Wisconsin Legislature: 48.685(5)

48.685(2)(bd)(bd) Notwithstanding pars. (am) and (b), the department, a county department, or a child welfare agency 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) 1m. to 5m., 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 at, contracted with, or permitted to reside at an entity or permitted to reside with a caregiver specified under sub. (1) (ag) 1. am. of the entity for a reason specified in sub. (4m) (b) 1. to 5. and with respect to whom the department, county department, child welfare agency, 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, or a child welfare agency 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.

48.685(2)(bg)(bg) If an entity employs or contracts with a caregiver or congregate care worker for whom, within the last year, the information required under par. (b) 1m. to 3m. and 5m. 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) 1m. to 3m. and 5m. 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) 1m. to 3m. and 5m.

48.685(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 5 years preceding the date of the search that person has not been a resident of this state, or if the department, county department, child welfare agency, or entity determines that the person’s employment, licensing, or state court records provide a reasonable basis for further investigation, the department, county department, child welfare agency, 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 5 years preceding the date of the search information that is equivalent to the information specified in par. (am) 1. or (b) 1m. The department, county department, child welfare agency, or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person’s fingerprints, or by other technologies approved by law enforcement agencies. The department of justice may provide for the submission of the fingerprint cards or fingerprints by other technologies 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. The department, county department, or child welfare agency cannot use any information obtained under this paragraph for any purpose other than a search of the person’s background under par. (am) or (b).

48.685(2)(c)(c)

48.685(2)(c)1.1. If the person who is the subject of the search under par. (am) is seeking an initial license to operate a foster home or is seeking relicensure after a break in licensure, the department, county department, or child welfare agency shall request under 34 USC 20962 (b) a fingerprint-based check of the national crime information databases, as defined in 28 USC 534 (f) (3) (A). If that person is seeking subsidized guardianship payments under s. 48.623 (6), the department in a county having a population of 750,000 or more or county department shall request that fingerprint-based check. The department, county department, or child welfare agency may release any information obtained under this subdivision only as permitted under 34 USC 20962 (e).

48.685(2)(c)2.2. If the person who is the subject of the search under par. (am) is seeking a license to operate a foster home or is an adult nonclient resident of the foster home and if the person or adult nonclient resident is not, or at any time within the 5 years preceding the date of the search has not been, a resident of this state, the department, county department, or child welfare agency shall check any child abuse or neglect registry maintained by any state or other U.S. jurisdiction in which the person or adult nonclient resident is a resident or was a resident within those 5 years for information that is equivalent to the information specified in par. (am) 4. If that person is seeking subsidized guardianship payments under s. 48.623 (6) or is an adult nonclient resident of the home of that person and if the person or adult nonclient resident is not, or at any time within the 5 years preceding the date of the search has not been, a resident of this state, the department in a county having a population of 750,000 or more or county department shall conduct that child abuse or neglect registry check. The department, county department, or child welfare agency may not use any information obtained under this subdivision for any purpose other than a search of the person’s background under par. (am).

48.685(2)(d)(d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver or congregate care worker under par. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.

48.685(3)(3)

48.685(3)(a)(a) Every 4 years or at any time within that period that the department, a county department, or a child welfare agency considers appropriate, the department, county department, or child welfare agency shall request the information specified in sub. (2) (am) 1. to 5. for all caregivers specified in sub. (1) (ag) 1. b. who are licensed to operate an entity, or who are receiving payments under s. 48.623 (6) (am) for operating an entity, and for all persons who are nonclient residents of such a caregiver.

48.685(3)(b)(b) Every 4 years or at any time within that period that an entity considers appropriate, the entity shall request the information specified in sub. (2) (b) 1m. to 5m. for all persons who are subject to sub. (2) (b).

48.685(3)(c)(c) Every 4 years or at any time within that period that the department considers appropriate, the department shall obtain the information specified in sub. (2) (ba) for all persons who are congregate care workers.

48.685(3m)(3m) Notwithstanding subs. (2) (b) and (3) (b), if the department, a county department, or a child welfare agency has obtained the information required under sub. (2) (am) or (3) (a) with respect to a person who is a caregiver specified in sub. (1) (ag) 1. b. and that person is also an employee, contractor, or nonclient resident of an entity, the entity is not required to obtain the information specified in sub. (2) (b) or (3) (b) with respect to that person.

48.685(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.

48.685(4m)(4m)

48.685(4m)(a)(a) Notwithstanding s. 111.335, and except as provided in par. (ad) and sub. (5), the department may not license, or continue or renew the license of, a person to operate an entity, a county department or a child welfare agency may not license, or renew the license of, a foster home under s. 48.62, and the department in a county having a population of 750,000 or more or a county department may not provide subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm) if the department, county department, or child welfare agency knows or should have known any of the following:

48.685(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.

48.685(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.

48.685(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.

48.685(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.

48.685(4m)(ad)(ad) The department, a county department, or a child welfare agency may license a foster home under s. 48.62 or the department in a county having a population of 750,000 or more or a county department may provide subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm), conditioned on the receipt of the information specified in sub. (2) (am) indicating that the person is not ineligible to be so licensed or provided those payments for a reason specified in par. (a) 1. to 5.

48.685(4m)(b)(b) Notwithstanding s. 111.335, and except as provided in sub. (5), an entity may not employ or contract with a caregiver specified in sub. (1) (ag) 1. a. or am. or a congregate care worker or permit a nonclient resident to reside at the entity or with a caregiver specified in sub. (1) (ag) 1. am. of the entity if the entity knows or should have known any of the following:

48.685(4m)(b)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.

48.685(4m)(b)2.2. That the person was charged for a violation of s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state, and the charge was dismissed or amended as part of a plea agreement.

48.685(4m)(b)2m.2m. That the person has pleaded no contest to a violation of s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.

48.685(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.

48.685(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.

48.685(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.

48.685(4m)(c)(c) If the background information form completed by a person 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 45 days pending the receipt of the information sought under sub. (2) (am) or (b) and (ba). If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be permitted to reside at an entity or with a caregiver specified in sub. (1) (ag) 1. am. 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 or with that caregiver for any of those reasons, the entity may permit the person to reside at the entity or with the caregiver for not more than 45 days pending receipt of the information sought under sub. (2) (am) or (b) and (ba). An entity shall provide supervision for a person who is employed, contracted with, or permitted to reside as permitted under this paragraph.

48.685(4m)(d)(d) If the department learns that a caregiver, congregate care worker, or nonclient resident is the subject of a pending investigation for a crime or offense that, under this subsection or sub. (5), could result in a bar to being a caregiver, working, or residing at an entity, the department may notify the entity of the pending investigation.

48.685(5)(5)

48.685(5)(a)(a) Subject to par. (bm), the department may license to operate an entity, a county department or a child welfare agency may license to operate a foster home under s. 48.62, the department in a county having a population of 750,000 or more, an Indian tribe, or a county department may provide subsidized guardianship payments under s. 48.623 (6) to a person who otherwise may not be so licensed or provided those payments 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 or permit to reside with a caregiver specified in sub. (1) (ag) 1. am. of the entity a person who otherwise may not be so employed, provided payments, or permitted to reside at the entity or with that caregiver for a reason specified in sub. (4m) (b) 1. to 5., if the person demonstrates to the department, county department, or child welfare agency or, in the case of an entity that is located within the boundaries of a reservation, to 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 tribe that he or she has been rehabilitated.

48.685(5)(bm)(bm) For purposes of licensing a foster home for the placement of a child or of providing subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm), no person, including a caregiver or nonclient resident under this section, who has been convicted of any of the following offenses may be permitted to demonstrate that he or she has been rehabilitated:

48.685(5)(bm)1.1. An offense under ch. 948 that is a felony.

48.685(5)(bm)2.2. A violation of s. 940.19 (3), 1999 stats., or of s. 940.19 (2), (4), (5) or (6) or 940.20 (1) or (1m), if the victim is the spouse of the person.

48.685(5)(bm)3.3. A violation of s. 943.23 (1m) or (1r), 1999 stats., or 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), 943.231 (1), or 943.32 (2).

48.685(5)(bm)4.4. A violation of s. 940.19 (3), 1999 stats., or of s. 125.075 (1), 125.085 (3) (a) 2., 125.105 (2) (b), 125.66 (3), 125.68 (12), 940.09, 940.19 (2), (4), (5), or (6), 940.20, 940.203, 940.204, 940.205, 940.207, or 940.25, a violation of s. 346.63 (1), (2), (5), or (6) that is a felony under s. 346.65 (2) (am) 4. to 7., or (f), (2j) (d), or (3m), or an offense under ch. 961 that is a felony, if committed not more than 5 years before the date of the investigation under sub. (2) (am).

48.685(5c)(5c)

48.685(5c)(a)(a) Any person who is permitted but fails under sub. (5) (a) to demonstrate to the department or a child welfare agency 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.

48.685(5c)(b)(b) Any person who is permitted but fails under sub. (5) (a) to demonstrate to the county department that he or she has been rehabilitated 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.

48.685(5d)(5d)

48.685(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:

48.685(5d)(a)1.1. The criteria to be used to determine if a person has been rehabilitated.

48.685(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.

48.685(5d)(a)3.3. The title of the person or body designated by the Indian tribe to determine whether a person has been rehabilitated.

48.685(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.

48.685(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).

48.685(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.

48.685(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.

48.685(5g)(5g) Beginning on January 1 1999, 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), the number of persons who successfully demonstrated that they have been rehabilitated under sub. (5) (a) and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.

48.685(5m)(5m) Notwithstanding s. 111.335, the department may refuse to license a person to operate an entity, a county department or a child welfare agency may refuse to license a foster home under s. 48.62, the department in a county having a population of 750,000 or more or a county department may refuse to provide subsidized guardianship payments to a person under s. 48.623 (6), and an entity may refuse to employ or contract with a caregiver or congregate care worker or permit a nonclient resident to reside at the entity or with a caregiver specified in sub. (1) (ag) 1. am. of the entity if the person has been convicted of an offense that is not a serious crime, but that is, in the estimation of the department, county department, child welfare agency, or entity, substantially related to the care of a client.

48.685(6)(6)

48.685(6)(a)(a) Except as provided in this paragraph, the department shall require any person who applies for issuance, continuation, or renewal of a license to operate an entity, a county department or a child welfare agency shall require any person who applies for issuance or renewal of a license to operate a foster home under s. 48.62, and the department in a county having a population of 750,000 or more or a county department shall require any person who applies for subsidized guardianship payments under s. 48.623 (6) to complete a background information form that is provided by the department.

48.685(6)(am)(am) Every 4 years an entity shall require all of its caregivers, nonclient residents, congregate care workers, and nonclient residents of a caregiver specified in sub. (1) (ag) 1. am. to complete a background information form that is provided to the entity by the department.

48.685(6)(b)(b)

48.685(6)(b)1.1. For caregivers who are licensed by the department, for persons who are nonclient residents of an entity that is licensed by the department, and for other persons specified by the department by rule, the entity shall send the background information form to the department.

48.685(6)(b)2.2. For caregivers who are licensed by a county department, for persons who are nonclient residents of an entity that is licensed by a county department, and for other persons specified by the department by rule, the entity shall send the background information form to the county department.

48.685(6)(b)3.3. For caregivers who are licensed by a child welfare agency, for persons who are nonclient residents of an entity that is licensed by a child welfare agency and for other persons specified by the department by rule, the entity shall send the background information form to the child welfare agency.

48.685(6)(c)(c) A person who provides false information on a background information form required under this subsection may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

48.685(7)(7) The department shall do all of the following:

48.685(7)(c)(c) Conduct throughout the state periodic training sessions that cover criminal 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.

48.685(7)(d)(d) Provide a background information form that requires the person completing the form to include his or her date of birth on the form.

48.685(8)(8) The department, the department of health services, a county department, or a child welfare agency may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a), for providing information to an entity to enable the entity to comply with sub. (2) (b) or (3) (b), or for obtaining and submitting fingerprints under sub. (2) (ba) or (bm) or (3) (c). The fee may not exceed the reasonable cost of obtaining the information or of obtaining and submitting fingerprints. No fee may be charged to a nurse aide, as defined in s. 146.40 (1) (d), for obtaining or maintaining information or for obtaining and submitting fingerprints if to do so would be inconsistent with federal law.

48.685(9)(9) The department may promulgate any rules necessary for the administration of this section.

48.685 HistoryHistory: 1997 a. 27, 237, 281; 1999 a. 9, 32, 56, 185, 186; 2001 a. 109; 2003 a. 321; 2005 a. 149, 184, 277; 2007 a. 20 ss. 1346 to 1358, 9121 (6) (a); 2007 a. 97, 111, 116, 130, 153; 2009 a. 28, 76, 94, 185; 2011 a. 32, 35, 87, 258; 2013 a. 20, 165, 170, 334; 2015 a. 55, 129, 172, 366, 371; 2017 a. 12, 59, 128, 283; 2017 a. 364 s. 49; 2017 a. 365; 2019 a. 9; 2021 a. 72, 76, 209, 238; 2023 a. 10, 19, 224.

48.685 Cross-referenceCross-reference: See also ch. DHS 12, Wis. adm. code.

48.68648.686 Criminal history and child abuse record search; child care.

48.686(1)(1) In this section:

48.686(1)(ac)(ac) “Approval” means a child care center license under s. 48.65, a child care provider certification under s. 48.651, or a contract with a child care provider under s. 120.13 (14).

48.686(1)(ag)(ag) “Caregiver” means any of the following:

48.686(1)(ag)1.1. An employee or contractor of a child care program who is involved in the care or supervision of clients.

48.686(1)(ag)1m.1m. A person who has direct contact and unsupervised access to clients of a child care program.

48.686(1)(ag)2.2. A person who has, or is seeking, a license, certification, or contract to operate a child care program.

48.686(1)(aj)(aj) “Child care program” means a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14), a child care provider that is certified under s. 48.651, or a temporary employment agency that provides caregivers to another child care program.

48.686(1)(am)(am) “Client” means a person who receives direct care from a child care program, from an entity under s. 48.685 (1) (b) or from a caregiver specified in s. 48.685 (1) (ag) 1. am., including all of the following:

48.686(1)(am)1.1. An adopted child for whom adoption assistance payments are being made under s. 48.975.

48.686(1)(am)2.2. A child for whom subsidized guardianship payments are being made under s. 48.623.

48.686(1)(am)3.3. A person who is 18 to 21 years old, is receiving independent living services under 42 USC 677 (a) from an agency, is no longer placed in out-of-home care, and is residing in the foster home in which he or she was previously placed.

48.686(1)(bm)(bm) “Household member” means a person who is age 10 or older, who resides, or is expected to reside, at a child care program, and who is not a client of the child care program or caregiver.

48.686(1)(bo)(bo) “Licensing entity” means all of the following:

48.686(1)(bo)1.1. The department when licensing a child care center under s. 48.65.

48.686(1)(bo)2.2. The department in a county with a population of 750,000 or more, a county department, or an agency or Indian tribe contracted with under s. 48.651 (2) when certifying a child care provider under s. 48.651.

48.686(1)(bo)3.3. A school board when contracting with a child care provider under s. 120.13 (14).

48.686(1)(bp)(bp) “Noncaregiver employee” means a person who provides services to a child care program as an employee or a contractor and is not a caregiver, but whose work at the child care program provides the ability to move freely throughout the premises and opportunities for interactions with clients of the child care program.

48.686(1)(br)(br) “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.

48.686(1)(c)(c) “Serious crime” means any of the following:

48.686(1)(c)1.1. A violation of s. 940.12, 940.22 (2) or (3), 940.285 (2), 940.29, 940.295, or 942.09 (2).

48.686(1)(c)2.2. A violation of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.

48.686(1)(c)3.3. An offense under ch. 948 that is a felony, other than a violation of s. 948.22 (2).

48.686(1)(c)4.4. A violation of s. 940.19 (3), 1999 stats., or of s. 940.19 (2), (4), (5), or (6) or 940.20 (1) or (1m), if the victim is the spouse of the person.