50.065(1)(ag)1.a.
a. A person who is, or is expected to be, an employee or contractor of an entity, who is or is expected to be under the control of an entity, as defined by the department by rule, and who has, or is expected to have, regular, direct contact with clients of the entity.
50.065(1)(ag)1.b.
b. A person who has, or is seeking, a license, certification, registration, or certificate of approval issued or granted by the department to operate an entity.
50.065(1)(ag)1.c.
c. A person who is, or is expected to be, an employee of the board on aging and long-term care and who has, or is expected to have, regular, direct contact with clients.
50.065(1)(ag)2.
2. “Caregiver" does not include a person who is certified as an emergency medical technician under
s. 256.15 if the person is employed, or seeking employment, as an emergency medical technician and does not include a person who is certified as a first responder under
s. 256.15 if the person is employed, or seeking employment, as a first responder.
50.065(1)(am)
(am) “Certificate of approval" means a certificate of approval issued under
s. 50.35.
50.065(1)(b)
(b) “Client" means a person who receives direct care or treatment services from an entity.
50.065(1)(bm)
(bm) “Contractor" means, with respect to an entity, a person, or that person's agent, who provides services to the entity under an express or implied contract or subcontract, including a person who has staff privileges at the entity.
50.065(1)(br)
(br) “Direct contact" means face-to-face physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or to misappropriate the property of a client.
50.065(1)(c)
(c) “Entity" means a facility, organization or service that is licensed or certified by or registered with the department to provide direct care or treatment services to clients; or an agency that employs or contracts with an individual to provide personal care services. “Entity" includes a hospital, a home health agency licensed under
s. 50.49, a temporary employment agency that provides caregivers to another entity, and the board on aging and long-term care. “Entity" does not include any of the following:
50.065(1)(c)3.
3. A person certified as a medical assistance provider, as defined in
s. 49.43 (10), who is not otherwise approved under
s. 50.065 (1) (cm), licensed or certified by or registered with the department.
50.065(1)(cn)
(cn) “Nonclient resident" means a person who resides, or is expected to reside, at an entity, who is not a client of the entity and who has, or is expected to have, regular, direct contact with clients of the entity.
50.065(1)(cr)
(cr) “Personal care services" means any of the following:
50.065(1)(cr)1.
1. Assistance with any of the following activities of daily living:
50.065(1)(cr)2.
2. Assistance with the following activities incidental to activities of daily living under
subd. 1.:
50.065(1)(cr)2.e.
e. Light cleaning in areas of the residence that are used during provision of services under
subd. 1. or under
subd. 2. a. to
d.
50.065(1)(dm)
(dm) “Reservation" means land in this state within the boundaries of a reservation of a tribe or within the bureau of Indian affairs service area for the Ho-Chunk Nation.
50.065(1)(e)1.1. “Serious crime" means a violation of s.
940.19 (3), 1999 stats., 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,
948.02 (1),
948.025 or
948.03 (2) (a) or
(5) (a) 1.,
2., or
3., or a violation of the law of any other state or United States jurisdiction that would be a violation of s.
940.19 (3), 1999 stats., or 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,
948.02 (1),
948.025 or
948.03 (2) (a) or
(5) (a) 1.,
2., or
3. if committed in this state.
50.065(1)(e)2.
2. For the purposes of an entity that serves persons under the age of 18, “serious crime" includes a violation of
s. 948.02 (2),
948.03 (2) (b) or
(c) or
(5) (a) 4.,
948.05,
948.051,
948.055,
948.06,
948.07,
948.08,
948.085,
948.11 (2) (a) or
(am),
948.12,
948.13,
948.21 (1),
948.30, or
948.53 or a violation of the law of any other state or United States jurisdiction that would be a violation of
s. 948.02 (2),
948.03 (2) (b) or
(c) or
(5) (a) 4.,
948.05,
948.051,
948.055,
948.06,
948.07,
948.08,
948.085,
948.11 (2) (a) or
(am),
948.12,
948.13,
948.21 (1),
948.30, or
948.53 if committed in this state.
50.065(1)(g)
(g) “Tribe" means a federally recognized American Indian tribe or band in this state.
50.065(2)(am)(am) The department shall obtain all of the following with respect to a person specified under
sub. (1) (ag) 1. b. and a person who is a nonclient resident or prospective nonclient resident of an entity:
50.065(2)(am)1.
1. A criminal history search from the records maintained by the department of justice.
50.065(2)(am)3.
3. Information maintained by the department of safety and professional services regarding the status of the person's credentials, if applicable.
50.065(2)(am)4.
4. Information maintained by the department regarding any final determination under
s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, any final decision under
s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.
50.065(2)(am)5.
5. Information maintained by the department under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration 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, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subdivision, the department need not obtain the information specified in
subds. 1. to
4.
50.065(2)(b)
(b) Every entity shall obtain all of the following with respect to a caregiver of the entity:
50.065(2)(b)1.
1. A criminal history search from the records maintained by the department of justice.
50.065(2)(b)2.
2. Information that is contained in the registry under
s. 146.40 (4g) regarding any findings against the person.
50.065(2)(b)3.
3. Information maintained by the department of safety and professional services regarding the status of the person's credentials, if applicable.
50.065(2)(b)4.
4. Information maintained by the department regarding any final determination under
s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, any final decision under
s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.
50.065(2)(b)5.
5. Information maintained by the department under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration 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, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subdivision, the entity need not obtain the information specified in
subds. 1. to
4.
50.065(2)(bb)
(bb) If information obtained under
par. (am) or
(b) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department 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), or any disclosure made pursuant to a disclosure policy described under
sub. (6) (am), indicates a charge or a conviction of a serious crime, but information obtained under
par. (am) or
(b) does not indicate such a charge or conviction, the department 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), a background information form under
sub. (6) (a) or
(am), any disclosure made pursuant to a disclosure policy described under
sub. (6) (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 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.
50.065(2)(bd)
(bd) Notwithstanding
pars. (am) and
(b) 1., the department 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. to
5., with respect to a person under 18 years of age whose background information form under
sub. (6) (am), or whose response or lack of response to a disclosure policy described 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 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 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.
50.065(2)(bg)
(bg) If an entity hires or contracts with a caregiver for whom, within the last 4 years, the information required under
par. (b) 1. to
3. and
5. has already been obtained by another entity, the entity may obtain that information from that other entity, which, notwithstanding
par. (br), shall provide the information, if possible, to the requesting entity. If an entity cannot obtain the information required under
par. (b) 1. to
3. and
5. 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. to
3. and
5.
50.065(2)(bm)
(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 3 years preceding the date of the search that person has not been a resident of this state, or if the department or entity determines that the person's employment, licensing or state court records provide a reasonable basis for further investigation, the department 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 3 years preceding the date of the search information that is equivalent to the information specified in
par. (am) 1. or
(b) 1. The department or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints. The department of justice may provide for the submission of the fingerprint cards 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.
50.065(2)(br)1.1. Except as provided in subd. 2, an entity that receives information regarding the arrest or conviction of a caregiver from the federal bureau of investigation in connection with a criminal history search under this section may use the information only to determine whether the caregiver's arrest or conviction record disqualifies him or her from serving as a caregiver. An entity is immune from civil liability to a caregiver for using arrest or conviction information provided by the federal bureau of investigation to make an employment determination regarding the caregiver.
50.065(2)(br)2.
2. Subdivision 1. does not apply to use by an entity of arrest or conviction information that the entity requests from the federal bureau of investigation after September 30, 2007.
50.065(2)(d)
(d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver under
par. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.
50.065(2m)(a)(a) Any entity that places a caregiver in a client's residence to provide personal care services shall, before the caregiver provides services to the client, do all of the following:
50.065(2m)(a)1.
1. Except as provided in
par. (b), disclose to the client or the client's guardian in writing all information obtained under
sub. (2) (b) 1. or
(bb) regarding any conviction of the caregiver for a crime that is specified by rule under
par. (d), and, if the caregiver has demonstrated that he or she has been rehabilitated under
sub. (5), notice of that fact.
50.065(2m)(a)2.
2. Except as provided in
par. (b), disclose to the client or the client's guardian in writing all information obtained under
sub. (2) (b) 2.,
4., or
5. regarding the caregiver.
50.065(2m)(a)3.
3. Notify the client or the client's guardian that, for a fee, the department of justice performs for any person a criminal history record search on an individual.
50.065(2m)(a)4.
4. Notify the client or the client's guardian in writing that if the regularly assigned caregiver is unavailable and the entity assigns a substitute caregiver to provide personal care services to the client, the entity is not required to provide the disclosures under
subd. 1. or
2. for the substitute caregiver.
50.065(2m)(b)
(b) If a caregiver whom an entity has placed in a client's residence to provide personal care services is not available to provide the services and the entity assigns a substitute caregiver to provide personal care services to the client, the entity is not required to make the disclosures under
par. (a) 1. and
2. for the substitute caregiver.
50.065(2m)(c)
(c) Each time that an entity requests information under
sub. (3) (b) regarding a caregiver who provides personal care services, the entity shall provide the disclosures required under
par. (a) 1. and
2. to each client for whom the caregiver provides personal care services or to the client's guardian.
50.065(2m)(d)
(d) The department shall promulgate rules to specify crimes for which an entity must disclose a conviction to a client or the client's guardian under
par. (a) 1., and to specify who is a substitute caregiver for purposes of
pars. (a) 4. and
(b).
50.065 Cross-reference
Cross-reference: See also s.
DHS 12.115, Wis. adm. code.
50.065(3)(a)(a) Every 4 years or at any time within that period that the department considers appropriate, the department shall request the information specified in
sub. (2) (am) 1. to
5. for all persons who are licensed to operate an entity and for all persons who are nonclient residents of an entity.
50.065(3)(b)
(b) Every 4 years or at any other time within that period that an entity considers appropriate, the entity shall request the information specified in
sub. (2) (b) 1. to
5. for all caregivers of the entity.
50.065(3m)
(3m) Notwithstanding
subs. (2) (b) and
(3) (b), if the department obtains the information required under
sub. (2) (am) or
(3) (a) with respect to a person who is a caregiver specified under
sub. (1) (ag) 1. b. and that person is also an employee, contractor or nonclient resident of the entity, the entity is not required to obtain the information specified in
sub. (2) (b) or
(3) (b) with respect to that person.
50.065(4)
(4) An entity that violates
sub. (2),
(3) or
(4m) (b) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.
50.065(4m)(a)(a) Notwithstanding
s. 111.335, and except as provided in
sub. (5), the department may not license, certify, issue a certificate of approval to or register a person to operate an entity or continue the license, certification, certificate of approval or registration of a person to operate an entity if the department knows or should have known any of the following:
50.065(4m)(a)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.
50.065(4m)(a)4.
4. That a final determination has been made under
s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, a final decision has been made under
s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.
50.065(4m)(a)5.
5. That, in the case of a position for which the person must be credentialed by the department of safety and professional services, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.
50.065(4m)(b)
(b) Notwithstanding
s. 111.335, and except as provided in
sub. (5), an entity may not employ or contract with a caregiver or permit to reside at the entity a nonclient resident, if the entity knows or should have known any of the following:
50.065(4m)(b)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.
50.065(4m)(b)4.
4. That a final determination has been made under
s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, a final decision has been made under
s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.
50.065(4m)(b)5.
5. That, in the case of a position for which the person must be credentialed by the department of safety and professional services, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.
50.065(4m)(c)
(c) If the background information form completed by a person under
sub. (6) (am), or a person's response or lack of response to a disclosure policy described 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 60 days pending the receipt of the information sought under
sub. (2) (b). If the background information form completed by a person under
sub. (6) (am), or a person's response or lack of response to a disclosure policy described under
sub. (6) (am), indicates that the person is not ineligible to be permitted to reside at an entity 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 for any of those reasons, the entity may permit the person to reside at the entity for not more than 60 days pending receipt of the information sought under
sub. (2) (am). An entity shall provide supervision for a person who is employed or contracted with or permitted to reside as permitted under this paragraph.
50.065(5)
(5) The department may license, certify, issue a certificate of approval to or register to operate an entity a person who otherwise may not be licensed, certified, issued a certificate of approval or registered for a reason specified in
sub. (4m) (a) 1. to
5., and an entity may employ, contract with or permit to reside at the entity a person who otherwise may not be employed, contracted with or permitted to reside at the entity for a reason specified in
sub. (4m) (b) 1. to
5., if the person demonstrates to the department, or, in the case of an entity that is located within the boundaries of a reservation, to the person or body designated by the 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 tribe, that he or she has been rehabilitated. The department shall permit any person who has been convicted of a crime specified by rule under
sub. (2m) (d) and who wishes to provide personal care services to demonstrate to the department or, if the person wishes to provide personal care services only within the boundaries of a reservation and the department has approved a plan for the tribe to conduct rehabilitation reviews under
sub. (5d), to the tribe that he or she has been rehabilitated.
50.065(5c)
(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 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.
50.065(5d)(a)(a) Any tribe that chooses to conduct rehabilitation reviews under
sub. (5) shall submit to the department a rehabilitation review plan that includes all of the following:
50.065(5d)(a)1.
1. The criteria to be used to determine if a person has been rehabilitated.
50.065(5d)(a)2.
2. The title of the person or body designated by the tribe to whom a request for review must be made.
