SB331: Bill Text

LRB-3492/2

GMM:kjf:rs

2009 - 2010 LEGISLATURE

2009 Senate BILL 331

October 2, 2009 - Introduced by Senators Jauch, Vinehout, Taylor, Darling, Lehman, Holperin, Hansen, Cowles, Plale, Carpenter, Lassa and Sullivan, cosponsored by Representatives Grigsby, Barca, Pasch, Fields, Toles, Young, Sinicki, Kessler, Cullen, Mason, Turner, Kestell, Shilling, Berceau, Ballweg, Vruwink, Hilgenberg, A. Ott, Pocan, Kaufert, Seidel, Jorgensen, Krusick and A. Williams. Referred to Committee on Children and Families and Workforce Development.

SB331,2,2 An Act to renumber 49.133 (3), 49.133 (4) and 120.13 (14); to renumber and amend 49.133 (intro.), 49.133 (1) and 49.133 (2); to amend 20.435 (6) (jm), 48.685 (1) (c) 4., 48.685 (2) (am) (intro.), 48.685 (2) (am) 5., 48.685 (2) (b) 4., 48.685 (2) (bb), 48.685 (2) (bd), 48.685 (2) (bg), 48.685 (2) (bm), 48.685 (3) (a), 48.685 (3) (b), 48.685 (3m), 48.685 (4m) (a) 1., 48.685 (4m) (ad), 48.685 (4m) (b) 1., 48.685 (5) (a), 48.685 (5c) (a), 48.685 (6) (am), 48.685 (6) (b) 2. and 48.685 (8); to repeal and recreate 48.685 (4m) (ad) and 49.155 (7); and to create 48.651 (3), 48.685 (1) (c) 3m., 48.685 (2) (ar), 48.685 (2) (b) 2., 48.685 (3) (am), 48.685 (3) (bm), 48.685 (5) (br), 48.715 (4g), 49.133 (1m) (b), 49.133 (2m) (intro.) and 120.13 (14) (b) of the statutes; relating to: prohibiting a person who has been convicted or adjudicated delinquent for committing certain serious crimes or who is the subject of a pending criminal charge or delinquency petition for committing a serious crime from being licensed, certified, or contracted with to provide child care, from being employed or contracted as a caregiver of a child care provider, or from being permitted to reside at a premises where child care is provided and making an appropriation.

Analysis by the Legislative Reference Bureau

Under current law, the Department of Children and Families (DCF) may not license a person to operate a day care center; DCF in a county having a population of 500,000 or more, a county department of human services or social services (county department), or an agency contracted by DCF to certify day care providers for purposes of reimbursement under the Wisconsin Works Program (contracted agency) may not certify a day care provider for those purposes; and a school board may not contract with a person to provide a day care program (collectively "child care provider") if the person has been convicted or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime, as defined under current law, unless the person shows that he or she has been rehabilitated.

Similarly, a child care provider may not employ or contract with a caregiver or permit a nonclient resident to reside at a premises where child care is provided if the caregiver or nonclient resident has been convicted or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime, as defined under current law, unless the caregiver or nonclient resident shows that he or she has been rehabilitated. Currently, "serious crime" is defined to include certain crimes against life or bodily security and certain crimes against children that are felonies.

This bill prohibits any person who has been convicted or adjudicated delinquent on or after his or her 12th birthday for committing any of the following serious crimes or who is the subject of a pending criminal charge or delinquency petition alleging that the person has committed any of the following serious crimes on or after his or her 12th birthday from being licensed, certified, or contracted with to provide child care, from being employed or contracted as a caregiver of a child care provider, or from being permitted to be a nonclient resident of a premises where child care is provided and prohibits such a person from showing that he or she has been rehabilitated:

1. Any crime against children that is a felony, other than felony failure to pay child, spousal, or grandchild support or felony hazing.

2. Felony battery, if the victim is the spouse of the person.

3. First-degree or second-degree intentional or reckless homicide, felony murder, mayhem, felony sexual assault, reckless injury, taking hostages, kidnapping, felony endangering safety by use of a dangerous weapon, disarming a police officer, armed burglary, or armed robbery.

4. A violation of the background check law, if the violation involves the provision of false information to DCF, a county department, a contracted agency, a school board, or a child care provider.

5. An offense involving fraudulent activity as a participant in the Wisconsin Works Program, including as a recipient of a child care subsidy under that program, or as a recipient of aid to families with dependent children, medical assistance, food stamp benefits, supplemental security payments, payments for the support of children of supplemental security income recipients, or health care benefits under the Badger Care program.

6. Any drug or alcohol-related felony, felony battery, carjacking, or felony hazing, if committed not more than five years before the date of the background investigation.

7. Felony failure to pay child, spousal, or grandchild support, if committed not more than five years before the date of the background investigation, unless the person has paid all arrearages and is meeting his or her current support obligation.

Current law requires DCF, a county department, a contracting agency, or a school board, prior to licensing, certifying, or contracting with a child care provider and every four years after that, to conduct a criminal history search of the child care provider, of all nonclient residents of the premises where the child care is provided, and of all persons under 18 years of age who are caregivers of the child care provider and to obtain certain other information with respect to those individuals, specifically: 1) information from the client abuse registry maintained by the Department of Health Services (DHS); 2) information maintained by the Department of Regulation and Licensing regarding the individual's credentials; 3) information maintained by DCF regarding any substantiated reports of child abuse or neglect against the individual; and 4) information maintained by DHS regarding any denial of a license, certification, or contract to provide child care, of employment as a caregiver of a child care provider, or of permission to reside at a premises where child care is provided. Similarly, current law also requires a child care provider to conduct such a criminal history search and to obtain that information with respect to a caregiver 18 years of age or over prior to employing or contracting with the caregiver and every four years after that.

This bill requires DCF, a county department, a contracting agency, or a school board to conduct that criminal history search and to obtain that information with respect to a child care provider every three months after the child care provider is licensed, certified, or contracted with and to conduct that search and obtain that information with respect to a nonclient resident or caregiver under 18 years of age every year after the nonclient resident is permitted to reside at the premises or the caregiver is employed or contracted with. The bill also requires a child care provider to conduct that criminal history search and to obtain that information every year after a caregiver 18 years of age or over is employed or contracted with. In addition to conducting that criminal history search and obtaining that information, the bill requires DCF, a county department, a contracting agency, a school board, or an entity to obtain on those timetables information that is contained in the sex offender registry maintained by the Department of Corrections regarding whether the person has committed a sex offense that is a serious crime.

Under current law, DCF may revoke the license of a person to operate a day care center if the licensee or a person under the supervision of the licensee commits certain actions, including a repeated or substantial violation of a rule or order of DCF or of a condition of licensure or an action that directly threatens the health, safety, or welfare of any child under the care of the licensee. Similarly, under current law, DCF or a county department may refuse to pay a child care provider for child care provided under the Wisconsin Works Program if the child care provider, an employee of the child care provider, or a person living on the premises where child care is provided is convicted of a felony or misdemeanor that substantially relates to the care of children, is the subject of a pending charge that substantiality relates to the care of children, or has been determined to have abused or neglected a child.

This bill requires all of the following:

1. DCF to revoke the license of a day care center; DCF in a county having a population of 500,000 or more, a county department, or a contracted agency to revoke the certification of a day care provider for purposes of reimbursement under the Wisconsin Works Program; and a school board to rescind the contract of the person to operate a day care program; if the person licensed to operate the day care center, the person certified as a child care provider, or the person contracting to provide the day care program is convicted of a serious crime or if a caregiver or nonclient resident of the day care center, child care provider, or day care program is convicted or adjudicated delinquent for committing a serious crime on or after his or her 12th birthday. The bill also requires DCF or a county department to refuse to pay a child care provider in those circumstances beginning on the date of the conviction or delinquency adjudication.

2. DCF to immediately suspend the license of a day care center; DCF in a county having a population of 500,000 or more, a county department, or a contracted agency to immediately suspend the certification of a day care provider for purposes of reimbursement under the Wisconsin Works Program; and a school board to immediately suspend the contract of a person to operate a day care program; if the person licensed to operate the day care center, the person certified as a child care provider, or the person contracting to provide the day care program is the subject of a pending criminal charge alleging that the person has committed a serious crime or if a caregiver or nonclient resident of the day care center, child care provider, or day care program is the subject of a pending charge or delinquency petition alleging that the person has committed a serious crime on or after his or her 12th birthday. The bill also requires DCF or a county department to immediately suspend payment to a child care provider for any child care provided under the Wisconsin Works Program in those circumstances until DCF or the county department obtains information regarding the final disposition of the charge or delinquency proceeding indicating that the person is not ineligible to receive such a payment.

For further information see the state and local 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:

SB331, s. 1 Section 1. 20.435 (6) (jm) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

SB331,5,17 20.435 (6) (jm) Licensing and support services. The amounts in the schedule for the purposes specified in ss. 48.685 (2) (am), (ar), and (b) 1., (3) (a), (am), and (b), and (5) (a), 49.45 (47), 50.02 (2), 50.025, 50.031, 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. IV 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), 49.45 (42) (c), 49.45 (47) (c), 50.02 (2), 50.025, 50.031 (6), 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.

SB331, s. 2 Section 2. 48.651 (3) of the statutes is created to read:

SB331,6,2 48.651 (3) (a) If a day care provider certified under sub. (1) is convicted of a serious crime, as defined in s. 48.685 (1) (c) 3m., or if a caregiver specified in s. 48.685 (1) (ag) 1. a. or a nonclient resident, as defined in s. 48.685 (1) (bm), of the day care provider is convicted or adjudicated delinquent for committing a serious crime on or after his or her 12th birthday, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under sub. (2) shall revoke the certification of the day care provider immediately upon providing written notice of revocation and the grounds for revocation and an explanation of the process for appealing the revocation.

SB331,6,13 (b) If a day care provider certified under sub. (1) is the subject of a pending criminal charge alleging that the person has committed a serious crime, as defined in s. 48.685 (1) (c) 3m., or if a caregiver specified in s. 48.685 (1) (ag) 1. a. or a nonclient resident, as defined in s. 48.685 (1) (bm), of the day care provider is the subject of a pending criminal charge or delinquency petition alleging that the person has committed a serious crime on or after his or her 12th birthday, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under sub. (2) shall immediately suspend the certification of the day care provider until the department, county department, or agency obtains information regarding the final disposition of the charge or delinquency petition indicating that the person is not ineligible to be certified under sub. (1).

SB331, s. 3 Section 3. 48.685 (1) (c) 3m. of the statutes is created to read:

SB331,6,19 48.685 (1) (c) 3m. For purposes of licensing a person to operate a day care center under s. 48.65, certifying a day care provider under s. 48.651, or contracting with a person under s. 120.13 (14) to operate a day care center, or of permitting a person to be a caregiver or nonclient resident of such a day care center or day care provider, any violation listed in subds. 1. to 3. or sub. (5) (br) 1. to 7.

SB331, s. 4 Section 4. 48.685 (1) (c) 4. of the statutes is amended to read:

SB331,6,23 48.685 (1) (c) 4. A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1., 2., or, 3., or 3m. if committed in this state.

SB331, s. 5 Section 5. 48.685 (2) (am) (intro.) of the statutes is amended to read:

SB331,7,7 48.685 (2) (am) (intro.) The department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. b., a nonclient resident of an entity, and a person under 18 years of age, but not under 12 years of age, who is a caregiver of a day care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a day care provider that is certified under s. 48.651:

SB331, s. 6 Section 6. 48.685 (2) (am) 5. of the statutes is amended to read:

SB331,7,20 48.685 (2) (am) 5. Information maintained by the department of health services under this section and under ss. 48.651 (2m), 48.75 (1m), and 120.13 (14) regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate 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 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, continuation or renewal of a license, certification, a contract, employment, or permission to reside as described in this subdivision, the department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board need not obtain the information specified in subds. 1. to 4.

SB331, s. 7 Section 7. 48.685 (2) (ar) of the statutes is created to read:

SB331,8,5 48.685 (2) (ar) In addition to obtaining the information specified in par. (am) with respect to a person who has, or is seeking, a license to operate a day care center under s. 48.65, certification as a day care provider under s. 48.651, or a contract under s. 120.13 (14) to operate a day care center, a nonclient resident of such an entity, or a person under 18 years of age, but not under 12 years of age, who is a caregiver of such an entity, the department, a county department, an agency contracted with under s. 48.651 (2), or a school board shall obtain information that is contained in the sex offender registry under s. 301.45 regarding whether the person has committed a sex offense that is a serious crime.

SB331, s. 8 Section 8. 48.685 (2) (b) 2. of the statutes is created to read:

SB331,8,13 48.685 (2) (b) 2. In addition to obtaining the information specified in subd. 1. with respect to a caregiver specified in sub. (1) (ag) 1. a. of a day care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a day care provider that is certified under s. 48.651, the day care center or day care provider shall obtain information that is contained in the sex offender registry under s. 301.45 regarding whether the person has committed a sex offense that is a serious crime.

SB331, s. 9 Section 9. 48.685 (2) (b) 4. of the statutes is amended to read:

SB331,8,22 48.685 (2) (b) 4. Subdivision 1. does Subdivisions 1. and 2. do not apply with respect to a nonclient resident or person under 18 years of age, but not under 12 years of age, who is a caregiver or nonclient resident of a day care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a day care provider that is certified under s. 48.651 and with respect to whom the department, a county department, an agency contracted with under s. 48.651 (2), or a school board is required under par. (am) (intro.) to obtain the information specified in par. (am) 1. to 5.

SB331, s. 10 Section 10. 48.685 (2) (bb) of the statutes is amended to read:

SB331,9,17 48.685 (2) (bb) If information obtained under par. (am) or (b) 1. indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department, county department, agency contracted with under s. 48.651 (2), child welfare agency, school board, 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) 1. does not indicate such a charge or conviction, the department, county department, agency contracted with under s. 48.651 (2), child welfare agency, school board, 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) 1., 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 , or 947.013 obtained not more than 5 years before the date on which that information was obtained, the department, county department, agency contracted with under s. 48.651 (2), child welfare agency, school board, 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.

SB331, s. 11 Section 11. 48.685 (2) (bd) of the statutes is amended to read:

SB331,9,25 48.685 (2) (bd) Notwithstanding pars. (am) and (b) 1., the department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board is not required to obtain the information specified in par. (am) 1. to 5., and an entity is not required to obtain the information specified in par. (b) 1. a. to e., with respect to a person under 18 years of age whose background information form under sub. (6) (am) indicates that the person is not ineligible to be employed, contracted with, or permitted to reside at an entity for a reason specified in sub. (4m) (b) 1. to 5. and with respect to whom the department, county department, contracted agency, child welfare agency, school board, or entity otherwise has no reason to believe that the person is ineligible to be employed, contracted with , or permitted to reside at an entity for any of those reasons. This paragraph does not preclude the department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board from obtaining, at its discretion, the information specified in par. (am) 1. to 5. with respect to a person described in this paragraph who is a nonclient resident or a prospective nonclient resident of an entity.

SB331, s. 12 Section 12. 48.685 (2) (bg) of the statutes is amended to read:

SB331,10,17 48.685 (2) (bg) If an entity employs or contracts with a caregiver for whom, within the last 4 years year, the information required under par. (b) 1. a. to c. and e. 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) 1. a. to c. and e. 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) 1. a. to c. and e.