Wisconsin Legislature: DHS 12.09(1)(b)

(f) Whether the offense is of a sexual nature.

(3) In relation to the person, any of the following:

(a) The number and type of offenses the person committed or for which the person has been convicted.

(b) The length of time between convictions or offenses, and the employment decision.

(d) The person’s participation in or completion of pertinent programs of a rehabilitative nature.

(e) The person’s probation or parole status.

(f) The person’s ability to perform or to continue to perform the job consistent with the safe and efficient operation of the program and the confidence of the clients served including, as applicable, their parents or guardians.

(g) The age of the person on the date of conviction or dates of conviction.

Note: A person refused employment or who has had his or her employment terminated and believes he or she may have been discriminated against, may file a complaint under s. 111.335, Stats., with the Equal Rights Division, Department of Workforce Development, P.O. Box 8928, Madison, WI 53708-8928 or telephone 608-266-6860.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; CR 10-091: am. (intro.) Register December 2010 No. 660, eff. 1-1-11.

DHS 12.07 Reporting background changes and nonclient residency.

(1) An entity shall include in its personnel or operating policies a provision that requires caregivers to notify the entity as soon as possible, but no later than the person’s next working day, when any of the following occurs.

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

(b) The person has been or is being investigated by any governmental agency for any other act, offense, or omission, including an investigation related to the abuse or neglect, or threat of abuse or neglect, to a child or other client, or an investigation related to misappropriation of a client’s property.

(c) The person has a governmental finding substantiated against them of abuse or neglect of a client or of misappropriation of a client’s property.

(d) In the case of a position for which the person must be credentialed by the department of safety and professional services, the person has been denied a license, or the person’s license has been restricted or otherwise limited.

(2) When any of the following occurs relative to a signatory or other legal party to the entity application for regulatory approval or under which a contract under s. 120.13 (14), Stats., is signed, or relative to a nonclient resident at the entity, an entity shall, as soon as possible, but no later than the regulatory agency’s next business day, report the information to the agency that gave regulatory approval, or the school board with which the day care entity contracts under s. 120.13 (14), Stats.

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

(c) The person has a governmental finding substantiated against them of abuse or neglect of a client or of misappropriation of a client’s property.

(3) When a person begins residing at or is expected to reside at an entity, or the signatory for licensure changes, the entity shall, as soon as possible, but no later than the regulatory agency’s next business day, report the residency, expected residency, or signatory change to the agency that gave regulatory approval or to the school board that the day care entity contracts with under s. 120.13 (14), Stats., and submit to the regulatory agency a completed background information disclosure form for the new nonclient resident or new signatory.

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

DHS 12.08 Armed forces background searches. If a person who is the subject of a background search under s. 48.685 or 50.065, Stats., served in a branch of the U.S. armed forces, including any reserve component, within the last 3 years, the agency or entity shall make a good faith 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. If the discharge status is other than honorable, the agency or entity shall obtain information on the nature and circumstances of the discharge.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; CR 10-091: am. Register December 2010 No. 660, eff. 1-1-11.

DHS 12.09 Transmittal of background check information.

(1) When an entity sends a required background information disclosure form to the department under s. 48.685 (3) (a), Stats., the entity shall include in the transmittal all the following:

(a) Any reason for denial or revocation of a license or denial of an adoption application.

(b) The date of the license denial or revocation or adoption application denial.

(2) A child-placing agency or county department shall provide the department with written information about each person to whom the child-placing agency or county department denies a license or adoption home study approval for a reason specified in s. 48.685 (4m) (a), Stats., including all the following:

(a) The reason for denial or revocation of a license or denial of adoption application.

(b) The date of the license denial or revocation or adoption application denial.

Note: Send the information required in subs. (1) and (2) to the Bureau of Regulation and Licensing, Department of Children and Families, 201 East Washington Avenue, Second Floor, P.O. Box 8916, Madison, WI 53703-8916

(3) In addition to the persons specified in s. 48.685 (6) (b) 2., Stats., an entity shall send a completed background information disclosure form to the county department for a person who is licensed or an adoptive parent applicant studied by a county department.

(4) In addition to the persons specified in s. 48.685 (6) (b) 3., Stats., an entity shall send a completed background information disclosure form to the child-placing agency for a person who is in a home studied for adoptive parent applicant approval.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00.

DHS 12.10 Maintaining confidentiality of background information disclosure forms. Agencies and entities shall retain all required completed department background information forms in a manner that ensures prompt retrieval of the forms for inspection and shall comply with applicable federal and state confidentiality laws.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00.

DHS 12.11 Supervision pending receipt of caregiver background checks. Entity supervision required under ss. 48.685 (4m) (c) and 50.065 (4m) (c), Stats., shall include at a minimum periodic direct observation of the person.

History: Cr. Register, August, 2000, No. 536, eff. 9-1-00.

DHS 12.115 Personal care services, disclosure of convictions. Pursuant to s. 50.065 (2m) (d), Stats., Table DHS 12.115 lists the crimes for which an entity must disclose to a client or the client’s guardian under s. 50.065 (2m) (a) 1., Stats., a conviction of a caregiver, other than a substitute caregiver, who provides personal care services to a client in the client’s residence. For the purposes of s. 50.065 (2m) (a) 4. and (b), Stats., ‘substitute caregiver’ has the meaning given in s. DHS 12.03 (20m).

- See PDF for table

History: EmR0832: emerg. cr. eff. 11-1-08; CR 08-098: cr. Register June 2009 No. 642, eff. 7-1-09.

Subchapter III — Rehabilitation Review

DHS 12.12 Rehabilitation process for persons who have committed certain offenses.

(1) General provisions.

(a) An agency shall conduct rehabilitation reviews as described in this section for persons who are eligible to receive rehabilitation review under this section for any of the following:

1. Entities the agency regulates.

2. Persons an entity employs.

3. Persons an entity contracts with.

4. Nonclient residents of an entity.

(b)

1. A tribal governing body may conduct rehabilitation reviews under ss. 48.685 (5) and 50.065 (5), Stats., if a plan submitted under s. 48.685 (5d) or 50.065 (5d), Stats., has been approved by the department.

2. Tribes desiring to conduct rehabilitation reviews shall send a rehabilitation review plan required under ss. 48.685 (5d) and 50.065 (5d), Stats., to the department.

Note: Send rehabilitation review plans to the Office of Legal Counsel, Department of Health Services, P.O. Box 7850, 1 West Wilson St., Rm 651, Madison, WI 53707–7850.

(2) Eligibility to request rehabilitation review.

(a) Any person who is ineligible under s. 50.065 (4m) (a) or (b), or 48.685 (4m) (a) or (b), Stats., to receive regulatory approval, to be employed as a caregiver, or to contract with or reside at an entity, may request a rehabilitation review if the person meets both of the following conditions:

1. The person has not requested a rehabilitation review for a similar type of regulatory approval, job function or nonclient resident status within the preceding year. In this subdivision, “similar” means comparable regulatory approval, or a comparable job function or activity.

Note: Examples of “similarity” and “comparability” are positions that require a comparable level of direct contact with children; a comparable level of unsupervised client access; a previous review involved family day care and the applicant is seeking licensing for group day care; or the applicant sought a group home license and now is seeking a child-caring institution license.

2. If the person is a foster home license applicant under s. 48.62, Stats., or an applicant for an adoption home study, the person has not been convicted of a serious crime under s. 48.685 (5) (bm) 1., 2. or 3., Stats., another crime listed in section III of the appendix that results in a permanent bar, or a similar serious crime in another jurisdiction or, if the person was convicted of a crime under s. 48.685 (5) (bm) 4., Stats., the crime was committed more than 5 years before the background check was requested.

(b) If a person is eligible to request a rehabilitation review, the agency or tribe from which the person is seeking regulatory approval, or the entity with whom the person is seeking employment as a caregiver or a contract, or where the person wishes to reside shall give the person information on rehabilitation review eligibility criteria and on how to obtain the rehabilitation review request form.

Note: To obtain information about rehabilitation review, access https://www.dhs.wisconsin.gov/caregiver/misconduct.htm for adult programs, or https://dcf.wisconsin.gov/rehab-review/rehab-review-main-page for children’s programs.

(3) Initiating a rehabilitation review request. To request a rehabilitation review, an eligible person shall do all of the following:

(a) Obtain a rehabilitation review request form developed by the department or applicable tribe and submit the completed form to the agency that regulates the entity, or to the applicable tribe, or for day care programs established under s. 120.13 (14), Stats., to the school board.

(b) Submit any supporting documents and information required by the applicable rehabilitation review request form to the same agency, tribe, or school board.

(4) Processing rehabilitation review requests.

(a) Rehabilitation review panel. When an eligible person has filed a complete rehabilitation review request form along with all required additional and supporting information, the applicable agency, tribe, or school board shall appoint a review panel of at least 2 persons to review the information submitted. The panel may request additional information from the person or from other agencies or persons familiar with the person requesting the review.

(b) Time frame. If the application form and any requested supporting materials are not complete within 90 days of the date the application is submitted, and the person requesting the review does not have good cause for the failure to submit a complete application form or supporting materials, the rehabilitation approval shall be denied.

(c) Requester appearance. The person requesting the rehabilitation review shall have an opportunity to appear before the review panel to answer any questions the panel members may have.

(d) Rehabilitation decision formulation and factors. After reviewing the information obtained, the review panel shall decide whether the person has demonstrated, by clear and convincing evidence, that the person is rehabilitated for purposes of receiving regulatory approval, employment as a caregiver, or contracting with or residing at an entity. The panel shall consider at least the following factors, as applicable:

1. Personal reference checks and comments from employers, persons, and agencies familiar with the applicant and statements from therapists, counselors and other professionals.

2. Evidence of successful adjustment to, compliance with or proof of successful completion of parole, probation, incarceration or work release privileges.

3. Proof that the person has not had subsequent contacts with law enforcement agencies leading to probable cause to arrest or evidence of noncompliance leading to investigations by other regulatory enforcement agencies.

4. Any pending or existing criminal or civil arrest warrants, civil judgments or other legal enforcement actions or injunctions against the person.

5. Any aggravating or mitigating circumstances surrounding the crime, act or offense.

6. Evidence of rehabilitation, such as public or community service, volunteer work, recognition by other public or private authorities for accomplishments or efforts or attempts at restitution, and demonstrated ability to develop positive social interaction and increased independence or autonomy of daily living.

7. The amount of time between the crime, act or offense and the request for rehabilitation review, and the age of the person at the time of the offense.

8. Whether the person is on the sexual offender registry under s. 301.45, Stats., or on a similar registry in another jurisdiction.

9. A victim’s impact statement, if appropriate.

10. Employment history, including evidence of acceptable performance or competency in a position and dedication to the person’s profession.

11. The nature and scope of the person’s contact with clients in the position requested.

12. The degree to which the person would be directly supervised or working independently in the position requested.

13. The opportunity presented for someone in the position to commit similar offenses.

14. The number, type and pattern of offenses committed by the person.

15. Successful participation in or completion of recommended rehabilitation, treatment or programs.

16. Unmet treatment needs.

17. The applicant’s veracity.

(5) Rehabilitation decisions.