Wis. Stat. § 48.685 — WI Code / Chapter 48 / Section 48.685
Criminal history and child abuse record search.
Status: in_force

(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 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.

am. A person to whom delegation of the care and custody of a child under s. 48.979 has been, or is expected to be, facilitated by an entity.

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

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

(am) “Client” means a person who receives direct care or treatment services from an entity or from a caregiver specified in par. (ag) 1. am. or from a child care program under s. 48.686 (1) (aj) , 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), is no longer placed in out-of-home care, and is residing in the foster home in which he or she was previously placed.

(ao) “Congregate care facility” means a group home, shelter care facility, or residential care center for children and youth.

(ap) “Congregate care worker” means an adult who works in a congregate care facility. “Congregate care worker” includes a person who has or is seeking a license to operate a congregate care facility and does not include an unpaid volunteer.

(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 and a person to whom delegation of the care and custody of a child under s. 48.979 has been facilitated by the entity.

(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.

(b) “Entity” means a child welfare agency that is licensed under s. 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 s. 48.62 ; an interim caretaker to whom subsidized guardianship payments are made under s. 48.623 (6) ; a person who is proposed to be named as a successor guardian in a subsidized guardianship agreement under s. 48.623 (2) ; a group home that is licensed under s. 48.625 ; a shelter care facility that is licensed under s. 938.22 ; an organization that facilitates delegations of the care and custody of children under s. 48.979 ; or a temporary employment agency that provides caregivers to another entity.

(bm) “Nonclient resident” means a person, including a person who is under 18 years of age, but not under 10 years of age, who resides, or is expected to reside, at an entity or with a caregiver specified in par. (ag) 1. am. , who is not a client of the entity or caregiver, and who has, or is expected to have, regular, direct contact with clients of the entity or caregiver.

(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. 940.19 (3) , 1999 stats.

2. A violation of s. 940.01 , 940.02 , 940.03 , 940.05 , 940.12 , 940.22 (2) or (3) , 940.225 (1) , (2) , or (3) , 940.285 (2) , 940.29 , 940.295 , 940.60 (2) or (3) (a) , (b) , or (c) , 940.66 (2) , 942.09 (2) , 942.095 , 948.02 (1) or (2) , 948.025 , 948.03 (2) or (5) (a) 1. , 2. , 3. , or 4. , 948.05 , 948.051 , 948.055 , 948.06 , 948.07 , 948.072 , 948.08 , 948.081 , 948.085 , 948.11 (2) (a) or (am) , 948.12 , 948.125 , 948.13 , 948.21 , 948.215 , 948.30 , or 948.53 or s. 940.19 (2) , 2023 stats., s. 940.19 (4) , 2023 stats., s. 940.19 (5) , 2023 stats., s. 940.19 (6) , 2023 stats., or s. 940.198 (2) , 2023 stats.

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

3r. For purposes of licensing a foster home for the placement of a child or of providing subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm) , or of permitting a person to be a caregiver or nonclient resident of a licensed foster home, any violation listed in subd. 1. to 3. or sub. (5) (bm) 1. to 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 3r. if committed in this state.

(2)

(am) The department, a county department, or a child welfare agency shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. b. or a 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 of health services under this section and under ss. 48.623 (6) (am) 2. and (bm) 5. , 48.75 (1m) , and 48.979 (1) (b) regarding any denial to the person of a license, or continuation or renewal of a license to operate an entity, or of payments under s. 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 or of permission to reside with a caregiver specified in sub. (1) (ag) 1. am. 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, or continuation or renewal of a license, payments, employment, a contract, or permission to reside as described in this subdivision, the department, a county department, or a child welfare agency need not obtain the information specified in subds. 1. to 4. , and the department need not obtain a fingerprint-based background check under par. (ba) .

(b) Every entity shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. a. or am. of the entity, with respect to a nonclient resident of a caregiver specified in sub. (1) (ag) 1. am. , and with respect to a congregate care worker, except a caregiver specified in sub. (1) (ag) 1. b. , of the entity:

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

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

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

4m. 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.

5m. Information maintained by the department of health services under this section and under ss. 48.623 (6) (am) 2. and (bm) 5. , 48.75 (1m) , and 48.979 (1) (b) regarding any denial to the person of a license, or continuation or renewal of a license to operate an entity, or of payments under s. 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 or of permission to reside with a caregiver specified in sub. (1) (ag) 1. am. 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, a contract, payments, employment, or permission to reside as described in this subdivision, the entity need not obtain the information specified in subds. 1m. to 4m.

(ba) If the person who is the subject of the search under par. (am) or (b) is a congregate care worker, the department shall obtain a fingerprint-based check of the national crime information databases, as defined in 28 USC 534 (f) (3) (A), unless the search has been terminated under par. (am) 5. or (b) 5m. The department, county department, or child welfare agency may release any information obtained under this paragraph only as permitted under 32 USC 20962 (e).

(bb) If information obtained under par. (am) , (b) , or (ba) indicates a charge of a serious crime, but does not completely and clearly indicate the final disposition of the charge, the department, county department, child welfare agency, 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) indicates a charge or a conviction of a serious crime, but information obtained under par. (am) , (b) , or (ba) does not indicate such a charge or conviction, the department, county department, child welfare agency, 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) , (b) , or (ba) , a background information form under sub. (6) (a) or (am) , or any other information indicates a conviction of a violation of s. 940.19 (1) , 2023 stats., s. 940.195 , 2023 stats., s. 940.20 , 2023 stats., or s. 940.204 , 2023 stats., or s. 940.60 (1) , 940.61 , 940.62 , 940.65 , 941.30 , 942.08 , 947.01 (1) , 947.013 , or 947.016 (1) , (2) , or (3) obtained not more than 5 years before the date on which that information was obtained, the department, county department, child welfare agency, 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) , the department, a county department, or a child welfare agency 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) 1m. to 5m. , with respect to a person under 18 years of age whose background information form under sub. (6) (am) indicates that the person is not ineligible to be employed at, contracted with, or permitted to reside at an entity or permitted to reside with a caregiver specified under sub. (1) (ag) 1. am. of the entity for a reason specified in sub. (4m) (b) 1. to 5. and with respect to whom the department, county department, child welfare agency, 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, or a child welfare agency 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 employs or contracts with a caregiver or congregate care worker for whom, within the last year, the information required under par. (b) 1m. to 3m. and 5m. 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) 1m. to 3m. and 5m. 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) 1m. to 3m. and 5m.

(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 5 years preceding the date of the search that person has not been a resident of this state, or if the department, county department, child welfare agency, or entity determines that the person’s employment, licensing, or state court records provide a reasonable basis for further investigation, the department, county department, child welfare agency, 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 5 years preceding the date of the search information that is equivalent to the information specified in par. (am) 1. or (b) 1m. The department, county department, child welfare agency, or entity may require the person 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. The department of justice may provide for the submission of the fingerprint cards or fingerprints by other technologies 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. The department, county department, or child welfare agency cannot use any information obtained under this paragraph for any purpose other than a search of the person’s background under par. (am) or (b) .

(c)

1. If the person who is the subject of the search under par. (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 34 USC 20962 (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 s. 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 34 USC 20962 (e).

2. If the person who is the subject of the search under par. (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 s. 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 par. (am) .

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

(3)

(a) 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 to operate an entity, or who are receiving payments under s. 48.623 (6) (am) for operating an entity, and for all persons who are nonclient residents of such a caregiver.

(b) 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) 1m. to 5m. for all persons who are subject to sub. (2) (b) .

(c) Every 4 years or at any time within that period that the department considers appropriate, the department shall obtain the information specified in sub. (2) (ba) for all persons who are congregate care workers.

(3m) Notwithstanding subs. (2) (b) and (3) (b) , if the department, a county department, or a child welfare agency has obtained the information required under sub. (2) (am) or (3) (a) 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) 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 par. (ad) and sub. (5) , the department may not license, or continue or renew the license of, a person to operate an entity, a county department or a child welfare agency may not license, or renew the license of, a foster home under s. 48.62 , and 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 s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm) if the department, county department, or child welfare agency 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.

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.

(ad) The department, a county department, or a child welfare agency may license a foster home under s. 48.62 or the department in a county having a population of 750,000 or more or a county department may provide subsidized guardianship payments to an interim caretaker under s. 48.623 (6) (am) or to a person seeking those payments as a successor guardian under s. 48.623 (6) (bm) , conditioned on the receipt of the information specified in sub. (2) (am) indicating that the person is not ineligible to be so licensed or provided those payments for a reason specified in par. (a) 1. to 5.