Wisconsin Legislature: DCF 13.07(1)(e)

2. The length of time between the conviction or delinquency adjudication and the decision affecting regulatory approval, employment, contract, or nonclient residency.

3. The person’s participation in or completion of pertinent programs of a rehabilitative nature.

4. The person’s probation, extended supervision, or parole status.

5. If the person is a caregiver or noncaregiver employee, the person’s ability to perform or to continue to perform the role consistent with the safe and efficient operation of the program and the confidence of clients and the parents or guardians of clients.

7. The age of the person on the date the crime was committed.

(2) Documentation. The department shall document how it reached the determination under sub. (1) that the criminal conviction or delinquency adjudication of a caregiver, noncaregiver employee, or household member is or is not substantially related to the care of a child or the activities of the child care program.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: am. (1) (intro.), (c) 5., (2) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.06 Background check eligibility.

(1) Preliminary eligibility.

(a) The department shall issue a preliminary eligibility determination that indicates whether a person is barred from employment as a caregiver, noncaregiver employee, or household member at the child care program based on any serious crimes reported on the federal bureau of investigation and Wisconsin department of justice fingerprint results.

(b) A child care program that receives a department determination that a person is preliminarily eligible may employ, contract with, or allow the person to reside at the child care program pending the department’s final eligibility determination under sub. (3).

(2) Supervision of persons with preliminary eligibility.

(a) Persons who begin work or residency with preliminary eligibility under sub. (1) shall be supervised at all times children are present. The supervision shall include periodic and direct observation of the person.

(b) A person who has received a final determination of eligibility under sub. (3) within the past 5 years shall supervise a person with preliminary eligibility under sub. (1).

(3) Final eligibility.

(a) After receiving all of the records required under s. 48.686 (2) (am), Stats., the department shall provide a final written report to the child care program indicating whether the person who is the subject of the report is eligible or ineligible to work or reside at a child care program, without revealing information about any disqualifying offenses or other information regarding the person.

(b) The department shall provide a final written report to the person on whom the child care background check was conducted, indicating whether the person is eligible or ineligible to work or reside at a child care program. If the person is ineligible, the report also shall include information on each disqualifying offense, the right to appeal under s. DCF 13.09, and the right to a rehabilitation review under s. DCF 13.10, if applicable.

(4) Transfer of eligibility. A child care program may employ a person or allow the person to reside in the child care program without requesting a new child care background check on the person if all of the following conditions are met:

(a) Within the past 5 years, the person received a final determination of eligibility under sub. (3) to work or reside in a child care program and the determination of eligibility has not been withdrawn or revoked.

(b) Either of the following apply:

1. The person is currently working or residing in a child care program.

2. The person has been separated from employment or residence at a child care program for less than 180 days.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: am. (1) (a) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.07 Reporting requirements.

(1) Child care program offense reporting requirements. A child care program shall report to the agency that granted regulatory approval as soon as the child care program knows, or should have known, that any of the following apply to a caregiver, noncaregiver employee, or household member at the child care program:

(a) The person is the subject of a delinquency petition alleging that the person committed a serious crime on or after his or her 10th birthday.

(b) The person has been adjudicated delinquent on or after his or her 10th birthday for committing any crime.

(d) The person has been convicted of any crime.

(e) A final substantiated finding has been made that the person abused or neglected a child.

(f) A finding that is comparable to a final substantiated finding has been made in any other jurisdiction.

(g) A unit of government or a state agency as defined in s. 16.61 (2) (d), Stats., made a finding that the person has abused or neglected a client or misappropriated the property of a client.

(h) If a position requires a person to hold a credential, as defined in s. 440.01 (2) (a), Stats., the person has been denied a credential or had a credential restricted or otherwise limited.

(2) Other child care program reporting.

(a) A child care program shall report to the agency that granted regulatory approval as soon as possible, but no later than the agency’s next business day, if any of the following occurs:

1. A person who is age 10 or over and is not a client begins residing at, or is expected to reside at, a child care program.

Note: See the definitions in s. DCF 13.02 (15) and (18).

2. A household member turns 10 years of age.

3. A household member turns 18 years of age.

4. A corporation or limited liability company designates a new person to be subject to the background check.

5. A caregiver, noncaregiver employee, or household member at the child care program changes his or her name.

6. A person’s role at the child care program has changed or will be changing and a new eligibility determination may be required for the child care background check.

7. A new caregiver or noncaregiver employee begins work, or a prospective caregiver or noncaregiver employee intends to begin work, at the child care program.

8. A caregiver or noncaregiver employee is no longer working in the child care program or intends to no longer work in the child care program, including the last date of employment.

9. A prospective caregiver or noncaregiver employee was not hired.

10. A former household member is no longer residing at the child care program or a household member intends to no longer reside at the child care program, including the last date of residence.

(b) When a change specified under par. (a) 1. to 7. occurs regarding a child care program, the program shall submit a completed background check request form no later than the agency’s next business day for the new person subject to the child care background check and ensure persons comply with the fingerprint requirements within the timeframe specified by the department.

(3) Child care program policy. A child care program shall include in its personnel or operating policies a provision that requires a person who is a caregiver specified in s. DCF 13.02 (4) (a) and (b) or a noncaregiver employee to notify the child care program as soon as possible, but no later than the child care program’s next working day, if any of the circumstances under sub. (1) (a) to (h) apply to the person.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: cr. (1) (intro.), (2) (a) 2., 3., 5., 7. to 10., (3) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.08 Sanctions.

(1) Child care program.

(a) A child care program that does any of the following may be subject to one or more of the sanctions specified in par. (b) by the department or the agency that granted the regulatory approval:

1. Allows a person who has not received preliminary determination of eligibility to begin work or reside at the child care program in violation of s. DCF 13.06 (1).

2. Allows a person who has not received a final determination of eligibility to work or reside at a child care program without direct supervision in violation of s. DCF 13.06 (2).

3. Hires, employs, or contracts with a person that the department determined was ineligible to be a caregiver or noncaregiver employee in the child care program.

3m. Permits a person that the department determined was ineligible to be a household member in the child care program.

4. Fails to submit a background check request as required under s. 48.686 (2) (ab), Stats., and s. DCF 13.03.

5. Knows, or should know, that a caregiver, noncaregiver employee, or household member at the child care program committed an act barred under s. 48.686 (4m) (a) 6., 7., or 8., Stats., including knowingly giving false information on or knowingly omitting material information relating to the child care background check.

6. Fails to comply with applicable reporting requirements under s. DCF 13.07 (1) or (2).

7. Fails to have a policy on reporting changes as required in s. DCF 13.07 (3).

8. Violates any provision in s. 48.686, Stats., or this chapter regarding caregivers, noncaregiver employees, or household members.

(b) Any of the following sanctions may be imposed on a child care program that commits any of the acts described in par. (a):

1. Suspension, nonrenewal, denial, or revocation of regulatory approval.

2. Specific conditions or limitations placed on the regulatory approval.

3. A forfeiture of not more than $1,000.

4. A requirement that the child care program develop a written plan that specifies corrections that will be made to personnel screening practices, obtain agency approval of the correction plan, and implement the correction plan.

(2) Applicant. An applicant for regulatory approval who does any of the following is subject to denial of an application for regulatory approval:

(a) Fails to complete and submit the background check request required under s. DCF 13.03.

(b) Knowingly provides false information on or knowingly omits information from the background check request form.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: am. (1) (a) 3., cr. (1) (a) 3m., am. (1) (a) 5., 8. Register July 2020 No. 775, eff. 8-1-20.

DCF 13.09 Appeal of background check determinations.

(1) Appeal rights.

(a) The department shall include a statement of appeal rights with a notification of ineligibility under s. DCF 13.06 (3) to the subject of background check.

(b) The subject of a department determination under s. DCF 13.06 (3) may appeal the determination under s. 48.686 (4s), Stats. Only the subject of the background check may file the appeal.

(2) Submission of an appeal.

(a) To submit an appeal of an ineligibility determination under s. DCF 13.06 (3), the subject of a background check shall submit a completed petition for appeal form prescribed by the department to the department’s postal address, email address, or fax number that is identified in the statement of appeal rights.

(b) An appeal under sub. (1) may be submitted no later than 10 days after the date of the department’s ineligibility determination, unless the subject requests, and the department grants for good cause shown, an extension for a specific period of time prior to the expiration of the 10-day appeal period.

(c) If an appeal is not received under sub. (1) within 10 days after the department’s ineligibility determination and an extension has not been approved before the expiration of the 10-day appeal period, the department’s ineligibility determination made under s. DCF 13.06 (3) is final.

Note: Form DCF-F-5331-E, Petition for Appeal of Ineligibility Determination, is available in the forms section of the department website, http://dcf.wisconsin.gov. Send the appeal request to the Department of Children and Families, Child Care Background Unit, P.O. Box 8916, Madison, WI 53708-8916; email DCFPlicBECRCBU@wisconsin.gov; or fax (608) 422-7155.

(3) Department review of appeals.

(a) The department shall notify the subject of the background check that his or her appeal request under sub. (2) has been received within 7 business days after receipt.

(b) The department shall review each timely appeal request under sub. (2) and issue a written appeal decision within 30 days after receiving the appeal request. The decision notice shall include information on the right to another appeal by requesting a reconsideration under sub. (4).

Note: Send the reconsideration request to the Department of Children and Families, Assistant Secretary, P.O. Box 8916, Madison, WI 53708-8916; email DCFMBChildcareEligibilityAppeals@wisconsin.gov; or fax (608) 422-7161.

(4) Reconsideration of an appeal.

(a) The subject of the background check may request a reconsideration of the department’s appeal decision under sub. (3). A request for reconsideration shall be sent to the postal address, email address, or fax number identified in the appeal decision within 30 days after the date on the decision.

(b) The department secretary or the secretary’s designee shall review a reconsideration request under par. (a) and issue a written decision. The reconsideration decision shall include information on the right to another appeal by requesting a contested case hearing under sub. (5).

(5) Contested case hearing. The subject of the background check who receives an adverse decision from the department secretary or the secretary’s designee under sub. (4) may request a contested case hearing under ch. 227, Stats., and ch. HA 1 within 10 days after the date of the department’s reconsideration decision.

Note: Send a request for a contested case hearing to the Division of Hearings and Appeals, 4822 Madison Yards Way, PO Box 7875, Madison, Wisconsin, 53707-7875. The fax number of the division is (608) 264-9885.

History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20; CR 20-003: am. (2) (b), (c) Register July 2020 No. 775, eff. 8-1-20.