Chapter DHS 13

DHS 13.05(6)(b) (b) Investigation procedures.

DHS 13.05(6)(b)1. 1. After receiving a report of alleged misconduct, the department shall review the report and shall make a determination as to whether further investigation is necessary. In reviewing reports it receives, the department shall consider at least all of the following:

DHS 13.05(6)(b)1.a. a. Whether the allegation of misconduct is a violation of any statute, rule or standard of practice.

DHS 13.05(6)(b)1.b. b. Whether the allegation of misconduct, if taken as a whole, has merit.

DHS 13.05(6)(b)2. 2. If the department determines that an allegation lacks merit, the department shall notify in writing the reporter, the subject of the report and the involved entity or staffing agency, if known, of the department’s determination.

DHS 13.05(6)(b)3. 3. If the department determines further investigation of a report is necessary, the department shall provide the subject of the report, the reporter and the involved entity or the staffing agency, if known, with written notice of the department’s decision to conduct further investigation. The notice shall contain all of the following:

DHS 13.05(6)(b)3.a. a. A brief statement regarding the nature and purpose of the investigation.

DHS 13.05(6)(b)3.b. b. The sanctions that will result if the allegation of misconduct is substantiated.

DHS 13.05(6)(b)3.c. c. A statement that if additional allegations are discovered during the course of the investigation, the additional allegations will be investigated as part of the report that is the subject of the notice.

DHS 13.05(6)(b)3.d. d. A statement that the subject of the report may have a representative of his or her choice present when there is any contact with the department’s investigators during the course of the investigation.

DHS 13.05(6)(c) (c) Decision. After completing its investigation, the department shall prepare a written decision and provide it to the subject of the report. If the decision is mailed, it shall be mailed to the subject’s last known address. Distribution and content of the written decision shall be as follows:

DHS 13.05(6)(c)1. 1. ‘No reasonable cause to substantiate the allegation.’ If the department determines that there is no reasonable cause to substantiate the allegation, the department’s written decision shall be provided to the subject of the report, the involved entity or staffing agency, if known, the reporter and to other agencies as appropriate. The decision shall contain a brief description of the allegation and the investigation conducted by the department, with enumeration of the findings and conclusions. If an additional allegation was discovered during the investigation, the department’s decision may include information about the additional allegation and of the department’s decision regarding the additional allegation, or the department may separately inform the subject of the report of the additional allegation and of the department’s decision regarding the additional allegation.

DHS 13.05(6)(c)2. 2. ‘Reasonable cause to substantiate the allegation.’ If the department determines there is reasonable cause to substantiate the allegation, the department’s written decision shall be provided to the subject of the report, the involved entity or staffing agency, if known, the reporter and to other agencies as appropriate. The decision shall contain all of the following:

DHS 13.05(6)(c)2.a. a. A description of the allegation, a summary of the investigation conducted by the department and a statement of the findings and conclusions. If an additional allegation was discovered during the investigation related to the report, the department’s decision may include information about the additional allegation and of the department’s decision regarding the additional allegation, or the department may separately inform the subject of the report of the additional allegation and of the department’s decision regarding the additional allegation.

DHS 13.05(6)(c)2.b. b. Notice that the subject of the report may contest the department’s decision by timely requesting a hearing before the department of administration’s division of hearings and appeals. The notice shall describe the appeal process under sub. (7).

DHS 13.05(6)(c)2.c. c. Notice that the subject of the report may waive the right to a hearing, but, that if the subject waives the right to a hearing, the finding will be entered on the caregiver misconduct registry.

DHS 13.05(6)(c)2.d. d. Notice that if the subject of the report does not contest the department’s decision by timely requesting a hearing, the department will find that the subject committed the alleged act of misconduct and that the finding will be entered on the caregiver misconduct registry. The notice shall also describe the consequences of entering the finding on the registry.

DHS 13.05(6)(c)2.e. e. Notice that the subject of the report, whether or not the subject appeals the department’s decision, may submit a short written rebuttal statement to dispute the finding, and that the statement’s existence will be included in the caregiver misconduct registry but will not, by itself, have any effect on the consequences of having the finding entered on the registry.

DHS 13.05(7) (7) Appeal.

DHS 13.05(7)(a) (a) Right to a hearing. The subject of a report may appeal the department’s decision that the misconduct took place.

DHS 13.05(7)(b) (b) Request for a hearing. An appeal shall be in writing and shall take the form of a request for a hearing. The request for a hearing shall be filed with the department of administration’s division of hearings and appeals within 30 calendar days after the date of the decision. A request for hearing is considered filed on the date the request is received by the division of hearings and appeals.

DHS 13.05 Note Note: Send requests for a hearing to Division of Hearings and Appeals, P.O. Box 7875, Madison, Wisconsin 53707.

DHS 13.05(7)(c) (c) Department action.

DHS 13.05(7)(c)1. 1. If the subject of a report files a timely appeal, the department may not enter the subject’s name and a summary of the department’s decision on the caregiver misconduct registry until the hearing examiner’s decision is mailed and then only in accordance with par. (d).

DHS 13.05(7)(c)2. 2. If the subject of a report waives the right to a hearing or does not file a timely appeal pursuant to this paragraph, the department shall enter, as applicable, a substantiated finding of misconduct on the caregiver misconduct registry within 10 business days after the last day of the period during which the subject may appeal the department’s decision. The department shall maintain the person’s name, documentation of the department investigation, including the nature of the allegation and evidence that led the department to conclude the misconduct took place and the person’s rebuttal statement, if provided, on the caregiver misconduct registry. The department shall include on the registry the information that the person did not appeal the decision.

DHS 13.05(7)(d) (d) Hearing and decision.

DHS 13.05(7)(d)1. 1. Where the acts involved in the department’s investigation are the same as those involved in a judgment of conviction of a state court, the judgment of conviction is admissible in evidence and constitutes substantial evidence adverse to the subject of the report.

DHS 13.05(7)(d)2. 2. The provisions of subch. III of ch. 227, Stats., apply to hearings and subsequent proceedings held under this section.

DHS 13.05(7)(d)3. 3. If a subject of the report files a timely appeal, the department of administration’s division of hearings and appeals shall hold a hearing within 90 days in accordance with s. 227.42, Stats., and issue a written decision within 30 calendar days after the conclusion of the hearing.

DHS 13.05(7)(d)4. 4. The division of hearings and appeals shall provide copies of the written decision to the subject, the department’s bureau of quality assurance and, if known, to the reporter and the entity involved in the alleged incident or the staffing agency.

DHS 13.05(7)(d)5. 5. If the division of hearings and appeals finds that there is no reasonable cause to believe that the subject of the report performed the alleged abuse or neglect of a client or misappropriation of a client’s property, a finding substantiating the allegation shall not be entered on the caregiver misconduct registry.

DHS 13.05(7)(d)6. 6. If the division of hearings and appeals finds that there is reasonable cause to believe that the subject of the report performed the alleged abuse or neglect of a client or misappropriation of a client’s property, the department shall enter the subject’s name and the division of hearings and appeals’ decision on the caregiver misconduct registry within 10 business days after the date on which the decision was received by the department’s bureau of quality assurance.

DHS 13.05(7)(d)7. 7. The division of hearings and appeals’ written decision shall include:

DHS 13.05(7)(d)7.a. a. Notice that the subject of the report may submit a brief written rebuttal statement to the department to dispute the hearing examiner’s decision and that, if submitted, the caregiver misconduct registry will indicate that the department has a rebuttal statement available upon request.

DHS 13.05(7)(d)7.b. b. Notice that the subject of the report has the right to petition for further review pursuant to s. 227.53, Stats.

DHS 13.05(8) (8) Disclosure of findings.

DHS 13.05(8)(a) (a) Substantiated allegations.

DHS 13.05(8)(a)1. 1. The department, in response to an inquiry made to the caregiver misconduct registry, shall indicate whether the person’s name is listed on the registry as having a finding of misconduct and, if listed, whether a rebuttal statement exists.

DHS 13.05(8)(a)2. 2. The department’s decision pertaining to a listed finding and any related rebuttal statement may be obtained only by sending a written request to the department pursuant to s. DHS 13.04 (3).

DHS 13.05(8)(b) (b) Unsubstantiated allegations.

DHS 13.05(8)(b)1. 1. Except as provided in subd. 2., the department in response to an inquiry made to the caregiver misconduct registry may not release information from a report under any of the following circumstances:

DHS 13.05(8)(b)1.a. a. When there is an investigation pending into allegations of misconduct.

DHS 13.05(8)(b)1.b. b. When the department’s investigation and review does not lead to a substantiation of the allegation of misconduct.

DHS 13.05(8)(b)1.c. c. When the department of administration’s division of hearings and appeals does not find reasonable cause that the subject of the report performed the alleged acts of misconduct.

DHS 13.05(8)(b)2. 2. Information pertaining to unsubstantiated allegations of misconduct may be disclosed only to any of the following:

DHS 13.05(8)(b)2.a. a. Authorized staff of the department and of the federal department of health and human services for purposes related to performance of their departmental duties.

DHS 13.05(8)(b)2.b. b. A law enforcement officer or agency for purposes of related investigations or prosecutions.

DHS 13.05(8)(b)2.c. c. A court or administrative agency for use in related investigations or proceedings regarding licensing or regulation of an entity, licensing or regulation of a licensed health professional or regulation of a person about whom notification is made under s. 146.40 (4), Stats., except that information that is part of a child abuse or neglect record subject to s. 48.981, Stats., may be released only as allowed by s. 48.981 (7), Stats.

DHS 13.05(8)(b)2.d. d. A person engaged in bona fide research who, at the department’s discretion, has been granted access but only if information that identifies the person, client, complainant and entity involved is not disclosed to the researcher.

DHS 13.05(8)(b)2.e. e. Other persons as required by law.

DHS 13.05(8)(c) (c) Duration of placement on the caregiver misconduct registry. The information placed on the caregiver misconduct registry relating to findings of client abuse or neglect or misappropriation of client property shall remain on that registry permanently unless any of the following occurs:

DHS 13.05(8)(c)1. 1. The division of hearings and appeals’ decision is reversed by a court of law.

DHS 13.05(8)(c)2. 2. The department is notified of the death of the person listed on the caregiver misconduct registry.

DHS 13.05(8)(c)3. 3. The information is required to be altered by law.

DHS 13.05 History History: Cr. Register, June, 1999, No. 522, eff. 7-1-99; CR 04-040: am. (6) (c) (intro.), renum. (7) (b) 1. to be (7) (b) and am., r. (7) (b) 2. Register November 2004 No. 587, eff. 12-1-04; corrections in (3) (b) (title), (4) (b) 2., (5) made under s. 13.92 (4) (b) 6., Stats., Register February 2012 No. 674; CR 23-046: am. (4) (c) Register April 2024 No. 820, eff. 5-1-24.