EmR0832. Relating to: Background checks of individuals who provide personal care services, and affecting small businesses

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• EmR0832 Rule Text (PDF: )

dhs012_EmR0832.pdf Health Services – Revises Ch. HFS (DHS) 12 – EmR0832

 

Publication Date:        October 20, 2008

Effective:                    November 1, 2008 through March 30, 2009

Hearing Date:             January 6, 2009

Extension Through:    June 30, 2009

ORDER OF

DEPARTMENT OF HEALTH SERVICES

ADOPTING EMERGENCY RULES

 

The Wisconsin Department of Health Services hereby adopts emergency rules to repeal HFS 12.03 (15) and to create HFS 12.03 (20m), 12.115 and Table HFS 12.115, relating to background checks of individuals who provide personal care services, and affecting small businesses.

 

FINDING OF EMERGENCY

      The Department of Health Services finds that an emergency exists and that the adoption of an emergency rule is necessary for the immediate preservation of the public health, safety and welfare.  The facts constituting the emergency are as follows:

      2007 Wisconsin Act 172 requires the department to specify by rule, the crimes, a conviction of  which an entity must disclose to a client or a client’s guardian before the caregiver provides the client with personal care services in the client’s home.  Act 172 also requires the department to define the term “substitute caregiver”. Under s. 50.065 (2m) (d), Stats., as created by 2007 Wisconsin Act 172, the department created a list of crimes required and also as required defined the term “substitute caregiver”. 

      Effective November 1, 2008, entities, including home health agencies and temporary employment agencies, are required under s. 50.065 (2m) (d), Stats., to disclose to the client or the client’s guardian, the assigned caregiver’s convictions of crimes specified by the department by rule.

 

SUMMARY OF EMERGENCY RULE

 

Statute interpreted:   Section 50.065 (1) (e), Stats.

Statutory authority:   Section 50.065 (2m) (d), Stats., as created by 2007 Wisconsin Act 172, and 227.11 (2) (a), Stats.

 

Explanation of agency authority:

Section 50.065 (2m) (d), Stats., requires the Department to promulgate rules to specify crimes for which an entity must disclose a conviction to a client or the client’s guardian of a caregiver who is assigned to provide personal care services to a client in the client’s personal residence and to specify who is a “substitute caregiver”.

 

Section 227.11 (2) (a), Stats., allows agencies to promulgate rules interpreting the provision of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.

 

Related statute or rule:

Chapter HFS 13.

 

Plain language analysis:

Section 50.065 (2m) (d), Stats., requires the Department to promulgate rules to specify crimes for which an entity must disclose to a client or the client’s guardian, a conviction of a caregiver who is assigned to provide personal care services to the client in the client’s personal residence and to specify who is a “substitute caregiver”.  These requirements were established under 2007 Act 172.

This emergency order includes a definition of the term “substitute caregiver.” It also includes a list of crimes that require disclosure for caregivers providing personal care services.  They include all of the crimes currently listed under s. 50.065 (1) (e), Stats., that are already used by entities to determine an individual’s eligibility to work for the entity as a caregiver, and the following additional crimes:

 

·          Theft

·          Robbery

·          Financial card transactions crimes

·          Identity theft

·          Drug crimes

Summary of, and comparison with, existing or proposed federal regulations:

There are no known existing or proposed related federal regulations.

 

Comparison with Rules in Adjacent States:

Illinois:

Illinois has no list of crimes for which an entity must disclose a conviction to a client or the client’s guardian of a caregiver who is assigned to provide personal care services.

Iowa:

Iowa has no list of crimes for which an entity must disclose a conviction to a client or the client’s guardian of a caregiver who is assigned to provide personal care services. 

Michigan:

Michigan has no list of crimes for which an entity must disclose a conviction to a client or the client’s guardian of a caregiver who is assigned to provide personal care services. 

Minnesota:

Minnesota has no list of crimes for which an entity must disclose a conviction to a client or the client’s guardian of a caregiver who is assigned to provide personal care services.   

 

Summary of factual data and analytical methodologies:

The Department solicited comments from representatives from the Disability Rights Wisconsin, Inc., the Board on Aging and Long Term Care (BOALTC), the Wisconsin Coalition of Aging Groups (CWAG), Independence First, Association of Retarded Citizens, Wisconsin Personal Services Association (WPSA), Community Alliance of Providers of Wisconsin (CAPOW), representatives from the Home Care Advisory Committee (HCAC) and the Home Care Consumer Advisory Committee (HCCAC), and legislators.  Representatives from these organizations reviewed the initial draft of the rule including a list of crimes and a definition of “substitute caregiver”.  The Department revised the rule based upon comments received.

 

Analysis and supporting documents used to determine effect on small business:

The small businesses affected by this emergency order are temporary employment agencies and home health agencies, and any other agency that may assign individuals to provide personal care services to clients in the clients’ private residence. This emergency order would not have a fiscal impact on small businesses over and above the costs imposed by the requirements established by Act 172 under s. 50.065 (2m), Stats., for entities to conduct background checks, including criminal history checks, on individuals the entity assigns to provide personal care services in a client’s private residence and disclose the results to the client or the client’s guardian.

 

Effect on small business:

This emergency order would not have a fiscal impact on small businesses over and above the costs imposed by the requirements established by Act 172 under s. 50.065 (2m), Stats., for entities to conduct background checks, including criminal history checks, on individuals the entity assigns to provide personal care services in a client’s private residence and disclose the results to the client or the client’s guardian.

 

Agency contact person:

Pat Benesh, Quality Assurance Program Spec-Senior

DHS Division of Quality Assurance

1 West Wilson St. Rm. 1150

Madison, WI 53701

Phone: [phone]

Fax: [phone]

[e-mail]

 

Place where comments are to be submitted and deadline for submission:

Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing.  The deadline for submitting comments and the notice of public hearing will be posted on the Wisconsin Administrative Rules Website at http://adminrules.wisconsin.gov   after the hearing is scheduled.

 

TEXT OF EMERGENCY RULE

 

SECTION 1. HFS 12.03 (15) is repealed.

 

SECTION 2 . HFS 12.03 (20m) is created to read:

 

HFS 12.03 (20m) “Substitute caregiver” means an individual who provides personal care services to the client for 7 or fewer days in a 90 day period.

 

SECTION 3. HFS 12.115 is created to read:

 

HFS 12.115 Personal care services, disclosure of convictions.   Pursuant to s. 50.065 (2m) (d) Stats.,  Table HFS 12.115 lists the crimes for which an entity must disclose under s. 50.065 (2m) (a) 1., Stats.,  a conviction of a caregiver who provides personal care services to a client or the client’s guardian.

 

Table HFS 12.115

 

Wisconsin Statutes	Crime
940.19 (3), 1999 Stats.	Battery
940.01	First-degree intentional homicide
940.02	First-degree reckless homicide
940.03	Felony murder
940.05	Second-degree intentional homicide
940.12	Assisting suicide
940.19 (2), (4), (5) or (6)	Battery (felony)
940.22 (2) or (3)	Sexual exploitation by therapist; duty to report
940.225 (1), (2), or (3)	1 st , 2 nd , or 3 rd degree sexual assault
940.285 (2)	Abuse of individuals at risk
940.29	Abuse of residents of penal facilities
940.295	Abuse or neglect of patients and residents
943.20	Theft
943.201	Unauthorized use of an individual’s personal identifying information or documents
943.203	Unauthorized use of an entity’s identifying information or documents
943.32	Robbery
943.38	Forgery
943.41	Financial transaction card crimes
948.02 (1) or (2)	1 st or 2 nd degree sexual assault of a child
948.025	Engaging in repeated acts of sexual assault of the same child
948.03 (2) (a), (b) or (c)	Physical abuse of a child
948.05	Sexual exploitation of a child
948.051	Trafficking of a child
948.055	Causing a child to view or listen to sexual activity
948.06	Incest with a child
948.07	Child enticement
948.08	Soliciting a child for prostitution
948.085	Sexual assault of a child placed in substitute care
948.11 (2) (a) or (am)	Exposing a child to harmful material or harmful descriptions or narrations
948.12	Possession of child pornography
948.13	Child sex offender working with children
948.21(1)	Neglecting a child
948.30	Abduction of another’s child; constructive custody
948.53	Child unattended in child care vehicle
961.41 (1)	Manufacture, distribution or delivery of a controlled substance or a controlled substance analog
961.41 (1m)	Possession with intent to manufacture, distribute or deliver a controlled substance or a controlled substance analog
961.41 (3g)	Possession or attempt to possess a controlled substance or a controlled substance analog
961.43 (1) (a)	Acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge
961.43 (1) (b)	To make, distribute or possess material designed to reproduce the trademark upon any drug or container or label so as to make a counterfeit substance or to duplicate the physical appearance, form, package or label of a controlled substance
A violation of the law of any other state or United States jurisdiction that would be a violation of a crime listed in this table.

EFFECTIVE DATE: The rules contained in this order shall take effect as emergency rules on November 1, 2008.