Chapter 48

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

48.686 48.686 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.

48.686(1)(c)5. 5. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.21, 940.225 (1), (2), or (3), 940.23, 940.305, 940.31, 941.20 (2) or (3), 941.21, 943.02, 943.03, 943.04, 943.10 (2), 943.32 (2), 948.081, 948.21, 948.215, or 948.53 (2) (b) 1.

48.686(1)(c)6. 6. Only for a caregiver, as defined in par. (ag) 2., a violation of s. 943.201, 943.203, or 943.38 (1) or (2); a violation of s. 943.34 (1), 943.395 (1), 943.41 (3) (e), (4) (a), (5), (6), or (6m), 943.45 (1), 943.455 (2), 943.46 (2), 943.47 (2), 943.50 (1m), or 943.70 (2) (a) or (am) or (3) (a) that is a felony; or an offense under subch. IV of ch. 943 that is a felony.

48.686(1)(c)7. 7. A violation of sub. (2) or s. 48.685 (2), (3), (4m) (b), or (6), 2015 stats., if the violation involves the provision of false information to or the intentional withholding of information from, the department, a county department, an agency contracting under s. 48.651 (2), a school board, or a child care program.

48.686(1)(c)8. 8. An offense involving fraudulent activity as a participant in the Wisconsin Works program under ss. 49.141 to 49.161, including as a recipient of a child care subsidy under s. 49.155, or as a recipient of aid to families with dependent children under s. 49.19, medical assistance under subch. IV of ch. 49, food stamps benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, or health care benefits under the Badger Care health care program under s. 49.665.

48.686(1)(c)9. 9. A violation 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, 940.25, or 943.231 (1), a violation of s. 346.63 (1), (2), (5), or (6) that is a felony under s. 346.65 (2) (am) 4., 5., 6., or 7. or (f), (2j) (d), or (3m), or an offense under ch. 961 that is a felony.

48.686(1)(c)10. 10. A violation of s. 948.22 (2), unless the person has paid all arrearages due and is meeting his or her current support obligations.

48.686(1)(c)11. 11. A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1. to 10. if committed in this state.

48.686(1)(c)12. 12. A violation of the laws of another state or United States jurisdiction that if committed in this state would constitute felony battery under s. 940.19 (2), (4), (5), or (6), 940.20, or 940.204, a felony offense of domestic abuse, as defined in s. 813.12 (1) (am), a sex offense or a violent crime under ch. 948, or a violation of s. 940.225 if the victim was a child.

48.686(2) (2) 

48.686(2)(a) (a) A licensing entity shall require any person who applies for an initial approval to operate a child care program to submit the information required for a background check request under par. (ag). If the licensing entity is a school board, county department, or contracted agency or tribe, the licensing entity shall submit the completed background information request to the department.

48.686(2)(ab) (ab) Each child care program shall submit a request to the department for a background check for each potential caregiver, noncaregiver employee, and household member prior to the date on which an individual becomes a caregiver, noncaregiver employee, or household member, and at least once during every 5-year period for each existing caregiver, noncaregiver employee, or household member, except if all of the following apply to the individual:

48.686(2)(ab)1. 1. The individual has received a background check as described in par. (am) while working or seeking work with another child care program within the state within the last 5 years.

48.686(2)(ab)2. 2. The department provided to the child care program under subd. 1. a qualifying background check result for the individual.

48.686(2)(ab)3. 3. The individual works or resides at a child care program within the state or has been separated from work or residence at a child care program within the state for a period of not more than 180 consecutive days.

48.686(2)(ag) (ag)

48.686(2)(ag)1. 1. A request for a background check to the department under par. (a) or (ab) shall be in the manner and on forms prescribed by the department, and shall include all of the following:

48.686(2)(ag)1.a. a. Fingerprints of the subject that meet the standards of the department.

48.686(2)(ag)1.b. b. Any additional information that the department deems necessary to perform the background check.

48.686(2)(ag)2. 2. A request for a background check is considered submitted on the day that the department receives all of the information required under subd. 1.

48.686(2)(ag)3. 3. The requester of a background check under this paragraph shall submit all fees required by the department pursuant to the instructions provided by the department, not to exceed the actual cost of conducting the background check.

48.686(2)(am) (am) Upon receipt of a request submitted under par. (a) or (ab), the department shall obtain all of the following with respect to the individual who is the subject of the request:

48.686(2)(am)1. 1. A fingerprint-based or name-based criminal history search from the records maintained by the department of justice.

48.686(2)(am)2. 2. Information that is contained in the registry under s. 146.40 (4g) regarding any findings against the person.

48.686(2)(am)3. 3. Information maintained by the department of safety and professional services regarding the status of the person’s credentials, if applicable.

48.686(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.

48.686(2)(am)5. 5. Information maintained by the department of health services under s. 48.685 regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity or a child care program, for a reason specified in s. 48.685 (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 or a child care program for a reason specified in s. 48.685 (4m) (a) 1. to 5.

48.686(2)(am)6. 6. Information that is contained in the sex offender registry under s. 301.45 regarding whether the person has committed a sex offense that is a serious crime.

48.686(2)(am)7. 7. A fingerprint-based criminal history search using the federal bureau of investigation next generation identification.

48.686(2)(am)8. 8. A search of the national crime information center’s national sex offender registry.

48.686(2)(am)9. 9. A search of the following registries, repositories, or databases in the state where the caregiver or nonclient resident resided for the period starting on the date 5 years prior to the department’s receipt of the background check request and ending on the date the department received the background check request:

48.686(2)(am)9.a. a. The state criminal registry or repository.

48.686(2)(am)9.b. b. The state sex offender registry or repository.

48.686(2)(am)9.c. c. The state-based child abuse and neglect registry and database.

48.686(2)(am)10. 10. A search of the department’s background check records.

48.686(2)(ar) (ar) After receiving a request under par. (a) or (ab), the department shall conduct the background check as expeditiously as possible and shall make a good faith effort to complete all components of the background check no later than 45 days after the date on which the request was submitted.

48.686(2)(bb) (bb) If information obtained under par. (am) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If information submitted to the department under par. (ag) indicates a charge or a conviction of a serious crime, but information obtained under par. (am) does not indicate such a charge or conviction, the department 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), information submitted under par. (ag), or any other information indicates a conviction of a violation of s. 940.19 (1), 940.195, 940.20, 940.204, 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 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.

48.686(2)(bd) (bd) Notwithstanding par. (am), the department is not required to obtain the information specified in par. (am) 1. to 10., with respect to a household member under 18 years of age whose background check request under par. (ag) indicates that the household member is not ineligible to be permitted to reside at a child care program for a reason specified in sub. (4m) (a) 1. to 8. and with respect to whom the department otherwise has no reason to believe that the person is ineligible to be permitted to reside at the child care program 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 10. with respect to a household member described in this paragraph.

48.686(2)(br) (br) The department shall require the person who is the subject of a search under par. (am) 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, unless the person has previously been fingerprinted under this paragraph.

48.686(3) (3) 

48.686(3)(am) (am) Every year or at any time that the department considers appropriate, the department may request the information specified in sub. (2) (am) 1. to 5. for all caregivers, noncaregiver employees, and household members.

48.686(3)(bm) (bm) Annually, by January 1, the department shall submit a report to the appropriate standing committees of the legislature under s. 13.172 (3) describing the report prepared under sub. (4p) (a) with respect to caregivers specified in sub. (1) (ag) 2., specifically any information indicating that the caregiver is ineligible under sub. (4m) (a) to be licensed, certified, or contracted to operate a child care program, and describing any action taken in response to the receipt of information under sub. (2) (am) indicating that such a caregiver is so ineligible.

48.686(4) (4) 

48.686(4)(a) (a) A child care program that violates sub. (2), (3), or (4m) (a) is subject to a forfeiture of not more than $1,000 and to other sanctions specified by the department by rule.

48.686(4)(b) (b) A person who provides false information to the department under sub. (2) is subject to a forfeiture of not more than $1,000 and to other sanctions specified by the department by rule.

48.686(4m) (4m) 

48.686(4m)(a) (a) Notwithstanding s. 111.335, and except as provided in par. (ad) and sub. (5), a licensing entity may not issue an approval to operate a child care program to a person, and a child care program may not employ or contract with a caregiver or noncaregiver employee or permit a household member to reside at the child care program if the licensing entity or child care program knows or should have known any of the following:

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) (4p) 

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.