SB30,829
24Section 829
. 48.685 (8) of the statutes is amended to read:
SB30,449,10
148.685
(8) The department, the department of health services, a county
2department,
an agency contracted with under s. 48.651 (2), or a child welfare agency
,
3or a school board may charge a fee for obtaining the information required under sub.
4(2) (am)
or (ar) or (3) (a)
or (am), for providing information to an entity to enable the
5entity to comply with sub. (2) (b)
1. or (3) (b), or for obtaining and submitting
6fingerprints under sub. (2) (bm)
or (br). The fee may not exceed the reasonable cost
7of obtaining the information or of obtaining and submitting fingerprints. No fee may
8be charged to a nurse aide, as defined in s. 146.40 (1) (d), for obtaining or maintaining
9information or for obtaining and submitting fingerprints if to do so would be
10inconsistent with federal law.
SB30,830
11Section 830
. 48.685 (9) of the statutes is created to read:
SB30,449,1312
48.685
(9) The department may promulgate any rules necessary for the
13administration of this section.
SB30,831
14Section 831
. 48.686 of the statutes is created to read:
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1548.686 Criminal history and child abuse record search; child care. (1) 16In this section:
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(ag) “Caregiver" means any of the following:
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1. A person who is any of the following:
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a. An employee or independent contractor of a child care program.
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b. Involved in the care or supervision of clients of a child care program or has
21unsupervised access to clients of a child care program.
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2. A person who has, or is seeking, a license, certification, or contract to operate
23a child care program.
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(aj) “Child care program” means a child care center that is licensed under s.
2548.65 or established or contracted for under s. 120.13 (14), a child care provider that
1is certified under s. 48.651, or a temporary employment agency that provides
2caregivers to another child care program.
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(am) “Client" means a person who receives direct care from a child care
4program, from an entity under s. 48.685 (1) (b) or from a caregiver specified in s.
548.685 (1) (ag) 1. am., including all of the following:
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1. An adopted child for whom adoption assistance payments are being made
7under s. 48.975.
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2. A child for whom subsidized guardianship payments are being made under
9s. 48.623.
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3. A person who is 18 to 21 years old, is receiving independent living services
11under
42 USC 677 (a) from an agency, is no longer placed in out-of-home care, and
12is residing in the foster home in which he or she was previously placed.
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(ar) “Contractor" means, with respect to a child care program, a person, or that
14person's agent, who provides services to the child care program under an express or
15implied contract or subcontract.
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(bm) “Nonclient resident" means a person who is age 10 or older, who resides,
17or is expected to reside, at a child care program, and who is not a client of the child
18care program or caregiver.
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(br) “Reservation" means land in this state within the boundaries of a
20reservation of a tribe or within the bureau of Indian affairs service area for the
21Ho-Chunk Nation.
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(c) “Serious crime" means any of the following:
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1. A violation of s. 940.12, 940.22 (2) or (3), 940.285 (2), 940.29, 940.295, or
24942.09 (2).
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2. A violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.
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13. An offense under ch. 948 that is a felony, other than a violation of s. 948.22
2(2).
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4. A violation of s. 940.19 (3), 1999 stats., or of s. 940.19 (2), (4), (5), or (6) or
4940.20 (1) or (1m), if the victim is the spouse of the person.
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5. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.21, 940.225 (1),
6(2), or (3), 940.23, 940.305, 940.31, 941.20 (2) or (3), 941.21, 943.04, 943.10 (2), 943.32
7(2), or 948.21 (1) (a).
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6. Only for a caregiver, as defined in par. (ag) 2., a violation of s. 943.201,
9943.203, or 943.38 (1) or (2); a violation of s. 943.34 (1), 943.395 (1), 943.41 (3) (e), (4)
10(a), (5), (6), or (6m), 943.45 (1), 943.455 (2), 943.46 (2), 943.47 (2), 943.50 (1m), or
11943.70 (2) (a) or (am) or (3) (a) that is a felony; or an offense under subch. IV of ch.
12943 that is a felony.
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7. A violation of sub. (2) or s. 48.685 (2), (3), (4m) (b), or (6), 2015 stats., if the
14violation involves the provision of false information to or the intentional withholding
15of information from, the department, a county department, an agency contracting
16under s. 48.651 (2), a school board, or a child care program.
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8. An offense involving fraudulent activity as a participant in the Wisconsin
18Works program under ss. 49.141 to 49.161, including as a recipient of a child care
19subsidy under s. 49.155, or as a recipient of aid to families with dependent children
20under s. 49.19, medical assistance under subch. IV of ch. 49, food stamps benefits
21under the food stamp program under
7 USC 2011 to
2036, supplemental security
22income payments under s. 49.77, payments for the support of children of
23supplemental security income recipients under s. 49.775, or health care benefits
24under the Badger Care health care program under s. 49.665.
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19. A violation of s. 125.075 (1), 125.085 (3) (a) 2., 125.105 (2) (b), 125.66 (3),
2125.68 (12), 940.09, 940.19 (2), (4), (5), or (6), 940.20, 940.203, 940.205, 940.207,
3940.25, or 943.23 (1g), a violation of s. 948.51 (2) that is a felony under s. 948.51 (3)
4(b) or (c), a violation of s. 346.63 (1), (2), (5), or (6) that is a felony under s. 346.65 (2)
5(am) 5., 6., or 7. or (f), (2j) (d), or (3m), or an offense under ch. 961 that is a felony, if
6the person completed his or her sentence, including any probation, parole, or
7extended supervision, or was discharged by the department of corrections, less than
85 years before the date of the investigation under sub. (2) (am).
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10. A violation of s. 948.22 (2), if the person completed his or her sentence,
10including any probation, parole, or extended supervision, or was discharged by the
11department of corrections, less than 5 years before the date of the investigation
12under sub. (2) (am), unless the person has paid all arrearages due and is meeting his
13or her current support obligations.
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11. A violation of the law of any other state or United States jurisdiction that
15would be a violation listed in subd. 1. to 10. if committed in this state.
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12. A violation of the laws of another state or United States jurisdiction that
17if committed in this state would constitute felony battery under s. 940.19 (2), (4), (5),
18or (6) or 940.20, a felony offense of domestic abuse, as defined in s. 813.12 (1) (am),
19a sex offense or a violent crime under ch. 948, or a violation of 940.225 if the victim
20was a child.
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21(2) (a) The department shall require any person who applies for issuance of an
22initial license to operate a child care center under s. 48.65, a school board shall
23require any person who proposes an initial contract with the school board under s.
24120.13 (14), and the department in a county having a population of 750,000 or more,
25a county department, or an agency contracted with under s. 48.651 (2) shall require
1any child care provider who applies for initial certification under s. 48.651 to submit
2the information required for a background check request under par. (ag). A school
3board, county department, or contracted agency shall submit the completed
4background information request to the department.
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(ab) Each child care program shall submit a request to the department for a
6criminal background check for each potential caregiver and potential nonclient
7resident prior to the date on which an individual becomes a caregiver or nonclient
8resident, and at least once during every 5-year period for each existing caregiver or
9nonclient resident, except if all of the following apply:
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1. The caregiver, potential caregiver, nonclient resident, or potential nonclient
11resident has received a background check as described in par. (am) while employed
12or seeking employment by another child care program within the state within the
13last 5 years.
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2. The department provided to the child care program under subd. 1. a
15qualifying background check result for the caregiver, potential caregiver, nonclient
16resident, or potential nonclient resident.
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3. The caregiver, potential caregiver, nonclient resident, or potential nonclient
18resident is employed by or resides at a child care program within the state or has been
19separated from employment or residence at a child care program within the state for
20a period of not more than 180 consecutive days.
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(ag) 1. A request for a background check to the department under par. (a) or (ab)
22shall be in the manner and on forms prescribed by the department, and shall include
23all of the following:
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a. Fingerprints of the subject that meet the standards of the department.
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1b. Any additional information that the department deems necessary to perform
2the criminal background check.
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2. A request for a criminal background check is considered submitted on the
4day that the department receives all of the information required under subd. 1.
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3. The requester of a background check under this paragraph shall submit all
6fees required by the department pursuant to the instructions provided by the
7department, not to exceed the actual cost of conducting the criminal background
8check.
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(am) Upon receipt of a request submitted under par. (a) or (ab), the department
10shall obtain all of the following with respect to a caregiver or a nonclient resident who
11is not under 10 years of age:
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1. A fingerprint-based criminal history search from the records maintained by
13the department of justice.
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2. Information that is contained in the registry under s. 146.40 (4g) regarding
15any findings against the person.
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3. Information maintained by the department of safety and professional
17services regarding the status of the person's credentials, if applicable.
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4. Information maintained by the department regarding any final
19determination under s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such
20a determination, any final decision under s. 48.981 (3) (c) 5p. that the person has
21abused or neglected a child.
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5. Information maintained by the department of health services under s. 48.685
23regarding any denial to the person of a license, continuation or renewal of a license,
24certification, or a contract to operate an entity or a child care program, for a reason
25specified in s. 48.685 (4m) (a) 1. to 5. and regarding any denial to the person of
1employment at, a contract with, or permission to reside at an entity or a child care
2program for a reason specified in s. 48.685 (4m) (a) 1. to 5.
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6. Information that is contained in the sex offender registry under s. 301.45
4regarding whether the person has committed a sex offense that is a serious crime.
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7. A fingerprint-based criminal history search using the federal bureau of
6investigation next generation identification.
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8. A search of the national crime information center's national sex offender
8registry.
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9. A search of the following registries, repositories, or databases in the state
10where the caregiver or nonclient resident resided for the period starting on the date
115 years prior to the department's receipt of the background check request and ending
12on the date the department received the background check request:
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a. The state criminal registry or repository.
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b. The state sex offender registry or repository.
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c. The state-based child abuse and neglect registry and database.
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10. A search of the department's criminal background check records.
SB30,455,2017
(ar) After receiving a request under par. (a) or (ab), the department shall
18conduct the criminal background check as expeditiously as possible and shall make
19a good faith effort to complete all components of the criminal background check no
20later than 45 days after the date on which the request was submitted.
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(bb) If information obtained under par. (am) indicates a charge of a serious
22crime, but does not completely and clearly indicate the final disposition of the charge,
23the department shall make every reasonable effort to contact the clerk of courts to
24determine the final disposition of the charge. If information submitted to the
25department under par. (ag) indicates a charge or a conviction of a serious crime, but
1information obtained under par. (am) does not indicate such a charge or conviction,
2the department shall make every reasonable effort to contact the clerk of courts to
3obtain a copy of the criminal complaint and the final disposition of the complaint.
4If information obtained under par. (am), information submitted under par. (ag), or
5any other information indicates a conviction of a violation of s. 940.19 (1), 940.195,
6940.20, 941.30, 942.08, 947.01 (1), or 947.013 obtained not more than 5 years before
7the date on which that information was obtained, the department shall make every
8reasonable effort to contact the clerk of courts to obtain a copy of the criminal
9complaint and judgment of conviction relating to that violation.
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(bd) Notwithstanding par. (am), the department is not required to obtain the
11information specified in par. (am) 1. to 10., with respect to a person under 18 years
12of age whose background check request under par. (ag) indicates that the person is
13not ineligible to be permitted to reside at a child care program for a reason specified
14in sub. (4m) (a) 1. to 8. and with respect to whom the department otherwise has no
15reason to believe that the person is ineligible to be permitted to reside for any of those
16reasons. This paragraph does not preclude the department from obtaining, at its
17discretion, the information specified in par. (am) 1. to 10. with respect to a person
18described in this paragraph who is a nonclient resident or a potential nonclient
19resident of a child care program.
SB30,456,2320
(br) The department shall require the person who is the subject of a search
21under par. (am) to be fingerprinted on 2 fingerprint cards, each bearing a complete
22set of the person's fingerprints, or by other technologies approved by law enforcement
23agencies, unless the person has previously been fingerprinted under this paragraph.
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24(3) (am) Every year or at any time that the department considers appropriate,
25the department may request the information specified in sub. (2) (am) 1. to 5. for all
1caregivers under sub. (1) (ag) 2., nonclient residents of such a caregiver, and
2caregivers under sub. (1) (ag) 1. who have direct contact with clients. For the
3purposes of this paragraph, “direct contact” means face-to-face physical proximity
4to a client that affords the opportunity to commit abuse or neglect of a client or to
5misappropriate the property of a client.
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(bm) Annually, by January 1, the department shall submit a report to the
7appropriate standing committees of the legislature under s. 13.172 (3) describing the
8report prepared under sub. (4p) (a) with respect to caregivers specified in sub. (1) (ag)
92., specifically any information indicating that the caregiver is ineligible under sub.
10(4m) (a) to be licensed, certified, or contracted to operate a child care program, and
11describing any action taken in response to the receipt of information under sub. (2)
12(am) indicating that such a caregiver is so ineligible.
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13(4) (a) A child care program that violates sub. (2), (3), or (4m) (a) is subject to
14a forfeiture of not more than $1,000 and to other sanctions specified by the
15department by rule.
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(b) A person who provides false information to the department under sub. (2)
17is subject to a forfeiture of not more than $1,000 and to other sanctions specified by
18the department by rule.
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19(4m) (a) Notwithstanding s. 111.335, and except as provided in par. (ad) and
20sub. (5), the department may not license, or continue or renew the license of, a person
21to operate a child care center under s. 48.65, the department in a county having a
22population of 750,000 or more, a county department, or an agency contracted with
23under s. 48.651 (2) may not certify a child care provider under s. 48.651, a school
24board may not contract with a person under s. 120.13 (14), and a child care program
25may not employ or contract with a caregiver specified in sub. (1) (ag) 1. if the
1department, county department, contracted agency, school board, or child care
2program knows or should have known any of the following:
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1. That the person has been convicted of a serious crime or adjudicated
4delinquent on or after his or her 10th birthday for committing a serious crime or that
5the person is the subject of a pending criminal charge or delinquency petition
6alleging that the person has committed a serious crime on or after his or her 10th
7birthday.
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3. That a unit of government or a state agency, as defined in s. 16.61 (2) (d), has
9made a finding that the person has abused or neglected any client or
10misappropriated the property of any client.
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4. That a final determination has been made under s. 48.981 (3) (c) 5m. or, if
12a contested case hearing is held on such a determination, a final decision has been
13made under s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.
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5. That the department has determined the person ineligible to be licensed to
15operate a child care center under s. 48.65, to be certified to operate a child care
16provider under s. 48.651, to contract with a school board under s. 120.13 (14), to be
17employed as a caregiver at a child care program, or to be a nonclient resident at a
18child care program.
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6. That the person has refused to provide information under sub. (2) (ag), or
20that the person refused to participate in, cooperate with, or submit required
21information for the criminal background check described in sub. (2) (am), including
22fingerprints.
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7. That the person knowingly made a materially false statement in connection
24with the person's criminal background check described in sub. (2).
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18. That the person knowingly omitted material information requested in
2connection with the person's criminal background check conducted under sub. (2).
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(ad) The department may license a child care center under s. 48.65; the
4department in a county having a population of 750,000 or more, a county
5department, or an agency contracted with under s. 48.651 (2) may certify a child care
6provider under s. 48.651; and a school board may contract with a person under s.
7120.13 (14), conditioned on the receipt of the information specified in sub. (4p) (a)
8indicating that the person is not ineligible to be so licensed, certified, or contracted
9with for a reason specified in par. (a) 1. to 8.
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(c) A child care program may employ or contract with a potential caregiver or
11permit a potential nonclient resident to reside at the child care program for up to 45
12days from the date a background check request is submitted to the department
13pending the completion of the department's report under sub. (4p) (a) if the
14department provides a preliminary report under sub. (4p) (c) to the child care
15program indicating that the potential caregiver or nonclient resident is not ineligible
16to work or reside at a child care program. At all times that children in care are
17present, an individual who received a qualifying result on a background check
18described in sub. (2) (am) within the past 5 years must supervise a potential
19employee or nonclient resident permitted to work or reside at the chid care program
20under this paragraph.
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21(4p) (a) The department shall provide the results of the criminal background
22check to the child care program in a written report that indicates only that the
23individual on whom the background check was conducted is eligible or ineligible for
24employment or to reside at the child care program, without revealing any
25disqualifying crime or other information regarding the individual.
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1(b) The department shall provide the results of the criminal background check
2to the individual on whom the background check was conducted in a written report
3that indicates whether the individual is eligible or ineligible for employment or to
4reside at the child care program. If the individual is ineligible for employment or to
5reside at the child care program, the department's report shall include information
6on each disqualifying crime and information on the right to appeal.
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(c) Before the department completes its report under par. (a), a caregiver under
8sub. (1) (ag) 2. may submit a written request to the department for a preliminary
9report indicating whether a potential caregiver or nonclient resident is eligible to
10work or reside at a child care program under sub. (4m) (c). If the department receives
11such a request, it shall provide a written preliminary report to that caregiver
12indicating whether the individual is barred from employment as a caregiver or
13residence as a nonclient resident on the basis of a background check under sub. (2)
14(am) 1. or 7. If the individual is ineligible for employment or residence at a child care
15program based on the results of the preliminary report, the department shall also
16provide a preliminary report to the individual containing information related to each
17disqualifying crime.
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(d) The results of a report under par. (c) may not be appealed by the individual
19until receipt of the department's report under par. (b) following completion of all
20components of the criminal background check.
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21(4s) (a) An individual who is the subject of the department's report on the
22results of a criminal background check may appeal the department's decision. Only
23the person who is the subject of the department's report may appeal the department's
24decision. Neither the child care program nor any other person may appeal the
25department's decision.
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1(b) An appeal request shall be submitted to the department at the address,
2e-mail address, or fax number identified in the statement of appeal rights no later
3than 60 days after the date of the department's decision, unless the appellant
4requests, and the department grants, an extension for a specific amount of time prior
5to expiration of the 60 day appeal period. Extensions may be granted for good cause
6shown.
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(c) An appeal shall be submitted in the manner and on forms prescribed by the
8department, and must include all of the following information:
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1. The information or issue disputed by the individual.
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2. Any information known to the individual, or available to the individual
11through the exercise of reasonable diligence, that supports the individual's position.
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3. The current or last known names, addresses, telephone numbers, and email
13addresses of any persons known or believed to have information relevant to
14determination of the appeal.
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4. Copies of any documents or other materials in the possession of the
16individual, or reasonably available to the individual, that support the individual's
17position regarding the disputed information.
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(e) The department shall attempt to verify the accuracy of the information
19challenged by the appellant, including making reasonable good faith efforts to locate
20any missing information regarding the disqualifying crime that is relevant to the
21issue identified for appeal.
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(f) The department shall sustain the results of its criminal background check
23report if supported by a preponderance of the available evidence.
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(g) The department shall issue its appeal decision in writing. If the results of
25the original report are sustained upon review, the decision shall indicate the
1department's efforts to verify the accuracy of the information challenged by the
2individual. The decision shall also indicate any additional reconsideration and
3appeal rights available to the appellant.
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(h) An appellant under this subsection may seek reconsideration of the
5department's decision under par. (g) by the secretary or the secretary's designee.