Section 50.065. Criminal history and patient abuse record search.

 

(1)  In this section:

(ag)

1. “Caregiver" means any of the following:

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 an entity, as defined by the department by rule, and who has, or is expected to have, regular, direct contact with clients of the entity.

b. A person who has, or is seeking, a license, certification, registration, or certificate of approval issued or granted by the department to operate an entity.

c. A person who is, or is expected to be, an employee of the board on aging and long-term care and who has, or is expected to have, regular, direct contact with clients.

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

(am) “Certificate of approval" means a certificate of approval issued under s. 50.35 .

(b) “Client" means a person who receives direct care or treatment services from an entity.

(bm) “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.

(br) “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.

(c) “Entity" means a facility, organization or service that is licensed or certified by or registered with the department to provide direct care or treatment services to clients; or an agency that employs or contracts with an individual to provide personal care services. “Entity" includes a hospital, a home health agency licensed under s. 50.49 , a temporary employment agency that provides caregivers to another entity, and the board on aging and long-term care. “Entity" does not include any of the following:

1. Licensed or certified child care under ch. 48 .

2. Kinship care under s. 48.57 (3m) or long-term kinship care under s. 48.57 (3n) .

3. A person certified as a medical assistance provider, as defined in s. 49.43 (10) , who is not otherwise approved under s. 50.065 (1) (cm) , licensed or certified by or registered with the department.

4. An entity, as defined in s. 48.685 (1) (b) .

6. A public health dispensary established under s. 252.10 .

(cm) “Hospital" means a facility approved as a hospital under s. 50.35 .

(cn) “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.

(cr) “Personal care services" means any of the following:

1. Assistance with any of the following activities of daily living:

a. Eating.

b. Bathing.

c. Grooming.

d. Dressing.

e. Transferring.

f. Toileting.

2. Assistance with the following activities incidental to activities of daily living under subd. 1. :

a. Meal preparation.

b. Food purchasing.

c. Changing or laundering of a client's linens or clothing.

d. Routine care of vision or hearing aids.

e. Light cleaning in areas of the residence that are used during provision of services under subd. 1. or under subd. 2. a. to d.

(dm) “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.

(e)

1. “Serious crime" means a violation of s. 940.19 (3) , 1999 stats., a violation of s. 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 , 948.02 (1) , 948.025 or 948.03 (2) (a) or (5) (a) 1. , 2. , or 3. , or a violation of the law of any other state or United States jurisdiction that would be a violation of s. 940.19 (3) , 1999 stats., or a violation of s. 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 , 948.02 (1) , 948.025 or 948.03 (2) (a) or (5) (a) 1. , 2. , or 3. if committed in this state.

2. For the purposes of an entity that serves persons under the age of 18, “serious crime" includes a violation of s. 948.02 (2) , 948.03 (2) (b) or (c) or (5) (a) 4. , 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 or a violation of the law of any other state or United States jurisdiction that would be a violation of s. 948.02 (2) , 948.03 (2) (b) or (c) or (5) (a) 4. , 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 if committed in this state.

(g) “Tribe" means a federally recognized American Indian tribe or band in this state.

(2)  

(am) The department shall obtain all of the following with respect to a person specified under sub. (1) (ag) 1. b. and a person who is a nonclient resident or prospective nonclient resident of an entity:

1. A 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 under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration to operate 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, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subdivision, the department need not obtain the information specified in subds. 1. to 4.

(b) Every entity shall obtain all of the following with respect to a caregiver of the entity:

1. A 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 under this section regarding any denial to the person of a license, certification, certificate of approval or registration or of a continuation of a license, certification, certificate of approval or registration to operate 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, certification, certificate of approval or registration, continuation of a license, certification, certificate of approval or registration, a contract, employment or permission to reside as described in this subdivision, the entity need not obtain the information specified in subds. 1. to 4.

(bb) If information obtained under par. (am) or (b) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department 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. (6) (a) or (am) , or any disclosure made pursuant to a disclosure policy described under sub. (6) (am) , indicates a charge or a conviction of a serious crime, but information obtained under par. (am) or (b) does not indicate such a charge or conviction, the department 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 par. (am) or (b) , a background information form under sub. (6) (a) or (am) , any disclosure made pursuant to a disclosure policy described under sub. (6) (am) , 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 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.

(bd) Notwithstanding pars. (am) and (b) 1. , the department 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. to 5. , with respect to a person under 18 years of age whose background information form under sub. (6) (am) , or whose response or lack of response to a disclosure policy described under sub. (6) (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 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 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.

(bg) If an entity hires or contracts with a caregiver for whom, within the last 4 years, the information required under par. (b) 1. to 3. and 5. has already been obtained by another entity, the entity may obtain that information from that other entity, which, notwithstanding par. (br) , shall provide the information, if possible, to the requesting entity. If an entity cannot obtain the information required under par. (b) 1. to 3. and 5. 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. to 3. and 5.

(bm) If the person who is the subject of the search under par. (am) or (b) 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 or entity determines that the person's employment, licensing or state court records provide a reasonable basis for further investigation, the department 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. or (b) 1. The department 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.

(br)

1. Except as provided in subd. 2, an entity that receives information regarding the arrest or conviction of a caregiver from the federal bureau of investigation in connection with a criminal history search under this section may use the information only to determine whether the caregiver's arrest or conviction record disqualifies him or her from serving as a caregiver. An entity is immune from civil liability to a caregiver for using arrest or conviction information provided by the federal bureau of investigation to make an employment determination regarding the caregiver.

2. Subdivision 1. does not apply to use by an entity of arrest or conviction information that the entity requests from the federal bureau of investigation after September 30, 2007.

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

(2m)  

(a) Any entity that places a caregiver in a client's residence to provide personal care services shall, before the caregiver provides services to the client, do all of the following:

1. Except as provided in par. (b) , disclose to the client or the client's guardian in writing all information obtained under sub. (2) (b) 1. or (bb) regarding any conviction of the caregiver for a crime that is specified by rule under par. (d) , and, if the caregiver has demonstrated that he or she has been rehabilitated under sub. (5) , notice of that fact.

2. Except as provided in par. (b) , disclose to the client or the client's guardian in writing all information obtained under sub. (2) (b) 2. , 4. , or 5. regarding the caregiver.

3. Notify the client or the client's guardian that, for a fee, the department of justice performs for any person a criminal history record search on an individual.

4. Notify the client or the client's guardian in writing that if the regularly assigned caregiver is unavailable and the entity assigns a substitute caregiver to provide personal care services to the client, the entity is not required to provide the disclosures under subd. 1. or 2. for the substitute caregiver.

(b) If a caregiver whom an entity has placed in a client's residence to provide personal care services is not available to provide the services and the entity assigns a substitute caregiver to provide personal care services to the client, the entity is not required to make the disclosures under par. (a) 1. and 2. for the substitute caregiver.

(c) Each time that an entity requests information under sub. (3) (b) regarding a caregiver who provides personal care services, the entity shall provide the disclosures required under par. (a) 1. and 2. to each client for whom the caregiver provides personal care services or to the client's guardian.

(d) The department shall promulgate rules to specify crimes for which an entity must disclose a conviction to a client or the client's guardian under par. (a) 1. , and to specify who is a substitute caregiver for purposes of pars. (a) 4. and (b) .

Cross-reference: See also s. DHS 12.115 , Wis. adm. code.

(3)  

(a) Every 4 years or at any time within that period that the department considers appropriate, the department shall request the information specified in sub. (2) (am) 1. to 5. for all persons who are licensed to operate an entity and for all persons who are nonclient residents of an entity.

(b) Every 4 years or at any other time within that period that an entity considers appropriate, the entity shall request the information specified in sub. (2) (b) 1. to 5. for all caregivers of the entity.

(3m)  Notwithstanding subs. (2) (b) and (3) (b) , if the department obtains the information required under sub. (2) (am) or (3) (a) with respect to a person who is a caregiver specified under sub. (1) (ag) 1. b. and that person is also an employee, contractor or nonclient resident of the entity, the entity is not required to obtain the information specified in sub. (2) (b) or (3) (b) with respect to that person.

(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.

(4m)  

(a) Notwithstanding s. 111.335 , and except as provided in sub. (5) , the department may not license, certify, issue a certificate of approval to or register a person to operate an entity or continue the license, certification, certificate of approval or registration of a person to operate an entity if the department knows or should have known any of the following:

1. That the person has been convicted of a serious crime.

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, 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.

(b) Notwithstanding s. 111.335 , and except as provided in sub. (5) , an entity may not employ or contract with a caregiver or permit to reside at the entity a nonclient resident, if the entity knows or should have known any of the following:

1. That the person has been convicted of a serious crime.

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, 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.

(c) If the background information form completed by a person under sub. (6) (am) , or a person's response or lack of response to a disclosure policy described under sub. (6) (am) , indicates that the person is not ineligible to be employed or contracted with for a reason specified in par. (b) 1. to 5. , an entity may employ or contract with the person for not more than 60 days pending the receipt of the information sought under sub. (2) (b) . If the background information form completed by a person under sub. (6) (am) , or a person's response or lack of response to a disclosure policy described under sub. (6) (am) , indicates that the person is not ineligible to be permitted to reside at an entity for a reason specified in par. (b) 1. to 5. and if an entity otherwise has no reason to believe that the person is ineligible to be permitted to reside at an entity for any of those reasons, the entity may permit the person to reside at the entity for not more than 60 days pending receipt of the information sought under sub. (2) (am) . An entity shall provide supervision for a person who is employed or contracted with or permitted to reside as permitted under this paragraph.

(5)  The department may license, certify, issue a certificate of approval to or register to operate an entity a person who otherwise may not be licensed, certified, issued a certificate of approval or registered for a reason specified in sub. (4m) (a) 1. to 5. , and an entity may employ, contract with or permit to reside at the entity a person who otherwise may not be employed, contracted with or permitted to reside at the entity for a reason specified in sub. (4m) (b) 1. to 5. , if the person demonstrates to the department, or, in the case of an entity that is located within the boundaries of a reservation, to the person or body designated by the tribe under sub. (5d) (a) 3. , by clear and convincing evidence and in accordance with procedures established by the department by rule, or by the tribe, that he or she has been rehabilitated. The department shall permit any person who has been convicted of a crime specified by rule under sub. (2m) (d) and who wishes to provide personal care services to demonstrate to the department or, if the person wishes to provide personal care services only within the boundaries of a reservation and the department has approved a plan for the tribe to conduct rehabilitation reviews under sub. (5d) , to the tribe that he or she has been rehabilitated.

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

(5d)  

(a) Any 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 tribe to whom a request for review must be made.

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

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

4. The manner in which the 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 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 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)  Beginning on January 1, 1999, and annually thereafter, 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 to the department 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 , the department may refuse to license, certify or register, or issue a certificate of approval to, a caregiver and an entity may refuse to employ or contract with a caregiver or to permit a nonclient resident to reside at the entity, if the caregiver or nonclient resident has been convicted of an offense that is not a serious crime, but that is, in the estimation of the department or entity, substantially related to the care of a client.

(6)  

(a) The department shall require any person who applies for issuance or continuation of a license, certification, certificate of approval or registration to operate an entity to complete a background information form that is provided by the department.

(am) Every 4 years an entity shall require its caregivers and nonclient residents to complete a background information form that is provided to the entity by the department, except that an entity need not require those caregivers to whom par. (b) does not apply to complete the form if the entity requires the caregivers to disclose to the entity, in writing, all information requested on the form and notifies the caregivers annually of the disclosure requirement.

(b) For caregivers who are licensed, issued a certificate of approval or certified by, or registered with, the department, for nonclient residents, and for other persons specified by the department by rule, the entity shall send the background information form to the department.

(c) A person who provides false information on a background information form required under this subsection or a caregiver who fails to report information as required under a disclosure policy described under par. (am) may be required to forfeit not more than $1,000 and may be subject to other sanctions specified by the department by rule.

(7)  The department shall do all of the following:

(c) Conduct throughout the state periodic training sessions that cover criminal 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.

(d) Provide a background information form that requires the person completing the form to include his or her date of birth on the form.

(8)  The department may charge a fee for obtaining the information required under sub. (2) (am) or (3) (a) or for providing information to an entity to enable the entity to comply with sub. (2) (b) or (3) (b) . No fee may be charged to a nurse aide, as defined in s. 146.40 (1) (d) , for obtaining or maintaining the information if to do so would be inconsistent with federal law.

1997 a. 27 , 105 , 237 ; 1999 a. 9 , 32 , 56 , 185 , 186 ; 2001 a. 109 ; 2005 a. 25 , 184 , 277 , 351 ; 2007 a. 20 s. 9121 (6) (a) ; 2007 a. 97 , 116 , 130 , 153 , 172 ; 2009 a. 276 ; 2011 a. 32 , 35 ; 2013 a. 20 ; 2013 a. 173 s. 33 ; 2015 a. 366 . When a collective bargaining agreement required just cause for termination and provided the right to grieve any termination decision, a county did not have sole discretion under sub. (5m) to decide whether to terminate an employee for the commission of a non-serious crime substantially related to the care of a client. As the county had the authority under sub. (5m) to retain the employee despite a conviction, nothing prevented it from agreeing to do so in a manner consistent with the collective bargaining agreement. Brown County v. Wisconsin Employment Relations Commission, 2007 WI App 247 , 306 Wis. 2d 213 , 742 N.W.2d 916 , 07-0135 .