Section 12.12. Rehabilitation process for persons who have committed certain offenses.

 

(1)   General provisions.

(a) An agency shall conduct rehabilitation reviews as described in this section for persons who are eligible to receive rehabilitation review under this section for any of the following:

1. Entities the agency regulates.

2. Persons an entity employs.

3. Persons an entity contracts with.

4. Nonclient residents of an entity.

(b)

1. A tribal governing body may conduct rehabilitation reviews under ss. 48.685 (5) and 50.065 (5) , Stats., if a plan submitted under s. 48.685 (5d) or 50.065 (5d) , Stats., has been approved by the department.

2. Tribes desiring to conduct rehabilitation reviews shall send a rehabilitation review plan required under ss. 48.685 (5d) and 50.065 (5d) , Stats., to the department.

(2)   Eligibility to request rehabilitation review..

(a) Any person who is ineligible under s. 50.065 (4m) (a) or (b) , or 48.685 (4m) (a) or (b) , Stats., to receive regulatory approval, to be employed as a caregiver, or to contract with or reside at an entity, may request a rehabilitation review if the person meets both of the following conditions:

1. The person has not requested a rehabilitation review for a similar type of regulatory approval, job function or nonclient resident status within the preceding year. In this subdivision, "similar" means comparable regulatory approval, or a comparable job function or activity.

2. If the person is a foster home license applicant under s. 48.62 , Stats., or an applicant for an adoption home study, the person has not been convicted of a serious crime under s. 48.685 (5) (bm) 1. , 2. or 3. , Stats., another crime listed in section III of the appendix that results in a permanent bar, or a similar serious crime in another jurisdiction or, if the person was convicted of a crime under s. 48.685 (5) (bm) 4. , Stats., the crime was committed more than 5 years before the background check was requested.

(b) If a person is eligible to request a rehabilitation review, the agency or tribe from which the person is seeking regulatory approval, or the entity with whom the person is seeking employment as a caregiver or a contract, or where the person wishes to reside shall give the person information on rehabilitation review eligibility criteria and on how to obtain the rehabilitation review request form.

(3)   Initiating a rehabilitation review request. To request a rehabilitation review, an eligible person shall do all of the following:

(a) Obtain a rehabilitation review request form developed by the department or applicable tribe and submit the completed form to the agency that regulates the entity, or to the applicable tribe, or for day care programs established under s. 120.13 (14) , Stats., to the school board.

(b) Submit any supporting documents and information required by the applicable rehabilitation review request form to the same agency, tribe, or school board.

(4)   Processing rehabilitation review requests.

(a) Rehabilitation review panel. When an eligible person has filed a complete rehabilitation review request form along with all required additional and supporting information, the applicable agency, tribe, or school board shall appoint a review panel of at least 2 persons to review the information submitted. The panel may request additional information from the person or from other agencies or persons familiar with the person requesting the review.

(b) Time frame. If the application form and any requested supporting materials are not complete within 90 days of the date the application is submitted, and the person requesting the review does not have good cause for the failure to submit a complete application form or supporting materials, the rehabilitation approval shall be denied.

(c) Requester appearance. The person requesting the rehabilitation review shall have an opportunity to appear before the review panel to answer any questions the panel members may have.

(d) Rehabilitation decision formulation and factors. After reviewing the information obtained, the review panel shall decide whether the person has demonstrated, by clear and convincing evidence, that the person is rehabilitated for purposes of receiving regulatory approval, employment as a caregiver, or contracting with or residing at an entity. The panel shall consider at least the following factors, as applicable:

1. Personal reference checks and comments from employers, persons, and agencies familiar with the applicant and statements from therapists, counselors and other professionals.

2. Evidence of successful adjustment to, compliance with or proof of successful completion of parole, probation, incarceration or work release privileges.

3. Proof that the person has not had subsequent contacts with law enforcement agencies leading to probable cause to arrest or evidence of noncompliance leading to investigations by other regulatory enforcement agencies.

4. Any pending or existing criminal or civil arrest warrants, civil judgments or other legal enforcement actions or injunctions against the person.

5. Any aggravating or mitigating circumstances surrounding the crime, act or offense.

6. Evidence of rehabilitation, such as public or community service, volunteer work, recognition by other public or private authorities for accomplishments or efforts or attempts at restitution, and demonstrated ability to develop positive social interaction and increased independence or autonomy of daily living.

7. The amount of time between the crime, act or offense and the request for rehabilitation review, and the age of the person at the time of the offense.

8. Whether the person is on the sexual offender registry under s. 301.45 , Stats., or on a similar registry in another jurisdiction.

9. A victim's impact statement, if appropriate.

10. Employment history, including evidence of acceptable performance or competency in a position and dedication to the person's profession.

11. The nature and scope of the person's contact with clients in the position requested.

12. The degree to which the person would be directly supervised or working independently in the position requested.

13. The opportunity presented for someone in the position to commit similar offenses.

14. The number, type and pattern of offenses committed by the person.

15. Successful participation in or completion of recommended rehabilitation, treatment or programs.

16. Unmet treatment needs.

17. The applicant's veracity.

(5)   Rehabilitation decisions.

(a) Review panel decision. The review panel shall decide whether to approve, defer, or deny rehabilitation approval, and shall issue a written decision to that effect, as follows:

1. If the review panel finds sufficient evidence to support rehabilitation approval, the decision shall indicate, as applicable, whether the person is eligible for regulatory approval, employment as a caregiver, or contracting with or residency at an entity. The decision shall describe the scope of the rehabilitation approval and state any conditions or limitations placed on the approval, such as whether the approval is only for employment doing certain job functions or the eligibility for regulatory approval is only to operate certain entity types.

2. If the review panel decides to defer a rehabilitation decision, the panel decision shall state the reasons for the deferral. Unless otherwise agreed to by the requester, the panel may defer a final decision for a period of not more than 6 months from the initial decision date.

3. If the review panel decides to deny approval of the rehabilitation request, the decision shall explain the reasons for the denial and inform the requester that he or she may appeal the decision as described in s. 48.685 (5c) or 50.065 (5c) , Stats., as applicable, by filing a written request for review of the decision within 10 days of receipt.

(b) Burden of proof. A person who appeals under par. (a) 3. shall bear the burden of proving, by a preponderance of the evidence, that the agency or tribe abused its discretion in deciding that the person did not show sufficient evidence to support rehabilitation approval.

(c) Review panel decision distribution. The review panel shall send its decision to the requester and a copy, if appropriate, to the entity. If the agency conducting the rehabilitation review is other than the department or a tribe, the review panel shall also, within 10 days of sending its decision, send a completed copy of the department's required reporting form regarding any rehabilitation decision to the department. If the entity conducting the rehabilitation review is a tribe, the review panel shall also send a copy of the decision to the same address accompanied by a copy of the requester's application materials.

(d) Maintaining rehabilitation decision documentation. The review panel shall maintain a file containing a copy of the original written decision and any decisions from filed appeals that may result. The agency or tribe shall maintain in the file the rehabilitation review request and all materials or information obtained or notes made as part of the rehabilitation review decision.

(6)   Rehabilitation approval compliance and withdrawals.

(a) Approval conditions. A person who receives rehabilitation approval shall comply with all conditions and limitations imposed with that approval.

(b) Rehabilitation approval violation--mandatory withdrawal. An agency or tribe that has granted a person a rehabilitation approval shall withdraw the approval if the agency or tribe learns that the person is no longer eligible under s. 50.065 (4m) (a) or (b) , or 48.685 (4m) (a) or (b) , Stats., for regulatory approval, to be employed as a caregiver, or to contract with or reside at an entity.

(c) Rehabilitation approval violation—summary suspension. An agency or tribe that granted a person a rehabilitation approval may immediately temporarily rescind the rehabilitation approval when the agency or tribe has knowledge that the person has done either of the following:

1. The person has failed to comply with or abide by any conditions or limitations imposed with the rehabilitation approval.

2. The person knowingly submitted false information or withheld pertinent information relevant to the rehabilitation request that otherwise could or would have affected the review panel's decision to grant the rehabilitation approval.

(d) Informing agencies or tribes. An agency, entity or tribe other than the agency or tribe that granted a rehabilitation approval, that becomes aware that any person has violated his or her rehabilitation approval under par. (b) or (c) , shall inform the agency or tribe that granted the approval, of the violation.

(e) Review of summary suspensions.

1. Within 10 working days of temporarily rescinding a rehabilitation approval under par. (c) , the approving agency or tribe shall determine whether the new information related to an approval violation under par. (c) is valid and represents a risk of harm to the client. If the new information is valid and does represent a risk of harm to the client, the approving agency or tribe shall withdraw the rehabilitation approval, thereby re-imposing, as applicable, the person's bar from regulatory approval, from employment as a caregiver or from contracting with or residing at an entity.

2. An agency, entity, or tribe, as applicable, that determines the new information related to an approval violation under par. (c) represents a risk of harm to a client shall also immediately take appropriate measures to protect clients until any appeal filed under par. (g) is exhausted. Appropriate measures may include a repeal of regulatory approval, termination of employment as a caregiver or of approval to reside at an entity, contract termination, reassigning the person away from duties involving direct regular contact with clients or placing the person on temporary leave.

(f) Withdrawal decisions. When an agency or tribe withdraws a rehabilitation approval, it shall issue a written decision to that effect. The decision shall explain the reasons for the withdrawal and inform the requester whether he or she may appeal under par. (g) .

(g) Appeal rights. Any person who has his or her rehabilitation approval withdrawn under par. (f) may file an appeal of this decision as provided in sub. (5) (a) .

(h) Withdrawal reporting. When an agency or tribe that granted a rehabilitation approval withdraws the approval, and the withdrawal results in a bar to regulatory approval, to eligibility to work as a caregiver, or to contracting with or residing at an entity, the approving agency or tribe shall immediately report the withdrawal to the subunit of the department responsible for collecting this information.

(7)   Scope of agency or tribe rehabilitation approval.

(a) Agency approval limitations. An agency may grant rehabilitation approval only within the scope of its regulatory authority. The approval applies to all types of entities, job activities and functions the agency regulates, unless the agency specifies otherwise in the form of limitations or conditions expressed in the written rehabilitation approval decision.

(b) Tribe approval limitations. A tribe may only grant rehabilitation approvals within the scope of its own employment, contracting, or licensing authority.

(c) Rehabilitation approval transfers.

1. When an agency, tribe, or entity learns from the department's background information disclosure form or in any other way that an applicant for regulatory approval, for employment as a caregiver, or for a contract with or permission to reside at an entity has had a rehabilitation review, the agency, tribe, or entity shall request from the rehabilitation review agency or tribe a copy of the rehabilitation review decision. If the rehabilitation review decision was an approval, the agency, tribe or entity shall determine whether the approval may be applied to the regulatory approval, employment as a caregiver, or contract with or residency at an entity that the applicant currently seeks.

2. Except as specified in subd. 3. , an agency, entity, or tribe may review and accept a rehabilitation granted to a person by another agency or tribe if the receiving agency or tribe determines both of the following:

a. The crime, act, or offense that required the person to request rehabilitation review is not substantially related to the person's job duties.

b. Any limitations or conditions imposed with the rehabilitation approval continue to be able to be met.

3. No rehabilitation approval granted by a tribe may be transferred outside of the tribe's employment or contracting authority.

4. Before transferring a rehabilitation approval under subd. 1. , an agency, tribe, or entity shall verify with the department that the applicant has had a rehabilitation review, and if so, the date and status of that review and whether any reason other than the one the applicant reported on the background information disclosure form exists that requires the applicant to request a rehabilitation review.

5. If the decision of the agency or tribe that conducted the rehabilitation review is to deny approval of transferring the rehabilitation approval, the agency, entity, or tribe shall determine whether the applicant for regulatory approval, for employment as a caregiver, or for contracting with or residency at an entity is eligible to seek another rehabilitation review under sub. (2) , and if so, shall inform the person of his or her eligibility.

History: Cr. Register, August, 2000, No. 536 , eff. 9-1-00; CR 10-091 : am. (6) (g) Register December 2010 No. 660 , eff. 1-1-11.

Note

Send rehabilitation review plans to the Office of Legal Counsel, Department of Health Services, P.O. Box 7850, 1 West Wilson St., Rm 651, Madison, WI 53707–7850. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples of "similarity" and "comparability" are positions that require a comparable level of direct contact with children; a comparable level of unsupervised client access; a previous review involved family day care and the applicant is seeking licensing for group day care; or the applicant sought a group home license and now is seeking a child-caring institution license. Microsoft Windows NT 6.1.7601 Service Pack 1 To obtain a master copy of the Department's Rehabilitation Review Request Form (EXS-263) in order to reproduce it, either download the form from the department's internet site at www.dhs.wisconsin.gov/caregiver/index.htm , or request a copy of the form from, as appropriate, the agency that regulates the entity or from the entity. Microsoft Windows NT 6.1.7601 Service Pack 1 Pursuant to s. 48.685 (5c) , Stats., or 50.065 (5c) , Stats., submit an appeal to the following, as appropriate: 1. To appeal a department denial of a rehabilitation approval, send the appeal request to the Department of Health Services, Office of Legal Counsel, P.O. Box 7850, Madison, WI 53707-7850. 2. To appeal a school board denial of a rehabilitation approval, send the appeal request to the Superintendent of the Department of Public Instruction, 125 South Webster St., Madison, WI 53703; or call 608-266-3390. 3. To appeal a county denial of a rehabilitation approval, send the appeal request to the appropriate county. When any of the preceding rehabilitation appeals are denied, a further appeal is available under ch. 227 , Stats. Send a request for a ch. 227 , Stats., hearing to appeal any of the preceding department, department of public instruction or county denials of rehabilitation appeals to the Division of Hearings and Appeals, P. O. Box 7875, Madison, WI 53707-7875. The request may be delivered in person to that office at 5005 University Avenue, Suite 201, Madison, Wisconsin. Microsoft Windows NT 6.1.7601 Service Pack 1 Any person who is listed in the department's caregiver misconduct registry under ch. DHS 13 as having a substantiated finding of abuse or neglect of a client or misappropriation of a client's property as the result of an action the person took while working as a nurse aide in a federally certified nursing home or intermediate care facility for persons with mental retardation (ICF/MR) is permanently prohibited from being employed, in any capacity, in a federally–certified nursing home or a federally–certified ICF/MR. If such a person obtains a rehabilitation approval, the person is eligible to be considered for regulatory approval, for employment as a caregiver, or for non-client residency at or contracting with other entities covered by ss. 50.065 and 48.685 , Stats. See 42 CFR 483.13 and 483.420 for federal regulations relating to nurse aides. Microsoft Windows NT 6.1.7601 Service Pack 1 Rehabilitation decisions should be addressed to the Office of Legal Counsel, Department of Health Services, P. O. Box 7850, 1 W. Wilson St., Room 651, Madison, WI 53707-7850. Microsoft Windows NT 6.1.7601 Service Pack 1 Send reports of withdrawn rehabilitation approval to: Office of Legal Counsel, Department of Health Services, P. O. Box 7850, 1 West Wilson Street, Room 651, Madison, WI 53707-7850. Microsoft Windows NT 6.1.7601 Service Pack 1 Examples of circumstances in which approvals may or may not be transferable include the following: Microsoft Windows NT 6.1.7601 Service Pack 1 1. An approval to be a foster parent by one county or child-placing agency is not, unless approved by the other county or child-placing agency, transferable to the other county or child-placing agency. Microsoft Windows NT 6.1.7601 Service Pack 1 2. An approval by the department for a person to work as a shipping clerk in a hospital or nursing home would be transferable to another entity or job function or activity regulated under ch. 50 , Stats., as long as limitations or conditions, if any, imposed with the rehabilitation approval are able to be met. Microsoft Windows NT 6.1.7601 Service Pack 1 3. A rehabilitation approval for employment at a children's day care or a child caring institution is not transferable to a hospital or nursing home or vice versa. Microsoft Windows NT 6.1.7601 Service Pack 1 4. A rehabilitation approval is not transferable from a group day care center to a family day care center if the department's rehabilitation approval imposed limits or conditions. Microsoft Windows NT 6.1.7601 Service Pack 1 5. A rehabilitation approval is transferable from one department-regulated child care residential setting to another as long as any limitations or conditions can be met. Microsoft Windows NT 6.1.7601 Service Pack 1