Wisconsin Legislature: 002 - CR 16-014 Rule Text

(k) An organization that facilitates delegations of the care and custody of children under s. 48.979, Stats., except as provided in s. DCF 12.01 (2).

(L) Any other entity included in s. 48.685 (1) (b), Stats.

Note: See s. 48.57 (3p), Stats., for information on background checks required for kinship care.

(15) “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., 2011 Stats., if the determination has not been reversed or modified on appeal.

Note: The date in a statutory citation means that was the last edition of the statutes in which that provision appears.

(16) “Foster home” means a facility operated by a person who is required to be licensed under s. 48.62, Stats., and is licensed under ch. DCF 56, including a home operated by a person seeking adoption assistance under s. 48.975, Stats., and a home operated by a person seeking subsidized guardianship payments under s. 48.623, Stats.

(17) “Home study” means an assessment to determine whether an applicant is fit and qualified to care for a child and whether the physical environment of the applicant’s home is safe and healthy for all occupants.

(18) “Nonclient resident” means a person who meets all of the following criteria:

(a) The person is 12 years of age or over.

(b) The person resides, or is expected to reside, at an entity or with a caregiver specified in s. DCF 12.02 (4) (c).

(d) The person has, or is expected to have, regular, direct contact with clients of the entity or of the caregiver specified in s. DCF 12.02 (4) (c).

Note: Examples of “nonclient residents” include household members in foster homes, family child care centers, and certified child care homes.

(19) “Person” has the meaning specified in s. 990.01 (26), Stats.

Note: Section 990.01 (26), Stats., provides that “person” includes all partnerships, associations and bodies politic or corporate.

(20) “Regular, direct contact with clients” means contact that is scheduled, planned, expected, or otherwise a result of the person’s role or relationship with the client.

(21) “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 a license to operate a foster home by the department, a county department, or a child-placing agency under s. 48.75, Stats.

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

(e) Approval of a person to be an interim caretaker who receives subsidized guardianship payments under s. 48.623 (6), Stats., and s. DCF 55.12.

(f) Approval of pre-adoptive applicants for a home study for the purpose of adopting a child.

(g) Approval of a home study by the department, a county department, a child-placing agency, or a tribe for a person seeking adoption assistance under s. 48.975, Stats.

(22) “Rehabilitation review” means an agency process under which a person who has a bar may seek approval for any of the following:

(a) Regulatory approval.

(b) Employment or contract with an entity to be a caregiver for the entity.

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

(24) “Serious crime” means the offenses specified in s. 48.685 (1) (c), Stats., and all of the following:

(a) The offenses specified in s. 48.685 (5) (bm), Stats., if any of the following apply:

1. The affected entity is a foster home.

2. The affected entity is an interim caretaker who is receiving, or is seeking, subsidized guardianship payments under s. 48.623 (6), Stats., and s. DCF 55.12.

3. The subject of the background check is seeking regulatory approval of a home study under sub. (21) (f) or (g) or is a nonclient resident of a person seeking regulatory approval of a home study.

(b) For entities and approvals specified in par. (a) 1., 2., and 3., “serious crime” includes the offenses specified in s. 48.685 (5) (bm) 4., Stats., after the waiting period for eligibility to demonstrate rehabilitation, unless the person has demonstrated rehabilitation under s. DCF 12.13 or 12.14. This paragraph applies to all of the following:

1. A person seeking regulatory approval to be a caregiver specified in s. DCF 12.02 (4) (a) on or after [LRB insert effective date] if the regulatory approval is not a continuation or renewal of an approval the person has on [LRB insert effective date].

2. A person seeking employment or a contract to be a caregiver specified in s. DCF 12.02 (4) (b) with an entity on or after [LRB insert effective date] if the person is not employed or contracted as a caregiver with that same entity on [LRB insert effective date]

3. A person seeking nonclient residency at an entity if the person is not a nonclient resident at that entity on [LRB insert effective date].

(c) For a child care center that is licensed under s. 48.66, Stats.; a child care provider that is certified under s. 48.651, Stats.; and a child care program established or contracted for under s. 120.13 (14), Stats., “serious crime” includes the offenses specified in s. 48.685 (5) (br) 6. and 7., Stats., after the waiting period for eligibility to demonstrate rehabilitation, unless a person has demonstrated rehabilitation under s. DCF 12.13 or 12.14. This paragraph applies to the persons specified in par. (b) 1., 2., and 3.

Note: Tables that list serious crimes applicable to each program are available in the program regulatory sections of the department website at http://dcf.wisconsin.gov.

For group homes, residential care centers, child-placing agencies, and shelter facilities, see the child welfare licensing/background checks section of the department website.

For foster homes, adoption home studies, adoption assistance, and subsidized guardianship, see the foster care/related statutes and administrative rules section of the department website.

For child care, see the child care regulation/child care licensing or child care certification sections of the department website.

(25) “Tribe” means a federally-recognized American Indian tribe or band in this state.

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

(a) Determines whether a person who is employed by or under express or implied contract with the entity and who has regular, direct 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 and rewarding performance.

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

DCF 12.03 Background information disclosure. (1) REQUIRED FORM. Each agency and entity shall use and require use of the background information disclosure prescribed by the department to be completed to obtain information about a person’s background from the person as provided in s. 48.685 (6), Stats.

Note: DCF-F-2978-E, Background Information Disclosure, is available in the forms section of the department’s website at http://dcf.wisconsin.gov or from an agency or entity.

(2) CHILD WELFARE ENTITIES. Each agency and entity specified in s. DCF 12.02 (14) (a) to (f) shall require the background information disclosure to be completed by caregivers and nonclient residents no more than 120 days before the agency or entity submits a request for information required under s. 48.685 (2) (am) or (b) and (3) (a) or (b), Stats.

(3) MAINTAINING CONFIDENTIALITY. Each agency and entity shall retain all completed department background information disclosures in a manner that ensures prompt retrieval of the forms for inspection and shall comply with applicable federal and state confidentiality laws.

DCF 12.04 Contracting for caregiver background checks. (1) CONTRACT. An entity may enter into a written agreement with any other entity or with a person, temporary employment agency, college, university, or vocational school to obtain the information required under s. 48.685 (2), (3), or (6), Stats.

(2) DOCUMENTATION. (a) An entity that enters into a written agreement under sub. (1) shall retain a copy of the agreement.

(b) An entity that enters into an agreement under sub. (1) shall obtain from the entity, person, temporary employment agency, college, university, or vocational school that conducts the search for information required under s. 48.685 (2) or (3), Stats., all of the following for each person who is the subject of a search:

1. A copy of the completed background information disclosure if completion of the background information disclosure is required under s. 48.685 (6), Stats.

2. The results of the search required under s. 48.685 (2) or (3), Stats.

(c) The entity shall retain the documentation received under par. (b), so it may be promptly retrieved and reviewed by the agency that regulates the entity. The documentation shall be retained for a time period determined by the agency.

DCF 12.05 Obtaining armed forces information. (1) If a person who is the subject of a caregiver background check served in a branch of the U.S. armed forces within the previous 3 years, including any reserve component, the agency or entity 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.

(2) The agency or entity shall document the efforts made to obtain the discharge status of the person.

(3) If the discharge status of the person is other than honorable, the agency or entity shall obtain information on the nature and circumstances of the discharge.

Note: The information from the armed forces may include relevant military court findings or information relevant to making a determination of whether an applicant is fit and qualified.

DCF 12.06 Determining whether a criminal conviction or delinquency adjudication for an offense that is not a serious crime is substantially related to the care of, or access to, a client or the activities of a program. (1) CAREGIVERS. To determine whether a caregiver’s conviction or delinquency adjudication for an offense that is not a serious crime is substantially related to the care of a client or the activities of a program for purposes of s. 48.685 (5m), Stats., an agency or entity shall consider all of the following:

(a) In relation to the job or caregiving role, any of the following:

1. The nature and scope of the caregiver’s client contact.

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

3. The opportunity caregiving presents for committing similar crimes.

4. The extent to which acceptable caregiving performance 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, any 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 job or caregiving duties.