Chapter DHS 12

DHS 12.05(4)(d) (d) Special conditions or limitations placed upon the person, including restriction to an off-premises location during business hours or otherwise restricting the person’s contact with clients.

DHS 12.05 History History: Cr. Register, August, 2000, No. 536, eff. 9-1-00; correction in (3) (c) made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674.

DHS 12.06 DHS 12.06 Determining whether an offense is substantially related to client care. To determine whether a crime or a delinquency adjudication under s. 48.685 (5m) or 50.065 (5m), Stats., is substantially related to the care of a client, the agency or entity may consider all of the following:

DHS 12.06(1) (1) In relation to the job, any of the following:

DHS 12.06(1)(a) (a) The nature and scope of the job’s client contact.

DHS 12.06(1)(b) (b) The nature and scope of the job’s discretionary authority and degree of independence in judgment relating to decisions or actions that affect the care of clients.

DHS 12.06(1)(c) (c) The opportunity the job presents for committing similar offenses.

DHS 12.06(1)(d) (d) The extent to which acceptable job performance requires the trust and confidence of clients or a client’s parent or guardian.

DHS 12.06(1)(e) (e) The amount and type of supervision received in the job.

DHS 12.06(2) (2) In relation to the offense, any of the following:

DHS 12.06(2)(a) (a) Whether intent is an element of the offense.

DHS 12.06(2)(b) (b) Whether the elements or circumstances of the offense are substantially related to the job duties.

DHS 12.06(2)(c) (c) Any pattern of offenses.

DHS 12.06(2)(d) (d) The extent to which the offense relates to vulnerable clients.

DHS 12.06(2)(e) (e) Whether the offense involves violence or a threat of harm.

DHS 12.06(2)(f) (f) Whether the offense is of a sexual nature.

DHS 12.06(3) (3) In relation to the person, any of the following:

DHS 12.06(3)(a) (a) The number and type of offenses the person committed or for which the person has been convicted.

DHS 12.06(3)(b) (b) The length of time between convictions or offenses, and the employment decision.

DHS 12.06(3)(c) (c) The person’s employment history, including references, if available.

DHS 12.06(3)(d) (d) The person’s participation in or completion of pertinent programs of a rehabilitative nature.

DHS 12.06(3)(e) (e) The person’s probation or parole status.

DHS 12.06(3)(f) (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.

DHS 12.06(3)(g) (g) The age of the person on the date of conviction or dates of conviction.

DHS 12.06 Note 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 [phone].

DHS 12.06 History 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 DHS 12.07 Reporting background changes and nonclient residency.

DHS 12.07(1) (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.

DHS 12.07(1)(a) (a) The person has been convicted of any crime.

DHS 12.07(1)(b) (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.

DHS 12.07(1)(c) (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.

DHS 12.07(1)(d) (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.

DHS 12.07(2) (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.

DHS 12.07(2)(a) (a) The person has been convicted of any crime.

DHS 12.07(2)(b) (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.

DHS 12.07(2)(c) (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.

DHS 12.07(2)(d) (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.

DHS 12.07(3) (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.

DHS 12.07 History 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 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.

DHS 12.08 History 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 DHS 12.09 Transmittal of background check information.

DHS 12.09(1) (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:

DHS 12.09(1)(a) (a) Any reason for denial or revocation of a license or denial of an adoption application.

DHS 12.09(1)(b) (b) The date of the license denial or revocation or adoption application denial.

DHS 12.09(2) (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:

DHS 12.09(2)(a) (a) The reason for denial or revocation of a license or denial of adoption application.

DHS 12.09(2)(b) (b) The date of the license denial or revocation or adoption application denial.

DHS 12.09 Note 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

DHS 12.09(3) (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.

DHS 12.09(4) (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.

DHS 12.09 History History: Cr. Register, August, 2000, No. 536, eff. 9-1-00.

DHS 12.10 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.

DHS 12.10 History History: Cr. Register, August, 2000, No. 536, eff. 9-1-00.

DHS 12.11 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.

DHS 12.11 History History: Cr. Register, August, 2000, No. 536, eff. 9-1-00.

DHS 12.115 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).

DHS 12.115 History History: EmR0832: emerg. cr. eff. 11-1-08; CR 08-098: cr. Register June 2009 No. 642, eff. 7-1-09.

subch. III of ch. DHS 12 Subchapter III — Rehabilitation Review

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

DHS 12.12(1) (1) General provisions.

DHS 12.12(1)(a) (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:

DHS 12.12(1)(a)1. 1. Entities the agency regulates.

DHS 12.12(1)(a)2. 2. Persons an entity employs.

DHS 12.12(1)(a)3. 3. Persons an entity contracts with.

DHS 12.12(1)(a)4. 4. Nonclient residents of an entity.

DHS 12.12(1)(b) (b)

DHS 12.12(1)(b)1. 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.

DHS 12.12(1)(b)2. 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.

DHS 12.12 Note 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.

DHS 12.12(2) (2) Eligibility to request rehabilitation review.

DHS 12.12(2)(a) (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:

DHS 12.12(2)(a)1. 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.

DHS 12.12 Note 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.

DHS 12.12(2)(a)2. 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.

DHS 12.12(2)(b) (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.

DHS 12.12 Note 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.

DHS 12.12(3) (3) Initiating a rehabilitation review request. To request a rehabilitation review, an eligible person shall do all of the following:

DHS 12.12(3)(a) (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.

DHS 12.12(3)(b) (b) Submit any supporting documents and information required by the applicable rehabilitation review request form to the same agency, tribe, or school board.

DHS 12.12(4) (4) Processing rehabilitation review requests.

DHS 12.12(4)(a) (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.

DHS 12.12(4)(b) (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.

DHS 12.12(4)(c) (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.

DHS 12.12(4)(d) (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:

DHS 12.12(4)(d)1. 1. Personal reference checks and comments from employers, persons, and agencies familiar with the applicant and statements from therapists, counselors and other professionals.

DHS 12.12(4)(d)2. 2. Evidence of successful adjustment to, compliance with or proof of successful completion of parole, probation, incarceration or work release privileges.

DHS 12.12(4)(d)3. 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.

DHS 12.12(4)(d)4. 4. Any pending or existing criminal or civil arrest warrants, civil judgments or other legal enforcement actions or injunctions against the person.