Information on the effect of a final determination on background checks under ss. 48.685 and 50.065, Stats.The person may request a review of the initial determination by submitting a request for review to the agency within 15 days after the date of the notice of initial determination. Within 15 days after receiving the review request, the agency shall send a written notice to the person with the review date, time, and place. The notice shall be sent at least 7 days before the review. If the person does not request a review within 15 days after the date of the notice of initial determination, the agency shall send the person a notice of final determination within 5 days.
The review of the initial determination may be by an individual or panel. If a panel is used, the panel shall be comprised of at least 3 members, and the final determination shall be the decision of the majority of the panel. The individual or panel conducting the review of the initial determination shall have authority to make the final determination.
The proposed rules also provide that any person who conducts the review of the initial determination shall have knowledge of child protective services in Wisconsin and no person who conducts the review of the initial determination may have had any prior involvement in the investigation or determination for the case that is being reviewed.
The review of the initial determination shall be held within 45 days after the person’s request for review. The person may request one rescheduling of the review date or time, and the agency shall grant the request if the review of the initial determination can be rescheduled within 45 days after the person’s initial request for review. The notice of the rescheduled review date may be sent less than 7 days before the review if that is necessary to complete the review within 45 days after the person’s request for review.
An agency may not hold the review of the initial determination in abeyance pending the outcome of any criminal proceedings or any proceedings under s. 48.13 or 938.12, Stats., based on the alleged abuse or neglect or the outcome of any investigation that may lead to the filing of a criminal complaint or petition under s. 48.13 or 938.12, Stats., based on the alleged abuse or neglect. The review of the initial determination shall be scheduled for at least one hour. When the review is scheduled, the agency shall provide the reviewing individual or panel with information related to the initial determination. The person may be represented by an attorney. The person may present information that is relevant to whether the person has abused or neglected a child as specified in the initial determination. The person may not present witnesses and may not question any agency staff who may be present. The agency is not required to present evidence or witnesses to support the determination beyond the materials provided under par. (j).
Final Determination
Under the proposed rules, the individual or panel conducting the review of the initial determination shall make a final determination on whether the specific person has abused or neglected a child within 10 days after the date of the review of the initial determination. The agency shall send a written notice of final determination to the person within 5 days after the date of the final determination. If the final determination upholds the initial determination or the person did not request a review of the initial determination, the notice shall include a summary of the reasons for the final determination and information on appealing the final determination.
Sections 48.685 and 50.065, Stats., require that information regarding a final determination that a person has abused or neglected a child be obtained for caregiver background checks. The agency shall ensure that authorized information regarding a final determination is available for caregiver background checks within 15 days after the agency’s final determination. Division of Hearings and Appeals Contested Case Hearing
Under s. 48.891 (3) (c) 5p., Stats., a person who is a subject of a final determination that the person has abused or neglected a child has the right to a contested case hearing before DHA on that determination. To receive the hearing, the person must send a written request to DHA within 10 days after the date of the notice of the final determination. DHA shall commence the contested case hearing within 90 days after the receipt of the request unless the hearing is rescheduled by the person requesting it or DHA holds the case proceeding in abeyance. DHA can hold the case proceeding in abeyance pending the outcome of any criminal proceedings or any proceedings under s. 48.13, Stats., based on the alleged abuse or neglect or the outcome of any investigation that may lead to the filing of a criminal complaint or a petition under s. 48.13, Stats., based on the alleged abuse or neglect. DHA shall issue a final decision within 60 days after the close of the hearing. The proposed rules provide that a person may request that DHA expedite his or her appeal if any of the following apply:
The person currently has, or has applied for, a license or certification that may be revoked or denied as provided in s. 48.685 or 50.065, Stats.
The person is currently employed by or contracts with, or the person is actively engaged in seeking employment or a contract with, an entity for duties subject to the background check requirements under s. 48.685 or 50.065, Stats.
The person is enrolled in an academic program that leads to license, certification, or employment or contract position that will be subject to the background check requirements under s. 48.685 or 50.065, Stats., and the person can be expected to complete the academic program within 150 days after the date of his or her request for a hearing with the division of hearings and appeals. A person who requests that DHA expedite his or her appeal shall indicate the request on his or her request for hearing and provide documentation that he or she qualifies for an expedited appeal. The DHA shall provide an expedited hearing and decision for a qualified person as soon as practicable.
If the contested case hearing or judicial review overturns the final determination that a specific person has abused or neglected a child, the agency shall update the authorized information available for background checks within 15 days after the decision.
Summary of Factual Data and Analytical Methodologies
The rules were developed with an advisory group of representatives from the Wisconsin County Human Services Association.
The framework for the rules is based on the appellate opinion Dupuy v. Samuels, 397 F.3d 493 (7th Cir. 2005) and the district court opinions Dupuy v. McDonald, 141 F. Supp. 2d 1090 (N.D. Ill. 2001); Dupuy v. McDonald, 2003 Westlaw 2155791 (N.D. Ill. July 10, 2003); and Dupuy v. Samuels, 2005 Westlaw 1498468 (N.D. Ill. June 10, 2005). The 7th Circuit is a federal court with appellate jurisdiction over courts in Illinois, Wisconsin, and Indiana. Dupuy is a class action case that found that specified workers subject to a background check that presumes disqualification based on a determination of child abuse or neglect have a constitutionally protected property interest in pursuing employment in their chosen occupation and are entitled to due process before being deprived of that interest. The series of opinions set forth decision-making, notice and hearing, and disclosure policies that were acceptable to the 7th Circuit of the U.S. Court of Appeals.
Summary of Related Federal Requirements
The Child Abuse Prevention and Treatment and Adoption Reform Act provides that the federal Department of Health and Human Services shall provide grants to states for the purpose of assisting states in improving their child protective services system. A state plan describing the activities that the state will carry out using funds received under the grant must include an assurance that the state has provisions, procedures, and mechanisms by which individuals who disagree with an official finding of child abuse or neglect can appeal the finding. 42 USC 5106a (b) (2) (B) (xv) (II). Comparison to Rules in Adjacent States
Illinois
Illinois has a 2-track process. Persons with an employment interest may request a pre-disclosure conference and a post-disclosure contested case hearing based on the procedures developed in the Dupuy opinions. Persons without an employment interest may request a contested case hearing.
Minnesota
Both persons with an employment interest and persons with no employment interest may request a reconsideration of the agency’s determination. A person with an employment interest has more time to request a reconsideration of the agency’s determination than a person without an employment interest. For a person with an employment interest, the reconsideration may be based on whether the information that the agency relied on to disqualify is incorrect or on whether the individual poses a risk of harm to persons served by the program, or both. The agency has more time to respond if more issues are involved. Following the reconsideration, a person may request a contested case hearing.
Iowa
Following the conclusion of an assessment, a subject of a child abuse report has the right to examine the report and provide additional information and request that the department revise the report. At the time the report is issued, the department shall provide notice of the right to a contested case hearing to the person named as having abused a child.
Michigan
After a person’s name is placed on the Central Registry, the person may write a letter requesting that his or her name be removed from the Central Registry. If that request is denied, the person may request an administrative hearing.
Effect on Small Business
The proposed rule may have an effect on small businesses as defined in s. 227.114 (1), Stats., in the future, but currently does not. Analysis Used to Determine Effect on Small Business or in Preparation of Economic Impact Analysis
Section 48.981(3) (cm), Stats., allows the department to contract with a licensed child welfare agency to fulfill the department’s duties on the review of an initial determination under s. 48.981 (3) (c) 5m., Stats. The Bureau of Milwaukee Child Welfare has been administering appeals of child abuse or neglect determinations itself and has no plans to contract with a licensed child welfare agency for duties under s. 48.981 (3) (c) 5m., Stats., upon implementation of this rule. Section 48.981 (3) (cm), Stats., does not allow counties to contract out its duties under s. 48.981 (3) (c) 5m., Stats. Agency Contact Person
Place Where Comments are to be Submitted and Deadline for Submission
Comments may be submitted to Elaine Pridgen, Office of the Secretary, Department of Children and Families, 201 E. Washington Avenue, P.O. Box 8916, Madison, WI, 53708-8916 or dcfpublichearing@wisconsin.gov. The comment deadline is January 28, 2015. SECTION 1. Chapter DCF 40 is created to read: REVIEW OF A DETERMINATION OF CHILD ABUSE OR NEGLECT
DCF 40.01 Purpose. This chapter specifies the procedures for review of a determination that a specific person has abused or neglected a child under s. 48.981 (3) (c) 5m., and 5p., Stats., and for ensuring that authorized information is available for background checks as provided in s. 48.981 (3) (c) 5r., Stats. DCF 40.02 Definitions. In this chapter:
(1) “Abuse” has the meaning given in s. 48.02 (1), Stats., and as further defined in the standards established by the department for conducting child abuse and neglect investigations under s. 48.981 (3) (c) 1. a., Stats. (2) “Administrative law judge” means an administrative hearing examiner employed by the division of hearings and appeals.
(3) “Agency” means a county department under s. 46.22 or 46.23, Stats., or in a county having a population of 500,000 or more, the department or a licensed child welfare agency that is under contract with the department to fulfill the department’s duties specified under s. 48.981 (3) (c) 5m., Stats. (4) “Department” means the department of children and families.
(5) “Division of hearings and appeals” means the division of hearings and appeals within the department of administration.
(6) “Final determination” means an agency determination made under s. 48.981 (3) (c) 5m., Stats., that a specific person has abused or neglected a child. (7) “Initial determination” means an agency determination made under s. 48.981 (3) (c) 4., Stats., that a specific person has abused or neglected a child. (8) “Licensed child welfare agency” means a person licensed as required under s. 48.60, Stats. (9) “Neglect” has the meaning given in s. 48.02 (12g), Stats., and as further defined in the standards established by the department for conducting child abuse and neglect investigations or unborn child abuse investigations under s. 49.981 (3) (c) 1. a., Stats.
