Amendment ASA1-AB341

LRBs0176/3

TAY&GMM:mfd:ijs

1997 - 1998 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1997 ASSEMBLY BILL 341

June 10, 1997 - Offered by Committee on Health.

AB341-ASA1,1,13 An Act to repeal 48.65 (1m); to renumber 146.40 (1) (a); to amend 48.60 (1), 48.625 (1), 48.65 (1), 48.68 (1), 48.981 (3) (c) 8., 49.498 (3) (b) 1., 50.065 (2) (a) (intro.), 55.043 (1) (a) (intro.), (4) (intro.), (e) and (f) and (5), 120.13 (14), 146.40 (title), 146.40 (4g) (a) 2. (intro.), 146.40 (4g) (a) 2. b., 146.40 (4g) (a) 3., 146.40 (4r) (a), 146.40 (4r) (b), 146.40 (4r) (d), 813.123 (5) (a) 3. a. and 938.22 (7) (a); and to create 48.685, 50.01 (1r), 50.065, 146.40 (1) (ad), 146.40 (1) (ag), 146.40 (1) (as), 146.40 (4g) (a) 3m., 146.40 (4r) (am), 146.40 (4r) (em) and (er), 165.825, 440.03 (3q) and 440.03 (13) of the statutes; relating to: requiring criminal history searches of certain persons hired or proposed to be hired by certain facilities or services, clarifying requirements for reporting the misappropriation of property or the abuse or neglect of certain patients or facility residents, granting rule-making authority, making appropriations and providing a penalty.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB341-ASA1, s. 1 Section 1. 48.60 (1) of the statutes is amended to read:

AB341-ASA1,2,10 48.60 (1) No person may receive children, with or without transfer of legal custody, to provide care and maintenance for 75 days in any consecutive 12 months' period for 4 or more such children at any one time unless that person obtains a license to operate a child welfare agency from the department. To obtain a license under this subsection to operate a child welfare agency, a person must meet the minimum requirements for a license established by the department under s. 48.67, meet the requirements specified in s. 48.685 and pay the applicable license fee under s. 48.615 (1) (a) or (b). A license issued under this subsection is valid for 2 years after the date of issuance, unless sooner revoked or suspended.

AB341-ASA1, s. 2 Section 2. 48.625 (1) of the statutes is amended to read:

AB341-ASA1,2,19 48.625 (1) Any person who receives, with or without transfer of legal custody, 5 to 8 children, to provide care and maintenance for those children shall obtain a license to operate a group home from the department. To obtain a license under this subsection to operate a group home, a person must meet the minimum requirements for a license established by the department under s. 48.67, meet the requirements specified in s. 48.685 and pay the license fee under sub. (2). A license issued under this subsection is valid for 2 years after the date of issuance, unless sooner revoked or suspended.

AB341-ASA1, s. 3 Section 3. 48.65 (1) of the statutes is amended to read:

AB341-ASA1,3,5 48.65 (1) No person may for compensation provide care and supervision for 4 or more children under the age of 7 for less than 24 hours a day unless that person obtains a license to operate a day care center from the department. To obtain a license under this subsection to operate a day care center, a person must meet the minimum requirements for a license established by the department under s. 48.67, meet the requirements specified in s. 48.685 and pay the license fee under sub. (3). A license issued under this subsection is valid for 2 years after the date of issuance, unless sooner revoked or suspended.

AB341-ASA1, s. 4 Section 4. 48.65 (1m) of the statutes is repealed.

AB341-ASA1, s. 5 Section 5. 48.68 (1) of the statutes is amended to read:

AB341-ASA1,3,22 48.68 (1) After receipt of an application for a license, the department shall investigate to determine if the applicant meets the minimum requirements for a license adopted by the department under s. 48.67 and meets the requirements specified in s. 48.685. In determining whether to issue a license, the department may consider any action by the applicant, or by an employe of the applicant, that constitutes a substantial failure by the applicant or employe to protect and promote the health, safety and welfare of a child. Upon satisfactory completion of this investigation and payment of the fee required under s. 48.615 (1) (a) or (b), 48.625 (2) (a), 48.65 (3) (a) or 938.22 (7) (b), the department shall issue a license under s. 48.66 (1) or, if applicable, a probationary license under s. 48.69. At the time of initial licensure and license renewal, the department shall provide a foster home licensee with written information relating to the age-related monthly foster care rates and supplemental payments specified in s. 48.62 (4), including payment amounts, eligibility requirements for supplemental payments and the procedures for applying for supplemental payments.

AB341-ASA1, s. 6 Section 6. 48.685 of the statutes is created to read:

AB341-ASA1,3,25 48.685 Criminal history and child abuse record search. (1) In this section:

AB341-ASA1,4,1 (a) "Client" means a child who receives services from an entity.

AB341-ASA1,4,6 (b) "Entity" means a child welfare agency that is licensed under s. 48.60 to provide care and maintenance for children, to place children for adoption or to license foster homes or treatment foster homes; a group home that is licensed under s. 48.625; a shelter care facility that is licensed under s. 938.22; or a day care center that is licensed under s. 48.65 or contracted for under s. 120.13 (14).

AB341-ASA1,4,8 (c) "Serious crime" has the meaning specified by the department by rule promulgated under sub. (7) (a).

AB341-ASA1,4,15 (2) (a) Notwithstanding s. 111.335, the department may not license a person to operate an entity or renew the license of a person to operate an entity, a school board may not contract with a person under s. 120.13 (14), and an entity may not hire a person, or offer a contract to a person who will be under the entity's control, as defined by the department by rule, and who is expected to have access to its clients, if the department, school board or entity knows or should have known any of the following:

AB341-ASA1,4,17 1. Except as provided in sub. (5), that the person has been convicted of a serious crime.

AB341-ASA1,4,18 2. That the person has pending against him or her a charge for a serious crime.

AB341-ASA1,4,21 3. That a unit of government or a state agency, as defined in s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property of any client.

AB341-ASA1,4,23 4. That a determination was made under s. 48.981 (3) (c) 4. that the person has abused or neglected a child.

AB341-ASA1,5,3 5. That, in the case of a position for which the person must be credentialed by the department of regulation and licensing, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.

AB341-ASA1,5,5 (b) The department and every entity shall obtain all of the following with respect to a person specified under par. (a):

AB341-ASA1,5,7 1. A criminal history search from the records maintained by the department of justice.

AB341-ASA1,5,9 2. Information that is contained in the registry under s. 146.40 (4g) regarding any findings against the person.

AB341-ASA1,5,11 3. Information maintained by the department of regulation and licensing regarding the status of the person's credentials, if applicable.

AB341-ASA1,5,16 (bg) If entity contracts with a person for whom, within the last 4 years, the information required under par. (b) was already obtained, either by another entity or by a temporary employment agency, the entity may obtain the information required under par. (b) from that other entity or temporary employment agency, which shall provide the information, if possible, to the entity.

AB341-ASA1,5,22 (bm) If the person who is the subject of the search under par. (b) 1. is not a resident of this state, or if at any time within the 3 years preceding the date of the search that person has not been a resident of this state, the department or entity shall make a good faith effort to obtain criminal records of the person from any state in which the person is a resident or was a resident within the 3 years preceding the date of the search.

AB341-ASA1,6,2 (c) The department may license, a school board may contract with, and an entity may employ or contract with, a person specified under par. (a) for not more than 60 days pending the receipt of the information sought under par. (b). An entity shall provide supervision for a person who is employed or contracted with as permitted under this paragraph.

AB341-ASA1,6,11 (3) Every 4 years or at any other time that the department or an entity considers appropriate, the department and every entity shall request information maintained by the department of regulation and licensing regarding the status of any relevant credential held by a person who is licensed to operate an entity or by an employe or contract worker of an entity who has, or is expected to have, access to clients of the entity and shall request a criminal history search and a search of the registry under s. 146.40 (4g) for all persons who are licensed to operate an entity or for all of the employes and contract workers of the entity who have, or are expected to have, access to clients of the entity.

AB341-ASA1,6,13 (4) Whoever violates sub. (2) or (3) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

AB341-ASA1,6,20 (5) The department may license a person to operate an entity, a school board may contract with a person under s. 120.13 (14) and an entity may employe or contract with a person who has been convicted of a serious crime if the person demonstrates to the department by clear and convincing evidence and in accordance with procedures established by the department by rule that he or she has been rehabilitated. No person who has been convicted of any of the following offenses may be permitted to demonstrate that he or she has been rehabilitated:

AB341-ASA1,6,21 (a) First-degree intentional homicide under s. 940.01.

AB341-ASA1,6,22 (b) First degree sexual assault under s. 940.225 (1).

AB341-ASA1,6,23 (c) First degree sexual assault of a child under s. 948.02 (1).

AB341-ASA1,7,3 (d) Second degree sexual assault of a child under s. 948.02 (2) if the person was, at the time of the sexual contact or sexual intercourse, more than 4 years older than the child with whom the person had the sexual contact or sexual intercourse.

AB341-ASA1,7,8 (e) Repeated acts of sexual assault of the same child under s. 948.025 if the child had not attained the age of 13, or if the child had attained the age of 13 and had not attained the age of 16 and the person was, at the time of the sexual contact or sexual intercourse, more than 4 years older than the child with whom the person had the sexual contact or sexual intercourse.

AB341-ASA1,7,13 (5c) Any person who is permitted but fails under sub. (5) to demonstrate to the department that he or she has been rehabilitated may appeal to the secretary of health and family services or his or her designee. Any person who is adversely affected by a decision of the secretary or his or her designee under this subsection has a right to a contested case hearing under ch. 227.

AB341-ASA1,7,21 (5g) Beginning on the first January 1 after the effective date of this subsection .... [revisor inserts date], and annually thereafter, the department shall submit a report to the legislature under s. 13.172 (2) that specifies the number of persons in the previous year who have requested to demonstrate to the department that they have been rehabilitated under sub. (5), the number of persons who successfully demonstrated that they have been rehabilitated under sub. (5) and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.

AB341-ASA1,8,4 (5m) Notwithstanding s. 111.335, the department may refuse to license a person to operate an entity, a school board may refuse to contract with a person under s. 120.13 (14), and an entity may refuse to employ a person who has, or is expected to have, access to its clients, if the person has been convicted of an offense that the department has not defined as a "serious crime" by rule promulgated under sub. (7) (a), or specified in the list established by rule under sub. (7) (b), but that is, in the estimation of the department, school board or entity substantially related to the care of the client.

AB341-ASA1,8,8 (6) (a) The department shall require any person who applies for issuance or renewal of a license to operate an entity or who proposes to contract with a school board under s. 120.13 (14) or to renew a contract under that subsection to complete a background information form that is developed by the department.

AB341-ASA1,8,11 (am) Every entity shall require all of the following persons to complete a background information form that is developed and distributed to the entity by the department:

AB341-ASA1,8,14 1. A person that the entity employes or contracts with, or intends to employ or contract with, if the person has, or is expected to have, access to any client of the entity.

AB341-ASA1,8,17 2. A person who is a resident or prospective resident at the entity and who is not a client or prospective client of the entity, if the person has, or is expected to have, access to any client of the entity.

AB341-ASA1,8,22 (b) For person specified under par. (am) 1. who are regulated, licensed or certified by, or registered with, the department, the entity shall send the background information form to the department. For all other persons specified under par. (am), the entity shall maintain the background information form on file for inspection by the department.

AB341-ASA1,8,25 (c) A person who provides false information on a background information form required under this subsection may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.