Wisconsin Legislature: DCF 13.05(1)(b)3.

(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.

(b) The department shall provide a final written report to the person on whom the child care background check was conducted, indicating whether the person is eligible or ineligible to work or reside at a child care program. If the person is ineligible, the report also shall include information on each disqualifying offense, the right to appeal under s. DCF 13.09, and the right to a rehabilitation review under s. DCF 13.10, if applicable.

(4) Transfer of eligibility. A child care program may employ a person or allow the person to reside in the child care program without requesting a new child care background check on the person if all of the following conditions are met:

(a) Within the past 5 years, the person received a final determination of eligibility under sub. (3) to work or reside in a child care program and the determination of eligibility has not been withdrawn or revoked.

(b) Either of the following apply:

1. The person is currently working or residing in a child care program.

2. The person has been separated from employment or residence at a child care program for less than 180 days.

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) (a) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.07 Reporting requirements.

(1) Child care program offense reporting requirements. A child care program shall report to the agency that granted regulatory approval as soon as the child care program knows, or should have known, that any of the following apply to a caregiver, noncaregiver employee, or household member at the child care program:

(a) The person is the subject of a delinquency petition alleging that the person committed a serious crime on or after his or her 10th birthday.

(b) The person has been adjudicated delinquent on or after his or her 10th birthday for committing any crime.

(d) The person has been convicted of any crime.

(e) A final substantiated finding has been made that the person abused or neglected a child.

(f) A finding that is comparable to a final substantiated finding has been made in any other jurisdiction.

(g) A unit of government or a state agency as defined in s. 16.61 (2) (d), Stats., made a finding that the person has abused or neglected a client or misappropriated the property of a client.

(h) If a position requires a person to hold a credential, as defined in s. 440.01 (2) (a), Stats., the person has been denied a credential or had a credential restricted or otherwise limited.

(2) Other child care program reporting.

(a) A child care program shall report to the agency that granted regulatory approval as soon as possible, but no later than the agency’s next business day, if any of the following occurs:

1. A person who is age 10 or over and is not a client begins residing at, or is expected to reside at, a child care program.

Note: See the definitions in s. DCF 13.02 (15) and (18).

2. A household member turns 10 years of age.

3. A household member turns 18 years of age.

4. A corporation or limited liability company designates a new person to be subject to the background check.

5. A caregiver, noncaregiver employee, or household member at the child care program changes his or her name.

6. A person’s role at the child care program has changed or will be changing and a new eligibility determination may be required for the child care background check.

7. A new caregiver or noncaregiver employee begins work, or a prospective caregiver or noncaregiver employee intends to begin work, at the child care program.

8. A caregiver or noncaregiver employee is no longer working in the child care program or intends to no longer work in the child care program, including the last date of employment.

9. A prospective caregiver or noncaregiver employee was not hired.

10. A former household member is no longer residing at the child care program or a household member intends to no longer reside at the child care program, including the last date of residence.

(b) When a change specified under par. (a) 1. to 7. occurs regarding a child care program, the program shall submit a completed background check request form no later than the agency’s next business day for the new person subject to the child care background check and ensure persons comply with the fingerprint requirements within the timeframe specified by the department.

(3) Child care program policy. A child care program shall include in its personnel or operating policies a provision that requires a person who is a caregiver specified in s. DCF 13.02 (4) (a) and (b) or a noncaregiver employee to notify the child care program as soon as possible, but no later than the child care program’s next working day, if any of the circumstances under sub. (1) (a) to (h) apply to the person.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: cr. (1) (intro.), (2) (a) 2., 3., 5., 7. to 10., (3) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.08 Sanctions.

(1) Child care program.

(a) A child care program that does any of the following may be subject to one or more of the sanctions specified in par. (b) by the department or the agency that granted the regulatory approval:

1. Allows a person who has not received preliminary determination of eligibility to begin work or reside at the child care program in violation of s. DCF 13.06 (1).

2. Allows a person who has not received a final determination of eligibility to work or reside at a child care program without direct supervision in violation of s. DCF 13.06 (2).