Wisconsin Legislature: DCF 13.02(16)(a)

(a) A barrier to a person’s eligibility for regulatory approval, employment, or contract as a caregiver.

(b) A barrier to a person’s nonclient residency at a child care program.

(4) “Caregiver” means any of the following:

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

(b) A person who has direct contact with clients of a child care program or has unsupervised access to clients of a child care program, including student teachers, household members age 10 and older, and volunteers counted for the purpose of meeting the required staff-to-child ratios.

(5) “Certification agency” means the department in a county having a population of 750,000 or more or a county department, person, or tribe that has a contract with the department to certify child care providers under s. 48.651 (2), Stats., in a particular county or tribal area.

(6) “Child care background check” means the requirements in s. 48.686, Stats., and this chapter.

(7) “Child care program” means any of the following:

(a) A child care center that is licensed under s. 48.65, Stats.

(b) A child care provider that is certified under s. 48.651, Stats.

(d) A temporary employment agency that provides caregivers or noncaregiver employees to another child care program.

(8) “Client” means a person who receives direct care from a child care program, from an entity, as defined in s. DCF 12.02 (14), or from a caregiver specified in s. 48.685 (1) (ag) 1. am., Stats., including all of the following:

(a) An adopted child for whom adoption assistance payments are being made under s. 48.975, Stats.

(b) A child for whom subsidized guardianship payments are being made under s. 48.623, Stats.

(c) 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.

(9) “Contractor” means, with respect to a child care program, a person who provides services to the child care program under an express or implied contract or subcontract, or that person’s agent.

(10) “County department” means a county department of social services established under s. 46.22, Stats., or a county department of human services established under s. 46.23, Stats.

(11) “Department” means the department of children and families.

(12) “Direct contact” means face-to-face physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or to misappropriate the property of a client.

(13) “Division of hearings and appeals” means the division of hearings and appeals within the department of administration.

(14) “Final substantiated finding” means all of the following:

(a) A final determination made after January 1, 2015, that a person has abused or neglected a child under s. 48.981 (3) (c) 5m., Stats., and s. DCF 40.04 if the final determination has not been reversed or modified on appeal.

(b) A determination made before January 1, 2015, that a person has abused or neglected a child under s. 48.981 (3) (c) 4., Stats., if the determination has not been reversed or modified on appeal.

(15) “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.

(15m) “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.

(16) “Regulatory approval” means any of the following:

(a) Issuance, continuation, or renewal of a license by the department under s. 48.66, Stats.

(b) Issuance or renewal of certification by a certification agency under s. 48.651, Stats.

(c) Approval of the person subject to the child care background check for a child care program to be established or contracted for by a school board under s. 120.13 (14), Stats.

(17) “Rehabilitation review” means an agency process in s. 48.686 (5), Stats., under which an eligible person who has a bar may seek approval for any of the following:

(a) Regulatory approval.

(b) Employment or contract with a child care program to be a caregiver or noncaregiver employee.

(18) “Reside” means to be present at a child care program for more than an aggregate of 14 calendar days within a 90-day period. “Reside” does not include incidental presence that does not afford unrestricted access to the premises or to children in care.

(19) “Role” means a person’s job as a caregiver or noncaregiver employee or a person’s status as a household member at a child care program.

(20) “School board” means the board that has the powers specified in s. 120.13, Stats., for the schools of a school district.

(21) “Serious crime” has the meaning given in s. 48.686 (1) (c), Stats.

Note: A table that lists the child care serious crimes is available at https://dcf.wisconsin.gov/files/publications/pdf/5206.pdf.

(22) “Tribe” means a federally recognized American Indian tribe or band in Wisconsin.

(23) “Volunteer” means a person who is not compensated, but agrees to give time, with or without reimbursement for expenses, to transport or to work with children in a child care program.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; correction in (7) (a), (8) (intro.) made under s. 35.17, Stats., Register March 2020 No. 771; CR 20-003: cr. (3) (c), r. and recr. (4) (a), am. (4) (b), (7) (d), (15), cr. (15m), am. (17) (b), (19) Register July 2020 No. 775, eff. 8-1-20; CR 21-107: am. (14) (b) Register June 2022 No. 798, eff. 7-1-22.

DCF 13.03 Background check request.

(1) Required forms and fees. A background check request shall include a completed background check request form, armed forces records under s. DCF 13.04, release forms, child care background check fees, and any additional information that the department determines is necessary to obtain the records required under s. 48.686 (2) (am), Stats.

(2) Fingerprint searches.

(a) Prior to working as a caregiver or noncaregiver employee or residing in a child care program, the subject of the background check shall submit fingerprints in a manner directed by the department.

(b) Every 5 years or as otherwise requested by the department, caregivers, noncaregiver employees, and household members shall resubmit fingerprints in a manner directed by the department and the information specified under sub. (1).

Note: DCF-F-5296-E, Background Check Request Form, is available electronically through the Child Care Provider Portal and on the department’s website at https://dcf.wisconsin.gov/forms.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: am. (2) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.04 Obtaining armed forces information.

(1) If a person who is the subject of a background check served in a branch of the U.S. armed forces within the previous 3 years, including any reserve component, the department shall make every reasonable effort to obtain the discharge status of that person, either from the discharge papers issued to the person or from the armed forces branch in which the person served. The department shall document the efforts made to obtain the discharge status of the person.

(2) If the discharge status of the person described in sub. (1) is other than honorable, the department shall make every reasonable effort to obtain information on the nature and circumstances of the discharge.

Note: The information from the armed forces may include military court findings or information relevant to making a background check determination.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20.

DCF 13.05 Determining whether other offenses are substantially related.

(1) Caregivers, noncaregiver employees, and household members. To determine whether a caregiver’s, noncaregiver employee’s, or household member’s conviction or delinquency adjudication for an offense that is not a serious crime is substantially related to the care of a child or the activities of a child care program, the department shall consider all of the following:

(a) In relation to the person’s role at the child care program, all of the following:

1. The nature and scope of the person’s contact with clients.

2. The scope of the discretionary authority and independent judgment the person has to make decisions or take actions that affect the care of clients.

3. The opportunity the role at the child care program presents for committing similar crimes.

4. The extent to which acceptable performance of the role at the child care program requires the trust and confidence of clients and the parents or guardians of clients.

5. The amount and type of supervision received.

(b) In relation to the criminal conviction or delinquency adjudication, all of the following:

1. Whether intent is an element of the crime.

2. Whether the elements or circumstances of the crime are related to the person’s role at the child care program.

3. Any pattern of criminal convictions or delinquency adjudications.

4. The extent to which the crime relates to clients or other vulnerable persons.

5. Whether the crime involves violence or a threat of harm.

6. Whether the crime is of a sexual nature.

1. The number and type of crimes for which the person has been convicted or adjudicated delinquent.

2. The length of time between the conviction or delinquency adjudication and the decision affecting regulatory approval, employment, contract, or nonclient residency.

3. The person’s participation in or completion of pertinent programs of a rehabilitative nature.

4. The person’s probation, extended supervision, or parole status.

5. If the person is a caregiver or noncaregiver employee, the person’s ability to perform or to continue to perform the role consistent with the safe and efficient operation of the program and the confidence of clients and the parents or guardians of clients.

7. The age of the person on the date the crime was committed.

(2) Documentation. The department shall document how it reached the determination under sub. (1) that the criminal conviction or delinquency adjudication of a caregiver, noncaregiver employee, or household member is or is not substantially related to the care of a child or the activities of the child care program.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: am. (1) (intro.), (c) 5., (2) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.06 Background check eligibility.

(1) Preliminary eligibility.

(a) The department shall issue a preliminary eligibility determination that indicates whether a person is barred from employment as a caregiver, noncaregiver employee, or household member at the child care program based on any serious crimes reported on the federal bureau of investigation and Wisconsin department of justice fingerprint results.

(b) A child care program that receives a department determination that a person is preliminarily eligible may employ, contract with, or allow the person to reside at the child care program pending the department’s final eligibility determination under sub. (3).

(2) Supervision of persons with preliminary eligibility.

(a) Persons who begin work or residency with preliminary eligibility under sub. (1) shall be supervised at all times children are present. The supervision shall include periodic and direct observation of the person.

(b) A person who has received a final determination of eligibility under sub. (3) within the past 5 years shall supervise a person with preliminary eligibility under sub. (1).

(3) Final eligibility.

(a) After receiving all of the records required under s. 48.686 (2) (am), Stats., the department shall provide a final written report to the child care program indicating whether the person who is the subject of the report is eligible or ineligible to work or reside at a child care program, without revealing information about any disqualifying offenses or other information regarding the person.