Chapter DCF 13

DCF 13.09 Note 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 [e-mail]; or fax [phone].

DCF 13.09(3) (3) Department review of appeals.

DCF 13.09(3)(a) (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.

DCF 13.09(3)(b) (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).

DCF 13.09 Note Note: Send the reconsideration request to the Department of Children and Families, Assistant Secretary, P.O. Box 8916, Madison, WI 53708-8916; email [e-mail]; or fax [phone].

DCF 13.09(4) (4) Reconsideration of an appeal.

DCF 13.09(4)(a) (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.

DCF 13.09(4)(b) (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).

DCF 13.09(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.

DCF 13.09 Note 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 [phone].

DCF 13.09 History 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.

DCF 13.10 DCF 13.10 Rehabilitation reviews by agency. An agency may conduct a rehabilitation review for a person who requests a rehabilitation review if the person is eligible under s. 48.686 (5) (a), Stats., and s. DCF 13.11 and is any of the following:

DCF 13.10(1) (1) A person who has, or is seeking, regulatory approval from the agency as a caregiver specified in s. DCF 13.02 (4) (c).

DCF 13.10(2) (2) A person who is, or is expected to be, a caregiver specified in s. DCF 13.02 (4) (a) or (b) for a child care program that is regulated by the agency.

DCF 13.10(3) (3) A person who is, or is expected to be, a household member at a child care program that is regulated by the agency.

DCF 13.10(4) (4) A person who is, or is expected to be, a noncaregiver employee for a child care program that is regulated by the agency.

DCF 13.10 History 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. (3), cr. (4) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.11 DCF 13.11 Eligibility for rehabilitation review.

DCF 13.11(1) (1) Except as provided under sub. (2), a person may have the opportunity to demonstrate his or her rehabilitation if any of the following apply:

DCF 13.11(1)(a) (a) Section 48.686 (4m) (a) 2., 3., or 4. applies to the person.

DCF 13.11(1)(b) (b) The person has been convicted or adjudicated delinquent of a serious crime as specified under s. 48.686 (1) (c) 9., Stats., or for a violation of the law of any other state or United States jurisdiction that would be a violation listed in s. 48.686 (1) (c) 9., Stats., if committed in this state, and the person completed his or her sentence, including any probation, parole, or extended supervision, or was discharged by the department of corrections, more than 5 years before the date of the investigation under s. 48.686 (2) (am), Stats.

DCF 13.11 Note Note: A table listing child care serious crimes and availability of rehabilitation review for each offense can be accessed at https://dcf.wisconsin.gov/files/publications/pdf/5206.pdf.

DCF 13.11(2) (2) A person may not have the opportunity to demonstrate his or her rehabilitation if within the preceding 12 months an agency denied the person’s request for rehabilitation approval, and the new request is for the same type of regulatory approval, job function, or status as a household member with the same level of direct contact with clients or unsupervised access to clients.

DCF 13.11 History 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.), (2) Register July 2020 No. 775, eff. 8-1-20.

DCF 13.12 DCF 13.12 Applying for rehabilitation review. To apply for rehabilitation review, a person who is eligible to request rehabilitation review under s. DCF 13.11 shall do all of the following:

DCF 13.12(1) (1) Obtain a rehabilitation review application on a form prescribed by the department and submit the completed application to the agency.

DCF 13.12 Note Note: Form DCF-F-419, Rehabilitation Review Application Instructions, is available in the forms section of the department website, http://dcf.wisconsin.gov.

DCF 13.12(2) (2) Submit any supporting documents and information required by the rehabilitation review application to the agency.

DCF 13.12 History History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20.

DCF 13.13 DCF 13.13 Agency rehabilitation review process.

DCF 13.13(1) (1) Time frame. If an application for a rehabilitation review is not complete or any supporting documents or information required in the application are not submitted within 90 days after the date the application was first received by the agency, the request for a rehabilitation review shall be denied, unless the person requesting the rehabilitation review provides a good cause explanation.

DCF 13.13(2) (2) Rehabilitation review panel. If a person who is eligible for rehabilitation review under s. DCF 13.11 submits an application that is complete under s. DCF 13.12 no later than the deadline in sub. (1), the applicable agency shall appoint a review panel of at least 2 persons to review the information submitted. The panel may request additional information from the person requesting the review or from other agencies or persons familiar with the person.

DCF 13.13(3) (3) Requestor appearance. A person for whom a rehabilitation review is conducted under sub. (2) shall be given an opportunity to appear before the review panel to present information and answer any questions the panel members may have. The person’s appearance before the review panel may be in person, by telephone, or other technology approved by the agency.

DCF 13.13(4) (4) Rehabilitation review panel. After reviewing the information obtained, a review panel appointed under sub. (2) shall decide whether the person who is the subject of the rehabilitation review has demonstrated by clear and convincing evidence that he or she is rehabilitated for purposes of receiving regulatory approval, employment as a caregiver or noncaregiver employee, contracting with a child care program to be a caregiver or noncaregiver employee, or residing at a child care program. The panel shall consider at least the following factors, as applicable:

DCF 13.13(4)(a) (a) Personal references and comments from employers, persons, and agencies familiar with the applicant and statements from therapists, counselors, and other professionals.

DCF 13.13(4)(b) (b) Evidence of successful adjustment to, compliance with, or proof of successful completion of parole, extended supervision, probation, incarceration, or work release privileges.

DCF 13.13(4)(c) (c) Any investigations or enforcement actions by a regulatory agency for substantial noncompliance with applicable laws.

DCF 13.13(4)(d) (d) Any subsequent contacts with law enforcement agencies, including arrests, charges, convictions, pending criminal or civil arrest warrants, civil judgments, or other legal enforcement actions or injunctions against the person.

DCF 13.13(4)(e) (e) Any aggravating or mitigating circumstances surrounding the barring crime, act, or offense.

DCF 13.13(4)(f) (f) 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.

DCF 13.13(4)(g) (g) The age of the person at the time of the offense and the amount of time between the crime, act, or offense and the request for rehabilitation review.

DCF 13.13(4)(h) (h) Whether the person is on the sexual offender registry under s. 301.45, Stats., or on a similar registry in another jurisdiction.

DCF 13.13(4)(i) (i) A victim’s impact statement, if appropriate.

DCF 13.13(4)(j) (j) The person’s employment history, including evidence of acceptable performance or competency and dedication to the person’s profession.

DCF 13.13(4)(k) (k) The nature and scope of the person’s contact with clients in the position requested.

DCF 13.13(4)(L) (L) The degree to which the person would be directly supervised or working independently in the position requested.

DCF 13.13(4)(m) (m) The opportunity presented for someone in the position to commit similar offenses.

DCF 13.13(4)(n) (n) The number, type, and pattern of offenses committed by the person.

DCF 13.13(4)(o) (o) Successful participation in or completion of recommended rehabilitation, treatment, or programs.

DCF 13.13(4)(p) (p) Unmet treatment needs.

DCF 13.13(4)(q) (q) The person’s veracity.

DCF 13.13(5) (5) Review panel decision.

DCF 13.13(5)(a) (a) Scope. An agency review panel may grant rehabilitation approval only within the scope of the agency’s regulatory authority.

DCF 13.13(5)(b) (b) Deferral. A review panel may defer a final decision under sub. (4) for a period of not more than 6 months, unless the person who is the subject of the rehabilitation review agrees to a longer time period.

DCF 13.13(5)(c) (c) Written decision. A review panel shall issue a written decision under sub. (4) that includes the following, as applicable:

DCF 13.13(5)(c)1. 1. ‘Approval.’ An approval shall state all of the following:

DCF 13.13(5)(c)1.a. a. The type of child care program to which the decision applies.

DCF 13.13(5)(c)1.b. b. The types of approval that were requested and are approved in the decision, such as regulatory approval, employment as a caregiver or noncaregiver employee, contract to be a caregiver or noncaregiver employee, or status as a household member at a child care program.

DCF 13.13(5)(c)1.c. c. Any conditions or limitations placed on the approval.

DCF 13.13 Note Note: Examples of limited approval include approval for employment in specific child care roles.

DCF 13.13(5)(c)2. 2. ‘Deferral.’ A deferral shall state the reason for the deferral and the date that the review panel will reconvene to review any new information affecting the request.

DCF 13.13(5)(c)3. 3. ‘Denial.’ A denial shall include all of the following:

DCF 13.13(5)(c)3.a. a. The type of child care program to which the decision applies.

DCF 13.13(5)(c)3.b. b. The types of approval that were requested and are denied in the decision, such as regulatory approval, employment as a caregiver or noncaregiver employee, contract to be a caregiver or noncaregiver employee, or status as a household member at a child care program.

DCF 13.13(5)(c)3.c. c. The reason for the denial.

DCF 13.13(5)(c)3.d. d. Notice that the person may appeal the denial and a summary of the appeal process under s. 48.686 (5c), Stats., and s. DCF 13.14.

DCF 13.13(6) (6) Review panel decision distribution.

DCF 13.13(6)(a) (a) A review panel shall send a decision made under sub. (5) to the person who is the subject of the rehabilitation review and, if requested, a copy to entities specified by that person.

DCF 13.13(6)(b) (b) Within 10 days after sending a rehabilitation review decision to the subject of the rehabilitation review under par. (a), the review panel for an agency shall send all of the following to the department:

DCF 13.13(6)(b)1. 1. A copy of the review panel’s decision.

DCF 13.13(6)(b)2. 2. A copy of the person’s application under s. DCF 13.12.

DCF 13.13(6)(b)3. 3. A completed rehabilitation review decision report on a form prescribed by the department.

DCF 13.13 Note Note: Form DCF-F-418-E, Rehabilitation Review Panel Decision Report, is available in the forms section of the department website at http://dcf.wisconsin.gov. The materials should be sent to Attn: Rehabilitation Review Coordinator, Office of Legal Counsel, Department of Children and Families, P. O. Box 8916, Madison, WI 53708-8916.

DCF 13.13(7) (7) Retention of rehabilitation decision documentation.

DCF 13.13(7)(a) (a) The agency shall retain a copy of a written decision by a rehabilitation review panel and any decisions from filed appeals that may result.

DCF 13.13(7)(b) (b) The agency shall retain a copy of a rehabilitation review request and all materials or information obtained or notes made as part of a rehabilitation review decision for at least 10 years after the decision is made and any appeals are finalized.

DCF 13.13 History 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. (4) (intro.), (5) (c) 1. b., 3. b. Register July 2020 No. 775, eff. 8-1-20.

DCF 13.14 DCF 13.14 Appealing a rehabilitation review panel’s denial.

DCF 13.14(1) (1) 

DCF 13.14(1)(a) (a) A person who is denied rehabilitation approval under s. DCF 13.13 may submit a written request for review of the decision by the secretary or the secretary’s designee under s. 48.686 (5c), Stats. A request for review shall be submitted within 10 days after the date of the written decision by the rehabilitation panel. No new evidence may be submitted.

DCF 13.14(1)(b) (b) A person who appeals under this subsection shall bear the burden of proving, by a preponderance of the evidence, that the rehabilitation review panel for the agency erroneously exercised its discretion in deciding that the person did not show sufficient evidence to demonstrate that he or she is rehabilitated.

DCF 13.14 Note Note: Pursuant to s. 48.686 (5c), Stats., submit an appeal to the following, as appropriate:

DCF 13.14 Note 1. To appeal a denial by a rehabilitation review panel for the department or a certification agency, send the request to the Department of Children and Families, Office of Legal Counsel, P.O. Box 8916, Madison, WI 53708-8916.

DCF 13.14 Note 2. To appeal a denial by a rehabilitation review panel for the school board, send the request to the State Superintendent of Public Instruction, 125 South Webster Street, Madison, WI 53703; or call [phone].

DCF 13.14 Note 3. To appeal a denial by a rehabilitation review panel for a tribe, send the request to the director of the appropriate tribe or the director’s designee.

DCF 13.14(2) (2) A person who receives an adverse decision from the secretary of the department or the secretary’s designee under sub. (1) may request a contested case hearing under ch. 227, Stats., and ch. HA 1 within 10 days after the date of the written decision by the department.

DCF 13.14 Note 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 [phone].

DCF 13.14 History History: EmR1918: emerg. cr., eff. 1-30-19; CR 19-089: cr. Register March 2020 No. 771, eff. 4-1-20.

DCF 13.15 DCF 13.15 Compliance with rehabilitation approval; withdrawal.