48.686(4m)(a)1.
1. That the person has been convicted of a serious crime or adjudicated delinquent for committing a serious crime or that the person is the subject of a pending criminal charge or delinquency petition alleging that the person has committed a serious crime.
48.686(4m)(a)2.
2. That the person is registered or is required to be registered on a state sex offender registry or repository or the national sex offender registry.
48.686(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.
48.686(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.
48.686(4m)(a)5.
5. That the department has determined the person ineligible to receive an approval to operate a child care program, to be employed by a child care program, or to be a household member of a child care program.
48.686(4m)(a)6.
6. That the person has refused to provide information under sub.
(2) (ag), or that the person refused to participate in, cooperate with, or submit required information for the background check described in sub.
(2) (am), including fingerprints.
48.686(4m)(a)7.
7. That the person knowingly made a materially false statement in connection with the person's background check described in sub.
(2).
48.686(4m)(a)8.
8. That the person knowingly omitted material information requested in connection with the person's background check conducted under sub.
(2).
48.686(4m)(ad)
(ad) A licensing entity may issue an approval to operate a child care program to a person conditioned on the receipt of the information specified in sub.
(4p) (a) indicating that the person is not ineligible to be so licensed, certified, or contracted with for a reason specified in par.
(a) 1. to
8. 48.686(4m)(c)
(c) A child care program may employ or contract with a potential caregiver or noncaregiver employee or permit a potential household member to reside at the child care program for up to 45 days from the date a background check request is submitted to the department pending the completion of the department's report under sub.
(4p) (a) if the department provides a preliminary report under sub.
(4p) (c) to the child care program indicating that the individual is not ineligible to work or reside at a child care program. At all times that clients of a child care program are present, an individual who received a qualifying result on a background check described in sub.
(2) (am) within the past 5 years must supervise a potential caregiver, noncaregiver employee, or household member permitted to work or reside at the child care program under this paragraph.
48.686(4p)(a)(a) The department shall provide the results of the background check to the child care program in a written report that indicates only that the individual on whom the background check was conducted is eligible or ineligible for employment or to reside at the child care program, without revealing any disqualifying offense or other information regarding the individual.
48.686(4p)(b)
(b) The department shall provide the results of the background check to the individual on whom the background check was conducted in a written report that indicates whether the individual is eligible or ineligible for employment or to reside at the child care program. If the individual is ineligible for employment or to reside at the child care program, the department's report shall include information on each disqualifying offense and information on the right to appeal.
48.686(4p)(c)
(c) Before the department completes its report under par.
(a), a caregiver under sub.
(1) (ag) 2. may submit a written request to the department for a preliminary report indicating whether a potential caregiver, noncaregiver employee, or household member is eligible to work or reside at a child care program under sub.
(4m) (c). If the department receives such a request, it shall provide a written preliminary report to that caregiver indicating whether the individual is barred from working or residing at a child care program on the basis of a background check under sub.
(2) (am) 1. or
7. If the individual is ineligible to work or reside at a child care program based on the results of the preliminary report, the department shall also provide a preliminary report to the individual containing information related to each disqualifying offense.
48.686(4p)(d)
(d) The results of a report under par.
(c) may not be appealed by the individual until receipt of the department's report under par.
(b) following completion of all components of the background check.
48.686(4s)(a)(a) An individual who is the subject of the department's report on the results of a background check may appeal the department's decision. Only the person who is the subject of the department's report may appeal the department's decision. Neither the child care program nor any other person may appeal the department's decision.
48.686(4s)(b)
(b) An appeal request shall be submitted to the department at the address, e-mail address, or fax number identified in the statement of appeal rights no later than 10 days after the date of the department's decision, unless the appellant requests, and the department grants, an extension for a specific amount of time prior to expiration of the 10 day appeal period. Extensions may be granted for good cause shown.
48.686(4s)(c)
(c) An appeal shall be submitted in the manner and on forms prescribed by the department, and must include all of the following information:
48.686(4s)(c)2.
2. Any information known to the individual, or available to the individual through the exercise of reasonable diligence, that supports the individual's position.
48.686(4s)(c)3.
3. The current or last known names, addresses, telephone numbers, and electronic mail addresses of any persons known or believed to have information relevant to determination of the appeal.
48.686(4s)(c)4.
4. Copies of any documents or other materials in the possession of the individual, or reasonably available to the individual, that support the individual's position regarding the disputed information.
48.686(4s)(e)
(e) The department shall attempt to verify the accuracy of the information challenged by the appellant, including making reasonable good faith efforts to locate any missing information regarding the disqualifying crime that is relevant to the issue identified for appeal.
48.686(4s)(f)
(f) The department shall sustain the results of its background check report if supported by a preponderance of the available evidence.
48.686(4s)(g)
(g) The department shall issue its appeal decision in writing. If the results of the original report are sustained upon review, the decision shall indicate the department's efforts to verify the accuracy of the information challenged by the individual. The decision shall also indicate any additional reconsideration and appeal rights available to the appellant.
48.686(4s)(h)
(h) An appellant under this subsection may seek reconsideration of the department's decision under par.
(g) by the secretary or the secretary's designee.
48.686(4s)(i)
(i) A request for reconsideration detailing the basis for the request must be sent to the secretary at the address, e-mail address, or fax number identified in the department's decision no later than 30 days after the date of the department's decision.
48.686(4s)(j)
(j) The secretary or secretary's designee shall issue his or her reconsideration decision in writing and shall include information about any additional appeal rights available to the individual.
48.686(4s)(k)
(k) A denial of reconsideration under this subsection is a final decision of the department, and the appellant has a right to a contested case hearing under ch.
227.
48.686(4s)(L)
(L) The appeal and reconsideration process set forth in this subsection is the exclusive method for disputing a criminal history background report issued by the department. The department's decision may not be appealed in a ch.
68 or
227 proceeding challenging the denial of a license, certification, or contract to operate a child care program based on the department's criminal history background check report or challenging any other child care regulatory action taken in reliance upon that report.
48.686(4s)(m)
(m) Notwithstanding s.
19.35, the department may not publicly release or disclose the results of any individual background report it issues, except that the department may release aggregated data by crime as listed in sub.
(1) (c) from background check results so long as the data does not contain personally identifiable information. The department may disclose and use information obtained in conducting background checks as necessary during an appeal or reconsideration under this subsection or for another lawful purpose.
48.686(5)(a)(a) A person may have the opportunity to demonstrate his or her rehabilitation to the department or to a tribe authorized to conduct a rehabilitation review under sub.
(5d) if any of the following apply:
48.686(5)(a)2.
2. An investigation under sub.
(2) (am) indicates that the person has been convicted or adjudicated delinquent of a serious crime as specified under sub.
(1) (c) 9. or for a violation of the law of any other state or United States jurisdiction that would be a violation listed in sub.
(1) (c) 9. if committed in this state, and the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the department of corrections, more than 5 years before the date of the investigation under sub.
(2) (am).
48.686(5)(b)
(b) If the department or tribe determines that the person has demonstrated rehabilitation in accordance with procedures established by the department by rule or by the tribe and by clear and convincing evidence, the prohibition in sub.
(4m) (a) does not apply.
48.686(5c)
(5c) Any person who is permitted but fails under sub.
(5) (a) to demonstrate to the department that he or she has been rehabilitated 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.
48.686(5d)(a)(a) Any Indian 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:
48.686(5d)(a)1.
1. The criteria to be used to determine if a person has been rehabilitated.
48.686(5d)(a)2.
2. The title of the person or body designated by the Indian tribe to whom a request for review must be made.
48.686(5d)(a)3.
3. The title of the person or body designated by the Indian tribe to determine whether a person has been rehabilitated.
48.686(5d)(a)3m.
3m. The title of the person or body, designated by the Indian tribe, to whom a person may appeal an adverse decision made by the person specified under subd.
3. and whether the Indian tribe provides any further rights to appeal.
48.686(5d)(a)4.
4. The manner in which the Indian tribe will submit information relating to a rehabilitation review to the department so that the department may include that information in its report to the legislature required under sub.
(5g).
48.686(5d)(a)5.
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.
48.686(5d)(b)
(b) If, within 90 days after receiving the plan, the department does not disapprove the plan, the plan shall be considered approved. If, within 90 days after receiving the plan, the department disapproves the plan, the department shall provide notice of that disapproval to the Indian tribe in writing, together with the reasons for the disapproval. The department may not disapprove a plan unless the department finds that the plan is not rationally related to the protection of clients. If the department disapproves the plan, the Indian tribe may, within 30 days after receiving notice of the disapproval, request that the secretary review the department's decision. A final decision under this paragraph is not subject to further review under ch.
227.
48.686(5g)
(5g) On January 1 of each year, 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), the number of persons who successfully demonstrated that they have been rehabilitated under sub.
(5), and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.
48.686(5m)
(5m) Notwithstanding s.
111.335, a licensing entity may refuse to issue an approval to operate a child care program to a person, and a child care program may refuse to employ or contract with a caregiver or noncaregiver employee or permit a household member to reside at the child care program if the person has been convicted of or adjudicated delinquent for an offense that is not a serious crime, but that is, in the estimation of the department, substantially related to the care of a client. The department shall notify the provider and the individual of the results of a substantially related determination pursuant to the process set forth in sub.
(4p) for background check determinations. The individual shall have the same appeal rights as set forth in sub.
(4s), and the same appeal procedures apply.
48.686(7)
(7) The department shall conduct throughout the state periodic training sessions that cover procedures and uses of background investigations; reporting and investigating misappropriation of property or abuse or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.
48.686(8)
(8) The department may promulgate any rules necessary for the administration of this section.
48.686 Annotation
In this case, the revocation of the petitioner's license under 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. See also Blake v. Jossart,
2016 WI 57,
370 Wis. 2d 1,
884 N.W.2d 484,
12-2578.
48.686 Annotation
Jamerson,
2013 WI 7, instructs that prior to establishing that a conviction satisfies the requirements of s. 48.685 (5) (br) 5. [now sub. (1) (c) 8.], 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.
48.686 Note
NOTE: The above annotations relate to licensure under the caregiver law under s. 48.685, stats., prior to the repeal of that section and the creation of s. 48.686 by
2017 Wis. Act 59.
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 subject to a background check under s.
48.686 (2) who operates, works at, or resides at a child care center is convicted or adjudicated delinquent for committing a serious crime, or if the results of a background check conducted under s.
48.686 indicate that the caregiver, household member, or noncaregiver employee is not eligible to be licensed, certified, employed, or permitted to reside at a child care program, 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.
