1. (1) Caregivers and congregate care workers. To determine whether a caregiver’s or a congregate care worker’s conviction or delinquency adjudication for an offense that is not a serious crime is substantially related to the care of a client or the activities of a program for purposes of s. 48.685 (5m), Stats., an agency or entity shall consider all of the following:

   1. (a) In relation to the job or caregiving role, all of the following:

      1. 1. The nature and scope of the caregiver’s or congregate care worker’s client contact.
      2. 2. The scope of the discretionary authority and independent judgment the caregiver or congregate care worker has to make decisions or take actions that affect the care of clients.
      3. 3. The opportunity the job or caregiving role presents for committing similar crimes.
      4. 4. The extent to which acceptable performance in the job or caregiving role requires the trust and confidence of clients and the parents or guardians of clients.
      5. 5. The amount and type of supervision received.

   2. (b) In relation to the criminal conviction or delinquency adjudication, all of the following:

      1. 1. Whether intent is an element of the crime.
      2. 2. Whether the elements or circumstances of the crime are related to the job or caregiving duties.
      3. 3. Any pattern of criminal convictions or delinquency adjudications
      4. 4. The extent to which the crime relates to clients or other vulnerable persons
      5. 5. Whether the crime involves violence or a threat of harm
      6. 6. Whether the crime is of a sexual nature

   3. (c) In relation to the person, all of the following:

      1. 1. The number and type of crimes for which the person has been convicted or adjudicated delinquent.
      2. 2. The length of time between the conviction or delinquency adjudication and the decision affecting regulatory approval, employment, or contract.
      3. 3. The person’s employment history, including references, if available.
      4. 4. The person’s participation in or completion of pertinent programs of a rehabilitative nature.
      5. 5. The person’s probation, extended supervision, or parole status.
      6. 6. The person’s ability to perform or to continue to perform the job or caregiving role consistent with the safe and efficient operation of the program and the confidence of clients and the parents or guardians of clients.
      7. 7. The age of the person on the date the crime was committed.

2. (2) Nonclient residents. To determine whether a nonclient resident’s criminal conviction or delinquency adjudication for an offense that is not a serious crime is substantially related to a nonclient resident’s access to clients or the activities of a program for purposes of s. 48.685 (5m), Stats., an agency shall consider all of the following:

   1. (a) In relation to nonclient residency, all of the following:

      1. 1. The nature and scope of the nonclient resident’s contact with clients or activities of the program.
      2. 2. The opportunity nonclient residency presents for committing similar crimes.
      3. 3. The amount and type of supervision of the nonclient resident.

   2. (b) In relation to the criminal conviction or delinquency adjudication, all of the following:

      1. 1. Whether intent is an element of the crime.
      2. 2. Whether the elements or circumstances of the crime involve access to clients or activities of the program.
      3. 3. Any pattern of criminal convictions or delinquency adjudications.
      4. 4. The extent to which the crime relates to clients or other vulnerable persons.
      5. 5. Whether the crime involves violence or a threat of harm.
      6. 6. Whether the crime is of a sexual nature.

   3. (c) In relation to the person, all of the following:

      1. 1. The number and type of crimes for which the person has been convicted or adjudicated delinquent.
      2. 2. The length of time between the conviction or delinquency adjudication and the determination affecting nonclient residency.
      3. 3. The person’s participation in or completion of pertinent programs of a rehabilitative nature.
      4. 4. The person’s probation, extended supervision, or parole status.
      5. 5. The age of the person on the date the crime was committed.

3. (3) Documentation.

   1. (a) An agency shall document how it reached the determination under sub. (1) that the criminal conviction or delinquency adjudication of a caregiver under s. DCF 12.02 (4) (a) is or is not substantially related to care of a client or activities of the program.
   2. (b) An agency shall document how it reached the determination under sub. (2) that the criminal conviction or delinquency adjudication of a nonclient resident is or is not substantially related to access to clients or activities of a program.

   3. (c) An entity shall document how it reached a determination under sub. (1) that a criminal conviction or delinquency adjudication of a caregiver specified in s. DCF 12.02 (4) (b) is or is not substantially related to the care of a client or activities of a program.

      Note: Form DCF-F-CFS2261-E, Background Checks Substantially Related Investigation Report, is available, but is optional, for documentation of the determination as required in sub. (3). If a home study is required for foster care licensure, subsidized guardianship, or adoption approval, county departments and child-placing agencies must include documentation of the determination in the home study.

      An agency or entity is required to determine whether a criminal conviction or delinquency adjudication for an offense that is not a “serious crime” as defined in s. DCF 12.02 (24) is substantially related to the care of children or the activities of the program. It may be helpful to contact the appropriate clerk of court to obtain a copy of the criminal complaint and judgment of conviction as part of that investigation and determination. Section 48.685 (2) (bb), Stats., requires an agency or entity to contact the appropriate clerk of court to obtain a copy of the criminal complaint and judgment of conviction for a violation of s. 940.19 (1), 940.195, 940.20, 941.30, 942.08, 947.01 (1), or 947.013, Stats., if the conviction was within the past 5 years.

      To file a complaint of prohibited employment discrimination under s. 111.335, Stats., contact the Equal Rights Division, Department of Workforce Development, P.O. Box 8928, Madison, WI 53708-8928 or 608-266-6860.

History

History: CR 16-014: cr. Register June 2016 No. 726, eff. 7-1-16; CR 21-107: am. (1) (title), (intro.), (a) 1. to 4. Register June 2022 No. 798, eff. 7-1-22.