Rule-Making Notices
Notice of Hearing
Health Services
Management and Technology and Strategic Finance,
Chs.
DHS 1—
NOTICE IS HEREBY GIVEN that pursuant to ss.
50.065 (2m) (d) and
227.11 (2) (a), Stats., the Wisconsin Department of Health Services proposes to repeal s.
DHS 12.03 (15) and to create ss.
DHS 12.03 (20m),
12.115 and Table DHS 12.115, relating to background checks of individuals who provide personal care services, and affecting small businesses, and will hold a public hearing on emergency and proposed permanent rules as follows:
Hearing Information
Date and Time
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Location
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January 6, 2009
9:00 — 11:00 a.m.
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Wilson Street State Office Bldg.
1 West Wilson Street
Room 1150 A
Madison, Wisconsin
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The hearing site is fully accessible to people with disabilities. If you are hearing impaired, do not speak English or have circumstances that might make communication at a hearing difficult; you require an interpreter or a non-English large print or taped version of the proposed rules, contact the person at the address or telephone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Analysis Prepared by the Department of Health Services
Statute interpreted
Statutory authority
Explanation of agency authority
Section
50.065 (2m) (d), Stats., requires the Department to promulgate rules to specify crimes for which an entity must disclose a conviction to a client or the client's guardian of a caregiver who is assigned to provide personal care services to a client in the client's personal residence and to specify who is a “substitute caregiver".
Section
227.11 (2) (a), Stats., allows agencies to promulgate rules interpreting the provision of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
Related statute or rule
Plain language analysis
Section
50.065 (2m) (d), Stats., requires the Department to promulgate rules to specify crimes for which an entity must disclose to a client or the client's guardian, a conviction of a caregiver who is assigned to provide personal care services to the client in the client's personal residence and to specify who is a “substitute caregiver". These requirements were established under
2007 Act 172.
The proposed rule includes a definition of the term “substitute caregiver." It also includes a list of crimes that require disclosure for caregivers providing personal care services. They include all of the crimes currently listed under s.
50.065 (1) (e), Stats., that are already used by entities to determine an individual's eligibility to work for the entity as a caregiver, and the following additional crimes:
•
Theft
•
Robbery
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Financial card transactions crimes
•
Identity theft
•
Drug crimes
Comparison with federal regulations
There are no known existing or proposed related federal regulations.
Comparison with rules in adjacent states
Illinois:
Illinois has no list of crimes for which an entity must disclose a conviction to a client or the client's guardian of a caregiver who is assigned to provide personal care services.
Iowa:
Iowa has no list of crimes for which an entity must disclose a conviction to a client or the client's guardian of a caregiver who is assigned to provide personal care services.
Michigan:
Michigan has no list of crimes for which an entity must disclose a conviction to a client or the client's guardian of a caregiver who is assigned to provide personal care services.
Minnesota:
Minnesota has no list of crimes for which an entity must disclose a conviction to a client or the client's guardian of a caregiver who is assigned to provide personal care services.
Summary of factual data and analytical methodologies
The Department solicited comments from representatives from the Disability Rights Wisconsin, Inc., the Board on Aging and Long Term Care (BOALTC), the Wisconsin Coalition of Aging Groups (CWAG), Independence First, Association of Retarded Citizens, Wisconsin Personal Services Association (WPSA), Community Alliance of Providers of Wisconsin (CAPOW), representatives from the Home Care Advisory Committee (HCAC) and the Home Care Consumer Advisory Committee (HCCAC), and legislators. Representatives from these organizations reviewed the initial draft of the rule including a list of crimes and a definition of “substitute caregiver". The Department revised the rule based upon comments received.
Analysis and supporting documents used to determine effect on small business
The small businesses affected by the proposed rule are temporary employment agencies and home health agencies, and any other agency that may assign individuals to provide personal care services to clients in the clients' private residence. The proposed rule would not have a fiscal impact on small businesses over and above the costs imposed by the requirements established by Act 172 under s.
50.065 (2m), Stats., for entities to conduct background checks, including criminal history checks, on individuals the entity assigns to provide personal care services in a client's private residence and disclose the results to the client or the client's guardian.
Small Business Impact
The proposed rule would not have a fiscal impact on small businesses over and above the costs imposed by the requirements established by Act 172 under s.
50.065 (2m), Stats., for entities to conduct background checks, including criminal history checks, on individuals the entity assigns to provide personal care services in a client's private residence and disclose the results to the client or the client's guardian.
Fiscal Estimate
Section
50.065 (2m) (d), Stats., requires the Department to promulgate rules to specify crimes for which an entity must disclose to a client or the client's guardian, a conviction of a caregiver who is assigned to provide personal care services to the client in the client's personal residence and to specify who is a “substitute caregiver". These requirements were established under
2007 Act 172.
The proposed rule includes a definition of the term “substitute caregiver." It also includes a list of crimes that require disclosure for caregivers providing personal care services. They include all of the crimes currently listed under s.
50.065 (1) (e), Stats., that are already used by entities to determine an individual's eligibility to work for the entity as a caregiver, and the following additional crimes:
•
Theft
•
Robbery
•
Financial card transactions crimes
•
Identity theft
•
Drug crimes
The proposed rule would not affect the revenues or costs of the department or local governments.
The proposed rule would not have a fiscal impact on small businesses over and above the costs imposed by the requirements established by Act 172 under s.
50.065 (2m), Stats., for entities to conduct background checks, including criminal history checks, on individuals the entity assigns to provide personal care services in a client's private residence and disclose the results to the client or the client's guardian.
Agency Contact Person
Pat Benesh, Quality Assurance Program Spec-Senior
DHS Division of Quality Assurance
1 West Wilson Street, Rm. 1150
Madison, WI 53701
Phone: 608-264-9896
Fax: 608-267-7119
Submission of Written Comments
Comments may be submitted to the agency contact person that is listed above. The deadline for submitting comments is January 16, 2009. The notice of public hearing will be posted on the Wisconsin Administrative Rules Website at
http://adminrules.wisconsin.gov.
Text of Proposed Rule
SECTION 1. DHS 12.03 (15) is repealed.
SECTION 2. DHS 12.03 (20m) is created to read:
DHS 12.03 (20m) “Substitute caregiver" means an individual who provides personal care services to the client for 7 or fewer days in a 90 day period.
SECTION 3. DHS 12.115 is created to read:
DHS 12.115 Personal care services, disclosure of convictions. Pursuant to s.
50.065 (2m) (d) Stats., Table DHS 12.115 lists the crimes for which an entity must disclose under s.
50.065 (2m) (a) 1., Stats., a conviction of a caregiver who provides personal care services to a client or the client's guardian.
Table DHS 12.115
Wisconsin
Statutes
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Crime
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940.19 (3), 1999 Stats.
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Battery
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940.01
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First-degree intentional homicide
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940.02
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First-degree reckless homicide
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940.03
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Felony murder
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940.05
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Second-degree intentional homicide
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940.12
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Assisting suicide
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940.19 (2), (4), (5) or (6)
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Battery (felony)
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940.22 (2) or (3)
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Sexual exploitation by therapist; duty to report
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940.225 (1), (2), or (3)
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1st , 2nd, or 3rd degree sexual assault
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940.285 (2)
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Abuse of individuals at risk
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940.29
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Abuse of residents of penal facilities
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940.295
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Abuse or neglect of patients and residents
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943.20
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Theft
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943.201
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Unauthorized use of an individual's personal identifying information or documents
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943.203
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Unauthorized use of an entity's identifying information or documents
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943.32
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Robbery
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943.38
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Forgery
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943.41
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Financial transaction card crimes
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948.02 (1) or (2)
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1st or 2nd degree sexual assault of a child
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948.025
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Engaging in repeated acts of sexual assault of the same child
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948.03 (2) (a), (b) or (c)
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Physical abuse of a child
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948.05
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Sexual exploitation of a child
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948.051
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Trafficking of a child
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948.055
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Causing a child to view or listen to sexual activity
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948.06
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Incest with a child
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948.07
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Child enticement
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948.08
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Soliciting a child for prostitution
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948.085
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Sexual assault of a child placed in substitute care
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948.11 (2) (a) or (am)
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Exposing a child to harmful material or harmful descriptions or narrations
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948.12
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Possession of child pornography
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948.13
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Child sex offender working with children
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948.21(1)
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Neglecting a child
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948.30
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Abduction of another's child; constructive custody
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948.53
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Child unattended in child care vehicle
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961.41 (1)
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Manufacture, distribution or delivery of a controlled substance or a controlled substance analog
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961.41 (1m)
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Possession with intent to manufacture, distribute or deliver a controlled substance or a controlled substance analog
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961.41 (3g)
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Possession or attempt to possess a controlled substance or a controlled substance analog
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961.43 (1) (a)
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Acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge
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961.43 (1) (b)
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To make, distribute or possess material designed to reproduce the trademark upon any drug or container or label so as to make a counterfeit substance or to duplicate the physical appearance, form, package or label of a controlled substance
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A violation of the law of any other state or United States jurisdiction that would be a violation of a crime listed in this table.
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Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s.
601.41 (3), Stats., and the procedures set forth in under s.
227.18, Stats., the Office of the Commissioner of Insurance (OCI) will hold a public hearing to consider the adoption of an order affecting section
Ins 2.07, Wis. Adm. Code, relating to replacement of life insurance or annuity contracts; disclosure requirements.
