Under the proposed rule, an agency may grant rehabilitation approval only within the scope of its regulatory authority. The review panel shall issue a written decision that includes the type of entity the decision applies to, the types of approval that were requested and are either approved or denied in the decision, and any applicable conditions or limitations on an approval. The review panel may defer a decision for a period of not more than 6 months, unless the person who is the subject of the rehabilitation review agrees to a longer period. If the panel defers the decision, the panel shall send a notice to the person that states the reason for the deferral and the date that the panel will reconvene to review any new information affecting the request. If the panel denies the request, the decision shall include the reasons for the denial, notice that the person may appeal the denial, and a summary of the appeal process under s. 48.685 (5c), Stats. An agency that granted a person a rehabilitation approval may immediately withdraw the approval if the agency has knowledge that the person has failed to comply with or abide by any conditions or limitations imposed with the approval or the person knowingly submitted false information or withheld pertinent information that could have or would have affected the review panel’s decision to grant the rehabilitation approval.
An agency may accept a rehabilitation approval granted to a person by another agency if the previous rehabilitation approval applies to the same type of entity and the same type of approval. In addition, a certification agency may accept a rehabilitation approval granted to a person by the department if the previous rehabilitation approval applies to the same type of approval in a child care center licensed to care for 4 to 8 children. The agency that accepts a rehabilitation approval granted by another agency shall include any limitations or conditions that were included in the approval if the conditions or limitations imposed by the agency that granted the approval have not been terminated or have not expired.
Delegation under Section 48.979, Stats. Under s. 48.979 (1), Stats., as created by 2011 Wisconsin 87, a parent who has legal custody of a child, by a power of attorney that is properly executed by all parents who have legal custody of the child, may delegate to an agent, any of his or her powers regarding the care and custody of the child, except the powers specified in s. 48.979 (1) (a), Stats. An organization that facilitates delegations of care and custody is required to conduct a background check under s. 48.685, Stats., on a proposed agent and any nonclient resident of the agent. If the organization determines that a proposed agent or nonclient resident is ineligible to contract to be an agent or to reside with an agent under s. 48.685 (4m), Stats., the proposed agent or nonclient resident may request a determination of eligibility for a rehabilitation review under s. 48.685 (5), Stats. Under the proposed rule, the department will conduct these rehabilitation reviews. In the proposed rule, the agent is included in the definition of caregiver at s. DCF 12.02 (4) (c). The agent is a contractor of the entity specified in s. DCF 12.02 (14) (L). Adoption Assistance, Adoption Approval, Subsidized Guardianship, and Foster Homes
The proposed rule also updates cross-references from ch. DHS 12 to ch. DCF 12 and clarifies the procedures for conducting background checks in ch. DCF 50, Facilitating the Adoption of Children with Special Needs; ch. DCF 51, Adoption of Children with Special Needs and Preadoption Training; ch. DCF 55, Subsidized Guardianship; and ch. DCF 56, Foster Home Care for Children. Summary of Factual Data and Analytical Methodologies
The proposed rule creates a Department of Children and Families version of ch. DHS 12, relating to caregiver background checks. Summary of Related Federal Requirements
42 USC 671 (20) requires that states provide for background checks of any prospective foster or adoptive parent before the foster or adoptive parent may be finally approved for placement of a child and prohibits payment of foster care maintenance or adoption assistance if the record check indicates certain convictions or other findings. It also requires that states provide for background checks of any relative guardian before the guardian may receive subsidized guardianship payments on behalf of the child. Comparison to Rules in Adjacent States
All states currently have background check requirements. No meaningful comparison to rules in adjacent states is possible because the proposed rule focuses on procedural issues that are specific to s. 48.685, Stats. Effect on Small Business
The proposed rule will affect small businesses covered by s. 48.685, Stats., but the effect will be minimal. Analysis Used to Determine Effect on Small Business or in Preparation of Economic Impact Analysis
The proposed rule is similar to the existing rule on caregiver background checks in ch. DHS 12. Agency Contact Person
• For foster care, subsidized guardianship, adoption approval, and delegations of care and custody of children under s. 48.979, Stats., Jonelle Brom, (608) 422-6930, jonelle.brom@wisconsin.gov. • For residential care centers, group homes, shelter facilities, and child-placing agencies, Mary Morse, (262) 548-8694, mary.morse@wisconsin.gov. SECTION 1. Chapter DCF 12 is created to read: CAREGIVER BACKGROUND CHECKS
DCF 12.01 Purpose and scope. (1) This chapter is promulgated under the authority of ss. 48.67 (intro.), 48.685, 49.155 (1d), and 227.11 (2) (a), Stats., to specify procedures necessary to implement background checks required under s. 48.685, Stats., for caregivers and nonclient residents at an entity or with a caregiver specified in s. DCF 12.02 (4) (c). Note: For further information on the scope of the caregiver background check, see s. DCF 12.02 for definitions of terms used in this subsection. (2) Sections DCF 12.05 to 12.08 do not apply to an entity that facilitates delegations of the care and custody of children under s. 48.979, Stats., unless the entity is also licensed by the department. Note: The department recommends that an unlicensed entity voluntarily comply with relevant provisions in ss. DCF 12.05, 12.06, and 12.08. DCF 12.02 Definitions. In this chapter:
(1) “Agency” means the department, a county department, a certification agency, a child-placing agency, or a school board that establishes or contracts for a child care program under s. 120.13 (14), Stats. (2) “Background information disclosure” means the form prescribed by the department on which a person provides information for purposes of the caregiver background check.
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. (3) “Bar” means any of the following:
(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 an entity or with a caregiver specified in s. DCF 12.02 (4) (c). (4) “Caregiver” means any of the persons specified in s. 48.685 (1) (ag), Stats., and any of the following: (a) A person who has, or is seeking, regulatory approval.
(b) A person who is, or is expected to be, an employee, a temporary employee, a student participating in a clinical or practicum at an entity as part of his or her curriculum, or a contractor of an entity if all of the following apply:
1. The person is, or is expected to be, under the control of the entity.
2. The person has, or is expected to have, regular, direct contact with clients of the entity.
(c) A person to whom delegation of the care and custody of a child under s. 48.979, Stats., has been, or is expected to be, facilitated by an entity. Note: Section 48.685 (1) (ag) 2., Stats., provides that “caregiver” does not include an emergency medical technician or a first responder. (5) “Caregiver background check” means the requirements in s. 48.685, Stats. (6) “Certification agency” means the department in a county having a population of 750,000 or more or any county, 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. (7) “Child-placing agency” means a person that is licensed under ch. DCF 54. Note: A child-placing agency is an entity and may also be an agency. A tribe may be licensed as a child-placing agency under ch. DCF 54 or may provide similar services under tribal law. (8) “Client” means a person who receives direct care or treatment services from an entity or from a caregiver specified in s. DCF 12.02 (4) (c). “Client” includes 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. Note: Most types of “clients” are not specified in this definition because the phrase “a person who receives direct care or treatment services from an entity” clearly applies to them. For further information, see the definition of “entity” in s. DCF 12.02 (14). (9) “Contractor” means, with respect to an entity, a person, or that person’s agent, who provides services to the entity under an express or implied contract or subcontract. “Contractor” includes a person who has staff privileges at the entity and a person to whom delegation of the care and custody of a child under s. 48.979, Stats., has been facilitated by the entity. (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) “Entity” means any of the following:
(a) A residential care center for children and youth that is required to be licensed as a child welfare agency under s. 48.60, Stats., and is licensed under ch. DCF 52 to provide care and maintenance for children and youth in its physical or legal custody. (b) A child-placing agency.
(c) A foster home.
(d) An interim caretaker who receives subsidized guardianship payments under s. 48.623 (6) (am), Stats., and s. DCF 55.12. (e) A person who meets all of the following conditions:
2. The person has entered into a subsidized guardianship agreement under s. 48.623 (2), Stats., following the death or incapacity of a guardian who had named the person as a prospective successor guardian. 3. The person has not been appointed as a successor guardian by a court under s. 48.977 (5m), Stats. (f) A group home that is required to be licensed under s. 48.625, Stats., and is licensed under ch. DCF 57. (g) A shelter care facility licensed under s. 938.22, Stats., and ch. DCF 59.
