DCF 55, Subsidized Guardianship, and DCF 56, Foster Home Care for Children
The proposed rules update DCF 55 and 56 to reflect changes to background checks required under s. 48.685, Stats., as affected by 2017 Wisconsin Act 59, including the following: — An agency or entity is required to obtain criminal history information from another state or conduct an FBI fingerprint-based criminal history search of a person who is the subject of the background check if the person has not been a resident of this state at any time within a specified number of years prior to the search. 2017 Wisconsin Act 59 extended this time period from 3 years to 5 years preceding the search. — Prior to 2017 Wisconsin Act 59, s. 48.685 (4m), Stats., provided that, unless a person has demonstrated that the person has been rehabilitated, the person is barred from licensure, employment or contract, or nonclient residency if the person has been convicted of a serious crime specified in s. 48.685 (1) (c), Stats. 2017 Wisconsin Act 59 amended s. 48.685 (4m), Stats., to add the following reasons a person may be barred: — The person is the subject of a pending criminal charge alleging that the person committed a serious crime specified in s. 48.685 (1) (c), Stats., — The person has been adjudicated delinquent for committing a serious crime specified in s. 48.685 (1) (c), or is the subject of a delinquency petition alleging that the person committed a serious crime specified in s. 48.685 (1) (c), Stats. In addition, gender-specific pronouns are replaced with gender-neutral terms throughout the proposed rules.
Summary of Factual Data and Analytical Methodologies
The proposed rules include orders of a tribal court located in Wisconsin in eligibility for long-term kinship care, clarify language, and update child welfare rules that are superseded by, or in conflict with, a state statute.
Summary of Related Federal Law
The federal Family First Prevention Services Act of 2018 requires a background check for all workers in congregate care facilities, including residential care centers for children and youth, group homes, and shelter care facilities.
Comparison to Adjacent States
Not applicable
Effect on Small Businesses
The proposed rules affect small businesses as defined in s. 227.114 (1), Stats., but have no or minimal effect on these businesses. Analysis Used to Determine Effect on Small Businesses
The rules make technical corrections and clarifications.
Agency Contact
Shannon Braden, Bureau of Permanence and Out-of-Home Care
Rule Text
SECTION 1. DCF 12.01 (1) and (note) are amended to read:
DCF 12.01 (1) This chapter is promulgated under the authority of ss. 48.67 (intro.), 48.685, and 227.11 (2) (a), Stats., to specify procedures necessary to implement background checks required under s. 48.685, Stats., for caregivers, congregate care workers, and nonclient residents at an entity or with a caregiver specified in s. DCF 12.02 (4) (c). Note: For further information on the scope of the caregiver background check, see s. DCF 12.02 for definitions of terms used in this subsection. SECTION 2. DCF 12.02 (2), (3) (a), and (4) (b) (intro.) are amended to read:
DCF 12.02 (2) “Background information disclosure” means the form prescribed by the department on which a person provides information for purposes of the caregiver background check.
(3) (a) A barrier to a person’s eligibility for regulatory approval, employment, or contract as a caregiver or congregate care worker.
(4) (b) (intro.) A person who is, or is expected to be, an employee, a temporary employee, a student participating in a clinical or practicum at an entity as part of his or her the curriculum, or a contractor of an entity if all of the following apply:
SECTION 3. DCF 12.02 (5) is renumbered DCF 12.02 (1m) and amended to read:
DCF 12.02 (1m) “Caregiver background Background check” means the requirements in s. 48.685, Stats. SECTION 4. DCF 12.02 (8) (c) is amended to read:
DCF 12.02 (8) (c) 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 the person was previously placed. SECTION 5. DCF 12.02 (8g) and (8r) are created to read:
DCF 12.02 (8g) “Congregate care facility” means a residential care center for children and youth under s. 48.02 (15d), Stats.; a group home under s. 48.02 (7), Stats.; or a shelter care facility under s. 48.02 (17), Stats. (8r) “Congregate care worker” means an adult who works in a congregate care facility. “Congregate care worker” includes a person who has or is seeking a license to operate a congregate care facility and does not include an unpaid volunteer.
SECTION 6. DCF 12.02 (14) (k) and (Note), (15) (b), (21) (d), (22) (b), (26) (b) 1., 2., and 6. are amended to read:
DCF 12.02 (14) (k) A temporary employment agency that provides caregivers or congregate care workers to another entity.
Note: See s. 48.57 (3p), Stats., and s. DCF 58.05 for information on background checks required for kinship care. (15) (b) A determination made before January 1, 2015, that a person has abused or neglected a child under s. 48.981 (3) (c) 4., 2011 Stats., if the determination has not been reversed or modified on appeal. (21) (d) Approval of the person subject to the caregiver background check for a child care program to be established or contracted for by a school board under s. 120.13 (14), Stats. (22) (b) Employment or contract with an entity to be a caregiver or a congregate care worker for the entity.
(26) (b) 1. The policies or procedures the person must follow in performing his or her the caregiving duties.
2. The conditions under which the person performs his or her the caregiving duties.
6. The compensation the person may receive for performing his or her the caregiving duties.
SECTION 7. DCF 12.03 (2) is amended to read:
DCF 12.03 (2) Timely bid. Each agency and entity specified in s. DCF 12.02 (14) (a) to (g) shall require the background information disclosure to be completed by caregivers and nonclient residents each caregiver, congregate care worker, and nonclient resident no more than 120 days before the agency or entity submits a request for information required under s. 48.685 (2) (am) or (b) and (3) (a) or (b), Stats. SECTION 8. DCF 12.04 (title) and (2) (c) are amended to read:
DCF 12.04 (title) Contracting for caregiver background checks.
(2) (c) The entity shall retain the most recent documentation received under par. (b) for caregivers each caregiver and congregate care worker that the entity employs or contracts with, so the documentation may be promptly retrieved and reviewed by the agency that regulates the entity.
SECTION 9. DCF 12.05 (1) is amended to read:
DCF 12.05 (1) If a person who is the subject of a caregiver background check served in a branch of the U.S. armed forces within the previous 3 years, including any reserve component, the agency or entity shall make every reasonable effort to obtain the discharge status of that person, either from the discharge papers issued to the person
SECTION 10. DCF 12.06 (1) (intro.), (a) 1. to 4., and (Note) are amended to read:
DCF 12.06 (1) Caregivers and congregate care workers. (intro.) To determine whether a caregiver’s or a congregate care worker’s conviction or delinquency adjudication for an offense that is not a serious crime is substantially related to the care of a client or the activities of a program for purposes of s. 48.685 (5m), Stats., an agency or entity shall consider all of the following: (a) 1. The nature and scope of the caregiver’s or congregate care worker’s client contact.
2. The scope of the discretionary authority and independent judgment the caregiver or congregate care worker has to make decisions or take actions that affect the care of clients.
3. The opportunity the job or caregiving role presents for committing similar crimes.
4. The extent to which acceptable caregiving performance in the job or caregiving role requires the trust and confidence of clients and the parents or guardians of clients.
Note: Form DCF-F-CFS2261-E, Caregiver Background Checks Substantially Related Investigation Report, is available, but is optional, for documentation of the determination as required in sub. (3). If a home study is required for foster care licensure, subsidized guardianship, or adoption approval, county departments and child-placing agencies must include documentation of the determination in the home study.
An agency or entity is required to determine whether a criminal conviction or delinquency adjudication for an offense that is not a “serious crime” as defined in s. DCF 12.02 (24) is substantially related to the care of children or the activities of the program. It may be helpful to contact the appropriate clerk of court to obtain a copy of the criminal complaint and judgment of conviction as part of that investigation and determination. Section 48.685 (2) (bb), Stats., requires an agency or entity to contact the appropriate clerk of court to obtain a copy of the criminal complaint and judgment of conviction for a violation of s. 940.19 (1), 940.195, 940.20, 941.30, 942.08, 947.01 (1), or 947.013, Stats., if the conviction was within the past 5 years. A person who was refused employment or who had his or her employment terminated and believes he or she may have been discriminated against, may file a complaint To file a complaint of prohibited employment discrimination under s. 111.335, Stats., with contact the Equal Rights Division, Department of Workforce Development, P.O. Box 8928, Madison, WI 53708-8928 or telephone 608-266-6860. SECTION 11. DCF 12.08 (1) (intro.), (a), and (b), (2) (a) 4. and 5. and (b) 1., and (3) (intro.), (a), and (b) are amended to read:
DCF 12.08 (1) Entity reporting of offense. (intro.) An entity shall report to the agency that gave regulatory approval as soon as the entity knows, or should have known, that any of the following apply to a caregiver, congregate care worker, or nonclient resident at the entity:
(a) The person is the subject of a delinquency petition alleging that the person committed a serious crime on or after his or her 10th birthday.
(b) The person has been adjudicated delinquent on or after his or her 10th birthday for committing any crime.
(2) (a) 4. A corporation or limited liability company designates a new person to be subject to the caregiver background check.
5. A The name of a caregiver under s. DCF 12.02 (4) (a), congregate care worker, or a nonclient resident at the entity changes his or her name has been changed. (b) 1. When a change specified under par. (a) 1. to 4. occurs regarding an entity, the entity shall submit a completed background information disclosure for the new person subject to the caregiver background check to the agency as soon as possible, but no later than the agency’s next business day.
(3) Entity policy. (intro.) An entity shall include in its personnel or operating policies a provision that requires a person who is a caregiver specified in s. DCF 12.02 (4) (b) or a congregate care worker to notify the entity as soon as possible, but no later than the entity’s next working day, if any of the following apply: (a) The person is the subject of a delinquency petition alleging that the person committed a serious crime on or after his or her 10th birthday.
(b) The person has been adjudicated delinquent on or after his or her 10th birthday for committing any crime.
