48.685(3)

(3)

48.685(4m)

(4m)

48.685(5d)(a)3.

3. The title of the person or body designated by the Indian tribe to determine whether a person has been rehabilitated.

48.685(5c)(b)

(b) Any person who is permitted but fails under sub. (a) to demonstrate to the county department that he or she has been rehabilitated may appeal to the director of the county department or his or her designee. Any person who is adversely affected by a decision of the director or his or her designee under this paragraph has a right to appeal the decision under ch. 68.

48.685(5c)(c)

(c) Any person who is permitted but fails under sub. (a) to demonstrate to the school board that he or she has been rehabilitated may appeal to the state superintendent of public instruction or his or her designee. Any person who is adversely affected by a decision of the state superintendent or his or her designee under this paragraph has a right to a contested case hearing under ch. 227.

48.685(5d)

(5d)

48.685(5d)(a)1.

1. The criteria to be used to determine if a person has been rehabilitated.

48.685(5d)(a)2.

2. The title of the person or body designated by the Indian tribe to whom a request for review must be made.

48.685(2)(b)2.

2. In addition to obtaining the information specified in subd. 1. with respect to a caregiver specified in sub. (1) (ag) 1. a. of a day [child] care center that is licensed under § 48.65 or established or contracted for under § 120.13 (14) or of a day [child] care provider that is certified under § 48.651, the day [child] care center or day [child] care provider shall obtain information that is contained in the sex offender registry under § 301.45 regarding whether the person has committed a sex offense that is a serious crime.

48.685(2)(b)4.

4. Subdivisions 1. and 2. do not apply with respect to a nonclient resident or person under 18 years of age, but not under 12 years of age, who is a caregiver of a child care center that is licensed under § 48.65 or established or contracted for under § 120.13 (14) or of a child care provider that is certified under § 48.651 and with respect to whom the department, a county department, an agency contracted with under § 48.651 (2), or a school board is required under par. (am) (intro.) to obtain the information specified in par. (am) 1. to 5.

48.685(3m)

(3m) Notwithstanding subs. (2) (b) 1. and (3) (b), if the department, a county department, an agency contracted with under § 48.651 (2), a child welfare agency, or a school board has obtained the information required under sub. (am) or (3) (a) or (am) with respect to a person who is a caregiver specified in sub. (1) (ag) 1. b. and that person is also an employee, contractor, or nonclient resident of an entity, the entity is not required to obtain the information specified in sub. (2) (b) 1. or (3) (b) with respect to that person.

48.685

48.685 Criminal history and child abuse record search.

48.685(1)

(1) In this section:

48.685(1)(ag)

(ag)

48.685(1)(ag)1.

1. “Caregiver” means any of the following:

48.685(1)(ag)1.a.

a. A person who is, or is expected to be, an employee or contractor of an entity, who is or is expected to be under the control of the entity, as defined by the department by rule, and who has, or is expected to have, regular, direct contact with clients of the entity.

48.685(1)(am)

(am) “Client” means a child who receives direct care or treatment services from an entity.

48.685(1)(c)

(c) “Serious crime” means any of the following:

48.685(1)(c)1.

1. A violation of s. 940.19 (3), 1999 stats.

48.685(1)(c)2.

2. A violation of § 940.01, 940.02, 940.03, 940.05, 940.12, 940.19 (2), (4), (5) or (6), 940.22 (2) or (3), 940.225 (1), (2) or (3), 940.285 (2), 940.29, 940.295, 942.09 (2), 948.02 (1) or (2), 948.025, 948.03 (2), 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.085, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21 (1), 948.30, or 948.53.

48.685(1)(ag)1.b.

b. A person who has, or is seeking, a license, certification or contract to operate an entity or who is receiving, or is seeking, payment under § 48.623 (6) for operating an entity.

48.685(1)(ag)2.

2. “Caregiver” does not include a person who is certified as an emergency medical technician under § 256.15 if the person is employed, or seeking employment, as an emergency medical technician and does not include a person who is certified as a first responder under § 256.15 if the person is employed, or seeking employment, as a first responder.

48.685(1)(ar)

(ar) “Contractor” means, with respect to an entity, a person, or that person’s agent, who provides services to the entity under an express or implied contract or subcontract, including a person who has staff privileges at the entity.

48.685(1)(av)

(av) “Direct contact” means face-to-face physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or to misappropriate the property of a client.

48.685(1)(b)

(b) “Entity” means a child welfare agency that is licensed under § 48.60 to provide care and maintenance for children, to place children for adoption, or to license foster homes; a foster home that is licensed under § 48.62; an interim caretaker to whom subsidized guardianship payments are made under § 48.623 (6); a group home that is licensed under § 48.625; a shelter care facility that is licensed under § 938.22; a child care center that is licensed under § 48.65 or established or contracted for under § 120.13 (14); a child care provider that is certified under § 48.651; or a temporary employment agency that provides caregivers to another entity.

48.685(1)(bm)

(bm) “Nonclient resident” means a person who resides, or is expected to reside, at an entity, who is not a client of the entity and who has, or is expected to have, regular, direct contact with clients of the entity.

48.685(1)(br)

(br) “Reservation” means land in this state within the boundaries of a reservation of a tribe or within the bureau of Indian affairs service area for the Ho-Chunk Nation.

48.685(3)(am)

(am)

48.685(1)(c)3.

3. A violation of § 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.

48.685(1)(c)3m.

3m. For purposes of licensing a person to operate a day [child] care center under § 48.65, certifying a day [child] care provider under § 48.651, or contracting with a person under § 120.13 (14) to operate a day [child] care center, or of permitting a person to be a caregiver or nonclient resident of such a day [child] care center or day [child] care provider, any violation listed in subds. 1. to 3. or sub. (5) (br) 1. to 7.

48.685(1)(c)4.

4. A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1., 2.,, 3., or 3m. if committed in this state.

48.685(2)

(2)

48.685(2)(am)1.

1. A criminal history search from the records maintained by the department of justice.

48.685(2)(am)2.

2. Information that is contained in the registry under § 146.40 (4g) regarding any findings against the person.

48.685(2)(am)3.

3. Information maintained by the department of safety and professional services regarding the status of the person’s credentials, if applicable.

48.685(2)(am)4.

4. Information maintained by the department regarding any substantiated reports of child abuse or neglect against the person.

48.685(2)(am)

(am) The department, a county department, an agency contracted with under § 48.651 (2), a child welfare agency, or a school board shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. b., a nonclient resident of an entity, and a person under 18 years of age, but not under 12 years of age, who is a caregiver of a child care center that is licensed under § 48.65 or established or contracted for under § 120.13 (14) or of a child care provider that is certified under § 48.651:

48.685(2)(ar)

(ar) In addition to obtaining the information specified in para. (am) with respect to a person who has, or is seeking, a license to operate a day [child] care center under § 48.65, certification as a day [child] care provider under § 48.651, or a contract under § 120.13 (14) to operate a day [child] care center, a nonclient resident of such an entity, or a person under 18 years of age, but not under 12 years of age, who is a caregiver of such an entity, the department, a county department, an agency contracted with under § 48.651 (2), or a school board shall obtain information that is contained in the sex offender registry under § 301.45 regarding whether the person has committed a sex offense that is a serious crime.

48.685(2)(am)5.

5. Information maintained by the department of health services under this section and under ss. 48.623 (6) (b), 48.651 (2m), 48.75 (1m), and 120.13 (14) regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity, or of payments under § 48.623 (6) for operating an entity, for a reason specified in sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract with, or permission to reside at an entity for a reason specified in sub. (4m) (b) 1. to 5. If the information obtained under this subdivision indicates that the person has been denied a license, continuation or renewal of a license, certification, a contract, payments, employment, or permission to reside as described in this subdivision, the department, a county department, an agency contracted with under § 48.651 (2), a child welfare agency, or a school board need not obtain the information specified in subds. 1. to 4.

48.685(2)(b)

(b)

48.685(2)(b)1.

1. Every entity shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. a. of the entity:

48.685(2)(b)1.a.

a. A criminal history search from the records maintained by the department of justice.

48.685(2)(b)1.b.

b. Information that is contained in the registry under § 146.40 (4g) regarding any findings against the person.

48.685(2)(b)1.c.

c. Information maintained by the department of safety and professional services regarding the status of the person’s credentials, if applicable.

48.685(2)(b)1.d.

d. Information maintained by the department regarding any substantiated reports of child abuse or neglect against the person.

48.685(2)(b)1.e.

e. Information maintained by the department of health services under this section and under ss. 48.623 (6) (b), 48.651 (2m), 48.75 (1m), and 120.13 (14) regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity, or of payments under § 48.623 (6) for operating an entity, for a reason specified in sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract with, or permission to reside at an entity for a reason specified in sub. (4m) (b) 1. to 5. If the information obtained under this subd. 1. e. indicates that the person has been denied a license, continuation or renewal of a license, certification, a contract, payments, employment, or permission to reside as described in this subd. 1. e., the entity need not obtain the information specified in subd. 1. a. to d.

48.685(2)(c)

(c)

48.685(2)(c)1.

1. If the person who is the subject of the search under para. (am) is seeking an initial license to operate a foster home or is seeking relicensure after a break in licensure, the department, county department, or child welfare agency shall request under 42 USC 16962 (b) a fingerprint-based check of the national crime information databases, as defined in 28 USC 534 (f) (3) (A). If that person is seeking subsidized guardianship payments under § 48.623 (6), the department in a county having a population of 750,000 or more or county department shall request that fingerprint-based check. The department, county department, or child welfare agency may release any information obtained under this subdivision only as permitted under 42 USC 16962 (e).

48.685(2)(bb)

(bb) If information obtained under para. (am) or (b) 1. indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department, county department, agency contracted with under § 48.651 (2), child welfare agency, school board, or entity shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If a background information form under sub. (a) or (am) indicates a charge or a conviction of a serious crime, but information obtained under para. (am) or (b) 1. does not indicate such a charge or conviction, the department, county department, agency contracted with under § 48.651 (2), child welfare agency, school board, or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and the final disposition of the complaint. If information obtained under para. (am) or (b) 1., a background information form under sub. (a) or (am), or any other information indicates a conviction of a violation of § 940.19 (1), 940.195, 940.20, 941.30, 942.08, 947.01 (1), or 947.013 obtained not more than 5 years before the date on which that information was obtained, the department, county department, agency contracted with under § 48.651 (2), child welfare agency, school board, or entity shall make every reasonable effort to contact the clerk of courts to obtain a copy of the criminal complaint and judgment of conviction relating to that violation.

48.685(2)(bg)

(bg) If an entity employs or contracts with a caregiver for whom, within the last year, the information required under par. (b) 1. a. to c. and e. has already been obtained by another entity, the entity may obtain that information from that other entity, which shall provide the information, if possible, to the requesting entity. If an entity cannot obtain the information required under par. (b) 1. a. to c. and e. from another entity or if an entity has reasonable grounds to believe that any information obtained from another entity is no longer accurate, the entity shall obtain that information from the sources specified in par. (b) 1. a. to c. and e.

48.685(2)(d)

(d) Every entity shall maintain, or shall contract with another person to maintain, the most recent background information obtained on a caregiver under para. (b). The information shall be made available for inspection by authorized persons, as defined by the department by rule.

48.685(4)

(4) An entity that violates sub. (2), (3) or (4m) (b) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

48.685(2)(bd)

(bd) Notwithstanding pars. (am) and (b) 1., the department, a county department, an agency contracted with under § 48.651 (2), a child welfare agency, or a school board is not required to obtain the information specified in par. (am) 1. to 5., and an entity is not required to obtain the information specified in par. (b) 1. a. to e., with respect to a person under 18 years of age whose background information form under sub. (am) indicates that the person is not ineligible to be employed, contracted with, or permitted to reside at an entity for a reason specified in sub. (4m) (b) 1. to 5. and with respect to whom the department, county department, contracted agency, child welfare agency, school board, or entity otherwise has no reason to believe that the person is ineligible to be employed, contracted with, or permitted to reside at an entity for any of those reasons. This paragraph does not preclude the department, a county department, an agency contracted with under § 48.651 (2), a child welfare agency, or a school board from obtaining, at its discretion, the information specified in par. (am) 1. to 5. with respect to a person described in this paragraph who is a nonclient resident or a prospective nonclient resident of an entity.

48.685(4m)(a)5.

5. That, in the case of a position for which the person must be credentialed by the department of safety and professional services, the person’s credential is not current or is limited so as to restrict the person from providing adequate care to a client.

48.685(4m)(b)5.

5. That, in the case of a position for which the person must be credentialed by the department of safety and professional services, the person’s credential is not current or is limited so as to restrict the person from providing adequate care to a client.

48.685(5d)(a)4.

4. The manner in which the Indian tribe will submit information relating to a rehabilitation review to the department so that the department may include that information in its report to the legislature required under sub. (5g).

48.685(2)(bm)

(bm) If the person who is the subject of the search under para. (am), (ar), or (b) 1. is not a resident of this state, or if at any time within the 3 years preceding the date of the search that person has not been a resident of this state, or if the department, county department, agency contracted with under § 48.651 (2), child welfare agency, school board, or entity determines that the person’s employment, licensing, or state court records provide a reasonable basis for further investigation, the department, county department, contracted agency, child welfare agency, school board, or entity shall make a good faith effort to obtain from any state or other United States jurisdiction in which the person is a resident or was a resident within the 3 years preceding the date of the search information that is equivalent to the information specified in par. (am) 1., (ar), or (b) 1. a. The department, county department, contracted agency, child welfare agency, school board, or entity may require the person to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person’s fingerprints. The department of justice may provide for the submission of the fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions.

48.685(2)(c)2.

2. If the person who is the subject of the search under para. (am) is seeking a license to operate a foster home or is an adult nonclient resident of the foster home and if the person or adult nonclient resident is not, or at any time within the 5 years preceding the date of the search has not been, a resident of this state, the department, county department, or child welfare agency shall check any child abuse or neglect registry maintained by any state or other U.S. jurisdiction in which the person or adult nonclient resident is a resident or was a resident within those 5 years for information that is equivalent to the information specified in par. (am) 4. If that person is seeking subsidized guardianship payments under § 48.623 (6) or is an adult nonclient resident of the home of that person and if the person or adult nonclient resident is not, or at any time within the 5 years preceding the date of the search has not been, a resident of this state, the department in a county having a population of 750,000 or more or county department shall conduct that child abuse or neglect registry check. The department, county department, or child welfare agency may not use any information obtained under this subdivision for any purpose other than a search of the person’s background under para. (am).

48.685(5d)(a)5.

5. A copy of the form to be used to request a review and a copy of the form on which a written decision is to be made regarding whether a person has demonstrated rehabilitation.

48.685(3)(a)

(a) Subject to para. (am), every 4 years or at any time within that period that the department, a county department, or a child welfare agency considers appropriate, the department, county department, or child welfare agency shall request the information specified in sub. (2) (am) 1. to 5. for all caregivers specified in sub. (1) (ag) 1. b. who are licensed, certified, or contracted to operate an entity, or who are receiving payments under § 48.623 (6) for operating an entity, and for all persons who are nonclient residents of such a caregiver.

48.685(3)(am)2.

2. Every year or at any time within that period that the department, a county department, an agency contracted with under § 48.651 (2), or a school board considers appropriate, the department, county department, contracted agency, or school board shall request the information specified in sub. (2) (am) 1. to 5. and (ar) for all persons who are nonclient residents of a caregiver specified in sub. (1) (ag) 1. b. and for all persons under 18 years of age, but not under 12 years of age, who are caregivers specified in sub. (1) (ag) 1. a. of such a caregiver.

48.685(3)(am)1.

1. Every 3 months or at any time within that period that the department, a county department, an agency contracted with under § 48.651 (2), or a school board considers appropriate, the department, county department, contracted agency, or school board shall request the information specified in sub. (2) (am) 1. to 5. and (ar) for all caregivers specified in sub. (1) (ag) 1. b. who are licensed under § 48.65 to operate a day [child] care center, certified as a day [child] care provider under § 48.651, or contracted under § 120.13 (14) to operate a day [child] care center. Beginning on January 1, 2011, and annually after that, the department shall submit a report to the appropriate standing committees of the legislature under § 13.172 (3) describing the information collected under this subdivision, specifically any information indicating that a caregiver specified in sub. (1) (ag) 1. b. is ineligible under sub. (4m) (a) to be licensed under § 48.65 to operate a day [child] care center, certified under § 48.651 as a child care provider, or contracted under § 120.13 (14) to operate a day [child] care center, and describing any action taken in response to the receipt of information under this subdivision indicating that such a caregiver is so ineligible.

48.685(3)(b)

(b) Subject to para. (bm), every 4 years or at any time within that period that an entity considers appropriate, the entity shall request the information specified in sub. (2) (b) 1. a. to e. for all persons who are caregivers specified in sub. (1) (ag) 1. a. of the entity. [child child]

48.685(3)(bm)

(bm) Every year or at any time within that period that a day [child] care center that is licensed under § 48.65 or established or contracted for under § 120.13 (14) or a day [child] care provider that is certified under § 48.651 considers appropriate, the day [child] care center or day [child] care provider shall request the information specified in sub. (2) (b) 1. a. to e. and 2. for all persons who are caregivers specified in sub. (1) (ag) 1. a. of the day [child] care center or day [child] care provider who are 18 years of age or over.

48.685(4m)(a)

(a) Notwithstanding § 111.335, and except as provided in par. (ad) and sub. (5), the department may not license, or continue or renew the license of, a person to operate an entity, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under § 48.651 (2) may not certify a child care provider under § 48.651, a county department or a child welfare agency may not license, or renew the license of, a foster home under § 48.62, the department in a county having a population of 750,000 or more or a county department may not provide subsidized guardianship payments to an interim caretaker under § 48.623 (6), and a school board may not contract with a person under § 120.13 (14), if the department, county department, contracted agency, child welfare agency, or school board knows or should have known any of the following:

48.685(4m)(a)1.

1. That the person has been convicted of a serious crime or, if the person is an applicant for issuance or continuation of a license to operate a child care center or for initial certification under § 48.651 or for renewal of that certification or if the person is proposing to contract with a school board under § 120.13 (14) or to renew a contract under that subsection, that the person has been convicted of a serious crime or adjudicated delinquent on or after his or her 12th birthday for committing a serious crime or that the person is the subject of a pending criminal charge or delinquency petition alleging that the person has c