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Explanation of Agency Authority
Section 48.651 (1d), Stats., as affected by 2017 Wisconsin Act 59, provides that the department shall promulgate rules establishing standards for the certification of child care providers. The rules shall include a requirement that a Level I certified child care provider successfully complete department−approved preservice health and safety training by no later than the date of certification. A Level II certified child care provider shall successfully complete the required training by no later than the end of the orientation period available under 42 USC 9858c (c) (2) (I) (i) (XI).
Employees and volunteers of a Level I or Level II certified child care provider must also complete the required training by the end of the orientation period. Section 48.651 (1d) (b) 1. a. to j., Stats., specifies topics that must be included in the required preservice or orientation training. Subdivision 2. provides that a child care provider or employee or volunteer of a child care provider shall also complete ongoing in-service training on an annual basis, including training on the topics listed in subd. 1. a. to j.
Section 48.685 (9), Stats., provides that the department may promulgate any rules necessary for the administration of the section.
Section 48.686 (9), Stats., provides that the department may promulgate any rules necessary for the administration of the section.
Section 48.67 (intro.), Stats., provides that the department shall promulgate rules establishing minimum requirements for the issuance of licenses to, and establishing standards for the operation of, child welfare agencies, child care centers, foster homes, group homes, shelter care facilities, and county departments. Those rules shall be designed to protect and promote the health, safety, and welfare of the children in the care of all licensees.
Section 227.11 (2) (a) (intro.), Stats., expressly confers rule-making authority on each agency to promulgate rules interpreting the provisions of any statute enforced or administered by the agency.
Summary of the Emergency Rule
The primary purpose of the emergency rule is to ensure that the department’s rules affecting child care certification and licensing comply with the health and safety requirements in federal regulations based on the Child Care Development Block Grant (CCDBG) Act of 2014. The emergency rule also regroups the department’s child care certification and licensing rules that address the same topics in different places, eliminate duplicative provisions, correct errors, and clarify language where needed to ensure proper implementation and administration of the health and safety requirements.
Chapters DCF 12, 13, and 40, Background Checks
The CCDBG creates a new federal background check affecting child care programs. For child care programs in Wisconsin, the most significant change is the requirement that the state agency conduct the background checks. Before this change, child care and child welfare licensees conducted the background checks of prospective and existing employees and contractors under s. 48.685, Stats. To comply with federal requirements, a new state background check statute for child care programs was created at s. 48.686, Stats., and s. 48.685, Stats., continues to apply to child welfare providers. Section 48.686, Stats., also creates a new appeal process for persons subject to the background check in child care programs.
The department’s current rule on caregiver background checks under s. 48.685, Stats., is in ch. DCF 12. The emergency rule creates ch. DCF 13 based on the requirements under s. 48.686, Stats., and amends ch. DCF 12 based on the removal of child care programs from the requirements under s. 48.685, Stats. The new ch. DCF 13 includes provisions on submitting a background check request to the department and the required appeal process. Under the new appeal process, a person who is determined ineligible may file an appeal with the department’s Child Care Background Unit. If denied, the person may request a department review by the department’s Assistant Secretary. If denied, the person may request a reconsideration by the department Secretary. If denied, the person may request a contested case hearing before the Division of Hearings and Appeals under ch. 227, Stats.
Chapter DCF 13 also includes provisions similar to ch. DCF 12 on determining whether an offense is substantially related to the care of a child or the activities of a child care program and the process for determining whether a person has been rehabilitated from certain offenses and is eligible to hold a license or certification to operate, to work in, or to reside in a child care program.
In addition, the emergency rule amends ch. DCF 40, Review of a Determination of Abuse or Neglect, to include cross-references to s. 48.686, Stats. A final determination that a person has abused or neglected a child is a bar to eligibility under both ss. 48.685 and 48.686, Stats.
Chapter DCF 202, Child Care Certification
The emergency rule revises ch. DCF 202, Child Care Certification, to do the following:
Incorporate the preservice or orientation training and continuing education requirements in 45 CFR 98.44 and s. 48.651 (1d), Stats., as affected by 2017 Wisconsin Act 59.
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By 3 months after certification or beginning to work with children in care, the following new preservice or orientation training is required:
At least 2 credits in early childhood education or a department-approved noncredit course in caring for child,
A department-approved noncredit course in operating a child care business or an equivalent.
Training in child abuse and neglect laws and identifying, documenting, and reporting child abuse and neglect.
Certification in infant and child cardiopulmonary resuscitation (CPR).
Each year 5 hours of continuing education is required in topics specified in s. 48.651 (1d), Stats., and 45 CFR 98.41 (a) (1). Previously, each certification agency had discretion to impose an annual continuing education requirement of up to 5 hours.
Incorporate the requirements in 45 CFR 98.41 on emergency preparedness and response planning for an emergency resulting from a natural disaster or a human-caused event, such as violence in the child care home. A certified operator is required to have a written plan that includes procedures for evacuation, relocation, shelter-in-place, and lock down; communication and reunification with families; continuity of operations; and accommodation of infants and toddlers, children with disabilities, and children with chronic medical conditions.
Ensure appropriate precautions when transporting children by clarifying the current transportation rules and creating the following provisions:
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A driver transporting children in care may not use a cell phone and other wireless device, unless the vehicle is out of traffic, not in operation, and the phone or device is used to communicate regarding an emergency.
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Prior to the day a driver first transports children in care, the operator shall submit to the certification agency a copy of the driving record for the driver and obtain approval of the driver from the certification agency.
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Prior to a driver transporting children in care for the first time, the certified child care operator shall review various safety-related requirements with the driver.
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A driver shall be at least 18 years of age and have at least one year of experience as a licensed driver.
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A child’s emergency contact information shall be carried in the vehicle when the child is being transported.
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Smoking is prohibited in a child care vehicle while children are being transported.
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The vehicle shall be clean, uncluttered, and enclosed. No children may be transported in a truck, except in the cab.
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Passenger doors shall be locked at all times when the vehicle is moving.
Reorganize and clarify rules regarding the process for certification agencies administering certification, including sections related to applications, background checks, monitoring, enforcements, and complaints. Background check provisions are updated to include the CCDBG requirements.
Incorporate the federal requirement that agencies conduct annual unannounced monitoring visits of certified family child care operators during hours of operation. Monitoring visits of operators that are providing care in the child’s home may be planned in advance and are not required to be during hours of operation.
Require that a certified child care operator be an individual and not a corporation, partnership, limited liability company, non-incorporated association, or cooperative. No corporation, partnership, limited liability company, non-incorporated association, or cooperative that is a certified child care operator will be allowed to apply for recertification. An individual may apply or reapply for certification.
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This requirement prevents an ineligible person from setting up a “strawman” or “shell corporation” and fraudulently obtaining certification.
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This provision does not affect an operator’s ability to incorporate or otherwise form a business entity for other legal or tax reasons.
Repeal a certification agency’s discretion to limit certification to operators that have a high school diploma or GED.
Repeal the requirement that an operator in a rental property obtain permission from the landlord as a condition of certification.
Repeal school-age certification under s. DCF 202.09. There are currently 4 school-age certified programs in the state, and only 3 of the programs are active. An operator of an existing school-age program may apply for licensure to continue eligibility for child care subsidy payments.
Consolidate requirements related to health into one section.
Consolidate requirements related to equipment and furnishings into one section.
Incorporate the state statutory requirements for vehicle liability insurance under s. 344.62, Stats., and carbon monoxide detectors under s. 101.149, Stats.
Changes Affecting Chapters DCF 250, Family Child Care Centers; DCF 251, Group Child Care Centers; and DCF 252, Day Camps for Children
The emergency rule revises chs. DCF 250, 251, and 252 to do the following:
Update background check provisions to conform to CCDBG requirements and s. 48.686, Stats.
Amend the existing emergency preparedness and response planning rule to comply with 45 CFR 98.41 and require that a licensee’s written emergency plan includes procedures for evacuation, relocation, shelter-in-place, and lock down; communication and reunification with families; continuity of operations; and accommodation of infants and toddlers, children with disabilities, and children with chronic medical conditions.
Ensure appropriate precautions when transporting children by clarifying the current transportation rules and creating the following provisions:
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A driver transporting children in care may not use a cell phone and other wireless device, unless the vehicle is out of traffic, not in operation, and the phone or device is used to communicate regarding an emergency.
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Before a driver transports children in care for the first time, the licensee shall review various safety-related requirements with the driver.
Consolidate all rules on supervision of children and staff-to-child ratios and maximum group size into one section. No change is made to the current staff-to-child ratios or maximum group size requirements.
Eliminate duplicative provisions and consolidate rules on the following topics:
Personal hygiene requirements, especially handwashing.
Medical logs books.
DCF 250, Licensing Rules for Family Child Care Centers
The emergency rule revises ch. DCF 250, Family Child Care Centers, to do the following:
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