48.686 Criminal history and child abuse record search; child care.

(1) In this section:

(ac) “Approval” means a child care center license under s. 48.65, a child care provider certification under s. 48.651, or a contract with a child care provider under s. 120.13 (14).

(ag) “Caregiver" means any of the following:

1. An employee or contractor of a child care program who is involved in the care or supervision of clients.

1m. A person who has direct contact and unsupervised access to clients of a child care program.

2. A person who has, or is seeking, a license, certification, or contract to operate a child care program.

(aj) “Child care program” means a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14), a child care provider that is certified under s. 48.651, or a temporary employment agency that provides caregivers to another child care program.

(am) “Client" means a person who receives direct care from a child care program, from an entity under s. 48.685 (1) (b) or from a caregiver specified in s. 48.685 (1) (ag) 1. am., including all of the following:

1. An adopted child for whom adoption assistance payments are being made under s. 48.975.

2. A child for whom subsidized guardianship payments are being made under s. 48.623.

3. A person who is 18 to 21 years old, is receiving independent living services under 42 USC 677 (a) from an agency, is no longer placed in out-of-home care, and is residing in the foster home in which he or she was previously placed.

(bm) “Household member" means a person who is age 10 or older, who resides, or is expected to reside, at a child care program, and who is not a client of the child care program or caregiver.

(bo) “Licensing entity” means all of the following:

1. The department when licensing a child care center under s. 48.65.

2. The department in a county with a population of 750,000 or more, a county department, or an agency or Indian tribe contracted with under s. 48.651 (2) when certifying a child care provider under s. 48.651.

3. A school board when contracting with a child care provider under s. 120.13 (14).

(bp) “Noncaregiver employee” means a person who provides services to a child care program as an employee or a contractor and is not a caregiver, but whose work at the child care program provides the ability to move freely throughout the premises and opportunities for interactions with clients of the child care program.

(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.

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

1. A violation of s. 940.12, 940.22 (2) or (3), 940.285 (2), 940.29, 940.295, or 942.09 (2).

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

3. An offense under ch. 948 that is a felony, other than a violation of s. 948.22 (2).

4. A violation of s. 940.19 (3), 1999 stats., or of s. 940.19 (2), (4), (5), or (6) or 940.20 (1) or (1m), if the victim is the spouse of the person.

5. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.21, 940.225 (1), (2), or (3), 940.23, 940.305, 940.31, 941.20 (2) or (3), 941.21, 943.02, 943.03, 943.04, 943.10 (2), 943.32 (2), 948.081, 948.21, 948.215, or 948.53 (2) (b) 1.

6. Only for a caregiver, as defined in par. (ag) 2., a violation of s. 943.201, 943.203, or 943.38 (1) or (2); a violation of s. 943.34 (1), 943.395 (1), 943.41 (3) (e), (4) (a), (5), (6), or (6m), 943.45 (1), 943.455 (2), 943.46 (2), 943.47 (2), 943.50 (1m), or 943.70 (2) (a) or (am) or (3) (a) that is a felony; or an offense under subch. IV of ch. 943 that is a felony.

7. A violation of sub. (2) or s. 48.685 (2), (3), (4m) (b), or (6), 2015 stats., if the violation involves the provision of false information to or the intentional withholding of information from, the department, a county department, an agency contracting under s. 48.651 (2), a school board, or a child care program.

8. An offense involving fraudulent activity as a participant in the Wisconsin Works program under ss. 49.141 to 49.161, including as a recipient of a child care subsidy under s. 49.155, or as a recipient of aid to families with dependent children under s. 49.19, medical assistance under subch. IV of ch. 49, food stamps benefits under the food stamp program under 7 USC 2011 to 2036, supplemental security income payments under s. 49.77, payments for the support of children of supplemental security income recipients under s. 49.775, or health care benefits under the Badger Care health care program under s. 49.665.

9. A violation of s. 125.075 (1), 125.085 (3) (a) 2., 125.105 (2) (b), 125.66 (3), 125.68 (12), 940.09, 940.19 (2), (4), (5), or (6), 940.20, 940.203, 940.205, 940.207, 940.25, or 943.23 (1g), a violation of s. 346.63 (1), (2), (5), or (6) that is a felony under s. 346.65 (2) (am) 4., 5., 6., or 7. or (f), (2j) (d), or (3m), or an offense under ch. 961 that is a felony.

10. A violation of s. 948.22 (2), unless the person has paid all arrearages due and is meeting his or her current support obligations.

11. A violation of the law of any other state or United States jurisdiction that would be a violation listed in subd. 1. to 10. if committed in this state.

12. A violation of the laws of another state or United States jurisdiction that if committed in this state would constitute felony battery under s. 940.19 (2), (4), (5), or (6) or 940.20, a felony offense of domestic abuse, as defined in s. 813.12 (1) (am), a sex offense or a violent crime under ch. 948, or a violation of s. 940.225 if the victim was a child.

(2)

(a) A licensing entity shall require any person who applies for an initial approval to operate a child care program to submit the information required for a background check request under par. (ag). If the licensing entity is a school board, county department, or contracted agency or tribe, the licensing entity shall submit the completed background information request to the department.

(ab) Each child care program shall submit a request to the department for a background check for each potential caregiver, noncaregiver employee, and household member prior to the date on which an individual becomes a caregiver, noncaregiver employee, or household member, and at least once during every 5-year period for each existing caregiver, noncaregiver employee, or household member, except if all of the following apply to the individual:

1. The individual has received a background check as described in par. (am) while working or seeking work with another child care program within the state within the last 5 years.

2. The department provided to the child care program under subd. 1. a qualifying background check result for the individual.

3. The individual works or resides at a child care program within the state or has been separated from work or residence at a child care program within the state for a period of not more than 180 consecutive days.

(ag)

1. A request for a background check to the department under par. (a) or (ab) shall be in the manner and on forms prescribed by the department, and shall include all of the following:

a. Fingerprints of the subject that meet the standards of the department.

b. Any additional information that the department deems necessary to perform the background check.

2. A request for a background check is considered submitted on the day that the department receives all of the information required under subd. 1.

3. The requester of a background check under this paragraph shall submit all fees required by the department pursuant to the instructions provided by the department, not to exceed the actual cost of conducting the background check.

(am) Upon receipt of a request submitted under par. (a) or (ab), the department shall obtain all of the following with respect to the individual who is the subject of the request:

1. A fingerprint-based or name-based criminal history search from the records maintained by the department of justice.

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

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

4. Information maintained by the department regarding any final determination under s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, any final decision under s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.

5. Information maintained by the department of health services under s. 48.685 regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity or a child care program, for a reason specified in s. 48.685 (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 or a child care program for a reason specified in s. 48.685 (4m) (a) 1. to 5.

6. Information that is contained in the sex offender registry under s. 301.45 regarding whether the person has committed a sex offense that is a serious crime.

7. A fingerprint-based criminal history search using the federal bureau of investigation next generation identification.

8. A search of the national crime information center's national sex offender registry.

9. A search of the following registries, repositories, or databases in the state where the caregiver or nonclient resident resided for the period starting on the date 5 years prior to the department's receipt of the background check request and ending on the date the department received the background check request:

a. The state criminal registry or repository.

b. The state sex offender registry or repository.

c. The state-based child abuse and neglect registry and database.

10. A search of the department's background check records.

(ar) After receiving a request under par. (a) or (ab), the department shall conduct the background check as expeditiously as possible and shall make a good faith effort to complete all components of the background check no later than 45 days after the date on which the request was submitted.

(bb) If information obtained under par. (am) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department shall make every reasonable effort to contact the clerk of courts to determine the final disposition of the charge. If information submitted to the department under par. (ag) indicates a charge or a conviction of a serious crime, but information obtained under par. (am) does not indicate such a charge or conviction, the department 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 par. (am), information submitted under par. (ag), or any other information indicates a conviction of a violation of s. 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 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.

(bd) Notwithstanding par. (am), the department is not required to obtain the information specified in par. (am) 1. to 10., with respect to a household member under 18 years of age whose background check request under par. (ag) indicates that the household member is not ineligible to be permitted to reside at a child care program for a reason specified in sub. (4m) (a) 1. to 8. and with respect to whom the department otherwise has no reason to believe that the person is ineligible to be permitted to reside at the child care program for any of those reasons. This paragraph does not preclude the department from obtaining, at its discretion, the information specified in par. (am) 1. to 10. with respect to a household member described in this paragraph.

(br) The department shall require the person who is the subject of a search under par. (am) to be fingerprinted on 2 fingerprint cards, each bearing a complete set of the person's fingerprints, or by other technologies approved by law enforcement agencies, unless the person has previously been fingerprinted under this paragraph.

(3)

(am) Every year or at any time that the department considers appropriate, the department may request the information specified in sub. (2) (am) 1. to 5. for all caregivers, noncaregiver employees, and household members.

(bm) Annually, by January 1, the department shall submit a report to the appropriate standing committees of the legislature under s. 13.172 (3) describing the report prepared under sub. (4p) (a) with respect to caregivers specified in sub. (1) (ag) 2., specifically any information indicating that the caregiver is ineligible under sub. (4m) (a) to be licensed, certified, or contracted to operate a child care program, and describing any action taken in response to the receipt of information under sub. (2) (am) indicating that such a caregiver is so ineligible.

(4)

(a) A child care program that violates sub. (2), (3), or (4m) (a) is subject to a forfeiture of not more than $1,000 and to other sanctions specified by the department by rule.

(b) A person who provides false information to the department under sub. (2) is subject to a forfeiture of not more than $1,000 and to other sanctions specified by the department by rule.

(4m)

(a) Notwithstanding s. 111.335, and except as provided in par. (ad) and sub. (5), a licensing entity may not issue an approval to operate a child care program to a person, and a child care program may not employ or contract with a caregiver or noncaregiver employee or permit a household member to reside at the child care program if the licensing entity or child care program knows or should have known any of the following:

1. That the person has been convicted of a serious crime or adjudicated delinquent 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 committed a serious crime.

2. That the person is registered or is required to be registered on a state sex offender registry or repository or the national sex offender registry.

3. That a unit of government or a state agency, as defined in s. 16.61 (2) (d), has made a finding that the person has abused or neglected any client or misappropriated the property of any client.

4. That a final determination has been made under s. 48.981 (3) (c) 5m. or, if a contested case hearing is held on such a determination, a final decision has been made under s. 48.981 (3) (c) 5p. that the person has abused or neglected a child.

5. That the department has determined the person ineligible to receive an approval to operate a child care program, to be employed by a child care program, or to be a household member of a child care program.

6. That the person has refused to provide information under sub. (2) (ag), or that the person refused to participate in, cooperate with, or submit required information for the background check described in sub. (2) (am), including fingerprints.

7. That the person knowingly made a materially false statement in connection with the person's background check described in sub. (2).

8. That the person knowingly omitted material information requested in connection with the person's background check conducted under sub. (2).

(ad) A licensing entity may issue an approval to operate a child care program to a person conditioned on the receipt of the information specified in sub. (4p) (a) indicating that the person is not ineligible to be so licensed, certified, or contracted with for a reason specified in par. (a) 1. to 8.

(c) A child care program may employ or contract with a potential caregiver or noncaregiver employee or permit a potential household member to reside at the child care program for up to 45 days from the date a background check request is submitted to the department pending the completion of the department's report under sub. (4p) (a) if the department provides a preliminary report under sub. (4p) (c) to the child care program indicating that the individual is not ineligible to work or reside at a child care program. At all times that clients of a child care program are present, an individual who received a qualifying result on a background check described in sub. (2) (am) within the past 5 years must supervise a potential caregiver, noncaregiver employee, or household member permitted to work or reside at the child care program under this paragraph.

(4p)

(a) The department shall provide the results of the background check to the child care program in a written report that indicates only that the individual on whom the background check was conducted is eligible or ineligible for employment or to reside at the child care program, without revealing any disqualifying offense or other information regarding the individual.

(b) The department shall provide the results of the background check to the individual on whom the background check was conducted in a written report that indicates whether the individual is eligible or ineligible for employment or to reside at the child care program. If the individual is ineligible for employment or to reside at the child care program, the department's report shall include information on each disqualifying offense and information on the right to appeal.

(c) Before the department completes its report under par. (a), a caregiver under sub. (1) (ag) 2. may submit a written request to the department for a preliminary report indicating whether a potential caregiver, noncaregiver employee, or household member is eligible to work or reside at a child care program under sub. (4m) (c). If the department receives such a request, it shall provide a written preliminary report to that caregiver indicating whether the individual is barred from working or residing at a child care program on the basis of a background check under sub. (2) (am) 1. or 7. If the individual is ineligible to work or reside at a child care program based on the results of the preliminary report, the department shall also provide a preliminary report to the individual containing information related to each disqualifying offense.

(d) The results of a report under par. (c) may not be appealed by the individual until receipt of the department's report under par. (b) following completion of all components of the background check.

(4s)

(a) An individual who is the subject of the department's report on the results of a background check may appeal the department's decision. Only the person who is the subject of the department's report may appeal the department's decision. Neither the child care program nor any other person may appeal the department's decision.

(b) An appeal request shall be submitted to the department at the address, e-mail address, or fax number identified in the statement of appeal rights no later than 10 days after the date of the department's decision, unless the appellant requests, and the department grants, an extension for a specific amount of time prior to expiration of the 10 day appeal period. Extensions may be granted for good cause shown.

(c) An appeal shall be submitted in the manner and on forms prescribed by the department, and must include all of the following information:

1. The information or issue disputed by the individual.

2. Any information known to the individual, or available to the individual through the exercise of reasonable diligence, that supports the individual's position.

3. The current or last known names, addresses, telephone numbers, and electronic mail addresses of any persons known or believed to have information relevant to determination of the appeal.

4. Copies of any documents or other materials in the possession of the individual, or reasonably available to the individual, that support the individual's position regarding the disputed information.

(e) The department shall attempt to verify the accuracy of the information challenged by the appellant, including making reasonable good faith efforts to locate any missing information regarding the disqualifying crime that is relevant to the issue identified for appeal.

(f) The department shall sustain the results of its background check report if supported by a preponderance of the available evidence.

(g) The department shall issue its appeal decision in writing. If the results of the original report are sustained upon review, the decision shall indicate the department's efforts to verify the accuracy of the information challenged by the individual. The decision shall also indicate any additional reconsideration and appeal rights available to the appellant.

(h) An appellant under this subsection may seek reconsideration of the department's decision under par. (g) by the secretary or the secretary's designee.

(i) A request for reconsideration detailing the basis for the request must be sent to the secretary at the address, e-mail address, or fax number identified in the department's decision no later than 30 days after the date of the department's decision.

(j) The secretary or secretary's designee shall issue his or her reconsideration decision in writing and shall include information about any additional appeal rights available to the individual.

(k) A denial of reconsideration under this subsection is a final decision of the department, and the appellant has a right to a contested case hearing under ch. 227.

(L) The appeal and reconsideration process set forth in this subsection is the exclusive method for disputing a criminal history background report issued by the department. The department's decision may not be appealed in a ch. 68 or 227 proceeding challenging the denial of a license, certification, or contract to operate a child care program based on the department's criminal history background check report or challenging any other child care regulatory action taken in reliance upon that report.

(m) Notwithstanding s. 19.35, the department may not publicly release or disclose the results of any individual background report it issues, except that the department may release aggregated data by crime as listed in sub. (1) (c) from background check results so long as the data does not contain personally identifiable information. The department may disclose and use information obtained in conducting background checks as necessary during an appeal or reconsideration under this subsection or for another lawful purpose.

(5)

(a) A person may have the opportunity to demonstrate his or her rehabilitation to the department or to a tribe authorized to conduct a rehabilitation review under sub. (5d) if any of the following apply:

1. An investigation under sub. (2) (am) indicates that sub. (4m) (a) 2., 3., or 4. applies to the person.

2. An investigation under sub. (2) (am) indicates that the person has been convicted or adjudicated delinquent of a serious crime as specified under sub. (1) (c) 9. or for a violation of the law of any other state or United States jurisdiction that would be a violation listed in sub. (1) (c) 9. 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 sub. (2) (am).

(b) If the department or tribe determines that the person has demonstrated rehabilitation in accordance with procedures established by the department by rule or by the tribe and by clear and convincing evidence, the prohibition in sub. (4m) (a) does not apply.

(5c) Any person who is permitted but fails under sub. (5) (a) to demonstrate to the department that he or she has been rehabilitated may appeal to the secretary or his or her designee. Any person who is adversely affected by a decision of the secretary or his or her designee under this paragraph has a right to a contested case hearing under ch. 227.

(5d)

(a) Any Indian tribe that chooses to conduct rehabilitation reviews under sub. (5) shall submit to the department a rehabilitation review plan that includes all of the following:

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

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

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

3m. The title of the person or body, designated by the Indian tribe, to whom a person may appeal an adverse decision made by the person specified under subd. 3. and whether the Indian tribe provides any further rights to appeal.

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).

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.

(b) If, within 90 days after receiving the plan, the department does not disapprove the plan, the plan shall be considered approved. If, within 90 days after receiving the plan, the department disapproves the plan, the department shall provide notice of that disapproval to the Indian tribe in writing, together with the reasons for the disapproval. The department may not disapprove a plan unless the department finds that the plan is not rationally related to the protection of clients. If the department disapproves the plan, the Indian tribe may, within 30 days after receiving notice of the disapproval, request that the secretary review the department's decision. A final decision under this paragraph is not subject to further review under ch. 227.

(5g) On January 1 of each year, the department shall submit a report to the legislature under s. 13.172 (2) that specifies the number of persons in the previous year who have requested to demonstrate that they have been rehabilitated under sub. (5), the number of persons who successfully demonstrated that they have been rehabilitated under sub. (5), and the reasons for the success or failure of a person who has attempted to demonstrate that he or she has been rehabilitated.

(5m) Notwithstanding s. 111.335, a licensing entity may refuse to issue an approval to operate a child care program to a person, and a child care program may refuse to employ or contract with a caregiver or noncaregiver employee or permit a household member to reside at the child care program if the person has been convicted of or adjudicated delinquent for an offense that is not a serious crime, but that is, in the estimation of the department, substantially related to the care of a client. The department shall notify the provider and the individual of the results of a substantially related determination pursuant to the process set forth in sub. (4p) for background check determinations. The individual shall have the same appeal rights as set forth in sub. (4s), and the same appeal procedures apply.

(7) The department shall conduct throughout the state periodic training sessions that cover procedures and uses of background investigations; reporting and investigating misappropriation of property or abuse or neglect of a client; and any other material that will better enable entities to comply with the requirements of this section.

(8) The department may promulgate any rules necessary for the administration of this section.

History: 2017 a. 59; 2017 a. 364 s. 49; 2019 a. 9; s. 35.17 correction in (1) (c) 12.

Wisconsin's caregiver law, as enforced in this case under s. 48.685 (5) (br) 5. [now s. 48.686 (5) (br)], is constitutional. The caregiver law did not violate the petitioner's due process rights because the state provided adequate post-deprivation remedies. Petitioner's equal protection claim failed because the law does pass the rational basis test. Regardless of whether the law is rationally related to the goal of protecting children, the law is rationally related to the legitimate purpose of prohibiting individuals who dishonestly benefitted from government welfare in the past from obtaining government funding in the form of childcare subsidies. Brown v. Department of Children and Families, 2012 WI App 61, 341 Wis. 2d 449, 819 N.W.2d 827, 11-1350. See also Blake v. Jossart, 2016 WI 57, 370 Wis. 2d 1, 884 N.W.2d 484, 12-2578.

Jamerson, 2013 WI 7, instructs that prior to establishing that a conviction satisfies the requirements of s. 48.685 (5) (br) 5. [now s. 48.686 (5) (br)], evidence must clearly show that the conviction was for fraudulent activity. The title of the conviction and an uncorroborated criminal complaint presented at the administrative appeal hearing were insufficient to meet this standard. Blake v. Racine County Human Services Department, 2013 WI App 45, 347 Wis. 2d 499, 831 N.W.2d 439, 12-0031.