ISSUE: Caregiver Criminal Background Checks
BACKGROUND: The Legislature last session enacted into law a requirement that an "entity," defined as "a facility, organization or service licensed or certified by or registered with the Department (Department of Health and Family Services) to provide direct care or treatment services to clients," must conduct a criminal background check of all prospective employees beginning October 1, 1998. Similar checks of those employed prior to October 1, 1998 would be required by October 1, 1999 and every four years thereafter. Those checks also would be required of licensees, contractors and persons residing at an entity who are not clients.
Those background checks would consist of:
- A criminal history search from records maintained by the Wisconsin Department of Justice (DOJ);
- Information contained in the Department of Health and Family Services (DHFS) abuse registry;
- Information maintained by the Department of Regulation and Licensing (DRL) on the status of an employee's (or prospective employee) credentials, if applicable; and
- Information maintained by the DHFS regarding any substantiated reports of child abuse or neglect.
The findings of those background checks would determine the individual's suitability for employment or continued employment. Under the law, no entity may employ or contract with any person under the entity's control who has or is expected to have access to its clients if the entity knows or should have known:
- That the person has been convicted of a "serious crime";
- That the person has pending against him/her a charge for a "serious crime";
- That a unit of government or state agency has made a finding that the person has abused or neglected any client or misappropriated the property of any client;
- That a determination has been made under the child abuse and neglect statutes that the person has abused or neglected a child; or
- That, in the case of a position for which the person must be credentialed by the DRL, the person's credential is not current or is limited so as to restrict the person from providing adequate care to a client.
The statute also directs the DHFS to create rules to define "serious crimes" that would result in either a permanent employment ban for anyone convicted of such crimes from working in an entity or a permanent employment ban unless the individual convicted of such a crime can demonstrate through clear and convincing evidence that he/she has been rehabilitated.
Finally, the law expands the reporting requirements for allegations of abuse, neglect or misappropriation of client property to any person employed by or under contract with an entity. Under the law, an entity is required to report to the DHFS any allegation of misappropriation of property, neglect or abuse (to be defined by rule) of a client by a person employed by or under contract with the entity if the person is "under the control of the entity." The registry for certified nursing assistants (CNA) would be expanded to include any caregiver covered under this law with a substantiated finding of abuse, neglect or misappropriation of client property. The evidentiary process would be similar to that for CNAs under HSS 129. A substantiated finding of abuse, neglect or misappropriation of client property would place that individual on the caregiver misconduct registry and would result in a permanent employment ban for that individual in any entity.
Administrative Rule Revisions: The DHFS promulgated emergency rules HFS 12 (caregiver background checks) and HFS 13 (reporting of caregiver misconduct) to implement these statutory provisions on October 1, 1998. The emergency rules are to remain in effect until March 1, 1999, when permanent rules are expected to replace them. Three public hearings were held in January (at Wausau, Milwaukee and Madison) on the emergency rules. The DHFS has requested a 60-day extension of the March 1st emergency rule time-period to enable the Department to issue a written response to all the public hearing comments and to revise the emergency rules based on those public hearing comments into permanent rules. The Joint Committee for the Review of Administrative Rules (JCRAR) has scheduled a February 25th public hearing to consider the Department's request for a 60-day extension for HFS 12 and 13.
In its testimony on HFS 12 and 13, WAHSA expressed a number of concerns with the two emergency rules. They included:
The DHFS has indicated a willingness to revisit each of these issues in the revised emergency rules that will be forwarded to the JCRAR for review at its February 25th public hearing.
- The expansiveness of the "serious crimes" list
- The broad interpretation of who would be required to undergo criminal background checks
- The complexity and time-consuming aspects of the rehabilitation review process;
- The need to permit grandfathering "good" employees who erred in the past;
- The over-broadness of the new definition of "abuse;" and
- The need for clarification of what must be reported and what need not be reported relative to allegations of abuse, neglect and misappropriation.
In the interim, the Governor's biennial budget bill (1999 Senate Bill 45/Assembly Bill 133) has been introduced by the Legislature. In the budget bill, the Governor proposes narrowing the requirement for criminal background checks to include only those who are under the entity's control and who are "expected to provide to clients of the entity direct care that is more intensive than negligible care in quantity or quality or in amount of time required to provide the care."
WAHSA POSITION: WAHSA respectfully requests the following revisions to the caregiver background checks law:
- "Serious crimes" should be defined as felony convictions under Chapter 940 (crimes affecting life and bodily security) or Chapter 948 (crimes against children). However, there should be no permanent employment ban crimes; individuals convicted of a "serious crime," including the five permanent ban crimes listed under s.50.066(5), would retain the ability to apply for rehabilitation review. Future employment of those convicted of crimes other than a "serious crime" would be left to employer discretion.
- Currently, many counties contract with employment agencies for provision of services to COP and Medicaid home- and community-based waiver clients. Those employees are not required to undergo criminal background checks even though they are providing services in the home. The law should be modified to require employment agencies which contract with counties to provide personal care or supportive home care services under the COP and waiver programs to conduct criminal background checks of those who will provide the personal care/supportive home care services.
- The Department of Regulation and Licensing (DRL) should be required to conduct criminal background checks of all caregivers who are licensed, certified or credentialed by the DRL at the time of license or certification issuance or renewal. For those convicted of a "serious crime" who fail to receive rehabilitation approval, the DRL may refuse to issue or continue to issue their license, certification or credential, or may limit or restrict their license, certification or credential.
- There should be a presumption of rehabilitation if the date of conviction (or conclusion of prison sentence) is a certain time-period (e.g., 6 years) prior to the date of application to work for an entity. Employers would retain their discretion whether to hire these individuals.
The Wisconsin Association of Homes and Services for the Aging (WAHSA) is a statewide membership organization of not-for-profit corporations principally serving the elderly and disabled. Membership is comprised of 190 religious, fraternal, private and governmental organizations which own, operate and/or sponsor 194 not-for-profit nursing homes, 71 community-based residential facilities, 28 assisted living facilities, 100 independent living facilities, and 446 community service programs which provide programs ranging from Alzheimer's support, child day care, hospice and home care to Meals on Wheels. For more information, please contact the WAHSA staff at (608) 255-7060: John Sauer, Executive Director; Tom Ramsey, director of Government Relations; Brian Schoeneck, Financial Services Director.