LRB-1144/P4
EAW:ahe&amn
2019 - 2020 LEGISLATURE
DOA:......Bork, BB0155 - Background checks for congregate care workers
For 2019-2021 Budget -- Not Ready For Introduction
An Act ...; relating to: the budget.
Analysis by the Legislative Reference Bureau
health and human services
Children
1. Background checks for congregate care workers
This bill requires a licensing entity to perform a fingerprint-based background check for all workers at a congregate care facility, as required under federal law. The bill defines a congregate care facility to be a group home, shelter care facility, or residential care center for children and youth. Under current law, only caregivers and nonclient residents of a congregate care facility are required to receive a background check.
For further information see the state fiscal estimate, which will be printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
Section 1
. 20.435 (6) (jm) of the statutes is amended to read:
20.435 (6) (jm) Licensing and support services. The amounts in the schedule for the purposes specified in ss. 48.685 (2) (am) and
, (b), and (ba), (3) (a) and
, (b), and (c), and (5) (a), 48.686 (2) (am), (3) (am) and (bm), and (5) (a), 49.45 (47), 50.02 (2), 50.025, 50.065 (2) (am) and (b) 1., (3) (a) and (b), and (5), 50.13, 50.135, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.981, and 146.40 (4r) (b) and (er), and subch. VI of ch. 50 and to conduct health facilities plan and rule development activities, for accrediting nursing homes, convalescent homes, and homes for the aged, to conduct capital construction and remodeling plan reviews under ss. 50.02 (2) (b) and 50.36 (2), and for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection. All moneys received under ss. 48.685 (8), 48.686 (2) (ag), 49.45 (42) (c), 49.45 (47) (c), 50.02 (2), 50.025, 50.065 (8), 50.13, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.93 (1) (c), and 50.981, all moneys received from fees for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection, and all moneys received under s. 50.135 (2) shall be credited to this appropriation account.
Section 2
. 20.437 (1) (jm) of the statutes is amended to read:
20.437 (1) (jm) Licensing activities. All moneys received from licensing activities under ss. 48.60, 48.62, 48.625, and 938.22 (7) and from fees under ss. 48.615, 48.625, 48.685 (8), and 938.22 (7) (b) and (c), for the costs of licensing child welfare agencies under s. 48.60, foster homes under s. 48.62, group homes under s. 48.625, and shelter care facilities under s. 938.22 (7) and for the purposes specified in s. 48.685 (2) (am) and, (b)
, and (ba), (3) (a) and, (b)
, and (c), and (5) (a) with respect to those entities.
Section 3
. 48.685 (1) (ao) of the statutes is created to read:
48.685 (1) (ao) “Congregate care facility” means a group home, shelter care facility, or residential care center for children and youth.
Section 4
. 48.685 (1) (ap) of the statutes is created to read:
48.685 (1) (ap) “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 5
. 48.685 (1) (c) 2. of the statutes is amended to read:
48.685 (1) (c) 2. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.12, 940.19 (2), (4), (5), or (6), 940.22 (2) or (3), 940.225 (1), (2), or (3), 940.285 (2), 940.29, 940.295, 942.09 (2), 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21 (2), 948.215, 948.30, or 948.53.
Section 6
. 48.685 (2) (am) 5. of the statutes is amended to read:
48.685 (2) (am) 5. Information maintained by the department of health services under this section and under ss. 48.623 (6) (am) 2. and (bm) 5., 48.75 (1m), and 48.979 (1) (b) regarding any denial to the person of a license, or continuation or renewal of a license to operate an entity, or of payments under s. 48.623 (6) for operating an entity, for a reason specified in sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract with, or permission to reside at an entity or of permission to reside with a caregiver specified in sub. (1) (ag) 1. am. for a reason specified in sub. (4m) (b) 1. to 5. If the information obtained under this subdivision indicates that the person has been denied a license, or continuation or renewal of a license, payments, employment, a contract, or permission to reside as described in this subdivision, the department, a county department, or a child welfare agency need not obtain the information specified in subds. 1. to 4.
, and the department need not obtain a fingerprint-based background check under par. (ba).
Section 7
. 48.685 (2) (b) (intro.) of the statutes is amended to read:
48.685 (2) (b) (intro.) Every entity shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. a. or am. of the entity
and, with respect to a nonclient resident of a caregiver specified in sub. (1) (ag) 1. am., and with respect to a congregate care worker, except a caregiver specified in sub. (1) (ag) 1. b., of the entity:
Section 8
. 48.685 (2) (ba) of the statutes is created to read:
48.685
(2) (ba) If the person who is the subject of the search under par. (am) or (b) is a congregate care worker, the department shall obtain a fingerprint-based check of the national crime information databases, as defined in
28 USC 534 (f) (3) (A), unless the search has been terminated under par. (am) 5. or (b) 5m.
Section 9
. 48.685 (2) (bb) of the statutes is amended to read:
48.685 (2) (bb) If information obtained under par. (am) or, (b), or (ba) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department, county department, child welfare agency, or entity shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If a background information form under sub. (6) (a) or (am) indicates a charge or a conviction of a serious crime, but information obtained under par. (am) or, (b)
, or (ba) does not indicate such a charge or conviction, the department, county department, child welfare agency, or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and the final disposition of the complaint. If information obtained under par. (am) or, (b), or (ba), a background information form under sub. (6) (a) or (am), or any other information indicates a conviction of a violation of s. 940.19 (1), 940.195, 940.20, 941.30, 942.08, 947.01 (1), or 947.013 obtained not more than 5 years before the date on which that information was obtained, the department, county department, child welfare agency, or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and judgment of conviction relating to that violation.
Section 10
. 48.685 (2) (bg) of the statutes is amended to read:
48.685 (2) (bg) If an entity employs or contracts with a caregiver or congregate care worker for whom, within the last year, the information required under par. (b) 1m. to 3m. and 5m. has already been obtained by another entity, the entity may obtain that information from that other entity, which shall provide the information, if possible, to the requesting entity. If an entity cannot obtain the information required under par. (b) 1m. to 3m. and 5m. from another entity or if an entity has reasonable grounds to believe that any information obtained from another entity is no longer accurate, the entity shall obtain that information from the sources specified in par. (b) 1m. to 3m. and 5m.
Section 11
. 48.685 (2) (bm) of the statutes is amended to read:
48.685
(2) (bm) If the person who is the subject of the search under par. (am) or (b) is not a resident of this state, or if at any time within the 5 years preceding the date of the search that person has not been a resident of this state, or if the department, county department, child welfare agency, or entity determines that the person's employment, licensing, or state court records provide a reasonable basis for further investigation, the department, county department, child welfare agency, or entity shall make a good faith effort to obtain from any state or other United States jurisdiction in which the person is a resident or was a resident within the 5 years preceding the date of the search information that is equivalent to the information specified in par. (am) 1. or (b) 1m. The department, county department, child welfare agency, or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints, or by other technologies approved by law enforcement agencies. The department of justice may provide for the submission of the fingerprint cards or fingerprints by other technologies to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions.
The department, county department, or child welfare agency may release any information obtained under this paragraph only as permitted under 32 USC 20962 (e).
Section 12
. 48.685 (2) (c) 1. of the statutes is amended to read:
48.685
(2) (c) 1. If the person who is the subject of the search under par. (am) is seeking an initial license to operate a foster home or is seeking relicensure after a break in licensure, the department, county department, or child welfare agency shall request under
42 USC 16962 34 USC 20962 (b) a fingerprint-based check of the national crime information databases, as defined in
28 USC 534 (f) (3) (A). If that person is seeking subsidized guardianship payments under s. 48.623 (6), the department in a county having a population of 750,000 or more or county department shall request that fingerprint-based check. The department, county department, or child welfare agency may release any information obtained under this subdivision only as permitted under
42 USC 16962 34 USC 20962 (e).
Section 13
. 48.685 (2) (d) of the statutes is amended to read:
48.685 (2) (d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver or congregate care worker under par. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.
Section 14
. 48.685 (3) (b) of the statutes is amended to read:
48.685 (3) (b) Every 4 years or at any time within that period that an entity considers appropriate, the entity shall request the information specified in sub. (2) (b) 1m. to 5m. for all persons who are caregivers specified in sub. (1) (ag) 1. a. or am. of the entity and for all nonclient residents of a caregiver specified in sub. (1) (ag) 1. am. of the entity subject to sub. (2) (b).
Section 15
. 48.685 (3) (c) of the statutes is created to read:
48.685 (3) (c) Every 4 years or at any time within that period that the department considers appropriate, the department shall obtain the information specified in sub. (2) (ba) for all persons who are congregate care workers.
Section 16
. 48.685 (4m) (b) (intro.) of the statutes is amended to read:
48.685 (4m) (b) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), an entity may not employ or contract with a caregiver specified in sub. (1) (ag) 1. a. or am. or a congregate care worker or permit a nonclient resident to reside at the entity or with a caregiver specified in sub. (1) (ag) 1. am. of the entity if the entity knows or should have known any of the following:
Section 17
. 48.685 (4m) (c) of the statutes is amended to read:
48.685 (4m) (c) If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be employed or contracted with for a reason specified in par. (b) 1. to 5., an entity may employ or contract with the person for not more than 45 days pending the receipt of the information sought under sub. (2) (am) or (b) and (ba). If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be permitted to reside at an entity or with a caregiver specified in sub. (1) (ag) 1. am. for a reason specified in par. (b) 1. to 5. and if an entity otherwise has no reason to believe that the person is ineligible to be permitted to reside at an entity or with that caregiver for any of those reasons, the entity may permit the person to reside at the entity or with the caregiver for not more than 45 days pending receipt of the information sought under sub. (2) (am) or (b) and (ba). An entity shall provide supervision for a person who is employed, contracted with, or permitted to reside as permitted under this paragraph.
Section 18
. 48.685 (4m) (d) of the statutes is amended to read:
48.685 (4m) (d) If the department learns that a caregiver, congregate care worker, or nonclient resident is the subject of a pending investigation for a crime or offense that, under this subsection or sub. (5), could result in a bar to employment as a caregiver or residence being a caregiver, working, or residing at an entity, the department may notify the entity of the pending investigation.
Section 19
. 48.685 (5m) of the statutes is amended to read:
48.685 (5m) Notwithstanding s. 111.335, the department may refuse to license a person to operate an entity, a county department or a child welfare agency may refuse to license a foster home under s. 48.62, the department in a county having a population of 750,000 or more or a county department may refuse to provide subsidized guardianship payments to a person under s. 48.623 (6), and an entity may refuse to employ or contract with a caregiver or congregate care worker or permit a nonclient resident to reside at the entity or with a caregiver specified in sub. (1) (ag) 1. am. of the entity if the person has been convicted of an offense that is not a serious crime, but that is, in the estimation of the department, county department, child welfare agency, or entity, substantially related to the care of a client.
Section
20. 48.685 (6) (am) of the statutes is amended to read:
48.685 (6) (am) Every 4 years an entity shall require all of its caregivers and all, nonclient residents of the entity or of a caregiver specified in sub. (1) (ag) 1. am. of the entity, congregate care workers, and nonclient residents of a caregiver specified in sub. (1) (ag) 1. am. to complete a background information form that is provided to the entity by the department.
Section 21
. 48.685 (8) of the statutes is amended to read:
48.685 (8) The department, the department of health services, a county department, or a child welfare agency may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a), for providing information to an entity to enable the entity to comply with sub. (2) (b) or (3) (b), or for obtaining and submitting fingerprints under sub. (2) (ba) or (bm) or (3) (c). The fee may not exceed the reasonable cost of obtaining the information or of obtaining and submitting fingerprints. No fee may be charged to a nurse aide, as defined in s. 146.40 (1) (d), for obtaining or maintaining information or for obtaining and submitting fingerprints if to do so would be inconsistent with federal law.
Section 22
. 48.981 (7) (a) 4p. of the statutes is amended to read:
48.981 (7) (a) 4p. A public or private agency in this state or any other state that is investigating a person for purposes of licensing the person to operate a foster home or placing a child for adoption in the home of the person or for the purposes of conducting a background investigation under s. 48.685 of an adult congregate care worker, as defined in s. 48.685 (1) (ap).
Section 9106.
Nonstatutory provisions; Children and Families.
(1) Emergency rule making for background checks for congregate care workers. The department of children and families may promulgate emergency rules under s. 227.24 to implement the background check requirements for congregate care workers under s. 48.685. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until January 1, 2022, or the date on which permanent rules take effect, whichever is sooner. Notwithstanding s. 227.24 (1) (a) and (3), the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.
(2)
Background checks for congregate care workers. No later than the first day of the 7th month beginning after the effective date of this subsection, the department of children and families, the county department as defined in s. 48.02 (2g), the child welfare agency, or the congregate care facility as defined in s. 48.685 (1) (ao) shall perform a comprehensive background check as required by s. 48.685 (2) for all congregate care workers, as defined in s. 48.685 (1) (ap), who are working at a congregate care facility on the effective date of this subsection.
Section 9306.
Initial applicability; Children and Families.
(1) Background checks for congregate care workers. The treatment of s. 48.685 (2) (b) (intro.), (ba), (bb), (bg), and (d), (4m) (b) (intro.), (c), and (d), (5m), and (8) first applies to a congregate care worker, as defined in s. 48.685 (1) (ap), on the following dates:
(a) For a congregate care worker who is hired by or enters into a contract with a congregate care facility, as defined in s. 46.685 (1) (ao), on the day after the effective date of this paragraph, on the day after the effective date of this paragraph.
(b) For a congregate care worker who is employed at or under contract with a congregate care facility, as defined in s. 48.685 (1) (ao), on the effective date of this paragraph, on the earlier of the following:
1. The first day of the 7th month beginning after the effective date of this subdivision.
2. The date on which the congregate care worker's criminal background check under Section 9106 (2
) is complete.
(End)
