State of Wisconsin
Department of Children and Families
Caregiver Background Checks
DCF 12, 50, 51, 55, and 56
The Wisconsin Department of Children and Families proposes to repeal ss. DCF 55.02(8)(note), 55.13(4)(b), 55.13(4)(b)(note), and 56.04(3)(a) and (b); to renumber and amend s. DCF 56.04(3)(intro.); to amend ss. DCF 55.02(2)(note) and (8), 55.03(1)(b)3. and 55.13(1)(a)1.(note), (2)(e), (3)(note), (4)(intro.), (4)(a), and (4)(d), 56.04(4)(a)9.c., and 56.05(1)(a)1.; to repeal and recreate ss. DCF 50.044 (3) (b), 50.045(3)(b), 51.07(1)(e), 55.08(4)(c), 55.13(4)(d) and (e), 55.13(5)(note), and 56.05(1)(f); and to create ch. DCF 12 and ss. 50.01 (4)(Lm), 55.02(5m), 55.13(5)(note), 56.03 (11s) and (27m), 56.05(1)(g), and 56.055, relating to caregiver background checks. Analysis Prepared by the Department of Children and Families
Statutes interpreted: Sections 48.01 (1) (f), 48.60, 48.62, 48.623, 48.65, 48.651, 48.66, 48.67, 48.685, 48.75, 48.88 (2) (am), 48.975, 48.979, 49.155 (1d), and 938.22, Stats. Explanation of Agency Authority
Section 48.67 (intro.), Stats., provides that the department shall promulgate rules establishing minimum requirements for the issuance of licenses to, and establishing standards for the operation of, child welfare agencies, child care centers, foster homes, group homes, shelter care facilities, and county departments. Those rules shall be designed to protect and promote the health, safety, and welfare of the children in the care of all licensees. Section 48.685 (1) (ag) 1. a., Stats., directs the department to define “under the control of the entity” by rule. Section 48.685 (2) (d), Stats., provides that every entity shall maintain or shall contract with another person to maintain the most recent background information obtained on a caregiver. The information shall be made available for inspection by authorized persons, as defined by the department by rule. Section 48.685 (4), Stats., provides that an entity that violates s. 48.685 (2), (3), or (4m) (b), Stats., may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule. Section 48.685 (5) (a), Stats., directs the department to establish procedures by rule under which a person may show by clear and convincing evidence that he or she has been rehabilitated. Section 48.685 (6) (b) 1., Stats., provides that caregivers licensed by the department, persons who are under 18 years of age and who are caregivers for a child care center, nonclient residents of an entity that is licensed by the department, and other persons specified by the department by rule shall send the background information form to the department. Section 48.685 (6) (b) 2., Stats., provides that caregivers who are licensed or certified by a county department or an agency contracted with under s. 48.651 (2), Stats., nonclient residents of those entities, and other persons specified by the department by rule shall send the background information form to the county department or contracted agency. Section 48.685 (6) (b) 3., Stats., provides that caregivers who are licensed by a child welfare agency, nonclient residents of those entities, and other persons specified by the department by rule shall send the background information form to the child welfare agency. Section 48.685 (6) (b) 4., Stats., provides that caregivers who are contracted with by a school board, nonclient residents of those entities, and other persons specified by the department by rule shall send the background information form to the school board. Section 48.685 (6) (c), Stats., provides a person who provides false information on a background information form may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule. Section 49.155 (1d), Stats., provides that the department shall promulgate rules establishing standards for the certification of child care providers under s. 48.651, Stats.
Section 227.11 (2) (a) (intro.), Stats., expressly confers rule-making authority on each agency to promulgate rules interpreting the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute. Summary of the Proposed Rule
The proposed rulemaking order will create a Department of Children and Families caregiver background check rule as required under s. 48.685, Stats. In general, s. 48.685, Stats., applies to programs involving the care of children by entities that are regulated by the Department of Children and Families. The department’s proposed rule is similar to the existing caregiver background check rule in ch. DHS 12. Chapter DHS 12 is a Department of Health Services rule that currently applies to background checks required under ss. 48.685 and 50.065, Stats. Most of the programs affected by the background checks required under s. 48.685, Stats., were in the Department of Health and Family Services until they were transferred when the Department of Children and Families was created. Chapter DHS 12 applies to background checks under s. 48.685, Stats., until the department creates its own rule. In general, s. 48.685, Stats., requires a background check as a condition of regulatory approval and employment at, contract with, or nonclient residency at specified entities that care for children, including residential care centers, group homes, foster homes, shelter care facilities, child-placing agencies, licensed child care centers, certified child care providers, and child care programs established or contracted for under s. 120.13 (14), Stats. A background check is also required for an interim caretaker seeking subsidized guardianship payments and any nonclient residents of the interim caretaker. Entity Contract to Conduct Background Checks and Retain Records
In general, the applicable regulatory agency conducts the background check on the person who has, or is seeking, regulatory approval and any person who is, or is seeking to be, a nonclient resident. The entity conducts the background check on a person who has, or is seeking, employment or contract as a caregiver.
Under the proposed rule, an entity may enter into a contract with any other entity or with a person, temporary employment agency, college, university, vocational or technical college or school to obtain and retain the required background information. The entity must retain a copy of the contract. For searches conducted under contract, the entity must obtain a copy of the completed background information disclosure if it is required under s. 48.685 (6), Stats., and the results of the search. The entity shall retain the most recent documentation for caregivers that the entity employs or contracts with, so the documentation may be promptly retrieved and reviewed by that regulates the entity. Obtain Armed Forces Information
Section 48.685 (2), Stats., specifies the records that must searched to conduct the background check. In general, these records include criminal history records, records of final determinations that a person abused or neglected a child, information on the status of applicable professional credentials maintained by the Department of Safety and Professional Services, the registry of findings of misappropriation of property of a client or neglect or abuse of a client under s. 146.40 (4g), Stats., and records of previous denials or revocations due to s. 48.685, Stats. In some cases, a search of a sex offender registry, a search of records of another state, a fingerprint-based search of national criminal history records, or various types of follow-up may be required. The proposed rule also requires an agency or entity to make every reasonable effort to obtain the discharge status of a person who has served in the armed forces within the previous 3 years, including any reserve component. If the discharge status is other than honorable, the agency or entity shall obtain information on the nature and circumstances of the discharge. The proposed rule requires the agency or entity to document the efforts made to obtain the discharge status of the person.
