48.685 Cross-reference
Cross-reference: See also ch.
DHS 12, Wis. adm. code.
48.685 Annotation
Wisconsin's caregiver law, as enforced in this case under sub. (5) (br) 5., is constitutional. The caregiver law did not violate the petitioner's due process rights because the state provided adequate post-deprivation remedies. Petitioner's equal protection claim failed because the law does pass the rational basis test. Regardless of whether the law is rationally related to the goal of protecting children, the law is rationally related to the legitimate purpose of prohibiting individuals who dishonestly benefitted from government welfare in the past from obtaining government funding in the form of childcare subsidies. Brown v. Department of Children and Families,
2012 WI App 61,
341 Wis. 2d 449,
819 N.W.2d 827,
11-1350.
48.685 Annotation
Sections 48.72 and 227.44 governed the appeal of the revocation of a child care license under sub. (5) (br) and granted the license holder the right to a contested case hearing on the appeal of the revocation. Jamerson v. Department of Children & Families,
2013 WI 7,
345 Wis. 2d 205,
824 N.W.2d 822,
11-0593.
48.685 Annotation
Jamerson instructs that prior to establishing that a conviction satisfies the requirements of sub. (5) (br) 5., evidence must clearly show that the conviction was for fraudulent activity. The title of the conviction and an uncorroborated criminal complaint presented at the administrative appeal hearing were insufficient to meet this standard. Blake v. Racine County Human Services Department,
2013 WI App 45,
347 Wis. 2d 499,
831 N.W.2d 439,
12-0031.
48.69
48.69
Probationary licenses. Except as provided under
s. 48.715 (6) and
(7), if any child welfare agency, shelter care facility, group home, or child care center that has not been previously issued a license under
s. 48.66 (1) (a) applies for a license, meets the minimum requirements for a license established under
s. 48.67, and pays the applicable fee referred to in
s. 48.68 (1), the department shall issue a probationary license to that child welfare agency, shelter care facility, group home, or child care center. A probationary license is valid for up to 6 months after the date of issuance unless renewed under this section or suspended or revoked under
s. 48.715. Before a probationary license expires, the department shall inspect the child welfare agency, shelter care facility, group home, or child care center holding the probationary license and, except as provided under
s. 48.715 (6) and
(7), if the child welfare agency, shelter care facility, group home, or child care center meets the minimum requirements for a license established under
s. 48.67, the department shall issue a license under
s. 48.66 (1) (a). A probationary license issued under this section may be renewed for one 6-month period.
48.70
48.70
Provisions of licenses. 48.70(1)
(1)
General. Each license shall state the name of the person licensed, the premises included under the license, the maximum number of children who can be received and their age and sex and such additional information and special conditions as the department may prescribe.
48.70(2)
(2) Special provisions for child welfare agency licenses. A license to a child welfare agency shall also specify the kind of child welfare work the agency is authorized to undertake, whether the agency may accept guardianship of children, whether the agency may place children in foster homes, and if so, the area the agency is equipped to serve.
48.70(4)
(4) Special provisions for county departments. Licenses to county departments shall specify whether the county department may accept guardianship of children and place children for adoption.
48.715
48.715
Sanctions and penalties. 48.715(1)
(1) In this section, "licensee" means a person who holds a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child welfare agency, shelter care facility, group home, or child care center.
48.715(2)
(2) If the department provides written notice of the grounds for a sanction, an explanation of the types of sanctions that may be imposed under this subsection and an explanation of the process for appealing a sanction imposed under this subsection, the department may order any of the following sanctions:
48.715(2)(a)
(a) That a person stop operating a child welfare agency, shelter care facility, group home, or child care center if the child welfare agency, shelter care facility, group home, or child care center is without a license in violation of
s. 48.66 (1) (a) or a probationary license in violation of
s. 48.69.
48.715(2)(b)
(b) That a person who employs a person who has had a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 revoked within the previous 5 years terminate the employment of that person within 30 days after the date of the order. This paragraph includes employment of a person in any capacity, whether as an officer, director, agent or employee.
48.715(2)(e)
(e) That a licensee implement and comply with a plan of correction provided by the department or previously submitted by the licensee and approved by the department.
48.715(2)(f)
(f) That a licensee close the intake of any new children until all violations of the provisions of licensure under
s. 48.70 (1) and the rules promulgated by the department under
s. 48.658 (4) (a) or
48.67 are corrected.
48.715(2)(g)
(g) That a licensee provide training for the licensee's staff members as specified by the department.
48.715(3)
(3) If the department provides written notice of the grounds for a penalty, an explanation of the types of penalties that may be imposed under this subsection, and an explanation of the process for appealing a penalty imposed under this subsection, the department may impose any of the following penalties against a licensee or any other person who violates a provision of licensure under
s. 48.70 (1) or rule promulgated by the department under
s. 48.658 (4) (a) or
48.67 or who fails to comply with an order issued under
sub. (2) by the time specified in the order:
48.715(3)(a)
(a) A daily forfeiture amount per violation of not less than $10 nor more than $1,000. All of the following apply to a forfeiture under this paragraph:
48.715(3)(a)1.
1. Within the limits specified in this paragraph, the department may, by rule, set daily forfeiture amounts and payment deadlines based on the size and type of facility or agency and the seriousness of the violation. The department may set daily forfeiture amounts that increase periodically within the statutory limits if there is continued failure to comply with an order issued under
sub. (2).
48.715(3)(a)2.
2. The department may directly assess a forfeiture imposed under this paragraph by specifying the amount of that forfeiture in the notice provided under this subsection.
48.715(3)(a)3.
3. A person against whom the department has assessed a forfeiture shall pay that forfeiture to the department within 10 days after receipt of notice of the assessment or, if that person contests that assessment under
s. 48.72, within 10 days after receipt of the final decision after exhaustion of administrative review or, if that person petitions for judicial review under
ch. 227, within 10 days after receipt of the final decision after exhaustion of judicial review. The department shall remit all forfeitures paid under this subdivision to the secretary of administration for deposit in the school fund.
48.715(3)(a)4.
4. The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this paragraph that has not been paid as provided in
subd. 3. The only contestable issue in an action under this subdivision is whether or not the forfeiture has been paid.
48.715(3)(b)
(b) Suspension of the licensee's license for not more than 2 weeks.
48.715(3)(c)
(c) Refusal to continue a license or a probationary license.
48.715(3)(d)
(d) Revocation of a license or a probationary license as provided in
sub. (4).
48.715(4)
(4) If the department provides written notice of revocation and the grounds for revocation as provided in
sub. (4m) and an explanation of the process for appealing a revocation under this subsection, the department may revoke a license issued under
s. 48.66 (1) (a) or a probationary license issued under
s. 48.69 for any of the following reasons:
48.715(4)(a)
(a) The department has imposed a penalty on the licensee under
sub. (3) and the licensee or a person under the supervision of the licensee either continues to violate or resumes violation of a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section forming any part of the basis for the penalty.
48.715(4)(b)
(b) The licensee or a person under the supervision of the licensee has committed a substantial violation, as determined by the department, of a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section.
48.715(4)(c)
(c) The licensee or a person under the supervision of the licensee has committed an action or has created a condition relating to the operation or maintenance of the child welfare agency, shelter care facility, group home, or child care center that directly threatens the health, safety, or welfare of any child under the care of the licensee.
48.715(4)(d)
(d) The licensee or a person under the supervision of the licensee has violated, as determined by the department, a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section that is the same as or similar to a rule promulgated under
s. 48.658 (4) (a) or
48.67, a provision of licensure under
s. 48.70 (1), or an order under this section that the licensee or a person under the supervision of the licensee has violated previously.
48.715(4)(e)
(e) The licensee has failed to apply for a continuance of the license within 30 days after receipt of the warning under
s. 48.66 (5).
48.715(4g)(a)(a) If a person who has been issued a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child care center 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 child care center is convicted or adjudicated delinquent for committing a serious crime on or after his or her 12th birthday, the department shall revoke the license of the child care center immediately upon providing written notice of revocation and the grounds for revocation and an explanation of the process for appealing the revocation.
48.715(4g)(b)
(b) If a person who has been issued a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child care center 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 child care center 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 shall immediately suspend the license of the child care center until the department obtains information regarding the final disposition of the charge or delinquency petition indicating that the person is not ineligible to be licensed to operate a child care center.
48.715(4m)(a)(a) For a revocation under
sub. (4) (a) or
(d), the department shall provide to the licensee written notice of the revocation and the grounds for revocation not less than 30 days before the date of the revocation. The revocation will take effect only if the violation on which the revocation is based remains substantially uncorrected at the end of the 30-day notice period.
48.715(4m)(b)
(b) For revocations under
sub. (4) (b),
(c) or
(e), the department may revoke the license or probationary license immediately upon written notice to the licensee of the revocation and the grounds for revocation.
48.715(5)
(5) The department may deny a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to any person who has had a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 revoked within the previous 5 years.
48.715(6)
(6) The department shall deny, suspend, restrict, refuse to renew, or otherwise withhold a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child welfare agency, group home, shelter care facility, or child care center, and the department of corrections shall deny, suspend, restrict, refuse to renew, or otherwise withhold a license under
s. 48.66 (1) (b) to operate a secured residential care center for children and youth, for failure of the applicant or licensee to pay court-ordered payments of child or family support, maintenance, birth expenses, medical expenses, or other expenses related to the support of a child or former spouse or for failure of the applicant or licensee to comply, after appropriate notice, with a subpoena or warrant issued by the department or a county child support agency under
s. 59.53 (5) and related to paternity or child support proceedings, as provided in a memorandum of understanding entered into under
s. 49.857. Notwithstanding
s. 48.72, an action taken under this subsection is subject to review only as provided in the memorandum of understanding entered into under
s. 49.857 and not as provided in
s. 48.72.
48.715(7)
(7) The department shall deny an application for the issuance or continuation of a license under
s. 48.66 (1) (a) or a probationary license under
s. 48.69 to operate a child welfare agency, group home, shelter care facility, or child care center, or revoke such a license already issued, if the department of revenue certifies under
s. 73.0301 that the applicant or licensee is liable for delinquent taxes or if the department of workforce development certifies under
s. 108.227 that the applicant or licensee is liable for delinquent unemployment insurance contributions. An action taken under this subsection is subject to review only as provided under
s. 73.0301 (5) or
108.227 (5) and not as provided in
s. 48.72.
48.72
48.72
Appeal procedure. Except as provided in
s. 48.715 (6) and
(7), any person aggrieved by the department's refusal or failure to issue, renew, or continue a license or by any action taken by the department under
s. 48.715 has the right to an administrative hearing provided for contested cases in
ch. 227. To receive an administrative hearing under
ch. 227, the aggrieved person shall send to the department a written request for a hearing under
s. 227.44 within 10 days after the date of the department's refusal or failure to issue, renew, or continue a license or the department's action taken under
s. 48.715. The department shall hold an administrative hearing under
s. 227.44 within 30 days after receipt of the request for the administrative hearing unless the aggrieved person consents to an extension of that time period. Judicial review of the department's decision may be had by any party in the contested case as provided in
ch. 227.
48.73
48.73
Inspection of licensees. The department may visit and inspect each child welfare agency, foster home, group home, and child care center licensed by the department, and for that purpose shall be given unrestricted access to the premises described in the license.
48.735
48.735
Immunization requirements; child care centers. The department, after notice to a child care center licensee, may suspend, revoke, or refuse to continue a child care center license in any case in which the department finds that there has been a substantial failure to comply with the requirements of
s. 252.04.
48.737
48.737
Lead screening, inspection and reduction requirements; child care centers. The department, after notice to a child care provider certified under
s. 48.651, or a child care center that holds a license under
s. 48.65 or a probationary license under
s. 48.69, may suspend, revoke, or refuse to renew or continue a license or certification in any case in which the department finds that there has been a substantial failure to comply with any rule promulgated under
s. 254.162,
254.168, or
254.172.
48.74
48.74
Authority of department to investigate alleged violations. Whenever the department is advised or has reason to believe that any person is violating any of the provisions of
ss. 48.60,
48.62,
48.625 or
48.65, it shall make an investigation to determine the facts. For the purposes of this investigation, it shall have authority to inspect the premises where the violation is alleged to occur. If it finds that the person is violating any of the specified sections, it may either issue a license if the person is qualified or may institute a prosecution under
s. 48.76.
48.74 History
History: 1979 c. 300.
48.743
48.743
Community living arrangements for children. 48.743(1)(1) In this section, "community living arrangement for children" means a residential care center for children and youth or a group home.
48.743(2)
(2) Community living arrangements for children shall be subject to the same building and housing ordinances, codes, and regulations of the municipality or county as similar residences located in the area in which the facility is located.
48.743(3)
(3) The department shall designate a subunit to keep records and supply information on community living arrangements for children under
ss. 59.69 (15) (f),
60.63 (7), and
62.23 (7) (i) 6. The subunit shall be responsible for receiving all complaints regarding community living arrangements for children and for coordinating all necessary investigatory and disciplinary actions under the laws of this state and under the rules of the department relating to the licensing of community living arrangements for children.
48.743(4)
(4) A community living arrangement for children with a capacity for 8 or fewer persons shall be a permissible use for purposes of any deed covenant which limits use of property to single-family or 2-family residences. A community living arrangement for children with a capacity for 15 or fewer persons shall be a permissible use for purposes of any deed covenant which limits use of property to more than 2-family residences. Covenants in deeds which expressly prohibit use of property for community living arrangements for children are void as against public policy.
48.743(5)
(5) If a community living arrangement for children is required to obtain special zoning permission, as defined in
s. 59.69 (15) (g), the department shall, at the request of the unit of government responsible for granting the special zoning permission, inspect the proposed facility and review the program proposed for the facility. After such inspection and review, the department shall transmit to the unit of government responsible for granting the special zoning permission a statement that the proposed facility and its proposed program have been examined and are either approved or disapproved by the department.
48.743 History
History: 2007 a. 20.
48.743 Annotation
A holding that a community living arrangement with a capacity of 10 persons was not barred by a deed covenant limiting use to a single-family residence. Crowley v. Knapp,
94 Wis. 2d 421,
288 N.W.2d 815 (1980). See also Overlook Farms v. Alternative Living,
143 Wis. 2d 485,
422 N.W.2d 131 (Ct. App. 1988).
48.745
48.745
Formal complaints regarding child welfare agencies and group homes. 48.745(1)
(1) If a complaint is received by a child welfare agency operating a residential care center for children and youth or by a group home, the licensee shall attempt to resolve the complaint informally. Failing such resolution, the licensee shall inform the complaining party of the procedure for filing a formal complaint under this section.
48.745(2)
(2) Any individual may file a formal complaint under this section regarding the general operation of a residential care center for children and youth or group home and shall not be subject to reprisals for doing so. All formal complaints regarding residential care centers for children and youth and group homes shall be filed with the county department on forms supplied by the county department unless the county department designates the department to receive formal complaints. The county department shall investigate or cause to be investigated each formal complaint. Records of the results of each investigation and the disposition of each formal complaint shall be kept by the county department and filed with the subunit of the department that licenses residential care centers for children and youth and group homes.
48.745(3)
(3) Upon receipt of a formal complaint, the county department may investigate the premises and records and question the licensee, staff, and residents of the residential care center for children and youth or group home involved. The county department shall attempt to resolve the situation through negotiation and other appropriate means.
48.745(4)
(4) If no resolution is reached, the county department shall forward the formal complaint, results of the investigation and any other pertinent information to the unit within the department which is empowered to take further action under this chapter against the facility. The unit shall review the complaint and may conduct further investigation, take enforcement action under this chapter or dismiss the complaint. The department shall notify the complainant in writing of the final disposition of the complaint and the reasons therefor. If the complaint is dismissed, the complainant is entitled to an administrative hearing conducted by the department to determine the reasonableness of the dismissal.
48.745(5)
(5) If the county department designates the department to receive formal complaints, the subunit under
s. 48.743 (3) shall receive the complaints and the department shall have all the powers and duties granted to the county department in this section.
48.75
48.75
Foster homes licensed by public licensing agencies and by child welfare agencies. 48.75(1b)
(1b) In this section, "public licensing agency" means a county department or, in a county having a population of 500,000 or more, the department.
48.75(1d)
(1d) Child welfare agencies, if licensed to do so by the department, and public licensing agencies may license foster homes under the rules promulgated by the department under
s. 48.67 governing the licensing of foster homes. A foster home license shall be issued for a term not to exceed 2 years from the date of issuance, is not transferable, and may be revoked by the child welfare agency or by the public licensing agency because the licensee has substantially and intentionally violated any provision of this chapter or of the rules of the department promulgated under
s. 48.67 or because the licensee fails to meet the minimum requirements for a license. The licensee shall be given written notice of any revocation and the grounds for the revocation.
48.75(1g)(a)(a) A public licensing agency may license a foster home only if the foster home is located in the county of the public licensing agency, except that a public licensing agency may license a foster home located in another county if any of the following applies:
48.75(1g)(a)1.
1. The person who will be licensed to operate the foster home is a relative or a guardian of the child who will be placed in the foster home.
48.75(1g)(a)2.
2. A foster parent licensed by the public licensing agency moves to the other county with a child who has been placed in the foster parent's home and the license will allow the foster parent to continue to care for that child.
48.75(1g)(a)3.
3. The county of the public licensing agency issuing the license and the county in which the foster home is located are contiguous.
48.75(1g)(a)4.
4. The county of the public licensing agency issuing the license has a population of 500,000 or more and the placement is for adoption under
s. 48.833 (1),
48.835, or
48.837.
48.75(1g)(a)5.
5. The public licensing agency of the county in which the prospective foster home is located requests the public licensing agency of another county to license the foster home.
48.75(1g)(b)
(b) A license issued under this subsection shall specifically identify each child to be placed in the foster home and shall terminate on the removal of all of those children from the foster home.
48.75(1g)(c)
(c) No license may be issued under
par. (a) 1.,
2., or
3. unless the public licensing agency issuing the license has notified the public licensing agency of the county in which the foster home will be located of its intent to issue the license and no license may be issued under
par. (a) 2. or
3. unless the 2 public licensing agencies have entered into a written agreement under this paragraph. A public licensing agency is not required to enter into any agreement under this paragraph allowing the public licensing agency of another county to license a foster home within its jurisdiction. The written agreement shall include all of the following:
48.75(1g)(c)1.
1. A statement that the public licensing agency issuing the license has placement and care responsibility for the child as required under
42 USC 672 (a) (2) and has primary responsibility for providing services to the child who is placed in the foster home, as specified in the agreement.
48.75(1g)(c)2.
2. A statement that the public licensing agency issuing the license is responsible for the costs of the placement and any related costs, as specified in the agreement.
48.75(1g)(c)3.
3. A description of the procedures to be followed in providing emergency services to the child who is placed in the foster home and to the foster parent, as specified in the agreement.
48.75(1g)(cm)
(cm) Notwithstanding that a written agreement under
par. (c) is not required for the issuance of a license under
par. (a) 1., the public licensing agency issuing the license shall have the responsibilities specified in
par. (c) 1., shall be responsible for the costs specified in
par. (c) 2., and shall have in place the procedures specified in
par. (c) 3.
48.75(1g)(d)
(d) If the public licensing agency issuing a license under
par. (a) 2. or
3. violates the agreement under
par. (c), the public licensing agency of the county in which the foster home is located may terminate the agreement and, subject to
ss. 48.357 and
48.64, require the public licensing agency that issued the license to remove the child from the foster home within 30 days after receipt, by the public licensing agency that issued the license, of notification of the termination of the agreement.
48.75(1m)
(1m) Each child welfare agency and public licensing agency shall provide the department of health services with information about each person who is denied a license for a reason specified in
s. 48.685 (4m) (a) 1. to
5.
