2017 Wisconsin Act 59

48.685 (4m) (a) (intro.) 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, 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 not certify a child 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 under s. 48.62, and the department in a county having a population of 750,000 or more or a county department may not provide subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm), and a school board may not contract with a person under s. 120.13 (14), if the department, county department, contracted agency, or child welfare agency, or school board knows or should have known any of the following:

59,813 Section 813 . 48.685 (4m) (a) 1. of the statutes is amended to read:

48.685 (4m) (a) 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 child 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 10th birthday for committing a serious crime or that the person 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 10th birthday.

59,814 Section 814 . 48.685 (4m) (ad) of the statutes is amended to read:

48.685 (4m) (ad) The department, a county department, or a child welfare agency may license a foster home under s. 48.62; the department may license a child care center under s. 48.65; 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 certify a child care provider under s. 48.651; or the department in a county having a population of 750,000 or more or a county department may provide subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm); 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) and (ar) indicating that the person is not ineligible to be so licensed, certified, or provided those payments, or contracted with for a reason specified in par. (a) 1. to 5.

59,815 Section 815 . 48.685 (4m) (b) 1. of the statutes is amended to read:

48.685 (4m) (b) 1. That the person has been convicted of a serious crime or, if the person is a caregiver or nonclient resident 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, that the person has been convicted of a serious crime or adjudicated delinquent on or after his or her 12th 10th birthday for committing a serious crime or that the person 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 10th birthday.

59,816 Section 816 . 48.685 (4m) (c) of the statutes is amended to read:

48.685 (4m) (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 45 days pending the receipt of the information sought under sub. (2) (am) 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 or with a caregiver specified in sub. (1) (ag) 1. am. 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 or with that caregiver for any of those reasons, the entity may permit the person to reside at the entity or with the caregiver for not more than 60 45 days pending receipt of the information sought under sub. (2) (am) or (b) 1 . An entity shall provide supervision for a person who is employed, contracted with, or permitted to reside as permitted under this paragraph.

59,817 Section 817 . 48.685 (4m) (d) of the statutes is created to read:

48.685 (4m) (d) If the department learns that a caregiver or nonclient resident is the subject of a pending investigation for a crime or offense that, under this subsection or sub. (5), could result in a bar to employment as a caregiver or residence at an entity, the department may notify the entity of the pending investigation.

59,818 Section 818 . 48.685 (5) (a) of the statutes is amended to read:

48.685 (5) (a) Subject to pars. par. (bm) and (br), the department may license to operate an entity, 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 certify under s. 48.651, a county department or a child welfare agency may license to operate 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 provide subsidized guardianship payments under s. 48.623 (6), and a school board may contract with under s. 120.13 (14) to a person who otherwise may not be so licensed, certified, or contracted with or provided those payments 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 or permit to reside with a caregiver specified in sub. (1) (ag) 1. am. of the entity a person who otherwise may not be so employed, provided payments, contracted with, or permitted to reside at the entity or with that caregiver for a reason specified in sub. (4m) (b) 1. to 5., if the person demonstrates to the department, the county department, the contracted agency, the or 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 Indian 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.

59,819 Section 819 . 48.685 (5) (bm) (intro.) of the statutes is amended to read:

48.685 (5) (bm) (intro.) For purposes of licensing a foster home for the placement of a child on whose behalf foster care maintenance payments under s. 48.62 (4) will be provided or of providing subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm), no person, including a caregiver or nonclient resident under this section, who has been convicted of any of the following offenses may be permitted to demonstrate that he or she has been rehabilitated:

59,820 Section 820 . 48.685 (5) (br) of the statutes is repealed.

59,821 Section 821 . 48.685 (5c) (a) of the statutes is amended to read:

48.685 (5c) (a) Any person who is permitted but fails under sub. (5) (a) to demonstrate to the department, an agency contracted with under s. 48.651 (2), 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.

59,822 Section 822 . 48.685 (5c) (c) of the statutes is repealed.

59,823 Section 823 . 48.685 (5m) of the statutes is amended to read:

48.685 (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.

59,824 Section 824 . 48.685 (6) (a) of the statutes is amended to read:

48.685 (6) (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, 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.

59,825 Section 825 . 48.685 (6) (am) of the statutes is amended to read:

48.685 (6) (am) Except as provided in this paragraph, every 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.

59,826 Section 826. 48.685 (6) (b) 1. of the statutes is amended to read:

48.685 (6) (b) 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.

59,827 Section 827 . 48.685 (6) (b) 2. of the statutes is amended to read:

48.685 (6) (b) 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.

59,828 Section 828 . 48.685 (6) (b) 4. of the statutes is repealed.

59,829 Section 829 . 48.685 (8) of the statutes is amended to read:

48.685 (8) The department, the department of health services, a county department, an agency contracted with under s. 48.651 (2), or 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.

59,830 Section 830 . 48.685 (9) of the statutes is created to read:

48.685 (9) The department may promulgate any rules necessary for the administration of this section.

59,831 Section 831 . 48.686 of the statutes is created to read:

48.686 Criminal history and child abuse record search; child care. (1) In this section:

(ag) “Caregiver" means any of the following:

1. A person who is any of the following:

a. An employee or independent contractor of a child care program.

b. Involved in the care or supervision of clients of a child care program or has unsupervised access to clients of a child care program.

2. A person who has, or is seeking, a license, certification, or contract to operate a child care program.

(aj) “Child care program” means a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14), a child care provider that is certified under s. 48.651, or a temporary employment agency that provides caregivers to another child care program.

(am) “Client" means a person who receives direct care from a child care program, from an entity under s. 48.685 (1) (b) or from a caregiver specified in s. 48.685 (1) (ag) 1. am., including all of the following:

1. An adopted child for whom adoption assistance payments are being made under s. 48.975.

2. A child for whom subsidized guardianship payments are being made under s. 48.623.

3. A person who is 18 to 21 years old, is receiving independent living services under 42 USC 677 (a) from an agency, is no longer placed in out-of-home care, and is residing in the foster home in which he or she was previously placed.

(ar) “Contractor" means, with respect to a child care program, a person, or that person's agent, who provides services to the child care program under an express or implied contract or subcontract.

(bm) “Nonclient resident" means a person who is age 10 or older, who resides, or is expected to reside, at a child care program, and who is not a client of the child care program or caregiver.

(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.

(c) “Serious crime" means any of the following:

1. A violation of s. 940.12, 940.22 (2) or (3), 940.285 (2), 940.29, 940.295, or 942.09 (2).

2. A violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.

3. An offense under ch. 948 that is a felony, other than a violation of s. 948.22 (2).

4. A violation of s. 940.19 (3), 1999 stats., or of s. 940.19 (2), (4), (5), or (6) or 940.20 (1) or (1m), if the victim is the spouse of the person.

5. A violation 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, 943.04, 943.10 (2), 943.32 (2), or 948.21 (1) (a).

6. Only for a caregiver, as defined in par. (ag) 2., a violation of s. 943.201, 943.203, or 943.38 (1) or (2); a violation of s. 943.34 (1), 943.395 (1), 943.41 (3) (e), (4) (a), (5), (6), or (6m), 943.45 (1), 943.455 (2), 943.46 (2), 943.47 (2), 943.50 (1m), or 943.70 (2) (a) or (am) or (3) (a) that is a felony; or an offense under subch. IV of ch. 943 that is a felony.

7. A violation of sub. (2) or s. 48.685 (2), (3), (4m) (b), or (6), 2015 stats., if the violation involves the provision of false information to or the intentional withholding of information from, the department, a county department, an agency contracting under s. 48.651 (2), a school board, or a child care program.

8. An offense involving fraudulent activity as a participant in the Wisconsin Works program under ss. 49.141 to 49.161, including as a recipient of a child care subsidy under s. 49.155, or as a recipient of aid to families with dependent children under s. 49.19, medical assistance under subch. IV of ch. 49, food stamps benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, or health care benefits under the Badger Care health care program under s. 49.665.

9. A violation 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, 940.25, or 943.23 (1g), a violation of s. 948.51 (2) that is a felony under s. 948.51 (3) (b) or (c), 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 the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the department of corrections, less than 5 years before the date of the investigation under sub. (2) (am).

10. A violation of s. 948.22 (2), if the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the department of corrections, less than 5 years before the date of the investigation under sub. (2) (am), unless the person has paid all arrearages due and is meeting his or her current support obligations.

11. A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1. to 10. if committed in this state.

12. A violation of the laws of another state or United States jurisdiction that if committed in this state would constitute felony battery under s. 940.19 (2), (4), (5), or (6) or 940.20, a felony offense of domestic abuse, as defined in s. 813.12 (1) (am), a sex offense or a violent crime under ch. 948, or a violation of 940.225 if the victim was a child.

(2) (a) The department shall require any person who applies for issuance of an initial license to operate a child care center under s. 48.65, a school board shall require any person who proposes an initial 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 under s. 48.651 to submit the information required for a background check request under par. (ag). A school board, county department, or contracted agency shall submit the completed background information request to the department.

(ab) Each child care program shall submit a request to the department for a criminal background check for each potential caregiver and potential nonclient resident prior to the date on which an individual becomes a caregiver or nonclient resident, and at least once during every 5-year period for each existing caregiver or nonclient resident, except if all of the following apply:

1. The caregiver, potential caregiver, nonclient resident, or potential nonclient resident has received a background check as described in par. (am) while employed or seeking employment by another child care program within the state within the last 5 years.

2. The department provided to the child care program under subd. 1. a qualifying background check result for the caregiver, potential caregiver, nonclient resident, or potential nonclient resident.

3. The caregiver, potential caregiver, nonclient resident, or potential nonclient resident is employed by or resides at a child care program within the state or has been separated from employment or residence at a child care program within the state for a period of not more than 180 consecutive days.

(ag) 1. A request for a background check to the department under par. (a) or (ab) shall be in the manner and on forms prescribed by the department, and shall include all of the following:

a. Fingerprints of the subject that meet the standards of the department.

b. Any additional information that the department deems necessary to perform the criminal background check.

2. A request for a criminal background check is considered submitted on the day that the department receives all of the information required under subd. 1.

3. The requester of a background check under this paragraph shall submit all fees required by the department pursuant to the instructions provided by the department, not to exceed the actual cost of conducting the criminal background check.

(am) Upon receipt of a request submitted under par. (a) or (ab), the department shall obtain all of the following with respect to a caregiver or a nonclient resident who is not under 10 years of age:

1. A fingerprint-based criminal history search from the records maintained by the department of justice.

2. Information that is contained in the registry under s. 146.40 (4g) regarding any findings against the person.

3. Information maintained by the department of safety and professional services regarding the status of the person's credentials, if applicable.

4. Information maintained by the department regarding any final determination under s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, any final decision under s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.

5. Information maintained by the department of health services under s. 48.685 regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity or a child care program, for a reason specified in s. 48.685 (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 or a child care program for a reason specified in s. 48.685 (4m) (a) 1. to 5.

6. Information that is contained in the sex offender registry under s. 301.45 regarding whether the person has committed a sex offense that is a serious crime.

7. A fingerprint-based criminal history search using the federal bureau of investigation next generation identification.

8. A search of the national crime information center's national sex offender registry.

9. A search of the following registries, repositories, or databases in the state where the caregiver or nonclient resident resided for the period starting on the date 5 years prior to the department's receipt of the background check request and ending on the date the department received the background check request:

a. The state criminal registry or repository.

b. The state sex offender registry or repository.

c. The state-based child abuse and neglect registry and database.

10. A search of the department's criminal background check records.

(ar) After receiving a request under par. (a) or (ab), the department shall conduct the criminal background check as expeditiously as possible and shall make a good faith effort to complete all components of the criminal background check no later than 45 days after the date on which the request was submitted.

(bb) If information obtained under par. (am) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If information submitted to the department under par. (ag) indicates a charge or a conviction of a serious crime, but information obtained under par. (am) does not indicate such a charge or conviction, the department 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), information submitted under par. (ag), 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 (1), or 947.013 obtained not more than 5 years before the date on which that information was obtained, the department 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.

(bd) Notwithstanding par. (am), the department is not required to obtain the information specified in par. (am) 1. to 10., with respect to a person under 18 years of age whose background check request under par. (ag) indicates that the person is not ineligible to be permitted to reside at a child care program for a reason specified in sub. (4m) (a) 1. to 8. and with respect to whom the department otherwise has no reason to believe that the person is ineligible to be permitted to reside for any of those reasons. This paragraph does not preclude the department from obtaining, at its discretion, the information specified in par. (am) 1. to 10. with respect to a person described in this paragraph who is a nonclient resident or a potential nonclient resident of a child care program.