Wisconsin Legislature: DHS 12.03(17)(a)3.

Note: Administrative rules governing county certified day care centers appear in ch. DCF 202.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2009 No. 642.

DHS 12.02 Applicability.

(1) Scope.

(a) Persons and agencies affected. This chapter applies to the department; to applicants for regulatory approval from the department; to persons, agencies and entities that have received regulatory approval from the department; to county department and child-placing agencies that license foster homes and approve applications for adoption home studies; to foster home license applicants and licensees and applicants for an adoption home study; to school boards that establish or contract for daycare programs under s. 120.13 (14), Stats., and to applicants and persons under contract to a school board to operate a day care program under s. 120.13 (14), Stats.

(b) Entities covered. The entities subject to this chapter are those regulated under: chs. DHS 34, 35, 36, 40, 61, 63, 75, 82, 83, 85, 88, 89, 105, 110, 124, 127, 131, 132, 133, and 134, and any other direct client care or treatment program that may be licensed or certified or registered by the department.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; corrections in (1) (b) made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635; CR 10-091: am. (1) (b) Register December 2010 No. 660, eff. 1-1-11; correction in (1) (b) made under s. 13.92 (4) (b) 7. Stats., Register July 2011 No. 667; correction in (1) (b) made under s. 13.92 (4) (b) 7., Stats., Register August 2011 No. 668; correction in (1) (b) made under s. 13.92 (4) (b) 7., Stats, Register June 2016 No. 726.

DHS 12.03 Definitions. In this chapter:

(1) “Adoption home study” means an evaluation of a prospective adoptive family under ch. DCF 51 or 54.

(2) “Agency” means the department, a county department or a school board or a child welfare agency licensed under s. 48.60, Stats., as a child-placing agency.

(3) “Background information disclosure form” means the department’s form, F-82064, on which a person provides certain information concerning the person’s background.

(4) “Bar” means, as a noun, that a person is not permitted to receive regulatory approval, or be employed as a caregiver by or under contract with an entity, or to reside as a nonclient at an entity.

(5) “Caregiver” has the meaning specified in s. 48.685 (1) (ag) or 50.065 (1) (ag), Stats., whichever is applicable.

(6) “Client” means a person who receives direct care or treatment services from an entity. For the purposes of this chapter, “client” includes an adopted child for whom an adoption assistance payment is being made under s. 48.975, Stats.

(7) “Contractor” has the meaning specified in ss. 48.685 (1) (ar) and 50.065 (1) (bm), Stats.

(8) “County department” means a county department of social services established under s. 46.215 or 46.22, Stats., or a county department of human services established under s. 46.21 (2m) or 46.23, Stats.

(9) “Department” means the Wisconsin department of health services.

(10) “Direct contact” has the meaning specified in ss. 48.685 (1) (ar) and 50.065 (1) (br), Stats.

(11) “Entity” has the meaning specified in s. 48.685 (1) (b) or 50.065 (1) (c), Stats., whichever is applicable.

(12) “Foster home” means any facility operated by a person required to be licensed under s. 48.62 (1), Stats., in which care and maintenance are provided for no more than 4 foster children, or, if all are siblings, for no more than 6 children, and also includes a home licensed for placement of children for adoption under s. 48.833, Stats., for whom adoption assistance will be provided under s. 48.975, Stats.

(13) “Hospital” means a facility approved as a hospital under s. 50.35, Stats.

(14) “Nonclient resident” has the meaning specified in ss. 48.685 (1) (bm) and 50.065 (1) (cn), Stats.

(15) “Personal care services” has the meaning given in s. 50.065 (1) (cr), Stats.

(16) “Regular” means, in terms of direct contact with clients, contact that is scheduled, planned, expected, or otherwise periodic.

(17) “Regulatory approval” means:

(a) For purposes of s. 48.685, Stats., any of the following:

1. Issuance by the department of a license or certification or the continuation or renewal of a license or certification, or approval of a prospective adoptive parent application for a home study.

2. Issuance or renewal by a county department or child-placing agency of a foster home license under s. 48.62 or 48.75, Stats., including a home licensed for placement of children for adoption under s. 48.833, Stats., for whom adoption assistance will be provided under s. 48.975, Stats., and includes approval of pre-adoptive applicants who contract for a home study with a licensed private child placing agency for approval of a placement of a child for adoption.

Note: Administrative rules governing county certified day care centers appear in ch. DCF 202.

3. Approval by a school board under s. 120.13 (14), Stats., of day care services established by or contracted with a day care provider.

(b) For purposes of s. 50.065, Stats., issuance by the department of an entity license, certification, certificate of approval or registration, or approval by the department of the continuation of an entity license, certification, certificate of approval or registration.

(18) “Rehabilitation review” refers to an agency or tribal process where a person who is eligible under s. 48.685 (5) (a) or 50.065 (5), Stats., may seek the removal of a bar from regulatory approval, from employment as a caregiver at or contracting with an entity, or from residency at an entity.

(19) “School board” means the school board or board of school directors in charge of the schools of a school district.

(20) “Serious crime” has the meaning specified in s. 48.685 (1) (c) or 50.065 (1) (e), Stats., whichever is applicable.

(20m) “Substitute caregiver” means, with respect to a client who is receiving personal care services in the client’s residence, an individual who provides personal care services to the client for 7 or fewer days in a 90-day period.

(21) “Supportive home care service agency” means a home health agency licensed under s. 50.49, Stats., and ch. DHS 133.

(23) “Tribal governing body” means an elected tribal governing body of a federally recognized American Indian tribe.

(24) “Tribe” has the meaning specified in s. 50.065 (1) (g), Stats.

(25) “Under the entity’s control” means an entity does all of the following:

(a) Determines whether a person employed by or under contract with the entity who has direct, regular contact with clients served by the entity may provide care, treatment, or other similar support service functions to clients.

(b) Directs or oversees one or more of the following:

1. The policies or procedures the person must follow in performing his or her duties.

2. The conditions under which the person performs his or her duties.

3. The tasks the person performs.

4. The person’s work schedule.

5. The supervision or evaluation of the person’s work or job performance, including imposing discipline or awarding performance awards.

6. The compensation the person receives for performing his or her duties.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; correction in (12) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2001, No. 544; corrections in (1), (3), (9), (15), (21) and (22) (c) made under s. 13.92 (4) (b) 6. and 7., Stats., Register November 2008 No. 635; EmR0832: emerg. r. and recr. (15), cr. (20m), eff. 11-1-08; CR 08-098: r. and recr. (15), cr. (20m) Register June 2009 No. 642, eff. 7-1-09; correction in (24) made under s. 13.92 (4) (b) 7., Stats., Register December 2010 No. 659; CR 20-067: am. (12), (17) (a) 2., r. (22) Register December 2021 No. 792, eff. 1-1-22.

Subchapter II — Background Checks

DHS 12.04 Contracting for background checks.

(1) An entity may enter into and shall retain an agreement or contract with any entity identified under s. 48.685 (1) (b) or 50.065 (1) (c), Stats., or with any college, or university, including any vocational or technical college or school, or temporary employment agency or other person, to have the entity, school, temporary employment agency, or other person obtain and retain required background information related to caregivers, including contractors, students, or temporary employees, who, as part of their curriculum, must participate in clinical or practicum experiences at an entity.

(2) An entity that enters into an agreement or contract under sub. (1) shall obtain, at a minimum, from the other entity, university, college or technical school, temporary employment agency, or other person contracted with, and shall retain so that it may be promptly retrieved for inspection by the agency, a letter indicating the name or names and social security numbers, if available, of the caregivers, including temporary employees, contractors, or students, listing any convictions learned of during the course of the required background checks, along with any substantiated findings of misconduct, licensure denial or restriction or any other credential limitation found by either the department or the department of safety and professional services.

Note: Caregiver background check forms and resources are available by accessing: https://www.dhs.wisconsin.gov/caregiver/cbcprocess.htm.

Note: The only persons who may access information maintained by a county department regarding a substantiated report of child abuse or neglect against a person are those identified in s. 48.981 (7), Stats.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; correction in (2) made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674.

DHS 12.05 Sanctions.

(1) Sanctionable entity actions. An entity that commits any of the following acts may be subject to any of the sanctions specified in sub. (2):

(a) Hires, employs, or contracts with a caregiver, or permits to reside at an entity a nonclient resident, where the entity knows or should have known the caregiver or nonclient resident is barred under s. 48.685 (4m) (b) or 50.065 (4m) (b), Stats.

(b) Violates any provision of initial background information gathering or periodic background information gathering required by s. 48.685 or 50.065, Stats.

(2) Entity sanctions. Any of the following sanctions may be imposed on any entity that commits any of the acts described in sub. (1):

(a) A forfeiture not to exceed $1,000.

(b) A requirement that the entity submit to the agency a written corrective action plan specifying corrections that will be made to the identified personnel screening practices needing correction and that the entity implement the plan.

(d) Specific conditions or limitations placed on the license, certification or registration or on a school board-issued contract, including denial, revocation, nonrenewal or suspension of regulatory approval issued by the department, or denial, nonrenewal or termination by a school board of a contract with a day care provider under s. 120.13 (14), Stats.

(e) For a person licensed to operate a child welfare agency, shelter care facility, group foster home or day care facility, any sanction or penalty described in s. 48.715, Stats.

(f) A requirement that the entity use, at entity expense, a temporary employment agency for screening and hiring personnel.

(3) Sanctionable individual actions. Any person who is required to complete a background information disclosure form and who commits any of the following actions may be subject to any of the sanctions specified in sub. (4):

(a) Fails to complete and submit the background information disclosure form to the appropriate agency or entity.

(b) Knowingly gives false information on or knowingly omits information from the background information disclosure form submitted to an agency or entity.

(c) After submitting a background information disclosure form to an agency or entity, subsequently fails to report any information about a conviction for a crime or other act or offense requested on the background information disclosure form, about a substantiated finding of abuse or neglect or a client or of misappropriation of a client’s property, or, in the case of a position for which the person must be credentialed by the department of safety and professional services, about a licensure denial, restriction, or other license limitation by either the department or the department of safety and professional services.

(4) Individual sanctions. All of the following sanctions may be imposed by an agency on any person who commits any of the acts described in sub. (3):

(a) A forfeiture not to exceed $1,000.

(b) Denial or revocation of regulatory approval or the termination of a contract.

(d) Special conditions or limitations placed upon the person, including restriction to an off-premises location during business hours or otherwise restricting the person’s contact with clients.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; correction in (3) (c) made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674.

DHS 12.06 Determining whether an offense is substantially related to client care. To determine whether a crime or a delinquency adjudication under s. 48.685 (5m) or 50.065 (5m), Stats., is substantially related to the care of a client, the agency or entity may consider all of the following:

(1) In relation to the job, any of the following:

(a) The nature and scope of the job’s client contact.

(b) The nature and scope of the job’s discretionary authority and degree of independence in judgment relating to decisions or actions that affect the care of clients.

(d) The extent to which acceptable job performance requires the trust and confidence of clients or a client’s parent or guardian.

(e) The amount and type of supervision received in the job.

(2) In relation to the offense, any of the following:

(a) Whether intent is an element of the offense.

(b) Whether the elements or circumstances of the offense are substantially related to the job duties.

(d) The extent to which the offense relates to vulnerable clients.

(e) Whether the offense involves violence or a threat of harm.