for children with a capacity for 8 or fewer persons shall be a permissible use for purposes of any deed covenant which limits use of property to single-family or 2-family residences. A community living arrangement for children with a capacity for 15 or fewer persons shall be a permissible use for purposes of any deed covenant which limits use of property to more than 2-family residences. Covenants in deeds which expressly prohibit use of property for community living arrangements for children are void as against public policy.
