SB642: Bill Text

LRB-4562/2

GMM:kjf:ph

2009 - 2010 LEGISLATURE

2009 Senate BILL 642

March 24, 2010 - Introduced by Senators Vinehout and Taylor, cosponsored by Representatives Grigsby, Kessler, A. Williams and Fields. Referred to Committee on Children and Families and Workforce Development.

SB642,2,2 An Act to amend 48.685 (4m) (a) 1., 48.685 (4m) (b) 1., 48.685 (5) (br) (intro.), 48.685 (5) (br) 3., 48.685 (5) (br) 3m., 48.685 (5) (br) 4., 48.685 (5) (br) 5., 48.685 (5c) (a), 48.685 (5c) (b), 48.685 (5c) (c), 48.685 (5d) (a) (intro.), 48.685 (5d) (a) 1., 48.685 (5d) (a) 3., 48.685 (5d) (a) 4., 48.685 (5d) (a) 5. and 48.685 (5g); and to create 48.685 (5) (bt) of the statutes; relating to: the period for which a person who has been convicted, sanctioned, or adjudicated delinquent for committing certain serious crimes is prohibited 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, permitting a person who is not permanently barred from residing at such a premises to demonstrate that he or she is not a threat to the safety of the children receiving care at the premises, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Current law prohibits any person who has been convicted, sanctioned, or adjudicated delinquent on or after his or her 12th birthday for committing certain violations, including any of the following violations, 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. For purposes of being licensed, certified, or contracted with to provide child care, identity theft, robbery, forgery, felony receiving stolen property, felony insurance fraud, a felony credit card crime, felony theft of telecommunication services, commercial mobile service, video service, or satellite cable programming, felony retail theft, a felony computer crime, or a felony crime against a financial institution (serious property crime).

2. A violation of the background check law, if the violation involves the provision of false information to the Department of Children and Families, a county department of human services or social services, an agency contracted with to certify child care providers for purposes of reimbursement under the Wisconsin Works program, a school board, or a child care provider (background check violation).

3. 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 (public assistance fraud).

This bill reduces the period for which a person who has committed a serious property crime, a background check violation, or public assistance fraud 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 from a permanent bar to a bar of five years after the person was convicted, sanctioned, or adjudicated delinquent for that crime, violation, or fraud.

The bill also permits a person who is not permanently barred from showing that he or she has been rehabilitated to reside at a premises where child care is provided if, in lieu of demonstrating that he or she has been rehabilitated, the person demonstrates that he or she is not a threat to the safety of the children receiving care at the premises.

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:

SB642, s. 1 Section 1. 48.685 (4m) (a) 1. of the statutes, as affected by 2009 Wisconsin Acts 76 and 185, is amended to read:

SB642,3,11 48.685 (4m) (a) 1. That the person has been convicted of a serious crime or, if the person is an applicant for issuance or continuation of a license to operate a child care center or for initial certification under s. 48.651 or for renewal of that certification or if the person is proposing to contract with a school board under s. 120.13 (14) or to renew a contract under that subsection, that the person has been convicted of a serious crime, sanctioned, or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime or that the person is the subject of a pending criminal charge, sanction, or delinquency petition alleging that the person has committed a serious crime on or after his or her 12th birthday.

SB642, s. 2 Section 2. 48.685 (4m) (b) 1. of the statutes, as affected by 2009 Wisconsin Acts 76 and 185, is amended to read:

SB642,3,21 48.685 (4m) (b) 1. That the person has been convicted of a serious crime or, if the person is a caregiver or nonclient resident of a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a child care provider that is certified under s. 48.651, that the person has been convicted of a serious crime, sanctioned, or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime or that the person is the subject of a pending criminal charge, sanction, or delinquency petition alleging that the person has committed a serious crime on or after his or her 12th birthday.

SB642, s. 3 Section 3. 48.685 (5) (br) (intro.) of the statutes, as created by 2009 Wisconsin Act 76, is amended to read:

SB642,4,12 48.685 (5) (br) (intro.) 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 nonclient resident or caregiver specified in sub. (1) (ag) 1. a. of a day care center or day care provider, no person who has been convicted , sanctioned, or adjudicated delinquent on or after his or her 12th birthday for committing any of the following offenses or who is the subject of a pending criminal charge , sanction, or delinquency petition alleging that the person has committed any of the following offenses on or after his or her 12th birthday may be permitted to demonstrate that he or she has been rehabilitated:

SB642, s. 4 Section 4. 48.685 (5) (br) 3. of the statutes, as created by 2009 Wisconsin Act 76, is amended to read:

SB642,4,17 48.685 (5) (br) 3. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.21, 940.225 (1), (2), or (3), 940.23, 940.305, 940.31, 941.20 (2) or (3), 941.21, 943.10 (2), or 943.32 (2), or 943.87.

SB642, s. 5 Section 5. 48.685 (5) (br) 3m. of the statutes, as created by 2009 Wisconsin Act 76, is amended to read:

SB642,5,2 48.685 (5) (br) 3m. Except for purposes of permitting a person to be a nonclient resident or caregiver specified in sub. (1) (ag) 1. a. of a day care center or day care provider, a violation of s. 943.201, 943.203, 943.32 (2) (1), or 943.38 (1) or (2); a violation of s. 943.34 (1), 943.395 (1), 943.41 (3) (e), (4) (a), (5), (6), or (6m), 943.45 (1), 943.455 (2), 943.46 (2), 943.47 (2), 943.50 (1m), or 943.70 (2) (a) or (am) or (3) (a) that is a felony; or an offense under subch. IV of ch. 943 that is a felony , if the person was convicted of or adjudicated delinquent for the violation less than 5 years before the date of the investigation under sub. (2) (am) or (b) 1.

SB642, s. 6 Section 6. 48.685 (5) (br) 4. of the statutes, as created by 2009 Wisconsin Act 76, is amended to read:

SB642,5,10 48.685 (5) (br) 4. A violation of sub. (2), (3), (4m) (b), or (6), if the violation that involves the provision of false information to or the intentional withholding of information from the department, a county department, an agency contracting under s. 48.651 (2), a school board, or an entity, if the person was sanctioned under sub. (4) or (6) (c) for the violation less than 5 years before the date of the investigation under sub. (2) (am) or (b) 1.

SB642, s. 7 Section 7. 48.685 (5) (br) 5. of the statutes, as created by 2009 Wisconsin Act 76, is amended to read:

SB642,5,22 48.685 (5) (br) 5. An offense involving fraudulent activity as a participant in the Wisconsin Works program under ss. 49.141 to 49.161, including as a recipient of a child care subsidy under s. 49.155, or as a recipient of aid to families with dependent children under s. 49.19, medical assistance under subch. IV of ch. 49, food stamps benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, or health care benefits under the Badger Care health care program under s. 49.665, if the person was convicted of or adjudicated delinquent for the offense less than 5 years before the date of the investigation under sub. (2) (am) or (b) 1.

SB642, s. 8 Section 8. 48.685 (5) (bt) of the statutes is created to read:

SB642,6,11 48.685 (5) (bt) Notwithstanding pars. (a) and (br), a person who is licensed to operate a child care center under s. 48.65, certified to provide child care under s. 48.651, or contracted with to operate a child care center under s. 120.13 (14) may permit a person who has not been convicted of an offense or violation specified in par. (br) 1. to 3. to be a nonclient resident of the child care center or child care provider if the person, in lieu of demonstrating under par. (a) that he or she has been rehabilitated, demonstrates to the department, the county department, the contracted agency, the school board or, in the case of a child care center or child care provider that is located within the boundaries of a reservation, the person or body designated by the Indian tribe under sub. (5d) (a) 3. by clear and convincing evidence and in accordance with procedures established by the department by rule or by the Indian tribe that he or she is not a threat to the safety of the children receiving care from the child care center or child care provider.

SB642, s. 9 Section 9. 48.685 (5c) (a) of the statutes, as affected by 2009 Wisconsin Act 76, is amended to read:

SB642,6,19 48.685 (5c) (a) Any person who is permitted but fails under sub. (5) (a) or (bt) to demonstrate to the department, an agency contracted with under s. 48.651 (2), or a child welfare agency that he or she has been rehabilitated or that he or she is not a threat to the safety of children may appeal to the secretary or his or her designee. Any person who is adversely affected by a decision of the secretary or his or her designee under this paragraph has a right to a contested case hearing under ch. 227.

SB642, s. 10 Section 10. 48.685 (5c) (b) of the statutes is amended to read:

SB642,7,2 48.685 (5c) (b) Any person who is permitted but fails under sub. (5) (a) or (bt) to demonstrate to the county department that he or she has been rehabilitated or that he or she is not a threat to the safety of children may appeal to the director of the county department or his or her designee. Any person who is adversely affected by a decision of the director or his or her designee under this paragraph has a right to appeal the decision under ch. 68.

SB642, s. 11 Section 11. 48.685 (5c) (c) of the statutes is amended to read:

SB642,7,9 48.685 (5c) (c) Any person who is permitted but fails under sub. (5) (a) or (bt) to demonstrate to the school board that he or she has been rehabilitated or that he or she is not a threat to the safety of children may appeal to the state superintendent of public instruction or his or her designee. Any person who is adversely affected by a decision of the state superintendent or his or her designee under this paragraph has a right to a contested case hearing under ch. 227.

SB642, s. 12 Section 12. 48.685 (5d) (a) (intro.) of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB642,7,15 48.685 (5d) (a) (intro.) Any Indian tribe that chooses to conduct rehabilitation reviews under sub. (5) (a) or threat to safety reviews under sub. (5) (bt) shall submit to the department a rehabilitation or threat to safety review plan that includes all of the following:

SB642, s. 13 Section 13. 48.685 (5d) (a) 1. of the statutes is amended to read:

SB642,7,18 48.685 (5d) (a) 1. The criteria to be used to determine if a person has been rehabilitated or is not a threat to the safety of children.

SB642, s. 14 Section 14. 48.685 (5d) (a) 3. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB642,7,23 48.685 (5d) (a) 3. The title of the person or body designated by the Indian tribe to determine whether a person has been rehabilitated or is not a threat to the safety of children.

SB642, s. 15 Section 15. 48.685 (5d) (a) 4. of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB642,8,4 48.685 (5d) (a) 4. The manner in which the Indian tribe will submit information relating to a rehabilitation or threat to safety review to the department so that the department may include that information in its report to the legislature required under sub. (5g).

SB642, s. 16 Section 16. 48.685 (5d) (a) 5. of the statutes is amended to read:

SB642,8,9 48.685 (5d) (a) 5. A copy of the form to be used to request a review and a copy of the form on which a written decision is to be made regarding whether a person has demonstrated rehabilitation that he or she has been rehabilitated or is not a threat to the safety of children.

SB642, s. 17 Section 17. 48.685 (5g) of the statutes is amended to read:

SB642,8,19 48.685 (5g) Beginning on January 1 1999 2011, 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 that they have been rehabilitated under sub. (5) (a) or that they are not a threat to the safety of children under sub. (5) (bt), the number of persons who successfully demonstrated that they have been rehabilitated under sub. (5) (a) or that they are not a threat to the safety of children under sub. (5) (bt), and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated or that he or she is not a threat to the safety of children.

SB642, s. 18 Section 18. Initial applicability.

SB642,9,3 (1) Retroactive application. This act first applies to a decision to deny, suspend, revoke, rescind, or refuse to renew a license under section 48.65 of the statutes, a certification under section 48.651 of the statutes, or a contract under section 120.13 (14) of the statutes or to permit a person to be a nonclient resident or caregiver, as defined in section 48.685 (1) (ag) 1. a. of the statutes, of a child care center or child care provider made on the effective date of this subsection, notwithstanding that the conviction, sanction, or adjudication on which the decision is based was obtained or filed before the effective date of this subsection.

SB642, s. 19 Section 19. Effective date.

SB642,9,6 (1) Background investigations of child care providers. This act takes effect on the first day of the 3rd month beginning after publication.

SB642,9,7 (End)