Effective date note NOTE: Par. (br) is repealed eff. 9-30-18 by 2017 Wis. Act 59.
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.
Effective date note NOTE: Par. (a) is shown as amended eff. 9-30-18 by 2017 Wis. Act 59. Prior to 9-30-18 it reads:
Effective date text (a) Any person who is permitted but fails under sub. (5) (a) to demonstrate to the department, an agency contracted with under s. 48.651 (2), 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(5c)(c) (c) Any person who is permitted but fails under sub. (5) (a) to demonstrate to the school board that he or she has been rehabilitated may appeal to the state superintendent of public instruction or his or her designee. Any person who is adversely affected by a decision of the state superintendent or his or her designee under this paragraph has a right to a contested case hearing under ch. 227.
Effective date note NOTE: Par. (c) is repealed eff. 9-30-18 by 2017 Wis. Act 59.
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.
Effective date note NOTE: Sub. (5m) is shown as amended eff. 9-30-18 by 2017 Wis. Act 59. Prior to 9-30-18 it reads:
Effective date text (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. Notwithstanding s. 111.335, the department may refuse to license a person to operate a child care center, 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) may refuse to certify a child care provider under s. 48.651, a school board may refuse to contract with a person under s. 120.13 (14), and a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or a child care provider that is certified under s. 48.651 may refuse to employ or contract with a caregiver or permit a nonclient resident to reside at the child care center or child care provider if the person has been convicted of or adjudicated delinquent on or after his or her 12th birthday for an offense that is not a serious crime, but that is, in the estimation of the department, county department, contracted agency, school board, child care center, or child care provider, 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.
Effective date note NOTE: Par. (a) is shown as affected eff. 9-30-18 by 2017 Wis. Acts 59 and 365 and as merged by the legislative reference bureau under s. 13.92 (2) (i). Prior to 9-30-18 it reads:
Effective date text (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. The department shall require any person who applies for issuance, but not continuation, of a license to operate a child care center under s. 48.65, a school board shall require any person who proposes to contract, but not renew a 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, but not renewal of that certification, under s. 48.651 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 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.
Effective date note NOTE: Par. (am) is shown as amended eff. 9-30-18 by 2017 Wis. Act 59. Prior to 9-30-18 it reads:
Effective date text (am) Except as provided in this paragraph, 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. A child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or a child care provider that is certified under s. 48.651 is exempt from the 4-year requirement, but shall require any new caregiver or nonclient resident to complete a background information form that is provided to the child care center or child care provider 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.
Effective date note NOTE: Subd. 1. is shown as amended eff. 9-30-18 by 2017 Wis. Act 59. Prior to 9-30-18 it reads:
Effective date text 1. For caregivers who are licensed by the department, for persons under 18 years of age, but not under 12 years of age, who are caregivers of a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or of a child care provider that is certified under s. 48.651, 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.
Effective date note NOTE: Subd. 2. is shown as amended eff. 9-30-18 by 2017 Wis. Act 59. Prior to 9-30-18 it reads:
Effective date text 2. For caregivers who are licensed or certified by a county department or an agency contracted with under s. 48.651 (2), for persons who are nonclient residents of an entity that is licensed or certified by a county department or an agency contracted with under s. 48.651 (2), and for other persons specified by the department by rule, the entity shall send the background information form to the county department or contracted agency.
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)(b)4. 4. For caregivers who are contracted with by a school board, for persons who are nonclient residents of an entity that is contracted with by a school board and for other persons specified by the department by rule, the entity shall send the background information form to the school board.
Effective date note NOTE: Subd. 4. is repealed eff. 9-30-18 by 2017 Wis. Act 59.
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.
Effective date note NOTE: Sub. (8) is shown as amended eff. 9-30-18 by 2017 Wis. Act 59. Prior to 9-30-18 it reads:
Effective date text (8) The department, the department of health services, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board may charge a fee for obtaining the information required under sub. (2) (am) or (ar) or (3) (a) or (am), for providing information to an entity to enable the entity to comply with sub. (2) (b) 1. or (3) (b), or for obtaining and submitting fingerprints under sub. (2) (bm) or (br). 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.
Effective date note NOTE: Sub. (9) is created eff. 9-30-18 by 2017 Wis. Act 59.
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.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 367 and all Supreme Court and Controlled Substances Board Orders effective on or before September 5, 2018. Published and certified under s. 35.18. Changes effective after September 5, 2018 are designated by NOTES. (Published 9-5-18)