Chapter DCF 40

Ch. DCF 40 Note Note: Chapter DCF 40 was created by emergency rule, EmR1427, eff. 1-1-15.

DCF 40.01 DCF 40.01 Purpose. This chapter specifies the procedures for review of a determination that a specific person has abused or neglected a child under s. 48.981 (3) (c) 5m., and 5p., Stats., and for ensuring that authorized information is available for background checks as provided in s. 48.981 (3) (c) 5r., Stats.

DCF 40.01 History History: EmR1427: emerg. cr., eff. 1-1-15; CR 14-072: cr. Register June 2015 No. 714, eff. 7-1-15.

DCF 40.02 DCF 40.02 Definitions. In this chapter:

DCF 40.02(1) (1) “Abuse” has the meaning given in s. 48.02 (1), Stats., and as further defined in the standards established by the department for conducting child abuse and neglect investigations under s. 48.981 (3) (c) 1. a., Stats.

DCF 40.02 Note Note: The department’s Child Protective Services Access and Initial Assessment Standards are available on the department’s website, http://dcf.wisconsin.gov, by clicking on Child and Family Safety/Wisconsin’s Statewide Automated Child Welfare Information System (WiSACWIS)/Frequently Used Links/CPS, Safety, Ongoing Standards.

DCF 40.02(2) (2) “Administrative law judge” means an administrative hearing examiner employed by the division of hearings and appeals.

DCF 40.02(3) (3) “Agency” means a county department under s. 46.22 or 46.23, Stats., or in a county having a population of 750,000 or more, the department or a licensed child welfare agency that is under contract with the department to fulfill the department’s duties specified under s. 48.981 (3) (c) 5m., Stats.

DCF 40.02(4) (4) “Department” means the department of children and families.

DCF 40.02(5) (5) “Division of hearings and appeals” means the division of hearings and appeals within the department of administration.

DCF 40.02(6) (6) “Final determination” means an agency determination made under s. 48.981 (3) (c) 5m., Stats., that a specific person has abused or neglected a child.

DCF 40.02(7) (7) “Initial determination” means an agency determination made under s. 48.981 (3) (c) 4., Stats., that a specific person has abused or neglected a child.

DCF 40.02(8) (8) “Licensed child welfare agency” means a person licensed as required under s. 48.60, Stats.

DCF 40.02(9) (9) “Neglect” has the meaning given in s. 48.02 (12g), Stats., and as further defined in the standards established by the department for conducting child abuse and neglect investigations or unborn child abuse investigations under s. 48.981 (3) (c) 1. a., Stats.

DCF 40.02 Note Note: The department’s Child Protective Services Access and Initial Assessment Standards are available on the department’s website, http://dcf.wisconsin.gov, by clicking on Child and Family Safety/Wisconsin’s Statewide Automated Child Welfare Information System (WiSACWIS)/Frequently Used Links/CPS, Safety, Ongoing Standards.

DCF 40.02 History History: EmR1427: emerg. cr., eff. 1-1-15; CR 14-072: cr. Register June 2015 No. 714, eff. 7-1-15; correction in (9) made under s. 13.92 (4) (b) 7., Stats., Register June 2015 No. 714; CR 21-107: am. (3) Register June 2022 No. 798, eff. 7-1-22.

DCF 40.03 DCF 40.03 Review of an initial determination.

DCF 40.03(1) (1) Notice. If an agency makes an initial determination that a specific person has abused or neglected a child, the agency shall send by first class mail all of the following information to the person by the next working day:

DCF 40.03(1)(a) (a) A summary of the initial determination that includes the name of the child involved in the alleged incident and the reasons for the agency’s determination that the person who is the subject of the initial determination has abused or neglected the child.

DCF 40.03(1)(b) (b) Information on the administrative appeal process, including the procedures for review of an initial determination and a contested case hearing before the division of hearings and appeals if the final determination upholds the initial determination.

DCF 40.03(1)(c) (c) Information on the effect of a final determination on background checks under ss. 48.685, 48.686, and 50.065, Stats.

DCF 40.03(2) (2) Procedures for review of an initial determination.

DCF 40.03(2)(a) (a) A person who is the subject of an initial determination may request a review of the initial determination by submitting a written request for review to the agency within 15 days after the date of the notice of initial determination.

DCF 40.03(2)(b) (b) Within 15 days after receiving the review request, the agency shall send a written notice to the person who is the subject of the initial determination with the review date, time, and place. The notice shall be sent at least 7 days before the review.

DCF 40.03(2)(c) (c) The agency shall appoint an individual or panel to conduct the review of the initial determination. A panel shall be comprised of at least 3 members, and the final determination shall be the decision of the majority of the panel. The individual or panel conducting the review of the initial determination shall have authority to make the final determination.

DCF 40.03(2)(d) (d) Any person who conducts the review of the initial determination shall have knowledge of child protective services in Wisconsin.

DCF 40.03(2)(e) (e) No person who conducts the review of the initial determination may have had any prior involvement in the investigation or determination for the case that is being reviewed.

DCF 40.03(2)(f) (f) The review of the initial determination shall be held within 45 days after the agency receives a request for review from the person who is the subject of the initial determination.

DCF 40.03(2)(g) (g) An agency may not hold the review of the initial determination in abeyance pending the outcome of any criminal proceedings or any proceedings under s. 48.13 or 938.12, Stats., based on the alleged abuse or neglect or the outcome of any investigation that may lead to the filing of a criminal complaint or petition under s. 48.13 or 938.12, Stats., based on the alleged abuse or neglect.

DCF 40.03(2)(h) (h) The person who is the subject of the initial determination may request one rescheduling of the review date or time, and the agency shall grant the request if the review of the initial determination can be rescheduled within 45 days after the person’s initial request for review. The notice of the rescheduled review date may be sent less than 7 days before the review if that is necessary to complete the review within 45 days after the person’s request for review.

DCF 40.03(2)(i) (i) The review of the initial determination shall be scheduled for at least one hour. When the review is scheduled, the agency shall provide the reviewing individual or panel with information related to the initial determination.

DCF 40.03(2)(j) (j) The person who is the subject of the initial determination may be represented by an attorney at the review of the initial determination.

DCF 40.03(2)(k) (k) The person who is the subject of the initial determination may present information that is relevant to whether the person has abused or neglected a child as specified in the initial determination. The person who is the subject of the initial determination may not present witnesses and does not have the right to question agency staff who may be present. Agency staff may allow questioning and respond to questions to facilitate the review. The agency is not required to present evidence or witnesses to support the determination beyond the materials provided under par. (i).

DCF 40.03 History History: EmR1427: emerg. cr., eff. 1-1-15; CR 14-072: cr. Register June 2015 No. 714, eff. 7-1-15; EmR1918: emerg. am. (1) (c), eff. 1-30-19; CR 19-089: am. (1) (c) Register March 2020 No. 770, eff. 4-1-20.

DCF 40.04 DCF 40.04 Final determination and hearing procedures.

DCF 40.04(1) (1) Within 10 days after the date of the review of the initial determination, the individual or panel conducting the review of the initial determination under s. DCF 40.03 shall make a final determination on whether the person who is the subject of the initial determination has abused or neglected a child. Within 5 days after the date of the final determination, the agency shall send a written notice of final determination to the person by first class mail.

DCF 40.04(2) (2) If the person who is the subject of the initial determination does not request a review of the determination within 15 days after the date of the notice of initial determination, the agency shall send a written notice of final determination to the person within 5 days after the deadline for requesting a review of the initial determination.

DCF 40.04(3) (3) If the final determination upholds the initial determination or the person who is the subject of the initial determination did not request a review of the determination, the notice of final determination shall include all of the following:

DCF 40.04(3)(a) (a) A summary of the final determination that includes the name of the child involved in the alleged incident and the reasons for the agency’s determination that the person who is the subject of the final determination has abused or neglected the child.

DCF 40.04(3)(b) (b) Information on appealing the final determination, including all of the following:

DCF 40.04(3)(b)1. 1. To receive a contested case hearing under ch. 227, Stats., the person shall file a request for a hearing with the division of hearings and appeals within 10 days after the date of the notice.

DCF 40.04(3)(b)2. 2. Materials may be submitted to the division of hearings and appeals by mail, personal service, inter-departmental mail, or fax. The date of filing shall be one of the following:

DCF 40.04(3)(b)2.a. a. Materials mailed to the division of hearings and appeals shall be considered filed on the date of the postmark. If the postmark date is illegible or absent, the filing date shall be the date of receipt by the division of hearings and appeals.

DCF 40.04(3)(b)2.b. b. Materials submitted by personal service or by inter-departmental mail shall be considered filed on the date they are received by the division of hearings and appeals.

DCF 40.04(3)(b)2.c. c. Materials transmitted to the division of hearings and appeals by facsimile shall be considered filed or served on the division or the administrative law judge on the date and at the time that is imprinted by the division’s facsimile machine on the transaction report that accompanies the document. Documents received after midnight local time shall be deemed filed on the first following business day.

DCF 40.04 Note Note: The mailing address is Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707-7875. The street address is 4822 Madison Yards Way, Madison, WI 53705. The fax number is [phone].

DCF 40.04(3)(b)3. 3. A person who is the subject of a final determination may request that the division of hearings and appeals expedite the person’s appeal if any of the following apply:

DCF 40.04(3)(b)3.a. a. The person currently has, or has applied for, a license, certification, certificate of approval, or registration that may be revoked or denied as provided in s. 48.685, 48.686, or 50.065, Stats.

DCF 40.04(3)(b)3.b. b. The person is currently employed by or contracts with, or the person is actively engaged in seeking employment or a contract with, an entity or a child care program for duties subject to the background check requirements under s. 48.685, 48.686, or 50.065, Stats.

DCF 40.04(3)(b)3.c. c. The person is enrolled in an academic program that leads to license, certification, or employment or contract position that will be subject to the background check requirements under s. 48.685 or 50.065, Stats., and the person can be expected to complete the academic program within 150 days after the date of the request for a hearing with the division of hearings and appeals.

DCF 40.04(3)(b)4. 4. A person who requests that the division of hearings and appeals expedite the appeal shall indicate the request on the request for a hearing and provide documentation that a qualifying condition under subd. 3. applies.

DCF 40.04(3)(b)5. 5. The division of hearings and appeals shall commence the hearing within 90 days after receipt of the request for hearing, unless any of the following apply:

DCF 40.04(3)(b)5.a. a. The hearing is rescheduled on the request of the person requesting the hearing.

DCF 40.04(3)(b)5.b. b. The contested case proceeding is held in abeyance pending the outcome of any criminal proceedings or any proceedings under s. 48.13, Stats., based on the alleged abuse or neglect or the outcome of any investigation that may lead to the filing of a criminal complaint or a petition under s. 48.13, Stats., based on the alleged abuse or neglect.

DCF 40.04(3)(b)6. 6. The division of hearings and appeals shall issue a final decision within 60 days after the close of the hearing.

DCF 40.04(3)(b)7. 7. Judicial review of the final decision following the hearing may be had by any party to the contested case proceeding as provided in ch. 227, Stats.

DCF 40.04(3)(c) (c) Information on background checks under ss. 48.685, 48.686, and 50.065, Stats., including all of the following:

DCF 40.04(3)(c)1. 1. A final determination that the person abused or neglected a child is a bar to certain licenses, employment, residence, and other specified actions involving an entity, child care program, or person that is covered by the background check requirements in s. 48.685, 48.686, or 50.065, Stats.

DCF 40.04(3)(c)2. 2. The person may request a review to demonstrate that the person has been rehabilitated.

DCF 40.04(3)(c)3. 3. Rehabilitation may be denied, approved for all actions that would otherwise be barred by the final determination under s. 48.685, 48.686, or 50.065, Stats., or limited to approval for specified actions only.

DCF 40.04 Note Note: Chapter DCF 12 contains information on the rehabilitation review process under s. 48.685, Stats. Chapter DCF 13 contains information on the rehabilitation review process under s. 48.686, Stats. Chapter DHS 12 contains information on the rehabilitation review process under s. 50.065, Stats.

DCF 40.04(4) (4) 

DCF 40.04(4)(a) (a) The division of hearings and appeals shall consider the date of filing of a person’s request for a hearing to be the date determined under sub. (3) (b) 2.

DCF 40.04(4)(b) (b) The division of hearings and appeals shall provide an expedited hearing and final decision for a person who meets a condition in sub. (3) (b) 3. as soon as practicable.

DCF 40.04 History History: EmR1427: emerg. cr., eff. 1-1-15; CR 14-072: cr. Register June 2015 No. 714, eff. 7-1-15; EmR1918: emerg. am. (3) (b) 3. a. to c., (c) (intro.), 1., 3., eff. 1-30-19; CR 19-089: am. (3) (b) 3. a. to c., (c) (intro.), 1., 3. Register March 2020 No. 770, eff. 4-1-20; CR 21-107: am. (3) (b) 3. c., 4., (c) 2. Register June 2022 No. 798, eff. 7-1-22.

DCF 40.05 DCF 40.05 Other requirements.

DCF 40.05(1) (1) The agency records related to an initial determination and the subsequent review and hearing shall be governed by the confidentiality provisions of s. 48.981 (7), Stats.

DCF 40.05(2) (2) An initial or final determination that a specific person has abused or neglected a child shall be based on a preponderance of the evidence.

DCF 40.05(3) (3) Any review or appeal of an initial or final determination shall be governed by the standards established by the department for conducting child abuse and neglect investigations under s. 48.981 (3) (c) 1. a., Stats.

DCF 40.05 Note Note: The department’s Child Protective Services Access and Initial Assessment Standards are available on the department’s website, http://dcf.wisconsin.gov, by clicking on Child and Family Safety/Wisconsin’s Statewide Automated Child Welfare Information System (WiSACWIS)/Frequently Used Links/CPS, Safety, Ongoing Standards.

DCF 40.05 History History: EmR1427: emerg. cr., eff. 1-1-15; CR 14-072: cr. Register June 2015 No. 714, eff. 7-1-15; correction in (3) made under s. 13.92 (4) (b) 7., Stats., Register June 2015 No. 714.

DCF 40.06 DCF 40.06 Background checks. The agency shall ensure that authorized information regarding the final determination that a specific person has abused or neglected a child is available for background checks under ss. 48.685, 48.686, and 50.065, Stats., within 15 days after the agency’s final determination. If a contested case hearing under ch. 227, Stats., or judicial review overturns the agency’s final determination that a specific person has abused or neglected a child, the agency shall update the authorized information available for background checks within 15 days after the decision.

DCF 40.06 History History: EmR1427: emerg. cr., eff. 1-1-15; CR 14-072: cr. Register June 2015 No. 714, eff. 7-1-15; EmR1918: emerg. am., eff. 1-30-19; CR 19-089: am. Register March 2020 No. 770, eff. 4-1-20.