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). 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). 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 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 employment as a caregiver or residence 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 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)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, 940.205, 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 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 Note NOTE: Par. (a) is shown as affected by 2017 Wis. Acts 59 and 365 and as merged by the legislative reference bureau under s. 13.92 (2) (i).
48.685(6)(am) (am) Every 4 years an entity shall require all of its caregivers and all nonclient residents of the entity or of a caregiver specified in sub. (1) (ag) 1. am. of the entity to complete a background information form that is provided to the entity by the department.
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) (bm). 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 Cross-reference Cross-reference: See also ch. DHS 12, Wis. adm. code.
48.685 Annotation Wisconsin's caregiver law, as enforced in this case under sub. (5) (br) 5., is constitutional. The caregiver law did not violate the petitioner's due process rights because the state provided adequate post-deprivation remedies. Petitioner's equal protection claim failed because the law does pass the rational basis test. Regardless of whether the law is rationally related to the goal of protecting children, the law is rationally related to the legitimate purpose of prohibiting individuals who dishonestly benefitted from government welfare in the past from obtaining government funding in the form of childcare subsidies. Brown v. Department of Children and Families, 2012 WI App 61, 341 Wis. 2d 449, 819 N.W.2d 827, 11-1350. See also Blake v. Jossart, 2016 WI 57, 370 Wis. 2d 1, 884 N.W.2d 484, 12-2578.
48.685 Annotation Sections 48.72 and 227.44 governed the appeal of the revocation of a child care license under sub. (5) (br) and granted the license holder the right to a contested case hearing on the appeal of the revocation. Jamerson v. Department of Children & Families, 2013 WI 7, 345 Wis. 2d 205, 824 N.W.2d 822, 11-0593.
48.685 Annotation Jamerson instructs that prior to establishing that a conviction satisfies the requirements of sub. (5) (br) 5., evidence must clearly show that the conviction was for fraudulent activity. The title of the conviction and an uncorroborated criminal complaint presented at the administrative appeal hearing were insufficient to meet this standard. Blake v. Racine County Human Services Department, 2013 WI App 45, 347 Wis. 2d 499, 831 N.W.2d 439, 12-0031.
48.686 48.686 Criminal history and child abuse record search; child care.
48.686(1)(1)In this section:
48.686(1)(ag) (ag) “Caregiver" means any of the following:
48.686(1)(ag)1. 1. A person who is any of the following:
48.686(1)(ag)1.a. a. An employee or independent contractor of a child care program.
48.686(1)(ag)1.b. b. Involved in the care or supervision of clients of a child care program or has 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)(ar) (ar) “Contractor" means, with respect to a child care program, a person, or that person's agent, who provides services to the child care program under an express or implied contract or subcontract.
48.686(1)(bm) (bm) “Nonclient resident" 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)(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)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)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, 940.205, 940.207, 940.25, or 943.23 (1g), a violation of s. 948.51 (2) that is a felony under s. 948.51 (3) (b) or (c), a violation of s. 346.63 (1), (2), (5), or (6) that is a felony under s. 346.65 (2) (am) 5., 6., or 7. or (f), (2j) (d), or (3m), or an offense under ch. 961 that is a felony, if the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the department of corrections, less than 5 years before the date of the investigation under sub. (2) (am).
48.686(1)(c)10. 10. A violation of s. 948.22 (2), if the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the department of corrections, less than 5 years before the date of the investigation under sub. (2) (am), 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) or 940.20, 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) The department shall require any person who applies for issuance of an initial license to operate a child care center under s. 48.65, a school board shall require any person who proposes an initial contract with the school board under s. 120.13 (14), and the department in a county having a population of 750,000 or more, a county department, or an agency contracted with under s. 48.651 (2) shall require any child care provider who applies for initial certification under s. 48.651 to submit the information required for a background check request under par. (ag). A school board, county department, or contracted agency 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 criminal background check for each potential caregiver and potential nonclient resident prior to the date on which an individual becomes a caregiver or nonclient resident, and at least once during every 5-year period for each existing caregiver or nonclient resident, except if all of the following apply:
48.686(2)(ab)1. 1. The caregiver, potential caregiver, nonclient resident, or potential nonclient resident has received a background check as described in par. (am) while employed or seeking employment by 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 caregiver, potential caregiver, nonclient resident, or potential nonclient resident.
48.686(2)(ab)3. 3. The caregiver, potential caregiver, nonclient resident, or potential nonclient resident is employed by or resides at a child care program within the state or has been separated from employment or residence at a child care program within the state for a period of not more than 180 consecutive days.
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 criminal background check.
48.686(2)(ag)2. 2. A request for a criminal 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 criminal 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 a caregiver or a nonclient resident who is not under 10 years of age:
48.686(2)(am)1. 1. A fingerprint-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.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 367 and all Supreme Court and Controlled Substances Board Orders filed before and in effect on December 1, 2018. Published and certified under s. 35.18. Changes effective after December 1, 2018 are designated by NOTES. (Published 12-1-18)