Amendment ASA1-AB341

AB341-ASA1,11,2 (c) "Entity" means a facility, organization or service that is regulated, licensed or certified by or registered with the department. "Entity" includes a personal care worker agency and a supportive home care service agency. "Entity" does not include any of the following:

AB341-ASA1,11,3 1. Licensed or certified child care under ch. 48.

AB341-ASA1,11,4 2. Kinship care under s. 48.57 (3m).

AB341-ASA1,11,7 3. A person certified as a medical assistance provider, as defined in s. 49.43 (10), who is not otherwise regulated, licensed or certified by or registered with the department.

AB341-ASA1,11,8 4. An entity, as defined in s. 48.685 (1) (b).

AB341-ASA1,11,10 (d) "Personal care worker agency" has the meaning specified by the department by rule.

AB341-ASA1,11,12 (e) "Serious crime" has the meaning specified by the department by rule under sub. (7) (a).

AB341-ASA1,11,14 (f) "Supportive home care service agency" has the meaning specified by the department by rule.

AB341-ASA1,11,20 (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, 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 or entity knows or should have known any of the following:

AB341-ASA1,11,22 1. Except as provided in sub. (5), that the person has been convicted of a serious crime.

AB341-ASA1,11,23 2. That the person has pending against him or her a charge for a serious crime.

AB341-ASA1,12,3 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-ASA1,12,5 4. That a determination was made under s. 48.981 (3) (c) 4. that the person has abused or neglected a child.

AB341-ASA1,12,8 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-ASA1,12,10 (b) The department and every entity shall obtain all of the following with respect to a person specified under par. (a):

AB341-ASA1,12,12 1. A criminal history search from the records maintained by the department of justice.

AB341-ASA1,12,14 2. Information that is contained in the registry under s. 146.40 (4g) regarding any findings against the person.

AB341-ASA1,12,16 3. Information maintained by the department of regulation and licensing regarding the status of the person's credentials, if applicable.

AB341-ASA1,12,21 (bg) If an 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-ASA1,13,2 (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-ASA1,13,6 (c) The department may license, 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-ASA1,13,15 (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-ASA1,13,17 (4) An entity that 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-ASA1,13,23 (5) The department may license a person to operate an entity and an entity may employ 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-ASA1,13,24 (a) First-degree intentional homicide under s. 940.01.

AB341-ASA1,13,25 (b) First degree sexual assault under s. 940.225 (1).

AB341-ASA1,14,1 (c) First degree sexual assault of a child under s. 948.02 (1).

AB341-ASA1,14,4 (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-ASA1,14,9 (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-ASA1,14,14 (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-ASA1,14,22 (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-ASA1,15,4 (5m) Notwithstanding s. 111.335, the department may refuse to license a person to operate an entity, 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 or entity substantially related to the care of a client.

AB341-ASA1,15,7 (6) (a) The department shall require any person who applies for issuance or renewal of a license to operate an entity to complete a background information form that is developed by the department.

AB341-ASA1,15,10 (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-ASA1,15,13 1. A person that the entity employs 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-ASA1,15,16 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-ASA1,15,21 (b) For persons 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-ASA1,15,24 (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.

AB341-ASA1,15,25 (7) The department shall do all of the following:

AB341-ASA1,16,9 (a) Establish by rule a definition of "serious crime" for the purpose of this section. The definition shall include only crimes or acts that are substantially related to the care of a client and shall include classes of crimes or acts involving abuse or neglect of a client for which no person who has committed any of those crimes or acts may be permitted to demonstrate under sub. (5) that he or she has been rehabilitated. The definition may also include other crimes or acts that do not involve abuse or neglect of a client but that are substantially related to the care of a client for which no person who committed any of those crimes or acts may be permitted to demonstrate under sub. (5) that he or she has been rehabilitated.

AB341-ASA1,16,16 (b) Establish by rule a list of crimes or acts that are not included in the definition established under par. (a), that are substantially related to the care of clients and the commission of which warrants a less stringent measure than a bar on employment or similar type of association with an entity. The rule shall be consistent with federal law and regulations and shall include a description of the measures to be taken for the crimes or acts that the department lists under this paragraph.

AB341-ASA1,16,20 (c) Conduct throughout the state periodic training sessions that cover criminal background investigations; reporting misappropriation of property or abuse or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.

AB341-ASA1, s. 11 Section 11. 50.065 (2) (a) (intro.) of the statutes, as created by 1997 Wisconsin Act .... (this act), is amended to read:

AB341-ASA1,17,5 50.065 (2) (a) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), the department may not license a person to operate an entity or renew the license of a person to operate an entity, and an entity may not hire a person, or offer a contract to employ or contract with a person who will be under the entity's control, as defined by the department by rule, and who has, or is expected to have, access to its clients, or permit a person who is not a client to reside at the entity if the person has, or is expected to have, access to a client, if the department or entity knows or should have known any of the following:

AB341-ASA1, s. 12 Section 12. 55.043 (1) (a) (intro.), (4) (intro.), (e) and (f) and (5) of the statutes are amended to read:

AB341-ASA1,17,15 55.043 (1) (a) (intro.) If a county protective services agency has probable cause to believe that there is abuse, neglect or misappropriation of property or neglect or abuse of a vulnerable adult, the county protective services agency may conduct an investigation in Milwaukee county to determine if the vulnerable adult in question is in need of protective services. The county protective services agency shall conduct the investigation in accordance with standards established by the department for conducting the investigations. The investigation shall include at least one of the following:

AB341-ASA1,17,19 (4) Offer of services. (intro.) If upon investigation the county protective services agency finds abuse, neglect or misappropriation of property or neglect or abuse of a vulnerable adult, the county protective services agency may do one or more of the following:

AB341-ASA1,17,24 (e) Refer the case to the department of regulation and licensing or the appropriate examining board if the abuse, neglect or misappropriation of property or neglect or abuse involves an individual who is required to be licensed, permitted, certified or registered hold a credential, as defined in s. 440.01 (2) (a), under chs. 440 to 459.

AB341-ASA1,18,5 (f) Bring a petition for a guardianship and protective service or protective placement if necessary to prevent abuse, neglect or misappropriation of property or neglect or abuse and if the vulnerable adult would otherwise be at risk of serious harm because of an inability to arrange for necessary food, clothing, shelter and services.

AB341-ASA1,18,11 (5) Applicability. This section does not apply to patients or residents of state-operated or county-operated inpatient institutions or hospitals issued certificates of approval under s. 50.35 unless the alleged abuse, neglect or misappropriation of property or neglect or abuse of such a patient or resident is alleged to have been done by a person other than an employe of the inpatient institution or hospital.

AB341-ASA1, s. 13 Section 13. 120.13 (14) of the statutes is amended to read:

AB341-ASA1,19,2 120.13 (14) Day care programs. Establish and provide or contract for the provision of day care programs for children. The school board may receive federal or state funds for this purpose. The school board may charge a fee for all or part of the cost of the service for participation in a day care program established under this subsection. Costs associated with a day care program under this subsection may not be included in shared costs under s. 121.07 (6). Day care programs established under this subsection shall meet the standards for licensed day care centers established by the department of health and family services. If a school board proposes to contract for or renew a contract for the provision of a day care program under this subsection or if on July 1, 1996, a school board is a party to a contract for the provision of a day care program under this subsection, the school board shall refer the contractor or proposed contractor to the department of health and family services for the background investigations criminal history and child abuse record search required under s. 48.65 (1m) 48.685.

AB341-ASA1, s. 14 Section 14. 146.40 (title) of the statutes is amended to read:

AB341-ASA1,19,5 146.40 (title) Instructional programs for nurse's assistants and home health and hospice aides; reporting client abuse.

AB341-ASA1, s. 15 Section 15. 146.40 (1) (a) of the statutes is renumbered 146.40 (1) (am).

AB341-ASA1, s. 16 Section 16. 146.40 (1) (ad) of the statutes is created to read:

AB341-ASA1,19,8 146.40 (1) (ad) "Client" means a person who receives services from an entity.

AB341-ASA1, s. 17 Section 17. 146.40 (1) (ag) of the statutes is created to read:

AB341-ASA1,19,10 146.40 (1) (ag) "Credential" has the meaning given in s. 440.01 (2) (a).

AB341-ASA1, s. 18 Section 18. 146.40 (1) (as) of the statutes is created to read:

AB341-ASA1,19,12 146.40 (1) (as) "Entity" has the meaning given in s. 50.065 (1) (c).

AB341-ASA1, s. 19 Section 19. 146.40 (4g) (a) 2. (intro.) of the statutes is amended to read:

AB341-ASA1,19,16 146.40 (4g) (a) 2. (intro.) A listing of all individuals about whom the department is notified under sub. (4r) (a) or (am), for whom the department makes findings under sub. (4r) (b) and to whom any of the following applies:

AB341-ASA1, s. 20 Section 20. 146.40 (4g) (a) 2. b. of the statutes is amended to read:

AB341-ASA1,19,19 146.40 (4g) (a) 2. b. A hearing officer finds reasonable cause to believe that the individual performed an action alleged under sub. (4r) (a) or (am).

AB341-ASA1, s. 21 Section 21. 146.40 (4g) (a) 3. of the statutes is amended to read:

AB341-ASA1,19,23 146.40 (4g) (a) 3. Findings of the department under sub. (4r) (b) or of the hearing officer under sub. (4r) (d) concerning the neglect, abuse or misappropriation of property or the neglect or abuse of a client by an individual listed under subd. 2.

AB341-ASA1, s. 22 Section 22. 146.40 (4g) (a) 3m. of the statutes is created to read:

AB341-ASA1,20,3 146.40 (4g) (a) 3m. A listing of all the individuals for whom a county department has made a determination under s. 48.981 (3) (c) 4. that abuse or neglect occurred.

AB341-ASA1, s. 23 Section 23. 146.40 (4r) (a) of the statutes is amended to read:

AB341-ASA1,20,9 146.40 (4r) (a) Any individual may report to the department that he or she believes that a nurse's assistant any person employed by or under contract with an entity has neglected, or abused a client or misappropriated the client's property of a nursing home resident or a hospital patient or that a home health aide has neglected, abused or misappropriated the property of a home health agency patient.

AB341-ASA1, s. 24 Section 24. 146.40 (4r) (am) of the statutes is created to read:

AB341-ASA1,20,13 146.40 (4r) (am) 1. Except as provided in subd. 2., an entity shall report to the department any allegation of misappropriation of property or of neglect or abuse of a client by any person employed by or under contract with the entity.

AB341-ASA1,20,17 2. An entity shall report to the department of regulation and licensing any allegation of misappropriation of property or of neglect or abuse of a client by any person employed by or under contract with the entity if that person holds a credential that is related to the person's employment at, or contract with, the entity.

AB341-ASA1,20,20 3. An entity that intentionally fails to report an allegation of misappropriation of property or of neglect or abuse of a client 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, s. 25 Section 25. 146.40 (4r) (b) of the statutes is amended to read:

AB341-ASA1,21,13 146.40 (4r) (b) The Except as provided in pars. (em) and (er), the department shall review and investigate any report received under par. (a) or (am) and, if the allegation is substantiated, make specific, documented findings concerning the neglect, abuse or misappropriation of property or the neglect or abuse. The department shall in writing by certified mail notify the nurse's assistant or home health aide person specified in the report that his or her the person's name and the department's findings about him or her the person shall be listed in the registry under sub. (4g) (a) 2. and 3. unless he or she the person contests the listings in a hearing before the department division of hearings and appeals created under s. 15.103 (1). The written notification shall describe the investigation conducted by the department, enumerate the findings alleging neglect, abuse or misappropriation of property or neglect or abuse of a nursing home resident or home health agency patient client and explain the consequence to the nurse's assistant or home health aide person specified in the report of waiving a hearing to contest the findings. The nurse's assistant or home health aide named person specified in the report shall have 30 days after receipt of the notification to indicate to the department in writing whether he or she intends to contest the listing or to waive the hearing.

AB341-ASA1, s. 26 Section 26. 146.40 (4r) (d) of the statutes is amended to read:

AB341-ASA1,22,5 146.40 (4r) (d) If the nurse's assistant or home health aide person specified in the report received under par. (b) (a) or (am) timely notifies the department division of hearings and appeals created under s. 15.103 (1) that he or she contests the listings in the registry under par. (b), the department division of hearings and appeals shall hold a hearing under the requirements of ch. 227. If after presentation of evidence a hearing officer finds that there is no reasonable cause to believe that the nurse's assistant or home health aide person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall dismiss the proceeding. If after presentation of evidence a hearing officer finds that there is reasonable cause to believe that the nurse's assistant or home health aide person specified in the report received under par. (a) or (am) performed an action alleged under par. (a) or (am), the hearing officer shall so find and shall cause the name of the nurse's assistant or home health aide person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 2. and the hearing officer's findings about the nurse's assistant or home health aide person specified in the report received under par. (a) or (am) to be entered under sub. (4g) (a) 3.

AB341-ASA1, s. 27 Section 27. 146.40 (4r) (em) and (er) of the statutes are created to read:

AB341-ASA1,22,11 146.40 (4r) (em) If the department of health and family services receives a report under par. (a) or (am) and determines that a person who is the subject of the report holds a credential that is related to the person's employment at, or contract with, the entity, the department of health and family services shall refer the report to the department of regulation and licensing.

AB341-ASA1,22,13 (er) The department may contract with private field investigators to conduct investigations of reports received by the department under par. (a) or (am).

AB341-ASA1, s. 28 Section 28. 165.825 of the statutes is created to read:

AB341-ASA1,22,18 165.825 Information link; department of health and family services. The department of justice shall cooperate with the departments of regulation and licensing and health and family services in developing and maintaining a computer linkup to provide access to the information obtained from a criminal history search.

AB341-ASA1, s. 29 Section 29. 440.03 (3q) of the statutes is created to read:

AB341-ASA1,22,22 440.03 (3q) Notwithstanding sub. (3m), the department of regulation and licensing shall investigate any report that it receives under s. 146.40 (4r) (am) 2. or (em).

AB341-ASA1, s. 30 Section 30. 440.03 (13) of the statutes is created to read:

AB341-ASA1,23,3 440.03 (13) The department of regulation and licensing shall cooperate with the departments of justice and health and family services in developing and maintaining a computer linkup to provide access to information regarding the current status of a credential issued to any person by the department of regulation and licensing, including whether that credential has been restricted in any way.

AB341-ASA1, s. 31 Section 31. 813.123 (5) (a) 3. a. of the statutes is amended to read: