DHS 12.06 HistoryHistory: 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 12.07DHS 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)(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)(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 HistoryHistory: 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 12.08DHS 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 12.09DHS 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 NoteNote: 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 HistoryHistory: Cr. Register, August, 2000, No. 536, eff. 9-1-00. DHS 12.10DHS 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 HistoryHistory: Cr. Register, August, 2000, No. 536, eff. 9-1-00. DHS 12.11DHS 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 HistoryHistory: Cr. Register, August, 2000, No. 536, eff. 9-1-00. DHS 12.115DHS 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 HistoryHistory: EmR0832: emerg. cr. eff. 11-1-08; CR 08-098: cr. Register June 2009 No. 642, eff. 7-1-09. DHS 12.12DHS 12.12 Rehabilitation process for persons who have committed certain offenses. 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 NoteNote: 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 NoteNote: 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(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)(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. DHS 12.12(4)(d)5.5. Any aggravating or mitigating circumstances surrounding the crime, act or offense. DHS 12.12(4)(d)6.6. 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. DHS 12.12(4)(d)7.7. 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. DHS 12.12(4)(d)8.8. Whether the person is on the sexual offender registry under s. 301.45, Stats., or on a similar registry in another jurisdiction. DHS 12.12(4)(d)10.10. Employment history, including evidence of acceptable performance or competency in a position and dedication to the person’s profession. DHS 12.12(4)(d)11.11. The nature and scope of the person’s contact with clients in the position requested. DHS 12.12(4)(d)12.12. The degree to which the person would be directly supervised or working independently in the position requested. DHS 12.12(4)(d)13.13. The opportunity presented for someone in the position to commit similar offenses. DHS 12.12(4)(d)15.15. Successful participation in or completion of recommended rehabilitation, treatment or programs. DHS 12.12(5)(a)(a) Review panel decision. The review panel shall decide whether to approve, defer, or deny rehabilitation approval, and shall issue a written decision to that effect, as follows: DHS 12.12(5)(a)1.1. If the review panel finds sufficient evidence to support rehabilitation approval, the decision shall indicate, as applicable, whether the person is eligible for regulatory approval, employment as a caregiver, or contracting with or residency at an entity. The decision shall describe the scope of the rehabilitation approval and state any conditions or limitations placed on the approval, such as whether the approval is only for employment doing certain job functions or the eligibility for regulatory approval is only to operate certain entity types. DHS 12.12(5)(a)2.2. If the review panel decides to defer a rehabilitation decision, the panel decision shall state the reasons for the deferral. Unless otherwise agreed to by the requester, the panel may defer a final decision for a period of not more than 6 months from the initial decision date. DHS 12.12(5)(a)3.3. If the review panel decides to deny approval of the rehabilitation request, the decision shall explain the reasons for the denial and inform the requester that he or she may appeal the decision as described in s. 48.685 (5c) or 50.065 (5c), Stats., as applicable, by filing a written request for review of the decision within 10 days of receipt. DHS 12.12 NoteNote: Pursuant to s. 48.685 (5c), Stats., or 50.065 (5c), Stats., submit an appeal to the following, as appropriate: 1. To appeal a department denial of a rehabilitation approval, send the appeal request to the Department of Health Services, Office of Legal Counsel, P.O. Box 7850, Madison, WI 53707-7850. 2. To appeal a school board denial of a rehabilitation approval, send the appeal request to the Superintendent of the Department of Public Instruction, 125 South Webster St., Madison, WI 53703; or call 608-266-3390. 3. To appeal a county denial of a rehabilitation approval, send the appeal request to the appropriate county. When any of the preceding rehabilitation appeals are denied, a further appeal is available under ch. 227, Stats. Send a request for a ch. 227, Stats., hearing to appeal any of the preceding department, department of public instruction or county denials of rehabilitation appeals to the Division of Hearings and Appeals, P. O. Box 7875, Madison, WI 53707-7875. The request may be delivered in person to that office at 5005 University Avenue, Suite 201, Madison, Wisconsin. DHS 12.12 NoteNote: Any person who is listed in the department’s caregiver misconduct registry under ch. DHS 13 as having a substantiated finding of abuse or neglect of a client or misappropriation of a client’s property as the result of an action the person took while working as a nurse aide in a federally certified nursing home or intermediate care facility for individuals with intellectual disabilities (ICF/IID) is permanently prohibited from being employed, in any capacity, in a federally–certified nursing home or a federally–certified ICF/IID. If such a person obtains a rehabilitation approval, the person is eligible to be considered for regulatory approval, for employment as a caregiver, or for non-client residency at or contracting with other entities covered by ss. 50.065 and 48.685, Stats. See 42 CFR 483.13 and 483.420 for federal regulations relating to nurse aides. DHS 12.12(5)(b)(b) Burden of proof. A person who appeals under par. (a) 3. shall bear the burden of proving, by a preponderance of the evidence, that the agency or tribe abused its discretion in deciding that the person did not show sufficient evidence to support rehabilitation approval. DHS 12.12(5)(c)(c) Review panel decision distribution. The review panel shall send its decision to the requester and a copy, if appropriate, to the entity. If the agency conducting the rehabilitation review is other than the department or a tribe, the review panel shall also, within 10 days of sending its decision, send a completed copy of the department’s required reporting form regarding any rehabilitation decision to the department. If the entity conducting the rehabilitation review is a tribe, the review panel shall also send a copy of the decision to the same address accompanied by a copy of the requester’s application materials. DHS 12.12 NoteNote: Rehabilitation decisions should be addressed to the Office of Legal Counsel, Department of Health Services, P. O. Box 7850, 1 W. Wilson St., Room 651, Madison, WI 53707-7850.
DHS 12.12(5)(d)(d) Maintaining rehabilitation decision documentation. The review panel shall maintain a file containing a copy of the original written decision and any decisions from filed appeals that may result. The agency or tribe shall maintain in the file the rehabilitation review request and all materials or information obtained or notes made as part of the rehabilitation review decision. DHS 12.12(6)(6) Rehabilitation approval compliance and withdrawals.
