ONE-HUNDRED FOURTH DAY

 

MORNING SESSION

Senate Chamber, Olympia, Saturday, April 25, 2009

 

      The Senate was called to order at 10:00 a.m. by President Owen. The Secretary called the roll and announced to the President that all Senators were present with the exception of Senators King, Regala and Tom.

      The Sergeant at Arms Color Guard consisting of Legislative Assistant’s Ashley Lara and Barrett Pryce, presented the Colors. Senator Kline offered the prayer.

 

MOTION

 

      On motion of Senator Eide, the reading of the Journal of the previous day was dispensed with and it was approved.

 

MOTION

 

      There being no objection, the Senate advanced to the first order of business.

 

REPORTS OF STANDING COMMITTEES

 

April 25, 2009

ESHB 1244        Prime Sponsor, Committee on Ways & Means: Making operating appropriations for fiscal years 2007-2009 and 2009-2011. Reported by Committee on Ways & Means

 

MAJORITY recommendation: Do pass. Signed by Senators Prentice, Chair; Fraser, Vice Chair, Capital Budget Chair; Tom, Vice Chair, Operating Budget; Hobbs; Keiser; Kline; Kohl-Welles; McDermott; Oemig; Pridemore; Regala and Rockefeller.

 

MINORITY recommendation: Do not pass. Signed by Senators Zarelli; Brandland; Honeyford; Parlette; Pflug and Schoesler.

 

MOTION

 

      On motion of Senator Eide, the rules were suspended and Engrossed Substitute House Bill No. 1224 was placed on the day’s second reading calendar.

 

MOTION

 

      On motion of Senator Eide, the Senate advanced to the third order of business.

 

MESSAGE FROM THE GOVERNOR

GUBERNATORIAL APPOINTMENTS

 

April 24, 2009

TO THE HONORABLE, THE SENATE OF THE STATE OF WASHINGTON

Ladies and Gentlemen:

I have the honor to submit the following appointment, subject to your confirmation.

LORNA WALSH, appointed April 9, 2009, for the term ending July 1, 2011, as Member, Board of Trustees, State School for the Blind.

Sincerely,

CHRISTINE O. GREGOIRE, Governor


Referred to Committee on Early Learning & K-12 Education.

 

MOTION

 

On motion of Senator Eide, the appointee listed on the Gubernatorial Appointment report was referred to the committee as designated.

 

MOTION

 

      On motion of Senator Eide, the Senate advanced to the fourth order of business.

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:

The House concurred in Senate amendment to the following bills and passed the bills as amended by the Senate:

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1959,

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:

The House concurred in Senate amendment to the following bills and passed the bills as amended by the Senate:

      ENGROSSED HOUSE BILL NO. 2242,

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

      On motion of Senator Eide, the Senate advanced to the eighth order of business.

 

MOTION

 

      Senator Zarelli moved adoption of the following resolution:

 

SENATE RESOLUTION

8665

 

By Senators Zarelli and Hobbs

      WHEREAS, The 98th Medical Detachment was activated in October 1944 and, after serving in New Guinea in the Pacific theater, went on to participate in fourteen campaigns in Vietnam; and

      WHEREAS, Since permanently locating at Fort Lewis in October 1993 and becoming dedicated to combat stress control the 98th Medical Detachment has been to Cuba, Korea, Thailand, Bosnia-Herzegovina, and Iraq; and

      WHEREAS, The 98th Medical Detachment deployed in 2003 to northern and central Iraq for sixteen consecutive months in support of Operation Iraqi Freedom, and to southern Iraq from April 2005 to March 2006; and

      WHEREAS, On May 1, 2008, the 98th Medical Detachment began its third Iraq deployment, serving the entire 4th Infantry Division, Multi-National Division - Baghdad, and all units stationed at Camp Victory and Camp Liberty; and

      WHEREAS, The mission of the 98th Medical Detachment is to help soldiers cope with stress resulting from the constant grind of a combat zone, homefront issues or other mental challenges associated with being in theater, so they may return to duty rather than to a mental health facility or require evacuation for mental health reasons; and

      WHEREAS, The work of the 98th Medical Detachment includes one-on-one counseling, group counseling, instruction in stoicism and posttraumatic growth, training thousands upon thousands of soldiers and their leaders to recognize signs of mental challenges in others and to take action, and encouraging soldiers to seek assistance with mental challenges; and

      WHEREAS, A number of Senate staff members were honored to "adopt" the 98th Medical Detachment and provide "care packages" from the homefront during the holiday season of 2008-09; and

      WHEREAS, The members of the 98th Medical Detachment returned safely to Fort Lewis on March 14, 2009, from their most recent deployment to Iraq;

      NOW, THEREFORE, BE IT RESOLVED, That the Washington State Senate recognize the 98th Medical Detachment for its service to the United States and is pleased to have its members call Fort Lewis and the state of Washington their home; and

      BE IT FURTHER RESOLVED, That copies of this resolution be immediately transmitted by the Secretary of the Senate to the commanders of the 98th Medical Detachment, the 62nd Medical Brigade, and the 4th Infantry Division.

      Senators Zarelli, Hobbs and Shin spoke in favor of adoption of the resolution.

      The President declared the question before the Senate to be the adoption of Senate Resolution No. 8665.

      The motion by Senator Zarelli carried and the resolution was adopted by voice vote.

INTRODUCTION OF SPECIAL GUESTS

 

      The President welcomed and introduced members of the 98th Medical Detachment, the 62nd Medical Brigade and the 4th Infantry Division and their families who were seated in the gallery.

 

MOTION

 

      On motion of Senator Eide, the Senate reverted to the sixth order of business.

 

SECOND READING

CONFIRMATION OF GUBERNATORIAL APPOINTMENTS

 

MOTION

 

      Senator Berkey moved that Gubernatorial Appointment No. 9070, M. A. Leonard, as a member of the Housing Fiance Commission, be confirmed.

      Senator Berkey spoke in favor of the motion.

 

MOTION

 

On motion of Senator Marr, Senators Brown, Pridemore and Tom were excused.

 

MOTION

 

On motion of Senator Brandland, Senators King and Morton were excused.

 

MOTION

 


On motion of Senator Hatfield, Senator Fairley was excused.

 

APPOINTMENT OF M. A. LEONARD

 

The President declared the question before the Senate to be the confirmation of Gubernatorial Appointment No. 9070, M. A. Leonard as a member of the Housing Fiance Commission.

 

      The Secretary called the roll on the confirmation of Gubernatorial Appointment No. 9070, M. A. Leonard as a member of the Housing Fiance Commission and the appointment was confirmed by the following vote: Yeas, 46; Nays, 0; Absent, 1; Excused, 2.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Brown, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker and Zarelli

      Absent: Senator Regala

      Excused: Senators King and Tom

Gubernatorial Appointment No. 9070, M. A. Leonard, having received the constitutional majority was declared confirmed as a member of the Housing Fiance Commission.

 

MOTION

 

      On motion of Senator Honeyford, the request for a ruling on the point of order on House Bill No. 2331 was withdrawn.

 

MOTION

 

At 10:29 a.m., on motion of Senator Eide, the Senate was declared to be recessed until 1:00 p.m.

 

AFTERNOON SESSION

 

The Senate was called to order at 1:00 p.m. by the President Pro Tempore.

 

SECOND READING

CONFIRMATION OF GUBERNATORIAL APPOINTMENTS

 

MOTION

 

      Senator McDermott moved that Gubernatorial Appointment No. 9123, Beth Thew, as a member of the Work Force Training and Education Coordinating Board, be confirmed.

      Senator McDermott spoke in favor of the motion.

 

MOTION

 

On motion of Senator Marr, Senators Berkey, Brown, Fairley and Prentice were excused.

 

MOTION

 

On motion of Senator Brandland, Senator Swecker was excused.

 

APPOINTMENT OF BETH THEW

 

The President Pro Tempore declared the question before the Senate to be the confirmation of Gubernatorial Appointment No. 9123, Beth Thew as a member of the Work Force Training and Education Coordinating Board.

 

      The Secretary called the roll on the confirmation of Gubernatorial Appointment No. 9123, Beth Thew as a member of the Work Force Training and Education Coordinating Board and the appointment was confirmed by the following vote: Yeas, 45; Nays, 0; Absent, 2; Excused, 2.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Carrell, Delvin, Eide, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jarrett, Kastama, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      Absent: Senators Jacobsen and Kauffman

      Excused: Senators Brown and Fairley

Gubernatorial Appointment No. 9123, Beth Thew, having received the constitutional majority was declared confirmed as a member of the Work Force Training and Education Coordinating Board.

 

MOTION

 

      On motion of Senator Eide, the Senate reverted to the fourth order of business.

 

MESSAGE FROM THE HOUSE

 

April 21, 2009

 

MR. PRESIDENT:

      The Speaker ruled the Senate amendment to HOUSE BILL NO. 1238 to be beyond scope & object of the bill. House refuses to concur in said amendment and asks the Senate to recede therefrom.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Hargrove moved that the Senate recede from its position on House Bill No. 1238 and pass the bill without the Senate amendment(s).

      Senator Hargrove spoke in favor of the motion.

      The President Pro Tempore declared the question before the Senate to be motion by Senator Hargrove that the Senate recede from its position on House Bill No. 1238 and pass the bill without Senate amendment(s).

The motion by Senator Hargrove carried and the Senate receded from its position on House Bill No. 1238 and pass the bill without the Senate amendment(s) by a voice vote.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of House Bill No. 1238, without the Senate amendment(s), and the bill passed the Senate by the following vote: Yeas, 44; Nays, 1; Absent, 2; Excused, 2.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Carrell, Delvin, Eide, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      Voting nay: Senator Honeyford


      Absent: Senators Jacobsen and Regala

      Excused: Senators Brown and Fairley

HOUSE BILL NO. 1238, without the Senate amendment(s), having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

      The President assumed the chair.

 

MOTION

 

On motion of Senator Marr, Senators Brown, Kastama and Regala were excused.

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:

The Speaker has signed the following:

      SENATE BILL NO. 5107,

      SUBSTITUTE SENATE BILL NO. 5166,

      SUBSTITUTE SENATE BILL NO. 5252,

      SUBSTITUTE SENATE BILL NO. 5391,

      ENGROSSED SECOND SUBSTITUTE SENATE BILL NO. 5560,

      ENGROSSED SECOND SUBSTITUTE SENATE BILL NO. 5649,

      SUBSTITUTE SENATE BILL NO. 5718,

      SUBSTITUTE SENATE BILL NO. 5723,

      SUBSTITUTE SENATE BILL NO. 5725,

      SUBSTITUTE SENATE BILL NO. 5732,

      ENGROSSED SUBSTITUTE SENATE BILL NO. 5746,

      ENGROSSED SECOND SUBSTITUTE SENATE BILL NO. 5850,

      SUBSTITUTE SENATE BILL NO. 5931,

      SECOND SUBSTITUTE SENATE BILL NO. 5945,

      ENGROSSED SUBSTITUTE SENATE BILL NO. 5967,

      SECOND SUBSTITUTE SENATE BILL NO. 5973,

      SENATE BILL NO. 5974,

      ENGROSSED SUBSTITUTE SENATE BILL NO. 5978,

      SUBSTITUTE SENATE BILL NO. 6009,

      ENGROSSED SECOND SUBSTITUTE SENATE BILL NO. 6015,

      SUBSTITUTE SENATE BILL NO. 6016,

      ENGROSSED SENATE BILL NO. 6033,

      SUBSTITUTE SENATE BILL NO. 6036,

      SENATE BILL NO. 6070,

      SUBSTITUTE SENATE BILL NO. 6088,

      SUBSTITUTE SENATE BILL NO. 6095,

      SENATE BILL NO. 6104,

      SUBSTITUTE SENATE CONCURRENT RESOLUTION NO. 8404,

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MESSAGE FROM THE HOUSE

April 24, 2009

 

MR. PRESIDENT:

The Speaker has signed the following:

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1018,

      SUBSTITUTE HOUSE BILL NO. 1119,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1138,

      SUBSTITUTE HOUSE BILL NO. 1170,

      SECOND SUBSTITUTE HOUSE BILL NO. 1290,

      SUBSTITUTE HOUSE BILL NO. 1347,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1553,

      SUBSTITUTE HOUSE BILL NO. 1555,

      SUBSTITUTE HOUSE BILL NO. 1592,

      ENGROSSED HOUSE BILL NO. 1616,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1709,

      ENGROSSED HOUSE BILL NO. 1815,

      SUBSTITUTE HOUSE BILL NO. 1919,

      ENGROSSED HOUSE BILL NO. 1986,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 2035,

      ENGROSSED HOUSE BILL NO. 2040,

      ENGROSSED SECOND SUBSTITUTE HOUSE BILL NO. 2227,

      ENGROSSED HOUSE BILL NO. 2299,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 2327,

      HOUSE BILL NO. 2328,

      SUBSTITUTE HOUSE BILL NO. 2343,

      HOUSE BILL NO. 2347,

      HOUSE BILL NO. 2349,

      HOUSE BILL NO. 2359,

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:

The Speaker has signed the following:

      SECOND SUBSTITUTE HOUSE BILL NO. 1081,

      SUBSTITUTE HOUSE BILL NO. 1103,

      HOUSE BILL NO. 1148,

      SECOND SUBSTITUTE HOUSE BILL NO. 1172,

      HOUSE BILL NO. 1517,

      SUBSTITUTE HOUSE BILL NO. 2208

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:

The House has passed the following bills:

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1216,

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:

      The Speaker ruled the Senate amendment to ENGROSSED SUBSTITUTE HOUSE BILL NO. 1379 to be beyond scope & object of the bill. House refuses to concur in said amendment and asks the Senate to recede therefrom.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Fraser moved that the Senate recede from its position on the Senate amendments to Engrossed Substitute House Bill No. 1379.

      Senator Fraser spoke in favor of the motion.


      The President declared the question before the Senate to be motion by Senator Fraser that the Senate recede from its position on the Senate amendments to Engrossed Substitute House Bill No. 1379.

The motion by Senator Fraser carried and the Senate receded from its amendments to Engrossed Substitute House Bill No. 1379 by voice vote.

 

MOTION

 

On motion of Senator Fraser, the rules were suspended and Engrossed Substitute House Bill No. 1379 was returned to second reading for the purposes of amendment.

 

 

SECOND READING

 

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1379, by House Committee on Local Government & Housing (originally sponsored by Representatives Seaquist, Angel and Liias)

 

      Regarding moratoria and other interim official controls adopted under the shoreline management act.

 

      The measure was read the second time.

 

MOTION

 

      Senator Fraser moved that the following striking amendment by Senator Fraser and others be adopted:

      Strike everything after the enacting clause and insert the following:

      "NEW SECTION. Sec. 1. The legislature recognizes that cities and counties have moratoria authority granted through constitutional and statutory provisions and that this authority, when properly exercised, is an important aspect of complying with environmental stewardship and protection requirements.

      Recognizing the fundamental role and value of properly exercised moratoria, the legislature intends to establish new moratoria procedures and to affirm moratoria authority that local governments have and may exercise when implementing the shoreline management act, while recognizing the legitimate interests of existing shoreline related developments during the period of interim moratoria.

      NEW SECTION. Sec. 2. A new section is added to chapter 90.58 RCW to read as follows:

      (1) Local governments may adopt moratoria or other interim official controls as necessary and appropriate to implement this chapter.

      (2)(a) A local government adopting a moratorium or control under this section must:

      (i) Hold a public hearing on the moratorium or control;

      (ii) Adopt detailed findings of fact that include, but are not limited to justifications for the proposed or adopted actions and explanations of the desired and likely outcomes;

      (iii) Notify the department of the moratorium or control immediately after its adoption. The notification must specify the time, place, and date of any public hearing required by this subsection;

      (iv) Provide that all lawfully existing uses, structures, or other development shall continue to be deemed lawful conforming uses and may continue to be maintained, repaired, and redeveloped, so long as the use is not expanded, under the terms of the land use and shoreline rules and regulations in place at the time of the moratorium.

      (b) The public hearing required by this section must be held within sixty days of the adoption of the moratorium or control.

      (3) A moratorium or control adopted under this section may be effective for up to six months if a detailed work plan for remedying the issues and circumstances necessitating the moratorium or control is developed and made available for public review. A moratorium or control may be renewed for two six-month periods if the local government complies with subsection (2)(a) of this section before each renewal. If a moratorium or control is in effect on the date a proposed master program or amendment is submitted to the department, the moratorium or control must remain in effect until the department's final action under RCW 90.58.090; however, the moratorium expires six months after the date of submittal if the department has not taken final action.

      (4) Nothing in this section may be construed to modify county and city moratoria powers conferred outside this chapter."

      Senator Fraser spoke in favor of adoption of the striking amendment.

      The President declared the question before the Senate to be the adoption of the striking amendment by Senator Fraser and others to Engrossed Substitute House Bill No. 1379.

      The motion by Senator Fraser carried and the striking amendment was adopted by voice vote.

 

MOTION

 

      There being no objection, the following title amendment was adopted:

      On page 1, line 2 of the title, after "act;" strike the remainder of the title and insert "adding a new section to chapter 90.58 RCW; and creating a new section."

 

MOTION

 

      On motion of Senator Fraser, the rules were suspended, Engrossed Substitute House Bill No. 1379 as amended by the Senate was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senator Fraser spoke in favor of passage of the bill.

      Senator Honeyford spoke against passage of the bill.

      The President declared the question before the Senate to be the final passage of Engrossed Substitute House Bill No. 1379 as amended by the Senate.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Engrossed Substitute House Bill No. 1379 as amended by the Senate and the bill passed the Senate by the following vote: Yeas, 28; Nays, 19; Absent, 1; Excused, 1.

      Voting yea: Senators Berkey, Eide, Fairley, Franklin, Fraser, Hargrove, Haugen, Hobbs, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, Kline, Marr, McAuliffe, McDermott, Murray, Oemig, Parlette, Prentice, Pridemore, Ranker, Regala, Rockefeller, Shin and Tom

      Voting nay: Senators Becker, Benton, Brandland, Carrell, Delvin, Hatfield, Hewitt, Holmquist, Honeyford, King, McCaslin, Morton, Pflug, Roach, Schoesler, Sheldon, Stevens, Swecker and Zarelli

      Absent: Senator Kohl-Welles

      Excused: Senator Brown

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1379 as amended by the Senate, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 


MR. PRESIDENT:

      The House refuses to concur in the Senate amendment(s) to HOUSE BILL NO. 1527 and asks Senate to recede therefrom.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Keiser moved that the Senate recede from its position on House Bill No. 1527 and pass the bill without the Senate amendment(s).

      The President declared the question before the Senate to be motion by Senator Keiser that the Senate recede from its position on House Bill No. 1527 and pass the bill without Senate amendment(s).

The motion by Senator Keiser carried and the Senate receded from its position on House Bill No. 1527 and pass the bill without the Senate amendment(s) by voice vote.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of House Bill No. 1527, without the Senate amendment(s), and the bill passed the Senate by the following vote: Yeas, 48; Nays, 0; Absent, 0; Excused, 1.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      Excused: Senator Brown

HOUSE BILL NO. 1527, without the Senate amendment(s), having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

SIGNED BY THE PRESIDENT

 

      The President signed:

ENGROSSED SUBSTITUTE HOUSE BILL NO. 1018,

SECOND SUBSTITUTE HOUSE BILL NO. 1081,

SUBSTITUTE HOUSE BILL NO. 1103,

SUBSTITUTE HOUSE BILL NO. 1119,

ENGROSSED SUBSTITUTE HOUSE BILL NO. 1138,

HOUSE BILL NO. 1148,

SUBSTITUTE HOUSE BILL NO. 1170,

SECOND SUBSTITUTE HOUSE BILL NO. 1172,

SECOND SUBSTITUTE HOUSE BILL NO. 1290,

SUBSTITUTE HOUSE BILL NO. 1347,

HOUSE BILL NO. 1517,

ENGROSSED SUBSTITUTE HOUSE BILL NO. 1553,

SUBSTITUTE HOUSE BILL NO. 1555,

SUBSTITUTE HOUSE BILL NO. 1592,

ENGROSSED HOUSE BILL NO. 1616,

ENGROSSED SUBSTITUTE HOUSE BILL NO. 1709,

ENGROSSED HOUSE BILL NO. 1815,

SUBSTITUTE HOUSE BILL NO. 1919,

ENGROSSED HOUSE BILL NO. 1986,

ENGROSSED SUBSTITUTE HOUSE BILL NO. 2035,

ENGROSSED HOUSE BILL NO. 2040,

SUBSTITUTE HOUSE BILL NO. 2208,

ENGROSSED SECOND SUBSTITUTE HOUSE BILL NO. 2227,

ENGROSSED HOUSE BILL NO. 2299,

ENGROSSED SUBSTITUTE HOUSE BILL NO. 2327,

HOUSE BILL NO. 2328,

SUBSTITUTE HOUSE BILL NO. 2343,

HOUSE BILL NO. 2347,

HOUSE BILL NO. 2349,

HOUSE BILL NO. 2359,

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

      The House refuses to concur in the Senate amendment(s) to SUBSTITUTE HOUSE BILL NO. 1776 and asks Senate to recede therefrom.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Tom moved that the Senate recede from its position on the Senate amendments to Substitute House Bill No. 1776.

      The President declared the question before the Senate to be motion by Senator Tom that the Senate recede from its position on the Senate amendments to Substitute House Bill No. 1776.

The motion by Senator Tom carried and the Senate receded from its amendments to Substitute House Bill No. 1776.

 

MOTION

 

On motion of Senator Tom, the rules were suspended and Substitute House Bill No. 1776 was returned to second reading for the purposes of amendment.

 

 

MOTION

 

On motion of Senator Eide, further consideration of Substitute House Bill No. 1776 was deferred and the bill held its place on the second reading calendar.

 

MESSAGE FROM THE HOUSE

 

April 21, 2009

 

MR. PRESIDENT:

      The House refuses to concur in the Senate amendment(s) to ENGROSSED SUBSTITUTE HOUSE BILL NO. 1782 and asks Senate to recede therefrom.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Hargrove moved that the Senate recede from its position on the Senate amendments to Engrossed Substitute House Bill No. 1782.

      The President declared the question before the Senate to be motion by Senator Hargrove that the Senate recede from its position on the Senate amendments to Engrossed Substitute House Bill No. 1782.

The motion by Senator Hargrove carried and the Senate receded from its amendments to Engrossed Substitute House Bill No. 1782.

 


MOTION

 

On motion of Senator Hargrove, the rules were suspended and Engrossed Substitute House Bill No. 1782 was returned to second reading for the purposes of amendment.

 

 

SECOND READING

 

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1782, by House Committee on Early Learning & Children's Services (originally sponsored by Representatives Goodman, Roberts, Walsh, Dickerson, Darneille, Kagi and Nelson)

 

      Concerning parent participation in dependency matters.

 

      The measure was read the second time.

 

MOTION

 

      Senator Hargrove moved that the following striking amendment by Senators Hargrove, Regala and Stevens be adopted:

      Strike everything after the enacting clause and insert the following:

      "NEW SECTION. Sec. 1. The legislature finds that when children have been found dependent and placed in out-of-home care, the likelihood of reunification with their parents diminishes significantly after fifteen months. The legislature also finds that early and consistent parental engagement in services and participation in appropriate parent-child contact and visitation increases the likelihood of successful reunifications. The legislature intends to promote greater awareness among parents in dependency cases of the importance of active participation in services, visitation, and case planning for the child, and the risks created by failure to participate in their child's case over the long term.

      Sec. 2. RCW 13.34.062 and 2007 c 413 s 4 and 2007 c 409 s 5 are each reenacted and amended to read as follows:

      (1)(a) Whenever a child is taken into custody by child protective services pursuant to a court order issued under RCW 13.34.050 or when child protective services is notified that a child has been taken into custody pursuant to RCW 26.44.050 or 26.44.056, child protective services shall make reasonable efforts to inform the parent, guardian, or legal custodian of the fact that the child has been taken into custody, the reasons why the child was taken into custody, and their legal rights under this title, including the right to a shelter care hearing, as soon as possible. Notice must be provided in an understandable manner and take into consideration the parent's, guardian's, or legal custodian's primary language, level of education, and cultural issues.

      (b) In no event shall the notice required by this section be provided to the parent, guardian, or legal custodian more than twenty- four hours after the child has been taken into custody or twenty-four hours after child protective services has been notified that the child has been taken into custody.

      (2)(a) The notice of custody and rights may be given by any means reasonably certain of notifying the parents including, but not limited to, written, telephone, or in person oral notification. If the initial notification is provided by a means other than writing, child protective services shall make reasonable efforts to also provide written notification.

      (b) The written notice of custody and rights required by this section shall be in substantially the following form:

 

"NOTICE

 

      Your child has been placed in temporary custody under the supervision of Child Protective Services (or other person or agency). You have important legal rights and you must take steps to protect your interests.

      1. A court hearing will be held before a judge within 72 hours of the time your child is taken into custody excluding Saturdays, Sundays, and holidays. You should call the court at    (insert appropriate phone number here)    for specific information about the date, time, and location of the court hearing.

      2. You have the right to have a lawyer represent you at the hearing. Your right to representation continues after the shelter care hearing. You have the right to records the department intends to rely upon. A lawyer can look at the files in your case, talk to child protective services and other agencies, tell you about the law, help you understand your rights, and help you at hearings. If you cannot afford a lawyer, the court will appoint one to represent you. To get a court-appointed lawyer you must contact:    (explain local procedure)   .

      3. At the hearing, you have the right to speak on your own behalf, to introduce evidence, to examine witnesses, and to receive a decision based solely on the evidence presented to the judge.

      4. If your hearing occurs before a court commissioner, you have the right to have the decision of the court commissioner reviewed by a superior court judge. To obtain that review, you must, within ten days after the entry of the decision of the court commissioner, file with the court a motion for revision of the decision, as provided in RCW 2.24.050.

      You should be present at any shelter care hearing. If you do not come, the judge will not hear what you have to say.

      You may call the Child Protective Services' caseworker for more information about your child. The caseworker's name and telephone number are:    (insert name and telephone number)   .

      5. You have a right to a case conference to develop a written service agreement following the shelter care hearing. The service agreement may not conflict with the court's order of shelter care. You may request that a multidisciplinary team, family group conference, or prognostic staffing be convened for your child's case. You may participate in these processes with your counsel present.

      6. If your child is placed in the custody of the department of social and health services or other supervising agency, immediately following the shelter care hearing, the court will enter an order granting the department or other supervising agency the right to inspect and copy all health, medical, mental health, and education records of the child, directing health care providers to release such information without your further consent, and granting the department or supervising agency or its designee the authority and responsibility, where applicable, to:

      (1) Notify the child's school that the child is in out-of-home placement;

      (2) Enroll the child in school;

      (3) Request the school transfer records;

      (4) Request and authorize evaluation of special needs;

      (5) Attend parent or teacher conferences;

      (6) Excuse absences;

      (7) Grant permission for extracurricular activities;

      (8) Authorize medications which need to be administered during school hours and sign for medical needs that arise during school hours; and

      (9) Complete or update school emergency records.

 

      7. If the court decides to place your child in the custody of the department of social and health services or other supervising agency, the department or agency will create a permanency plan for your child, including a primary placement goal and secondary placement goal. The department or agency also will recommend that the court order services for your child and for you, if needed. The department or agency is required to make reasonable efforts to provide you with services to address your parenting problems, and to provide you with visitation with your child according to court orders. Failure to promptly engage in services or to maintain contact with your child may lead to the filing of a petition to terminate your parental rights.

      8. Primary and secondary permanency plans are intended to run at the same time so that your child will have a permanent home as quickly as possible. Absent good cause, and when appropriate, the department or other supervising agency must follow the wishes of a natural parent regarding placement of a child. You should tell your lawyer and the court where you wish your child placed immediately, including whether you want your child placed with you, with a relative, or with another suitable person. You also should tell your lawyer and the court what services you feel are necessary and your wishes regarding visitation with your child. Even if you want another parent or person to be the primary placement choice for your child, you should tell your lawyer, the department or other supervising agency, and the court if you want to be a secondary placement option, and you should comply with court orders for services and participate in visitation with your child. Early and consistent involvement in your child's case plan is important for the well-being of your child.

      9. A dependency petition begins a judicial process, which, if the court finds your child dependent, could result in substantial restrictions including, the entry or modification of a parenting plan or residential schedule, nonparental custody order or decree, guardianship order, or permanent loss of your parental rights."

      Upon receipt of the written notice, the parent, guardian, or legal custodian shall acknowledge such notice by signing a receipt prepared by child protective services. If the parent, guardian, or legal custodian does not sign the receipt, the reason for lack of a signature shall be written on the receipt. The receipt shall be made a part of the court's file in the dependency action.

      If after making reasonable efforts to provide notification, child protective services is unable to determine the whereabouts of the parents, guardian, or legal custodian, the notice shall be delivered or sent to the last known address of the parent, guardian, or legal custodian.

      (3) If child protective services is not required to give notice under this section, the juvenile court counselor assigned to the matter shall make all reasonable efforts to advise the parents, guardian, or legal custodian of the time and place of any shelter care hearing, request that they be present, and inform them of their basic rights as provided in RCW 13.34.090.

      (4) Reasonable efforts to advise and to give notice, as required in this section, shall include, at a minimum, investigation of the whereabouts of the parent, guardian, or legal custodian. If such reasonable efforts are not successful, or the parent, guardian, or legal custodian does not appear at the shelter care hearing, the petitioner shall testify at the hearing or state in a declaration:

      (a) The efforts made to investigate the whereabouts of, and to advise, the parent, guardian, or ((legal)) custodian; and

      (b) Whether actual advice of rights was made, to whom it was made, and how it was made, including the substance of any oral communication or copies of written materials used.

      Sec. 3. RCW 13.34.065 and 2008 c 267 s 2 are each amended to read as follows:

      (1)(a) When a child is taken into custody, the court shall hold a shelter care hearing within seventy-two hours, excluding Saturdays, Sundays, and holidays. The primary purpose of the shelter care hearing is to determine whether the child can be immediately and safely returned home while the adjudication of the dependency is pending.

      (b) Any parent, guardian, or legal custodian who for good cause is unable to attend the shelter care hearing may request that a subsequent shelter care hearing be scheduled. The request shall be made to the clerk of the court where the petition is filed prior to the initial shelter care hearing. Upon the request of the parent, the court shall schedule the hearing within seventy-two hours of the request, excluding Saturdays, Sundays, and holidays. The clerk shall notify all other parties of the hearing by any reasonable means.

      (2)(a) The department of social and health services shall submit a recommendation to the court as to the further need for shelter care in all cases in which it is the petitioner. In all other cases, the recommendation shall be submitted by the juvenile court probation counselor.

      (b) All parties have the right to present testimony to the court regarding the need or lack of need for shelter care.

      (c) Hearsay evidence before the court regarding the need or lack of need for shelter care must be supported by sworn testimony, affidavit, or declaration of the person offering such evidence.

      (3)(a) At the commencement of the hearing, the court shall notify the parent, guardian, or custodian of the following:

      (i) The parent, guardian, or custodian has the right to a shelter care hearing;

      (ii) The nature of the shelter care hearing, the rights of the parents, and the proceedings that will follow; and

      (iii) If the parent, guardian, or custodian is not represented by counsel, the right to be represented. If the parent, guardian, or custodian is indigent, the court shall appoint counsel as provided in RCW 13.34.090; and

      (b) If a parent, guardian, or legal custodian desires to waive the shelter care hearing, the court shall determine, on the record and with the parties present, whether such waiver is knowing and voluntary. A parent may not waive his or her right to the shelter care hearing unless he or she appears in court and the court determines that the waiver is knowing and voluntary. Regardless of whether the court accepts the parental waiver of the shelter care hearing, the court must provide notice to the parents of their rights required under (a) of this subsection and make the finding required under subsection (4) of this section.

      (4) At the shelter care hearing the court shall examine the need for shelter care and inquire into the status of the case. The paramount consideration for the court shall be the health, welfare, and safety of the child. At a minimum, the court shall inquire into the following:

      (a) Whether the notice required under RCW 13.34.062 was given to all known parents, guardians, or legal custodians of the child. The court shall make an express finding as to whether the notice required under RCW 13.34.062 was given to the parent, guardian, or legal custodian. If actual notice was not given to the parent, guardian, or legal custodian and the whereabouts of such person is known or can be ascertained, the court shall order the supervising agency or the department of social and health services to make reasonable efforts to advise the parent, guardian, or legal custodian of the status of the case, including the date and time of any subsequent hearings, and their rights under RCW 13.34.090;

      (b) Whether the child can be safely returned home while the adjudication of the dependency is pending;

      (c) What efforts have been made to place the child with a relative;

      (d) What services were provided to the family to prevent or eliminate the need for removal of the child from the child's home;

      (e) Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child;

      (f) Whether it is in the best interest of the child to remain enrolled in the school, developmental program, or child care the child was in prior to placement and what efforts have been made to maintain the child in the school, program, or child care if it would be in the best interest of the child to remain in the same school, program, or child care;

      (g) Appointment of a guardian ad litem or attorney;

      (h) Whether the child is or may be an Indian child as defined in 25 U.S.C. Sec. 1903, whether the provisions of the Indian child welfare act apply, and whether there is compliance with the Indian child welfare act, including notice to the child's tribe;

      (i) Whether, as provided in RCW 26.44.063, restraining orders, or orders expelling an allegedly abusive household member from the home of a nonabusive parent, guardian, or legal custodian, will allow the child to safely remain in the home;

      (j) Whether any orders for examinations, evaluations, or immediate services are needed. The court may not order a parent to undergo examinations, evaluation, or services at the shelter care hearing unless the parent agrees to the examination, evaluation, or service;

      (k) The terms and conditions for parental, sibling, and family visitation.

      (5)(a) The court shall release a child alleged to be dependent to the care, custody, and control of the child's parent, guardian, or legal custodian unless the court finds there is reasonable cause to believe that:

       (i) After consideration of the specific services that have been provided, reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home; and

      (ii)(A) The child has no parent, guardian, or legal custodian to provide supervision and care for such child; or

      (B) The release of such child would present a serious threat of substantial harm to such child, notwithstanding an order entered pursuant to RCW 26.44.063; or

      (C) The parent, guardian, or custodian to whom the child could be released has been charged with violating RCW 9A.40.060 or 9A.40.070.

      (b) If the court does not release the child to his or her parent, guardian, or legal custodian, the court shall order placement with a relative, unless there is reasonable cause to believe the health, safety, or welfare of the child would be jeopardized or that the efforts to reunite the parent and child will be hindered. The relative must be willing and available to:

      (i) Care for the child and be able to meet any special needs of the child;

      (ii) Facilitate the child's visitation with siblings, if such visitation is part of the supervising agency's plan or is ordered by the court; and

      (iii) Cooperate with the department in providing necessary background checks and home studies.

      (c) If the child was not initially placed with a relative, and the court does not release the child to his or her parent, guardian, or legal custodian, the supervising agency shall make reasonable efforts to locate a relative pursuant to RCW 13.34.060(1). In determining placement, the court shall weigh the child's length of stay and attachment to the current provider in determining what is in the best interest of the child.

      (d) If a relative is not available, the court shall order continued shelter care or order placement with another suitable person, and the court shall set forth its reasons for the order. If the court orders placement of the child with a person not related to the child and not licensed to provide foster care, the placement is subject to all terms and conditions of this section that apply to relative placements.

       (e) Any placement with a relative, or other person approved by the court pursuant to this section, shall be contingent upon cooperation with the agency case plan and compliance with court orders related to the care and supervision of the child including, but not limited to, court orders regarding parent-child contacts, sibling contacts, and any other conditions imposed by the court. Noncompliance with the case plan or court order is grounds for removal of the child from the home of the relative or other person, subject to review by the court.

      (f) Uncertainty by a parent, guardian, legal custodian, relative, or other suitable person that the alleged abuser has in fact abused the child shall not, alone, be the basis upon which a child is removed from the care of a parent, guardian, or legal custodian under (a) of this subsection, nor shall it be a basis, alone, to preclude placement with a relative under (b) of this subsection or with another suitable person under (d) of this subsection.

      (6)(a) A shelter care order issued pursuant to this section shall include the requirement for a case conference as provided in RCW 13.34.067. However, if the parent is not present at the shelter care hearing, or does not agree to the case conference, the court shall not include the requirement for the case conference in the shelter care order.

      (b) If the court orders a case conference, the shelter care order shall include notice to all parties and establish the date, time, and location of the case conference which shall be no later than thirty days before the fact-finding hearing.

      (c) The court may order another conference, case staffing, or hearing as an alternative to the case conference required under RCW 13.34.067 so long as the conference, case staffing, or hearing ordered by the court meets all requirements under RCW 13.34.067, including the requirement of a written agreement specifying the services to be provided to the parent.

      (7)(a) A shelter care order issued pursuant to this section may be amended at any time with notice and hearing thereon. The shelter care decision of placement shall be modified only upon a showing of change in circumstances. No child may be placed in shelter care for longer than thirty days without an order, signed by the judge, authorizing continued shelter care.

       (b)(i) An order releasing the child on any conditions specified in this section may at any time be amended, with notice and hearing thereon, so as to return the child to shelter care for failure of the parties to conform to the conditions originally imposed.

      (ii) The court shall consider whether nonconformance with any conditions resulted from circumstances beyond the control of the parent, guardian, or legal custodian and give weight to that fact before ordering return of the child to shelter care.

      (8)(a) If a child is returned home from shelter care a second time in the case, or if the supervisor of the caseworker deems it necessary, the multidisciplinary team may be reconvened.

      (b) If a child is returned home from shelter care a second time in the case a law enforcement officer must be present and file a report to the department.

      Sec. 4. RCW 13.34.145 and 2008 c 152 s 3 are each amended to read as follows:

      (1) The purpose of a permanency planning hearing is to review the permanency plan for the child, inquire into the welfare of the child and progress of the case, and reach decisions regarding the permanent placement of the child.

      (a) A permanency planning hearing shall be held in all cases where the child has remained in out-of-home care for at least nine months and an adoption decree, guardianship order, or permanent custody order has not previously been entered. The hearing shall take place no later than twelve months following commencement of the current placement episode.

      (b) Whenever a child is removed from the home of a dependency guardian or long-term relative or foster care provider, and the child is not returned to the home of the parent, guardian, or legal custodian but is placed in out-of-home care, a permanency planning hearing shall take place no later than twelve months, as provided in this section, following the date of removal unless, prior to the hearing, the child returns to the home of the dependency guardian or long-term care provider, the child is placed in the home of the parent, guardian, or legal custodian, an adoption decree, guardianship order, or a permanent custody order is entered, or the dependency is dismissed. Every effort shall be made to provide stability in long-term placement, and to avoid disruption of placement, unless the child is being returned home or it is in the best interest of the child.

      (c) Permanency planning goals should be achieved at the earliest possible date, preferably before the child has been in out-of-home care for fifteen months. In cases where parental rights have been terminated, the child is legally free for adoption, and adoption has been identified as the primary permanency planning goal, it shall be a goal to complete the adoption within six months following entry of the termination order.

      (2) No later than ten working days prior to the permanency planning hearing, the agency having custody of the child shall submit a written permanency plan to the court and shall mail a copy of the plan to all parties and their legal counsel, if any.

      (3) At the permanency planning hearing, the court shall conduct the following inquiry:

      (a) If a goal of long-term foster or relative care has been achieved prior to the permanency planning hearing, the court shall review the child's status to determine whether the placement and the plan for the child's care remain appropriate.

      (b) In cases where the primary permanency planning goal has not been achieved, the court shall inquire regarding the reasons why the primary goal has not been achieved and determine what needs to be done to make it possible to achieve the primary goal. The court shall review the permanency plan prepared by the agency and make explicit findings regarding each of the following:

      (i) The continuing necessity for, and the safety and appropriateness of, the placement;

      (ii) The extent of compliance with the permanency plan by the agency and any other service providers, the child's parents, the child, and the child's guardian, if any;

      (iii) The extent of any efforts to involve appropriate service providers in addition to agency staff in planning to meet the special needs of the child and the child's parents;

      (iv) The progress toward eliminating the causes for the child's placement outside of his or her home and toward returning the child safely to his or her home or obtaining a permanent placement for the child;

       (v) The date by which it is likely that the child will be returned to his or her home or placed for adoption, with a guardian or in some other alternative permanent placement; and

      (vi) If the child has been placed outside of his or her home for fifteen of the most recent twenty-two months, not including any period during which the child was a runaway from the out-of-home placement or the first six months of any period during which the child was returned to his or her home for a trial home visit, the appropriateness of the permanency plan, whether reasonable efforts were made by the agency to achieve the goal of the permanency plan, and the circumstances which prevent the child from any of the following:

      (A) Being returned safely to his or her home;

      (B) Having a petition for the involuntary termination of parental rights filed on behalf of the child;

      (C) Being placed for adoption;

      (D) Being placed with a guardian;

      (E) Being placed in the home of a fit and willing relative of the child; or

      (F) Being placed in some other alternative permanent placement, including independent living or long-term foster care.

      At this hearing, the court shall order the department to file a petition seeking termination of parental rights if the child has been in out-of-home care for fifteen of the last twenty-two months since the date the dependency petition was filed unless the court makes a good cause exception as to why the filing of a termination of parental rights petition is not appropriate. Any good cause finding shall be reviewed at all subsequent hearings pertaining to the child. For purposes of this section, "good cause exception" includes but is not limited to the following: The child is being cared for by a relative; the department has not provided to the child's family such services as the court and the department have deemed necessary for the child's safe return home; or the department has documented in the case plan a compelling reason for determining that filing a petition to terminate parental rights would not be in the child's best interests.

      (c)(i) If the permanency plan identifies independent living as a goal, the court shall make a finding that the provision of services to assist the child in making a transition from foster care to independent living will allow the child to manage his or her financial, personal, social, educational, and nonfinancial affairs prior to approving independent living as a permanency plan of care.

      (ii) The permanency plan shall also specifically identify the services that will be provided to assist the child to make a successful transition from foster care to independent living.

      (iii) The department shall not discharge a child to an independent living situation before the child is eighteen years of age unless the child becomes emancipated pursuant to chapter 13.64 RCW.

      (d) If the child has resided in the home of a foster parent or relative for more than six months prior to the permanency planning hearing, the court shall also enter a finding regarding whether the foster parent or relative was informed of the hearing as required in RCW 74.13.280, 13.34.215(5), and 13.34.096.

      (4) In all cases, at the permanency planning hearing, the court shall:

      (a)(i) Order the permanency plan prepared by the agency to be implemented; or

      (ii) Modify the permanency plan, and order implementation of the modified plan; and

      (b)(i) Order the child returned home only if the court finds that a reason for removal as set forth in RCW 13.34.130 no longer exists; or

      (ii) Order the child to remain in out-of-home care for a limited specified time period while efforts are made to implement the permanency plan.

      (5) Following the first permanency planning hearing, the court shall hold a further permanency planning hearing in accordance with this section at least once every twelve months until a permanency planning goal is achieved or the dependency is dismissed, whichever occurs first.

      (6) Prior to the second permanency planning hearing, the agency that has custody of the child shall consider whether to file a petition for termination of parental rights.

      (7) If the court orders the child returned home, casework supervision shall continue for at least six months, at which time a review hearing shall be held pursuant to RCW 13.34.138, and the court shall determine the need for continued intervention.

       (8) The juvenile court may hear a petition for permanent legal custody when: (a) The court has ordered implementation of a permanency plan that includes permanent legal custody; and (b) the party pursuing the permanent legal custody is the party identified in the permanency plan as the prospective legal custodian. During the pendency of such proceeding, the court shall conduct review hearings and further permanency planning hearings as provided in this chapter. At the conclusion of the legal guardianship or permanent legal custody proceeding, a juvenile court hearing shall be held for the purpose of determining whether dependency should be dismissed. If a guardianship or permanent custody order has been entered, the dependency shall be dismissed.

      (9) Continued juvenile court jurisdiction under this chapter shall not be a barrier to the entry of an order establishing a legal guardianship or permanent legal custody when the requirements of subsection (8) of this section are met.

      (10) Nothing in this chapter may be construed to limit the ability of the agency that has custody of the child to file a petition for termination of parental rights or a guardianship petition at any time following the establishment of dependency. Upon the filing of such a petition, a fact-finding hearing shall be scheduled and held in accordance with this chapter unless the agency requests dismissal of the petition prior to the hearing or unless the parties enter an agreed order terminating parental rights, establishing guardianship, or otherwise resolving the matter.


      (11) The approval of a permanency plan that does not contemplate return of the child to the parent does not relieve the supervising agency of its obligation to provide reasonable services, under this chapter, intended to effectuate the return of the child to the parent, including but not limited to, visitation rights. The court shall consider the child's relationships with siblings in accordance with RCW 13.34.130.

      (12) Nothing in this chapter may be construed to limit the procedural due process rights of any party in a termination or guardianship proceeding filed under this chapter.

      Sec. 5. RCW 13.34.180 and 2001 c 332 s 4 are each amended to read as follows:

      (1) A petition seeking termination of a parent and child relationship may be filed in juvenile court by any party to the dependency proceedings concerning that child. Such petition shall conform to the requirements of RCW 13.34.040, shall be served upon the parties as provided in RCW 13.34.070(8), and shall allege all of the following unless subsection (2) or (3) of this section applies:

      (a) That the child has been found to be a dependent child;

      (b) That the court has entered a dispositional order pursuant to RCW 13.34.130;

      (c) That the child has been removed or will, at the time of the hearing, have been removed from the custody of the parent for a period of at least six months pursuant to a finding of dependency;

      (d) That the services ordered under RCW 13.34.136 have been expressly and understandably offered or provided and all necessary services, reasonably available, capable of correcting the parental deficiencies within the foreseeable future have been expressly and understandably offered or provided;

      (e) That there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. A parent's failure to substantially improve parental deficiencies within twelve months following entry of the dispositional order shall give rise to a rebuttable presumption that there is little likelihood that conditions will be remedied so that the child can be returned to the parent in the near future. The presumption shall not arise unless the petitioner makes a showing that all necessary services reasonably capable of correcting the parental deficiencies within the foreseeable future have been clearly offered or provided. In determining whether the conditions will be remedied the court may consider, but is not limited to, the following factors:

      (i) Use of intoxicating or controlled substances so as to render the parent incapable of providing proper care for the child for extended periods of time or for periods of time that present a risk of imminent harm to the child, and documented unwillingness of the parent to receive and complete treatment or documented multiple failed treatment attempts; ((or))

      (ii) Psychological incapacity or mental deficiency of the parent that is so severe and chronic as to render the parent incapable of providing proper care for the child for extended periods of time or for periods of time that present a risk of imminent harm to the child, and documented unwillingness of the parent to receive and complete treatment or documentation that there is no treatment that can render the parent capable of providing proper care for the child in the near future; or

      (iii) Failure of the parent to have contact with the child for an extended period of time after the filing of the dependency petition if the parent was provided an opportunity to have a relationship with the child by the department or the court and received documented notice of the potential consequences of this failure, except that the actual inability of a parent to have visitation with the child including, but not limited to, mitigating circumstances such as a parent's incarceration or service in the military does not in and of itself constitute failure to have contact with the child; and

      (f) That continuation of the parent and child relationship clearly diminishes the child's prospects for early integration into a stable and permanent home.

      (2) In lieu of the allegations in subsection (1) of this section, the petition may allege that the child was found under such circumstances that the whereabouts of the child's parent are unknown and no person has acknowledged paternity or maternity and requested custody of the child within two months after the child was found.

      (3) In lieu of the allegations in subsection (1)(b) through (f) of this section, the petition may allege that the parent has been convicted of:

      (a) Murder in the first degree, murder in the second degree, or homicide by abuse as defined in chapter 9A.32 RCW against another child of the parent;

      (b) Manslaughter in the first degree or manslaughter in the second degree, as defined in chapter 9A.32 RCW against another child of the parent;

      (c) Attempting, conspiring, or soliciting another to commit one or more of the crimes listed in (a) or (b) of this subsection; or

      (d) Assault in the first or second degree, as defined in chapter 9A.36 RCW, against the surviving child or another child of the parent.

      (4) Notice of rights shall be served upon the parent, guardian, or legal custodian with the petition and shall be in substantially the following form:

 

"NOTICE

 

      A petition for termination of parental rights has been filed against you. You have important legal rights and you must take steps to protect your interests. This petition could result in ermanent loss of your parental rights.

      1. You have the right to a fact-finding hearing before a judge.

      2. You have the right to have a lawyer represent you at the hearing. A lawyer can look at the files in your case, talk to the department of social and health services and other agencies, tell you about the law, help you understand your rights, and help you at hearings. If you cannot afford a lawyer, the court will appoint one to represent you. To get a court-appointed lawyer you must contact:    (explain local procedure)   .

      3. At the hearing, you have the right to speak on your own behalf, to introduce evidence, to examine witnesses, and to receive a decision based solely on the evidence presented to the judge.

      You should be present at this hearing.

      You may call    (insert agency)    for more information about your child. The agency's name and telephone number are    (insert name and telephone number)   .""

      Senator Hargrove spoke in favor of adoption of the striking amendment.

      The President declared the question before the Senate to be the adoption of the striking amendment by Senators Hargrove, Regala and Stevens to Engrossed Substitute House Bill No. 1782.

      The motion by Senator Hargrove carried and the striking amendment was adopted by voice vote.

 

MOTION

 

      There being no objection, the following title amendment was adopted:

      On page 1, line 2 of the title, after "matters;" strike the remainder of the title and insert "amending RCW 13.34.065, 13.34.145, and 13.34.180; reenacting and amending RCW 13.34.062; and creating a new section."

 

MOTION

 

      On motion of Senator Hargrove, the rules were suspended, Engrossed Substitute House Bill No. 1782 as amended by the Senate was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      The President declared the question before the Senate to be the final passage of Engrossed Substitute House Bill No. 1782 as amended by the Senate.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Engrossed Substitute House Bill No. 1782 as amended by the Senate and the bill passed the Senate by the following vote: Yeas, 49; Nays, 0; Absent, 0; Excused, 0.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Brown, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1782 as amended by the Senate, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 21, 2009

 

MR. PRESIDENT:

      The House refuses to concur in the Senate amendment(s) to ENGROSSED SUBSTITUTE HOUSE BILL NO. 1619 and asks Senate to recede therefrom.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Fraser moved that the Senate recede from its position on the Senate amendments to Engrossed Substitute House Bill No. 1619.

      The President declared the question before the Senate to be motion by Senator Fraser that the Senate recede from its position on the Senate amendments to Engrossed Substitute House Bill No. 1619.

The motion by Senator Fraser carried and the Senate receded from its amendments to Engrossed Substitute House Bill No. 1619 by voice vote.

 

MOTION

 

On motion of Senator Fraser, the rules were suspended and Engrossed Substitute House Bill No. 1619 was returned to second reading for the purposes of amendment.

 

 

SECOND READING

 

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1619, by House Committee on Capital Budget (originally sponsored by Representatives White, Kenney, Sullivan, Carlyle, Nelson, Hasegawa, Liias, Green, Miloscia, Orwall, Maxwell and Simpson)

 

      Concerning the use of capital projects funds by school districts.

 

      The measure was read the second time.

 

MOTION

 

      Senator Fraser moved that the following amendment by Senators Fraser and Brandland be adopted:

       On page 1, line 3 of the title, after “28A.320.330;” insert “and”

      On page 1, line 3 of the title, after “section” strike “; and providing an expiration date”

      On page 1, beginning on line 5, strike section 1, through page 2 line 3, and renumber the sections consecutively.

      On page 2, line 35, after "major repairs, " insert "exterior painting of facilities, "

      On page 4, line 12, after "service regulations. " insert "Based on the district’s most recent two-year history of general fund maintenance expenditures, funds used for this purpose may not replace routine annual preventive maintenance expenditures made from the district's general fund."

      On page 5, line 16, strike "NEW SECTION. Sec. 4. This act expires July 1, 2013."

 

      Senator Fraser spoke in favor of adoption of the amendment.

      The President declared the question before the Senate to be the adoption of the amendment by Senators Fraser and Brandland to Engrossed Substitute House Bill No. 1619.

      The motion by Senator Fraser carried and the amendment was adopted by voice vote.

 

MOTION

 

      On motion of Senator Fraser, the rules were suspended, Engrossed Substitute House Bill No. 1619 as amended by the Senate was advanced to third reading, the second reading considered the third and the bill was placed on final passage.

      Senator Fraser spoke in favor of passage of the bill.

      The President declared the question before the Senate to be the final passage of Engrossed Substitute House Bill No. 1619 as amended by the Senate.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Engrossed Substitute House Bill No. 1619 as amended by the Senate and the bill passed the Senate by the following vote: Yeas, 49; Nays, 0; Absent, 0; Excused, 0.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Brown, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 1619 as amended by the Senate, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:


      The House refuses to concur in the Senate amendment(s) to ENGROSSED SUBSTITUTE HOUSE BILL NO. 2116 and asks Senate to recede therefrom.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Rockefeller moved that the Senate insist on its position on the Senate amendment(s) to Engrossed Substitute House Bill No. 2116 and ask the House to concur thereon.

      Senators Rockefeller and Honeyford spoke in favor of passage of the motion.

      The President declared the question before the Senate to be motion by Senator Rockefeller that the Senate insist on its position on the Senate amendment(s) to Engrossed Substitute House Bill No. 2116 and ask the House to concur thereon.

The motion by Senator Rockefeller carried and the Senate insisted on its position in the Senate amendment(s) to Engrossed Substitute House Bill No. 2116 and asked the House to concur thereon by voice vote.

 

MESSAGE FROM THE HOUSE

 

April 22, 2009

 

MR. PRESIDENT:

      The House insists on its position regarding the House amendment(s) to ENGROSSED SENATE BILL NO. 5200 and again asks Senate to concur thereon.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Kline moved that the Senate insist on its position on the House amendment(s) to Engrossed Senate Bill No. 5200 and ask the House to recede therefrom.

      Senator Kline spoke in favor of the motion.

      The President declared the question before the Senate to be motion by Senator Kline that the Senate insist on its position on the House amendment(s) to Engrossed Senate Bill No. 5200 and ask the House to recede therefrom.

The motion by Senator Kline carried and the Senate insisted on its position in the House amendment(s) to Engrossed Senate Bill No. 5200 and asked the House to recede therefrom by voice vote.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

      The House insists on its position regarding the House amendment(s) to SUBSTITUTE SENATE BILL NO. 5913 and asks Senate to concur thereon.

and the same is herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Pflug moved that the Senate concur in the House amendment(s) to Substitute Senate Bill No. 5913.

      Senator Pflug spoke in favor of the motion.

 

The President declared the question before the Senate to be the motion by Senator Pflug that the Senate concur in the House amendment(s) to Substitute Senate Bill No. 5913.

The motion by Senator Pflug carried and the Senate concurred in the House amendment(s) to Substitute Senate Bill No. 5913 by voice vote.

The President declared the question before the Senate to be the final passage of Substitute Senate Bill No. 5913, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Substitute Senate Bill No. 5913, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 48; Nays, 0; Absent, 1; Excused, 0.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      Absent: Senator Brown

SUBSTITUTE SENATE BILL NO. 5913, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

      The House has passed SENATE BILL NO. 6173 with the following amendment: 6173 AMH ENGR H3446.E

      Strike everything after the enacting clause and insert the following:

 

"PART I

FINDING AND INTENT

 

      NEW SECTION. Sec. 101. The legislature finds that the department of revenue's 2008 compliance study estimates that sales tax noncompliance exceeds well over one hundred million dollars annually in unpaid state and local sales and use taxes.

      The legislature intends to address this significant problem by eliminating the use of resale certificates to document wholesale purchases. Resale certificates will be replaced with seller's permits, which will be issued by the department of revenue only to those businesses that make wholesale purchases, such as retailers, wholesalers, manufacturers, and qualified contractors. Businesses that do not make wholesale purchases, such as most service businesses, will not be entitled to a seller's permit.

 

PART II

REPLACING RESALE CERTIFICATES WITH SELLER'S PERMITS

ISSUED BY THE DEPARTMENT OF REVENUE

 

      NEW SECTION. Sec. 201. A new section is added to chapter 82.32 RCW to read as follows:

      (1) Taxpayers seeking a new seller's permit or to renew or reinstate a seller's permit, other than taxpayers subject to the provisions of section 202 of this act, must apply to the department in a form and manner prescribed by the department. The department must rule on applications within sixty days of receiving a complete application. An application must be denied if the department determines that, based on the nature of the applicant's business, the applicant is not entitled to make purchases at wholesale or is otherwise prohibited from using a seller's permit. The department may also deny an application if it determines that denial would be in the best interest of collecting taxes due under this title. The department's decision whether to approve or deny an application may be based on tax returns previously filed with the department by the applicant, a current or previous examination of the applicant's books and records by the department, information provided by the applicant in the master application and the seller's permit application, and other information available to the department.

      (2) Notwithstanding subsection (1) of this section, the department may issue a seller's permit to a taxpayer that has not applied for the permit if it appears to the department's satisfaction, based on the nature of the taxpayer's business activities and any other information available to the department, that the taxpayer is entitled to make purchases at wholesale.

      (3) Seller's permits issued by the department will be in a form prescribed by the department, which may include an electronic form, and must contain a unique identifying number assigned by the department.

      (4)(a) Except as otherwise provided in this section, seller's permits issued, renewed, or reinstated under this section will be valid for a period of forty-eight months from the date of issuance, renewal, or reinstatement.

      (b) A seller's permit issued to taxpayers who register with the department under RCW 82.32.030 after January 1, 2009, is valid for a period of twenty-four months and may be renewed for the period prescribed in (a) of this subsection (4).

      (c) A seller's permit is no longer valid if the permit holder's certificate of registration is revoked by the department or the person otherwise ceases to engage in business.

      (5)(a) The department may revoke a seller's permit of a taxpayer for any of the following reasons:

      (i) The taxpayer used or allowed or caused its seller's permit to be used to purchase any item or service without payment of sales tax, but the taxpayer or other purchaser was not entitled to use the seller's permit for the purchase;

       (ii) The department issued the seller's permit to the taxpayer in error;

      (iii) The department determines that the taxpayer is no longer entitled to make purchases at wholesale; or

      (iv) The department determines that revocation of the seller's permit would be in the best interest of collecting taxes due under this title.

      (b) The notice of revocation must be in writing and is effective on the date specified in the revocation notice. The notice must also advise the taxpayer of its right to a review by the department.

      (c) The department may refuse to reinstate a seller's permit revoked under (a)(i) of this subsection until all taxes, penalties, and interest due on any improperly purchased item or service have been paid in full. In the event a taxpayer whose seller's permit has been revoked under this subsection reorganizes, the new business resulting from the reorganization is not entitled to a seller's permit until all taxes, penalties, and interest due on any improperly purchased item or service have been paid in full.

      (d) For purposes of this subsection, "reorganize" or "reorganization" means: (i) The transfer, however effected, of a majority of the assets of one business to another business where any of the persons having an interest in the ownership or management in the former business maintain an ownership or management interest in the new business, either directly or indirectly; (ii) a mere change in identity or form of ownership, however effected; or (iii) the new business is a mere continuation of the former business based on significant shared features such as owners, personnel, assets, or general business activity.

      (6) The department may provide lists of valid and revoked seller's permit numbers on its web site.

      (7) The department must provide by rule for the review of the department's decision to deny, revoke, or refuse to reinstate a seller's permit. Such review must be consistent with the requirements of chapter 34.05 RCW.

      (8) As part of its continuing efforts to educate taxpayers on their sales and use tax responsibilities, the department will educate taxpayers on the appropriate use of a seller's permit or uniform exemption certificate authorized under RCW 82.04.470 and the consequences of misusing such permits or exemption certificates.

      NEW SECTION. Sec. 202. A new section is added to chapter 82.32 RCW to read as follows:

      (1)(a) Contractors seeking a new seller's permit or to renew or reinstate a seller's permit must apply to the department in a form and manner prescribed by the department.

      (b) As part of the application, the contractor must report the dollar amount of all purchases of materials and labor during the preceding twelve months for retail construction activity, speculative building, public road construction, and government contracting. If the contractor was not engaged in business as a contractor during the preceding twelve months, the contractor may provide an estimate of the dollar amount of purchases of materials and labor for retail construction activity, speculative building, public road construction, and government contracting during the twelve-month period for which the seller's permit will be valid.

      (c) The department must rule on applications within sixty days of receiving a complete application.

      (d)(i) An application must be denied if:

      (A) The department determines that the applicant is not entitled to make purchases at wholesale;

      (B) The application contains any material misstatement;

      (C) The application is incomplete; or

      (D) Less than twenty-five percent of the taxpayer's total dollar amount of actual or, if applicable, estimated material and labor purchases as reported on the application is for retail construction activity performed by the applicant. However, the department may approve an application not meeting the criteria in this subsection (1)(d)(i)(D) if the department is satisfied that approval is unlikely to jeopardize collection of the taxes due under this title.

      (ii) The department may also deny an application if the department determines that denial would be in the best interest of collecting taxes due under this title.

      (e) Applications to renew a seller's permit may not be made more than ninety days before the expiration of the seller's permit.

       (2) Sellers' permits issued by the department will be in a form prescribed by the department, which may include an electronic form, and must contain a unique identifying number assigned by the department.

      (3)(a) Sellers' permits issued, renewed, or reinstated under this section will be valid for a period of twelve months from the date of issuance, renewal, or reinstatement.

      (b) A seller's permit is no longer valid if the permit holder's certificate of registration is revoked by the department or the person otherwise ceases to engage in business.

      (4)(a) The department may revoke a seller's permit of a contractor for any of the following reasons:

      (i) The contractor used or allowed or caused its seller's permit to be used to purchase any item or service without payment of sales tax, but the contractor or other purchaser was not entitled to use the seller's permit for the purchase;

      (ii) The department issued the seller's permit to the contractor in error;

      (iii) The department determines that the contractor is no longer entitled to make purchases at wholesale; or


      (iv) The department determines that revocation of the seller's permit would be in the best interest of collecting taxes due under this title.

      (b) The notice of revocation must be in writing and is effective on the date specified in the revocation notice. The notice must also advise the contractor of its right to a review by the department.

      (c) The department may refuse to reinstate a seller's permit revoked under (a)(i) of this subsection until all taxes, penalties, and interest due on any improperly purchased item or service have been paid in full. In the event a contractor whose seller's permit has been revoked under this subsection reorganizes, the new business resulting from the reorganization is not entitled to a seller's permit until all taxes, penalties, and interest due on any improperly purchased item or service have been paid in full.

      (d) For purposes of this subsection, "reorganize" or "reorganization" means: (i) The transfer, however effected, of a majority of the assets of one business to another business where any of the persons having an interest in the ownership or management in the former business maintain an ownership or management interest in the new business, either directly or indirectly; (ii) a mere change in identity or form of ownership, however effected; or (iii) the new business is a mere continuation of the former business based on significant shared features such as owners, personnel, assets, or general business activity.

      (5) The department may provide lists of valid and revoked sellers' permit numbers on its web site.

      (6) The department must provide by rule for the review of the department's decision to deny, revoke, or refuse to reinstate a seller's permit. Such review must be consistent with the requirements of chapter 34.05 RCW.

      (7) As part of its continuing efforts to educate taxpayers on their sales and use tax responsibilities, the department will educate taxpayers on the appropriate use of a seller's permit or uniform exemption certificate authorized under RCW 82.04.470 and the consequences of misusing such permits or exemption certificates.

      (8) As used in this section, the following definitions apply:

      (a) "Contractor" means a person who engages in any retail construction activity, or who engages in any activity that brings the person within the definition of consumer in RCW 82.04.190 (3) or (6), or who is a speculative builder as defined by rule of the department.

      (b) "Government contracting" means the activity described in RCW 82.04.190(6).

      (c) "Public road construction" means the activity described in RCW 82.04.190(3).

      (d) "Retail construction activity" means any activity defined as a retail sale in RCW 82.04.050(2) (b) or (c).

      (e) "Speculative building" means the activities of a speculative builder as the term "speculative builder" is defined by rule of the department.

      NEW SECTION. Sec. 203. A new section is added to chapter 82.32 RCW to read as follows:

      The department of revenue must, by January 1, 2011, develop a system, as resources permit, allowing sellers to voluntarily verify through electronic means the validity of sellers' permits presented to sellers from their customers.

      NEW SECTION. Sec. 204. A new section is added to chapter 82.32 RCW to read as follows:

      A person must, upon request of the department, provide the department with a copy of all sellers' permits, or uniform exemption certificates as authorized in RCW 82.04.470, accepted by that person during the period specified by the department.

      Sec. 205. RCW 82.04.470 and 2007 c 6 s 1201 are each amended to read as follows:

      (1) Unless a seller has taken from the buyer a ((resale certificate)) seller's permit, the burden of proving that a sale of tangible personal property, extended warranty, or of services, was not a sale at retail shall be upon the person who made it.

      (2) If a seller does not receive a ((resale certificate)) seller's permit at the time of the sale, have a ((resale certificate)) seller's permit on file at the time of the sale, or obtain a ((resale certificate)) seller's permit from the buyer within a reasonable time after the sale, the seller shall remain liable for the tax as provided in RCW 82.08.050, unless the seller can demonstrate facts and circumstances according to rules adopted by the department ((of revenue)) that show the sale was properly made without payment of retail sales tax.

      (3) ((The department may provide by rule for suggested forms for resale certificates or equivalent documents containing the information that will be accepted as resale certificates. The department shall provide by rule the categories of items or services that must be specified on resale certificates and the business classifications that may use a blanket resale certificate.

      (4) As used in this section, "resale certificate" means documentation provided by a buyer to a seller stating that the purchase is for resale in the regular course of business, or that the buyer is exempt from retail sales tax, and containing the following information)) A seller's permit must contain such information as required by the department, which may include, but is not limited to:

      (a) The name and address of the buyer;

      (b) The ((uniform business identifier or revenue registration number of the buyer, if the buyer is required to be registered)) seller's permit number issued by the department;

       (c) The type of business engaged in;

      (d) The categories of items or services to be purchased for resale or that are ((exempt)) otherwise to be purchased at wholesale, unless the buyer presents a blanket ((resale certificate)) seller's permit;

      (e) The date on which the ((certificate)) permit was provided to the seller;

      (f) A statement that the items or services purchased either: (i) Are purchased for resale in the regular course of business; or (ii) are ((exempt from tax pursuant to statute)) otherwise purchased at wholesale;

      (g) A statement that the buyer acknowledges that the buyer is solely responsible for purchasing within the categories specified on the ((certificate)) permit and that misuse of the resale ((or exemption)) privilege claimed on the ((certificate)) permit subjects the buyer to ((a penalty of fifty percent of the tax due)) revocation of the seller's permit, penalties as provided in RCW 82.32.290 and 82.32.291, in addition to the tax, interest, and any other penalties imposed by law;

      (h) The name of the individual authorized to sign the ((certificate)) permit, printed in a legible fashion;

      (i) The signature of the authorized individual; ((and))

      (j) The name of the seller;

      (k) The date the permit was issued, renewed, or reinstated by the department;

      (l) The date that the permit expires;

      (m) Instructions for renewing the permit; and

      (n) A statement that the department is authorized to obtain information concerning the buyer's purchase of items or services under the permit from the seller to verify whether the buyer was authorized to purchase such items or services without payment of retail sales tax.

      (((5))) (4) Subsection (((4))) (3)(h)((,)) and (i)((, and (j))) of this section does not apply if the ((certificate)) permit is provided in a format other than paper. If the ((certificate)) permit is provided in a format other than paper, the name of the individual providing the ((certificate)) permit must be included in the ((certificate)) permit.

      (5)(a) In lieu of a seller's permit issued by the department under section 201 or 202 of this act, a seller may accept from a buyer that is not required to be registered with the department under RCW 82.32.030 a properly completed:


      (i) Uniform sales and use tax exemption certificate developed by the multistate tax commission; or

      (ii) Uniform exemption certificate approved by the streamlined sales and use tax agreement governing board.

      (b) A seller who accepts a properly completed exemption certificate as authorized in (a) of this subsection is relieved of the obligation to collect and remit retail sales tax.

      (6) In lieu of a seller's permit issued by the department under section 201 or 202 of this act, a seller may accept from a buyer that is required to be registered with the department under RCW 82.32.030 a properly completed uniform exemption certificate approved by the streamlined sales and use tax agreement governing board as long as that certificate includes the seller's permit number issued by the department to the buyer.

      (7) As used in this section, "seller's permit" means documentation issued by the department under section 201 or 202 of this act and provided by a buyer to a seller to substantiate a wholesale sale.

      Sec. 206. RCW 82.08.050 and 2007 c 6 s 1202 are each amended to read as follows:

      (1) The tax hereby imposed shall be paid by the buyer to the seller, and each seller shall collect from the buyer the full amount of the tax payable in respect to each taxable sale in accordance with the schedule of collections adopted by the department pursuant to the provisions of RCW 82.08.060.

      (2) The tax required by this chapter, to be collected by the seller, shall be deemed to be held in trust by the seller until paid to the department, and any seller who appropriates or converts the tax collected to his or her own use or to any use other than the payment of the tax to the extent that the money required to be collected is not available for payment on the due date as prescribed in this chapter is guilty of a gross misdemeanor.

      (3) In case any seller fails to collect the tax herein imposed or, having collected the tax, fails to pay it to the department in the manner prescribed by this chapter, whether such failure is the result of his or her own acts or the result of acts or conditions beyond his or her control, he or she shall, nevertheless, be personally liable to the state for the amount of the tax, unless the seller has taken from the buyer a ((resale certificate)) seller's permit or uniform exemption certificate authorized under RCW 82.04.470, a copy of a direct pay permit issued under RCW 82.32.087, a direct mail form under RCW 82.32.730(5), or other information required under the streamlined sales and use tax agreement, or information required under rules adopted by the department.

      (4) Sellers shall not be relieved from personal liability for the amount of the tax unless they maintain proper records of exempt transactions and provide them to the department when requested.

      (5) Sellers are not relieved from personal liability for the amount of tax if they fraudulently fail to collect the tax or if they solicit purchasers to participate in an unlawful claim of exemption.

      (6) Sellers are not relieved from personal liability for the amount of tax if they accept an exemption certificate from a purchaser claiming an entity-based exemption if:

      (a) The subject of the transaction sought to be covered by the exemption certificate is actually received by the purchaser at a location operated by the seller in Washington; and

      (b) Washington provides an exemption certificate that clearly and affirmatively indicates that the claimed exemption is not available in Washington. Graying out exemption reason types on a uniform form and posting it on the department's web site is a clear and affirmative indication that the grayed out exemptions are not available.

      (7)(a) Sellers are relieved from personal liability for the amount of tax if they obtain a fully completed exemption certificate or capture the relevant data elements required under the streamlined sales and use tax agreement within ninety days, or a longer period as may be provided by rule by the department, subsequent to the date of sale.

      (b) If the seller has not obtained an exemption certificate or all relevant data elements required under the streamlined sales and use tax agreement within the period allowed subsequent to the date of sale, the seller may, within one hundred twenty days, or a longer period as may be provided by rule by the department, subsequent to a request for substantiation by the department, either prove that the transaction was not subject to tax by other means or obtain a fully completed exemption certificate from the purchaser, taken in good faith.

      (c) Sellers are relieved from personal liability for the amount of tax if they obtain a blanket exemption certificate for a purchaser with which the seller has a recurring business relationship. The department may not request from a seller renewal of blanket certificates or updates of exemption certificate information or data elements if there is a recurring business relationship between the buyer and seller. For purposes of this subsection (7)(c), a "recurring business relationship" means at least one sale transaction within a period of twelve consecutive months.

      (8) The amount of tax, until paid by the buyer to the seller or to the department, shall constitute a debt from the buyer to the seller and any seller who fails or refuses to collect the tax as required with intent to violate the provisions of this chapter or to gain some advantage or benefit, either direct or indirect, and any buyer who refuses to pay any tax due under this chapter is guilty of a misdemeanor.

      (9) The tax required by this chapter to be collected by the seller shall be stated separately from the selling price in any sales invoice or other instrument of sale. On all retail sales through vending machines, the tax need not be stated separately from the selling price or collected separately from the buyer. For purposes of determining the tax due from the buyer to the seller and from the seller to the department it shall be conclusively presumed that the selling price quoted in any price list, sales document, contract or other agreement between the parties does not include the tax imposed by this chapter, but if the seller advertises the price as including the tax or that the seller is paying the tax, the advertised price shall not be considered the selling price.

      (10) Where a buyer has failed to pay to the seller the tax imposed by this chapter and the seller has not paid the amount of the tax to the department, the department may, in its discretion, proceed directly against the buyer for collection of the tax, in which case a penalty of ten percent may be added to the amount of the tax for failure of the buyer to pay the same to the seller, regardless of when the tax may be collected by the department; and all of the provisions of chapter 82.32 RCW, including those relative to interest and penalties, shall apply in addition; and, for the sole purpose of applying the various provisions of chapter 82.32 RCW, the twenty-fifth day of the month following the tax period in which the purchase was made shall be considered as the due date of the tax.

      (11) Notwithstanding subsections (1) through (10) of this section, any person making sales is not obligated to collect the tax imposed by this chapter if:

      (a) The person's activities in this state, whether conducted directly or through another person, are limited to:

      (i) The storage, dissemination, or display of advertising;

      (ii) The taking of orders; or

      (iii) The processing of payments; and

      (b) The activities are conducted electronically via a web site on a server or other computer equipment located in Washington that is not owned or operated by the person making sales into this state nor owned or operated by an affiliated person. "Affiliated persons" has the same meaning as provided in RCW 82.04.424.

      (12) Subsection (11) of this section expires when: (a) The United States congress grants individual states the authority to impose sales and use tax collection duties on remote sellers; or (b) it is determined by a court of competent jurisdiction, in a judgment not subject to review, that a state can impose sales and use tax collection duties on remote sellers.

      (13) For purposes of this section, "seller" includes a certified service provider, as defined in RCW 82.32.020, acting as agent for the seller.

      Sec. 207. RCW 82.08.130 and 1993 sp.s. c 25 s 702 are each amended to read as follows:

      (1) If a buyer normally is engaged in both consuming and reselling certain types of articles of tangible personal property and is not able to determine at the time of purchase whether the particular property acquired will be consumed or resold, the buyer may use a ((resale certificate)) seller's permit or, if eligible, a uniform exemption certificate authorized under RCW 82.04.470 for the entire purchase if the buyer principally resells the articles according to the general nature of the buyer's business. The buyer shall account for the value of any articles purchased with a ((resale certificate)) seller's permit or uniform exemption certificate authorized under RCW 82.04.470 that are used by the buyer and remit the deferred sales tax on the articles to the department.

      (2) A buyer who pays a tax on all purchases and subsequently resells an article or service at retail, without intervening use by the buyer, shall collect the tax from the purchaser as otherwise provided by law and is entitled to a deduction or credit on the buyer's tax return equal to, in the case of a deduction, the cost to the buyer of the property or service resold upon which retail sales tax has been paid, and in the case of a credit, the amount of state and local sales taxes paid with respect to the property or service resold. The deduction or credit is allowed only if the taxpayer keeps and preserves records that show the names of the persons from whom the articles or services were purchased, the date of the purchase, the type of articles or services, the amount of the purchase, and the tax that was paid.

      (3) The department ((shall)) must provide by rule for the refund or credit of retail sales tax paid by a buyer for purchases that are later ((sold at wholesale)) resold without intervening use by the buyer or for purchases that would otherwise have met the definition of wholesale sale if the buyer had provided the seller with a seller's permit or uniform exemption certificate as authorized in RCW 82.04.470.

      (4) Nothing in this section may be construed to authorize a deduction or credit in respect to the purchase of services if the services are not of a type that can be sold at wholesale under the definition of wholesale sale in RCW 82.04.060.

      Sec. 208. RCW 82.14B.042 and 2002 c 341 s 10 are each amended to read as follows:

      (1) The state enhanced 911 excise taxes imposed by this chapter must be paid by the subscriber to the local exchange company providing the switched access line or the radio communications service company providing the radio access line, and each local exchange company and each radio communications service company shall collect from the subscriber the full amount of the taxes payable. The state enhanced 911 excise taxes required by this chapter to be collected by the local exchange company or the radio communications service company are deemed to be held in trust by the local exchange company or the radio communications service company until paid to the department. Any local exchange company or radio communications service company that appropriates or converts the tax collected to its own use or to any use other than the payment of the tax to the extent that the money collected is not available for payment on the due date as prescribed in this chapter is guilty of a gross misdemeanor.

      (2) If any local exchange company or radio communications service company fails to collect the state enhanced 911 excise tax or, after collecting the tax, fails to pay it to the department in the manner prescribed by this chapter, whether such failure is the result of its own act or the result of acts or conditions beyond its control, the local exchange company or the radio communications service company is personally liable to the state for the amount of the tax, unless the local exchange company or the radio communications service company has taken from the buyer in good faith ((a properly executed resale certificate under RCW 82.14B.200)) documentation, in a form and manner prescribed by the department, stating that the buyer is not a subscriber or is otherwise not liable for the state enhanced 911 tax.

      (3) The amount of tax, until paid by the subscriber to the local exchange company, the radio communications service company, or to the department, constitutes a debt from the subscriber to the local exchange company or the radio communications service company. Any local exchange company or radio communications service company that fails or refuses to collect the tax as required with intent to violate the provisions of this chapter or to gain some advantage or benefit, either direct or indirect, and any subscriber who refuses to pay any tax due under this chapter is guilty of a misdemeanor. The state enhanced 911 excise taxes required by this chapter to be collected by the local exchange company or the radio communications service company must be stated separately on the billing statement that is sent to the subscriber.

      (4) If a subscriber has failed to pay to the local exchange company or the radio communications service company the state enhanced 911 excise taxes imposed by this chapter and the local exchange company or the radio communications service company has not paid the amount of the tax to the department, the department may, in its discretion, proceed directly against the subscriber for collection of the tax, in which case a penalty of ten percent may be added to the amount of the tax for failure of the subscriber to pay the tax to the local exchange company or the radio communications service company, regardless of when the tax is collected by the department. Tax under this chapter is due as provided under RCW 82.14B.061.

      Sec. 209. RCW 82.14B.200 and 2002 c 341 s 12 are each amended to read as follows:

      (1) Unless a local exchange company or a radio communications service company has taken from the buyer ((a resale certificate or equivalent document under RCW 82.04.470)) documentation, in a form and manner prescribed by the department, stating that the buyer is not a subscriber or is otherwise not liable for the tax, the burden of proving that a sale of the use of a switched access line or radio access line was not a sale to a subscriber or was not otherwise subject to the tax is upon the person who made the sale.

      (2) If a local exchange company or a radio communications service company does not receive ((a resale certificate)) documentation, in a form and manner prescribed by the department, stating that the buyer is not a subscriber or is otherwise not liable for the tax at the time of the sale, have ((a resale certificate)) such documentation on file at the time of the sale, or obtain ((a resale certificate)) such documentation from the buyer within a reasonable time after the sale, the local exchange company or the radio communications service company remains liable for the tax as provided in RCW 82.14B.042, unless the local exchange company or the radio communications service company can demonstrate facts and circumstances according to rules adopted by the department of revenue that show the sale was properly made without payment of the state enhanced 911 excise tax.

      (3) The penalty imposed by RCW 82.32.291 may not be assessed on state enhanced 911 excise taxes due but not paid as a result of the improper use of ((a resale certificate)) documentation stating that the buyer is not a subscriber or is otherwise not liable for the state enhanced 911 tax. This subsection does not prohibit or restrict the application of other penalties authorized by law.

      Sec. 210. RCW 82.32.087 and 2001 c 188 s 2 are each amended to read as follows:

      (1) The director may grant a direct pay permit to a taxpayer who demonstrates, to the satisfaction of the director, that the taxpayer meets the requirements of this section. The direct pay permit allows the taxpayer to accrue and remit directly to the department use tax on the acquisition of tangible personal property or sales tax on the sale of or charges made for labor and/or services, in accordance with all of the applicable provisions of this title. Any taxpayer that uses a direct pay permit shall remit state and local sales or use tax directly to the department. The agreement by the purchaser to remit tax directly to the department, rather than pay sales or use tax to the seller, relieves the seller of the obligation to collect sales or use tax and requires the buyer to pay use tax on the tangible personal property and sales tax on the sale of or charges made for labor and/or services.

      (2)(a) A taxpayer may apply for a permit under this section if the taxpayer (i) is subject to mandatory use of electronic funds transfer under RCW 82.32.080; or (ii) makes purchases subject to the taxes imposed under chapter 82.08 or 82.12 RCW in excess of ten million dollars per calendar year.

      (b) Application for a permit must be made in writing to the director in a form and manner prescribed by the department. A taxpayer who transacts business in two or more locations may submit one application to cover the multiple locations.

      (c) The director shall review a direct pay permit application in a timely manner and shall notify the applicant, in writing, of the approval or denial of the application. The department shall approve or deny an application based on the applicant's ability to comply with local government use tax coding capabilities and responsibilities; requirements for vendor notification; recordkeeping obligations; electronic data capabilities; and tax reporting procedures. Additionally, an application may be denied if the director determines that denial would be in the best interest of collecting taxes due under this title. The department shall provide a direct pay permit to an approved applicant with the notice of approval. The direct pay permit shall clearly state that the holder is solely responsible for the accrual and payment of the tax imposed under chapters 82.08 and 82.12 RCW and that the seller is relieved of liability to collect tax imposed under chapters 82.08 and 82.12 RCW on all sales to the direct pay permit holder. The taxpayer may petition the director for reconsideration of a denial.

       (d) A taxpayer who uses a direct pay permit must continue to maintain records that are necessary to a determination of the tax liability in accordance with this title. A direct pay permit is not transferable and the use of a direct pay permit may not be assigned to a third party.

      (3) Taxes for which the direct pay permit is used are due and payable on the tax return for the reporting period in which the taxpayer (a) receives the tangible personal property purchased or in which the labor and/or services are performed or (b) receives an invoice for such property or such labor and/or services, whichever period is earlier.

      (4) The holder of a direct pay permit shall furnish a copy of the direct pay permit to each vendor with whom the taxpayer has opted to use a direct pay permit. Sellers who make sales upon which the sales or use tax is not collected by reason of the provisions of this section, in addition to existing requirements under this title, shall maintain a copy of the direct pay permit and any such records or information as the department may specify.

      (5) A direct pay permit is subject to revocation by the director at any time the department determines that the taxpayer has violated any provision of this section or that revocation would be in the best interests of collecting the taxes due under this title. The notice of revocation must be in writing and is effective either as of the end of the taxpayer's next normal reporting period or a date deemed appropriate by the director and identified in the revocation notice. The taxpayer may petition the director for reconsideration of a revocation and reinstatement of the permit.

      (6) Any taxpayer who chooses to no longer use a direct pay permit or whose permit is revoked by the department, shall return the permit to the department and immediately make a good faith effort to notify all vendors to whom the permit was given, advising them that the permit is no longer valid.

      (7) Except as provided in this subsection, the direct pay permit may be used for any purchase of tangible personal property and any retail sale under RCW 82.04.050. The direct pay permit may not be used for:

      (a) Purchases of meals or beverages;

       (b) Purchases of motor vehicles, trailers, boats, airplanes, and other property subject to requirements for title transactions by the department of licensing;

      (c) Purchases for which a ((resale certificate)) seller's permit or uniform exemption certificate authorized under RCW 82.04.470 may be used;

      (d) Purchases that meet the definitions of RCW 82.04.050 (2) (e) and (f), (3) (a) through (d), (f), and (g), and (5); or

      (e) Other activities subject to tax under chapter 82.08 or 82.12 RCW that the department by rule designates, consistent with the purposes of this section, as activities for which a direct pay permit is not appropriate and may not be used.

      Sec. 211. RCW 82.32.290 and 1985 c 414 s 2 are each amended to read as follows:

      (1)(a) It shall be unlawful:

      (i) For any person to engage in business without having obtained a certificate of registration as provided in this chapter;

      (ii) For the president, vice president, secretary, treasurer, or other officer of any company to cause or permit the company to engage in business without having obtained a certificate of registration as provided in this chapter;

      (iii) For any person to tear down or remove any order or notice posted by the department;

      (iv) For any person to aid or abet another in any attempt to evade the payment of any tax or any part thereof;

      (v) For any purchaser to fraudulently sign or furnish to a seller a ((resale certificate)) seller's permit or uniform exemption certificate authorized under RCW 82.04.470 without intent to resell the property purchased; or

      (vi) For any person to fail or refuse to permit the examination of any book, paper, account, record, or other data by the department or its duly authorized agent; or to fail or refuse to permit the inspection or appraisal of any property by the department or its duly authorized agent; or to refuse to offer testimony or produce any record as required.

      (b) Any person violating any of the provisions of this subsection (1) shall be guilty of a gross misdemeanor in accordance with chapter 9A.20 RCW.

      (2)(a) It shall be unlawful:

      (i) For any person to engage in business after revocation of a certificate of registration;

      (ii) For the president, vice president, secretary, treasurer, or other officer of any company to cause or permit the company to engage in business after revocation of a certificate of registration; or

      (iii) For any person to make any false or fraudulent return or false statement in any return, with intent to defraud the state or evade the payment of any tax or part thereof.

      (b) Any person violating any of the provisions of this subsection (2) shall be guilty of a class C felony in accordance with chapter 9A.20 RCW.

      (3) In addition to the foregoing penalties, any person who knowingly swears to or verifies any false or fraudulent return, or any return containing any false or fraudulent statement with the intent aforesaid, shall be guilty of the offense of perjury in the second degree; and any company for which a false return, or a return containing a false statement, as aforesaid, is made, shall be punished, upon conviction thereof, by a fine of not more than one thousand dollars. All penalties or punishments provided in this section shall be in addition to all other penalties provided by law.

 

      Sec. 212. RCW 82.32.291 and 1993 sp.s. c 25 s 703 are each amended to read as follows:


      Any person who uses a ((resale certificate)) seller's permit to purchase items or services without payment of sales tax, or who uses a uniform exemption certificate developed by the multistate tax commission or approved by the streamlined sales and use tax agreement governing board to claim a purchase for resale exemption, and who is not entitled to use the seller's permit or exemption certificate for the purchase shall be assessed a penalty of fifty percent of the tax due, in addition to all other taxes, penalties, and interest due, on the improperly purchased item or service. The department may waive the penalty imposed under this section if it finds that the use of the seller's permit or exemption certificate was due to circumstances beyond the taxpayer's control or if the seller's permit or exemption certificate was properly used for purchases for dual purposes. The department shall define by rule what circumstances are considered to be beyond the taxpayer's control.

      Sec. 213. RCW 82.32.330 and 2008 c 81 s 11 are each amended to read as follows:

      (1) For purposes of this section:

      (a) "Disclose" means to make known to any person in any manner whatever a return or tax information;

      (b) "Return" means a tax or information return or claim for refund required by, or provided for or permitted under, the laws of this state which is filed with the department of revenue by, on behalf of, or with respect to a person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists that are supplemental to, or part of, the return so filed;

      (c) "Tax information" means (i) a taxpayer's identity, (ii) the nature, source, or amount of the taxpayer's income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability deficiencies, overassessments, or tax payments, whether taken from the taxpayer's books and records or any other source, (iii) whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, (iv) a part of a written determination that is not designated as a precedent and disclosed pursuant to RCW 82.32.410, or a background file document relating to a written determination, and (v) other data received by, recorded by, prepared by, furnished to, or collected by the department of revenue with respect to the determination of the existence, or possible existence, of liability, or the amount thereof, of a person under the laws of this state for a tax, penalty, interest, fine, forfeiture, or other imposition, or offense((: PROVIDED, That)). However, data, material, or documents that do not disclose information related to a specific or identifiable taxpayer do not constitute tax information under this section. Except as provided by RCW 82.32.410, nothing in this chapter shall require any person possessing data, material, or documents made confidential and privileged by this section to delete information from such data, material, or documents so as to permit its disclosure;

       (d) "State agency" means every Washington state office, department, division, bureau, board, commission, or other state agency;

      (e) "Taxpayer identity" means the taxpayer's name, address, telephone number, registration number, or any combination thereof, or any other information disclosing the identity of the taxpayer; and

      (f) "Department" means the department of revenue or its officer, agent, employee, or representative.

      (2) Returns and tax information ((shall be)) are confidential and privileged, and except as authorized by this section, neither the department of revenue nor any other person may disclose any return or tax information.

      (3) This section does not prohibit the department of revenue from:

      (a) Disclosing such return or tax information in a civil or criminal judicial proceeding or an administrative proceeding:

      (i) In respect of any tax imposed under the laws of this state if the taxpayer or its officer or other person liable under Title 82 RCW is a party in the proceeding; or

      (ii) In which the taxpayer about whom such return or tax information is sought and another state agency are adverse parties in the proceeding;

      (b) Disclosing, subject to such requirements and conditions as the director ((shall)) prescribes by rules adopted pursuant to chapter 34.05 RCW, such return or tax information regarding a taxpayer to such taxpayer or to such person or persons as that taxpayer may designate in a request for, or consent to, such disclosure, or to any other person, at the taxpayer's request, to the extent necessary to comply with a request for information or assistance made by the taxpayer to such other person((: PROVIDED, That)). However, tax information not received from the taxpayer ((shall)) must not be so disclosed if the director determines that such disclosure would compromise any investigation or litigation by any federal, state, or local government agency in connection with the civil or criminal liability of the taxpayer or another person, or that such disclosure would identify a confidential informant, or that such disclosure is contrary to any agreement entered into by the department that provides for the reciprocal exchange of information with other government agencies which agreement requires confidentiality with respect to such information unless such information is required to be disclosed to the taxpayer by the order of any court;

      (c) Disclosing the name of a taxpayer with a deficiency greater than five thousand dollars and against whom a warrant under RCW 82.32.210 has been either issued or filed and remains outstanding for a period of at least ten working days. The department ((shall)) is not ((be)) required to disclose any information under this subsection if a taxpayer: (i) Has been issued a tax assessment; (ii) has been issued a warrant that has not been filed; and (iii) has entered a deferred payment arrangement with the department of revenue and is making payments upon such deficiency that will fully satisfy the indebtedness within twelve months;

      (d) Disclosing the name of a taxpayer with a deficiency greater than five thousand dollars and against whom a warrant under RCW 82.32.210 has been filed with a court of record and remains outstanding;

      (e) Publishing statistics so classified as to prevent the identification of particular returns or reports or items thereof;

      (f) Disclosing such return or tax information, for official purposes only, to the governor or attorney general, or to any state agency, or to any committee or subcommittee of the legislature dealing with matters of taxation, revenue, trade, commerce, the control of industry or the professions;

      (g) Permitting the department of revenue's records to be audited and examined by the proper state officer, his or her agents and employees;

      (h) Disclosing any such return or tax information to a peace officer as defined in RCW 9A.04.110 or county prosecuting attorney, for official purposes. The disclosure may be made only in response to a search warrant, subpoena, or other court order, unless the disclosure is for the purpose of criminal tax enforcement. A peace officer or county prosecuting attorney who receives the return or tax information may disclose that return or tax information only for use in the investigation and a related court proceeding, or in the court proceeding for which the return or tax information originally was sought;

      (i) Disclosing any such return or tax information to the proper officer of the internal revenue service of the United States, the Canadian government or provincial governments of Canada, or to the proper officer of the tax department of any state or city or town or county, for official purposes, but only if the statutes of the United States, Canada or its provincial governments, or of such other state or city or town or county, as the case may be, grants substantially similar privileges to the proper officers of this state;


      (j) Disclosing any such return or tax information to the Department of Justice, including the Bureau of Alcohol, Tobacco, Firearms and Explosives within the Department of Justice, the Department of Defense, the Immigration and Customs Enforcement and the Customs and Border Protection agencies of the United States Department of Homeland Security, the Coast Guard of the United States, and the United States Department of Transportation, or any authorized representative ((thereof)) of these federal agencies, for official purposes;

      (k) Publishing or otherwise disclosing the text of a written determination designated by the director as a precedent pursuant to RCW 82.32.410;

      (l) Disclosing, in a manner that is not associated with other tax information, the taxpayer name, entity type, business address, mailing address, revenue tax registration numbers, seller's permit numbers and the status of such permits, North American industry classification system or standard industrial classification code of a taxpayer, and the dates of opening and closing of business. This subsection ((shall)) must not be construed as giving authority to the department to give, sell, or provide access to any list of taxpayers for any commercial purpose;

       (m) Disclosing such return or tax information that is also maintained by another Washington state or local governmental agency as a public record available for inspection and copying under the provisions of chapter 42.56 RCW or is a document maintained by a court of record and is not otherwise prohibited from disclosure;

      (n) Disclosing such return or tax information to the United States department of agriculture for the limited purpose of investigating food stamp fraud by retailers;

      (o) Disclosing to a financial institution, escrow company, or title company, in connection with specific real property that is the subject of a real estate transaction, current amounts due the department for a filed tax warrant, judgment, or lien against the real property;

       (p) Disclosing to a person against whom the department has asserted liability as a successor under RCW 82.32.140 return or tax information pertaining to the specific business of the taxpayer to which the person has succeeded;

      (q) Disclosing such return or tax information in the possession of the department relating to the administration or enforcement of the real estate excise tax imposed under chapter 82.45 RCW, including information regarding transactions exempt or otherwise not subject to tax; or

      ®) Disclosing to local taxing jurisdictions the identity of sellers granted relief under RCW 82.32.430(5)(b)(i) and the period for which relief is granted.

      (4)(a) The department may disclose return or taxpayer information to a person under investigation or during any court or administrative proceeding against a person under investigation as provided in this subsection (4). The disclosure must be in connection with the department's official duties relating to an audit, collection activity, or a civil or criminal investigation. The disclosure may occur only when the person under investigation and the person in possession of data, materials, or documents are parties to the return or tax information to be disclosed. The department may disclose return or tax information such as invoices, contracts, bills, statements, resale or exemption certificates, or checks. However, the department may not disclose general ledgers, sales or cash receipt journals, check registers, accounts receivable/payable ledgers, general journals, financial statements, expert's workpapers, income tax returns, state tax returns, tax return workpapers, or other similar data, materials, or documents.

      (b) Before disclosure of any tax return or tax information under this subsection (4), the department ((shall)) must, through written correspondence, inform the person in possession of the data, materials, or documents to be disclosed. The correspondence ((shall)) must clearly identify the data, materials, or documents to be disclosed. The department may not disclose any tax return or tax information under this subsection (4) until the time period allowed in (c) of this subsection has expired or until the court has ruled on any challenge brought under (c) of this subsection.

       (c) The person in possession of the data, materials, or documents to be disclosed by the department has twenty days from the receipt of the written request required under (b) of this subsection to petition the superior court of the county in which the petitioner resides for injunctive relief. The court shall limit or deny the request of the department if the court determines that:

      (i) The data, materials, or documents sought for disclosure are cumulative or duplicative, or are obtainable from some other source that is more convenient, less burdensome, or less expensive;

      (ii) The production of the data, materials, or documents sought would be unduly burdensome or expensive, taking into account the needs of the department, the amount in controversy, limitations on the petitioner's resources, and the importance of the issues at stake; or

      (iii) The data, materials, or documents sought for disclosure contain trade secret information that, if disclosed, could harm the petitioner.

      (d) The department ((shall)) must reimburse reasonable expenses for the production of data, materials, or documents incurred by the person in possession of the data, materials, or documents to be disclosed.

      (e) Requesting information under (b) of this subsection that may indicate that a taxpayer is under investigation does not constitute a disclosure of tax return or tax information under this section.

      (5) Any person acquiring knowledge of any return or tax information in the course of his or her employment with the department of revenue and any person acquiring knowledge of any return or tax information as provided under subsection (3)(f), (g), (h), (i), (j), or (n) of this section, who discloses any such return or tax information to another person not entitled to knowledge of such return or tax information under the provisions of this section, is guilty of a misdemeanor. If the person guilty of such violation is an officer or employee of the state, such person ((shall)) must forfeit such office or employment and ((shall be)) is incapable of holding any public office or employment in this state for a period of two years thereafter.

      Sec. 214. RCW 82.72.040 and 2004 c 254 s 6 are each amended to read as follows:

      (1) Telephone program excise taxes must be paid by the subscriber to the local exchange company providing the switched access line, and each local exchange company shall collect from the subscriber the full amount of the taxes payable. Telephone program excise taxes to be collected by the local exchange company are deemed to be held in trust by the local exchange company until paid to the department. Any local exchange company that appropriates or converts the tax collected to its own use or to any use other than the payment of the tax to the extent that the money collected is not available for payment on the due date as prescribed in this chapter is guilty of a gross misdemeanor.

      (2) If any local exchange company fails to collect telephone program excise taxes or, after collecting the tax, fails to pay it to the department in the manner prescribed by this chapter, whether such failure is the result of its own act or the result of acts or conditions beyond its control, the local exchange company is personally liable to the state for the amount of the tax, unless the local exchange company has taken from the buyer in good faith ((a properly executed resale certificate under RCW 82.72.070)) documentation, in a form and manner prescribed by the department, stating that the buyer is not a subscriber or is otherwise not liable for telephone program excise taxes.


      (3) The amount of tax, until paid by the subscriber to the local exchange company or to the department, constitutes a debt from the subscriber to the local exchange company. Any local exchange company that fails or refuses to collect telephone program excise taxes as required with intent to violate the provisions of this chapter or to gain some advantage or benefit, either direct or indirect, and any subscriber who refuses to pay any telephone excise tax is guilty of a misdemeanor.

      (4) If a subscriber has failed to pay to the local exchange company the telephone program excise taxes and the local exchange company has not paid the amount of the tax to the department, the department may, in its discretion, proceed directly against the subscriber for collection of the tax, in which case a penalty of ten percent may be added to the amount of the tax for failure of the subscriber to pay the tax to the local exchange company, regardless of when the tax is collected by the department. Telephone program excise taxes are due as provided under RCW 82.72.050.

      Sec. 215. RCW 82.72.070 and 2004 c 254 s 9 are each amended to read as follows:

      (1) Unless a local exchange company has taken from the buyer ((a resale certificate or equivalent document under RCW 82.04.470)) documentation, in a form and manner prescribed by the department, stating that the buyer is not a subscriber or is otherwise not liable for telephone program excise taxes, the burden of proving that a sale of the use of a switched access line was not a sale to a subscriber or was otherwise not subject to telephone program excise taxes is upon the person who made the sale.

      (2) If a local exchange company does not receive ((a resale certificate)) documentation, in a form and manner prescribed by the department, stating that the buyer is not a subscriber or is otherwise not liable for telephone program excise taxes at the time of the sale, have ((a resale certificate)) such documentation on file at the time of the sale, or obtain ((a resale certificate)) such documentation from the buyer within a reasonable time after the sale, the local exchange company remains liable for the telephone program excise taxes as provided in RCW 82.72.040, unless the local exchange company can demonstrate facts and circumstances according to rules adopted by the department that show the sale was properly made without payment of telephone program excise taxes.

      (3) The penalty imposed by RCW 82.32.291 may not be assessed on telephone program excise taxes that are due but not paid as a result of the improper use of ((a resale certificate)) documentation stating that the buyer is not a subscriber or is otherwise not liable for telephone program excise taxes. This subsection does not prohibit or restrict the application of other penalties authorized by law.

 

PART III

TECHNICAL CHANGES

 

      Sec. 301. RCW 82.04.050 and 2007 c 54 s 4 and 2007 c 6 s 1004 are each reenacted and amended to read as follows:

      (1) "Sale at retail" or "retail sale" means every sale of tangible personal property (including articles produced, fabricated, or imprinted) to all persons irrespective of the nature of their business and including, among others, without limiting the scope hereof, persons who install, repair, clean, alter, improve, construct, or decorate real or personal property of or for consumers other than a sale to a person who presents a ((resale certificate under)) seller's permit or uniform exemption certificate in conformity with RCW 82.04.470 and who:

      (a) Purchases for the purpose of resale as tangible personal property in the regular course of business without intervening use by such person, but a purchase for the purpose of resale by a regional transit authority under RCW 81.112.300 is not a sale for resale; or

      (b) Installs, repairs, cleans, alters, imprints, improves, constructs, or decorates real or personal property of or for consumers, if such tangible personal property becomes an ingredient or component of such real or personal property without intervening use by such person; or

      (c) Purchases for the purpose of consuming the property purchased in producing for sale a new article of tangible personal property or substance, of which such property becomes an ingredient or component or is a chemical used in processing, when the primary purpose of such chemical is to create a chemical reaction directly through contact with an ingredient of a new article being produced for sale; or

      (d) Purchases for the purpose of consuming the property purchased in producing ferrosilicon which is subsequently used in producing magnesium for sale, if the primary purpose of such property is to create a chemical reaction directly through contact with an ingredient of ferrosilicon; or

      (e) Purchases for the purpose of providing the property to consumers as part of competitive telephone service, as defined in RCW 82.04.065. The term shall include every sale of tangible personal property which is used or consumed or to be used or consumed in the performance of any activity classified as a "sale at retail" or "retail sale" even though such property is resold or utilized as provided in (a), (b), (c), (d), or (e) of this subsection following such use. The term also means every sale of tangible personal property to persons engaged in any business which is taxable under RCW 82.04.280 (2) and (7), 82.04.290, and 82.04.2908; or

      (f) Purchases for the purpose of satisfying the person's obligations under an extended warranty as defined in subsection (7) of this section, if such tangible personal property replaces or becomes an ingredient or component of property covered by the extended warranty without intervening use by such person.

       (2) The term "sale at retail" or "retail sale" shall include the sale of or charge made for tangible personal property consumed and/or for labor and services rendered in respect to the following:

      (a) The installing, repairing, cleaning, altering, imprinting, or improving of tangible personal property of or for consumers, including charges made for the mere use of facilities in respect thereto, but excluding charges made for the use of self-service laundry facilities, and also excluding sales of laundry service to nonprofit health care facilities, and excluding services rendered in respect to live animals, birds and insects;

      (b) The constructing, repairing, decorating, or improving of new or existing buildings or other structures under, upon, or above real property of or for consumers, including the installing or attaching of any article of tangible personal property therein or thereto, whether or not such personal property becomes a part of the realty by virtue of installation, and shall also include the sale of services or charges made for the clearing of land and the moving of earth excepting the mere leveling of land used in commercial farming or agriculture;

      (c) The constructing, repairing, or improving of any structure upon, above, or under any real property owned by an owner who conveys the property by title, possession, or any other means to the person performing such construction, repair, or improvement for the purpose of performing such construction, repair, or improvement and the property is then reconveyed by title, possession, or any other means to the original owner;

      (d) The cleaning, fumigating, razing, or moving of existing buildings or structures, but shall not include the charge made for janitorial services; and for purposes of this section the term "janitorial services" shall mean those cleaning and caretaking services ordinarily performed by commercial janitor service businesses including, but not limited to, wall and window washing, floor cleaning and waxing, and the cleaning in place of rugs, drapes and upholstery. The term "janitorial services" does not include painting, papering, repairing, furnace or septic tank cleaning, snow removal or sandblasting;


       (e) Automobile towing and similar automotive transportation services, but not in respect to those required to report and pay taxes under chapter 82.16 RCW;

      (f) The furnishing of lodging and all other services by a hotel, rooming house, tourist court, motel, trailer camp, and the granting of any similar license to use real property, as distinguished from the renting or leasing of real property, and it shall be presumed that the occupancy of real property for a continuous period of one month or more constitutes a rental or lease of real property and not a mere license to use or enjoy the same. For the purposes of this subsection, it shall be presumed that the sale of and charge made for the furnishing of lodging for a continuous period of one month or more to a person is a rental or lease of real property and not a mere license to enjoy the same;

      (g) Persons taxable under (a), (b), (c), (d), (e), and (f) of this subsection when such sales or charges are for property, labor and services which are used or consumed in whole or in part by such persons in the performance of any activity defined as a "sale at retail" or "retail sale" even though such property, labor and services may be resold after such use or consumption. Nothing contained in this subsection shall be construed to modify subsection (1) of this section and nothing contained in subsection (1) of this section shall be construed to modify this subsection.

      (3) The term "sale at retail" or "retail sale" shall include the sale of or charge made for personal, business, or professional services including amounts designated as interest, rents, fees, admission, and other service emoluments however designated, received by persons engaging in the following business activities:

      (a) Amusement and recreation services including but not limited to golf, pool, billiards, skating, bowling, ski lifts and tows, day trips for sightseeing purposes, and others, when provided to consumers;

      (b) Abstract, title insurance, and escrow services;

      (c) Credit bureau services;

      (d) Automobile parking and storage garage services;

      (e) Landscape maintenance and horticultural services but excluding (i) horticultural services provided to farmers and (ii) pruning, trimming, repairing, removing, and clearing of trees and brush near electric transmission or distribution lines or equipment, if performed by or at the direction of an electric utility;

      (f) Service charges associated with tickets to professional sporting events; and

      (g) The following personal services: Physical fitness services, tanning salon services, tattoo parlor services, steam bath services, turkish bath services, escort services, and dating services.

      (4)(a) The term shall also include:

      (i) The renting or leasing of tangible personal property to consumers; and

      (ii) Providing tangible personal property along with an operator for a fixed or indeterminate period of time. A consideration of this is that the operator is necessary for the tangible personal property to perform as designed. For the purpose of this subsection (4)(a)(ii), an operator must do more than maintain, inspect, or set up the tangible personal property.

      (b) The term shall not include the renting or leasing of tangible personal property where the lease or rental is for the purpose of sublease or subrent.

      (5) The term shall also include the providing of "competitive telephone service," "telecommunications service," or "ancillary services," as those terms are defined in RCW 82.04.065, to consumers.

      (6) The term shall also include the sale of prewritten computer software other than a sale to a person who presents a ((resale certificate under)) seller's permit or uniform exemption certificate in conformity with RCW 82.04.470, regardless of the method of delivery to the end user, but shall not include custom software or the customization of prewritten computer software.

      (7) The term shall also include the sale of or charge made for an extended warranty to a consumer. For purposes of this subsection, "extended warranty" means an agreement for a specified duration to perform the replacement or repair of tangible personal property at no additional charge or a reduced charge for tangible personal property, labor, or both, or to provide indemnification for the replacement or repair of tangible personal property, based on the occurrence of specified events. The term "extended warranty" does not include an agreement, otherwise meeting the definition of extended warranty in this subsection, if no separate charge is made for the agreement and the value of the agreement is included in the sales price of the tangible personal property covered by the agreement. For purposes of this subsection, "sales price" has the same meaning as in RCW 82.08.010.

      (8) The term shall not include the sale of or charge made for labor and services rendered in respect to the building, repairing, or improving of any street, place, road, highway, easement, right-of-way, mass public transportation terminal or parking facility, bridge, tunnel, or trestle which is owned by a municipal corporation or political subdivision of the state or by the United States and which is used or to be used primarily for foot or vehicular traffic including mass transportation vehicles of any kind.

      (9) The term shall also not include sales of chemical sprays or washes to persons for the purpose of postharvest treatment of fruit for the prevention of scald, fungus, mold, or decay, nor shall it include sales of feed, seed, seedlings, fertilizer, agents for enhanced pollination including insects such as bees, and spray materials to: (a) Persons who participate in the federal conservation reserve program, the environmental quality incentives program, the wetlands reserve program, and the wildlife habitat incentives program, or their successors administered by the United States department of agriculture; (b) farmers for the purpose of producing for sale any agricultural product; and (c) farmers acting under cooperative habitat development or access contracts with an organization exempt from federal income tax under 26 U.S.C. Sec. 501(c)(3) or the Washington state department of fish and wildlife to produce or improve wildlife habitat on land that the farmer owns or leases.

      (10) The term shall not include the sale of or charge made for labor and services rendered in respect to the constructing, repairing, decorating, or improving of new or existing buildings or other structures under, upon, or above real property of or for the United States, any instrumentality thereof, or a county or city housing authority created pursuant to chapter 35.82 RCW, including the installing, or attaching of any article of tangible personal property therein or thereto, whether or not such personal property becomes a part of the realty by virtue of installation. Nor shall the term include the sale of services or charges made for the clearing of land and the moving of earth of or for the United States, any instrumentality thereof, or a county or city housing authority. Nor shall the term include the sale of services or charges made for cleaning up for the United States, or its instrumentalities, radioactive waste and other byproducts of weapons production and nuclear research and development.

      (11) The term shall not include the sale of or charge made for labor, services, or tangible personal property pursuant to agreements providing maintenance services for bus, rail, or rail fixed guideway equipment when a regional transit authority is the recipient of the labor, services, or tangible personal property, and a transit agency, as defined in RCW 81.104.015, performs the labor or services.

 

PART IV

MISCELLANEOUS

 

      NEW SECTION. Sec. 401. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

      NEW SECTION. Sec. 402. This act must be liberally construed in order to carry out its purposes.

      NEW SECTION. Sec. 403. This act takes effect January 1, 2010.

      NEW SECTION. Sec. 404. The effective date in section 403 of this act may not be construed as preventing the department of revenue from accepting applications for, or issuing, seller's permits before January 1, 2010, adopting rules, or taking any other action before January 1, 2010, necessary to ensure the effective implementation of this act.

      NEW SECTION. Sec. 405. By December 1, 2009, the finance committee of the house of representatives and the joint legislative task force on the underground economy in the Washington state construction industry, shall each prepare a report that reviews the issues and concerns that need to be addressed by the legislature as a result of the changes made in this act. The reports shall include any recommendations on potential modifications to the provisions of this act. The department of revenue shall provide necessary support and information.

      NEW SECTION. Sec. 406. Part headings used in this act are not any part of the law."

      Correct the title.

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Tom moved that the Senate concur in the House amendment(s) to Senate Bill No. 6173.

 

The President declared the question before the Senate to be the motion by Senator Tom that the Senate concur in the House amendment(s) to Senate Bill No. 6173.

The motion by Senator Tom carried and the Senate concurred in the House amendment(s) to Senate Bill No. 6173 by voice vote.

 

MOTION

 

On motion of Senator Hobbs, Senator Hatfield was excused.

 

The President declared the question before the Senate to be the final passage of Senate Bill No. 6173, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Senate Bill No. 6173, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 30; Nays, 19; Absent, 0; Excused, 0.

      Voting yea: Senators Berkey, Brown, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hobbs, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, Kline, Kohl-Welles, Marr, McAuliffe, McDermott, Murray, Oemig, Prentice, Pridemore, Ranker, Regala, Rockefeller, Shin and Tom

      Voting nay: Senators Becker, Benton, Brandland, Carrell, Delvin, Hewitt, Holmquist, Honeyford, King, McCaslin, Morton, Parlette, Pflug, Roach, Schoesler, Sheldon, Stevens, Swecker and Zarelli

SENATE BILL NO. 6173, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

The House receded in its amendment to ENGROSSED SUBSTITUTE SENATE BILL NO. 5889. Under suspension of rules, the bill was returned to second reading for the purpose of an amendment. The House adopted the following amendment: 5589-S.E AMH QUAL H3425.4, and passed the bill as amended by the House.

      Strike everything after the enacting clause and insert the following:

      "Sec. 1. RCW 28A.165.025 and 2004 c 20 s 3 are each amended to read as follows:

      ((By July 1st of each year,)) (1) A participating school district shall submit the district's plan for using learning assistance funds to the office of the superintendent of public instruction for approval, to the extent required under subsection (2) of this section. ((For the 2004-05 school year, school districts must identify the program activities to be implemented from RCW 28A.165.035 and are encouraged to implement the elements in subsections (1) through (8) of this section. Beginning in the 2005-06 school year,)) The program plan must identify the program activities to be implemented from RCW 28A.165.035 and implement all of the elements in ((subsections (1))) (a) through (((8))) (h) of this ((section)) subsection. The school district plan shall include the following:

      (((1))) (a) District and school-level data on reading, writing, and mathematics achievement as reported pursuant to chapter 28A.655 RCW and relevant federal law;

      (((2))) (b) Processes used for identifying the underachieving students to be served by the program, including the identification of school or program sites providing program activities;

      (((3))) (c) How accelerated learning plans are developed and implemented for participating students. Accelerated learning plans may be developed as part of existing student achievement plan process such as student plans for achieving state high school graduation standards, individual student academic plans, or the achievement plans for groups of students. Accelerated learning plans shall include:

      (((a))) (i) Achievement goals for the students;

       (((b))) (ii) Roles of the student, parents, or guardians and teachers in the plan;

      (((c))) (iii) Communication procedures regarding student accomplishment; and

      (((d))) (iv) Plan reviews and adjustments processes;

      (((4))) (d) How state level and classroom assessments are used to inform instruction;

      (((5))) (e) How focused and intentional instructional strategies have been identified and implemented;

      (((6))) (f) How highly qualified instructional staff are developed and supported in the program and in participating schools;

      (((7))) (g) How other federal, state, district, and school resources are coordinated with school improvement plans and the district's strategic plan to support underachieving students; and

      (((8))) (h) How a program evaluation will be conducted to determine direction for the following school year.


      (2) If a school district has received approval of its plan once, it is not required to submit a plan for approval under RCW 28A.165.045 or this section unless the district has made a significant change to the plan. If a district has made a significant change to only a portion of the plan the district need only submit a description of the changes made and not the entire plan. Plans or descriptions of changes to the plan must be submitted by July 1st as required under this section. The office of the superintendent of public instruction shall establish guidelines for what a "significant change" is.

      Sec. 2. RCW 28A.165.045 and 2004 c 20 s 5 are each amended to read as follows:

      A participating school district shall ((annually)) submit a program plan to the office of the superintendent of public instruction for approval to the extent required by RCW 28A.165.025. The program plan must address all of the elements in RCW 28A.165.025 and identify the program activities to be implemented from RCW 28A.165.035.

      School districts achieving state reading and mathematics goals as prescribed in chapter 28A.655 RCW shall have their program approved once the program plan and activities submittal is completed.

      School districts not achieving state reading and mathematics goals as prescribed in chapter 28A.655 RCW and that are not in a state or federal program of school improvement shall be subject to program approval once the plan components are reviewed by the office of the superintendent of public instruction for the purpose of receiving technical assistance in the final development of the plan.

      School districts with one or more schools in a state or federal program of school improvement shall have their plans and activities reviewed and approved in conjunction with the state or federal program school improvement program requirements.

      Sec. 3. RCW 28A.210.010 and 1971 c 32 s 1 are each amended to read as follows:

      The state board of health, after consultation with the superintendent of public instruction, shall adopt reasonable rules ((and regulations)) regarding the presence of persons on or about any school premises who have, or who have been exposed to, contagious diseases deemed by the state board of health as dangerous to the public health. Such rules ((and regulations)) shall specify reasonable and precautionary procedures as to such presence and/or readmission of such persons and may include the requirement for a certificate from a licensed physician that there is no danger of contagion. The superintendent of public instruction shall ((print and distribute the)) provide to appropriate school officials and personnel, access and notice of these rules ((and regulations)) of the state board of health ((above provided to appropriate school officials and personnel)). Providing online access to these rules satisfies the requirements of this section. The superintendent of public instruction is required to provide this notice only when there are significant changes to the rules.

      Sec. 4. RCW 28A.210.040 and 1990 c 33 s 189 are each amended to read as follows:

      The superintendent of public instruction shall ((print and distribute)) provide access to appropriate school officials the rules ((and regulations)) adopted by the state board of health pursuant to RCW 28A.210.020 and the recommended records and forms to be used in making and reporting such screenings. Providing online access to the materials satisfies the requirements of this section.

      Sec. 5. RCW 28A.225.005 and 1992 c 205 s 201 are each amended to read as follows:

      Each school within a school district shall inform the students and the parents of the students enrolled in the school about the compulsory education requirements under this chapter. The school shall ((distribute)) provide access to the information at least annually. Providing online access to the information satisfies the requirements of this section unless a parent or guardian specifically requests information to be provided in written form.

      Sec. 6. RCW 28A.225.290 and 1990 1st ex.s. c 9 s 207 are each amended to read as follows:

      (1) The superintendent of public instruction shall prepare and annually ((distribute an)) provide access to information ((booklet)) outlining parents' and guardians' enrollment options for their children. Providing online access to the information satisfies the requirements of this section unless a parent or guardian specifically requests information to be provided in written form.

      (2) ((Before the 1991-92 school year, the booklet shall be distributed to all school districts by the office of the superintendent of public instruction. School districts shall have a copy of the information booklet available for public inspection at each school in the district, at the district office, and in public libraries)) School districts shall provide access to the information in this section to the public. Providing online access to the information satisfies the requirements of this subsection unless a parent or guardian specifically requests the information be provided in written form.

      (3) The booklet shall include:

      (a) Information about enrollment options and program opportunities, including but not limited to programs in RCW 28A.225.220, 28A.185.040, 28A.225.200 through 28A.225.215, 28A.225.230 through 28A.225.250, 28A.175.090, 28A.340.010 through 28A.340.070 (small high school cooperative projects), and 28A.335.160.

      (b) Information about the running start - community college or vocational-technical institute choice program under RCW 28A.600.300 through ((28A.600.395)) 28A.600.390; and

      (c) Information about the seventh and eighth grade choice program under RCW 28A.230.090.

      Sec. 7. RCW 28A.225.300 and 1990 1st ex.s. c 9 s 208 are each amended to read as follows:

      Each school district board of directors annually shall inform parents of the district's intradistrict and interdistrict enrollment options and parental involvement opportunities. Information on intradistrict enrollment options and interdistrict acceptance policies shall be provided to nonresidents on request. Providing online access to the information satisfies the requirements of this section unless a parent or guardian specifically requests information to be provided in written form.

      Sec. 8. RCW 28A.230.095 and 2006 c 113 s 2 are each amended to read as follows:

      (1) By the end of the 2008-09 school year, school districts shall have in place in elementary schools, middle schools, and high schools assessments or other strategies chosen by the district to assure that students have an opportunity to learn the essential academic learning requirements in social studies, the arts, and health and fitness. Social studies includes history, geography, civics, economics, and social studies skills. Beginning with the 2008-09 school year, school districts shall annually submit an implementation verification report to the office of the superintendent of public instruction. The office of the superintendent of public instruction may not require school districts to use a classroom-based assessment in social studies, the arts, and health and fitness to meet the requirements of this section and shall clearly communicate to districts their option to use other strategies chosen by the district.

      (2) Beginning with the 2008-09 school year, school districts shall require students in ((the fourth or fifth grades [grade],)) the seventh or eighth ((grades [grade])) grade, and the eleventh or twelfth ((grades [grade])) grade to each complete at least one classroom-based assessment in civics. Beginning with the 2010-11 school year, school districts shall require students in the fourth or fifth grade to complete at least one classroom-based assessment in civics. The civics assessment may be selected from a list of classroom-based assessments approved by the office of the superintendent of public instruction. Beginning with the 2008-09 school year, school districts shall annually submit implementation verification reports to the office of the superintendent of public instruction documenting the use of the classroom-based assessments in civics.

      (3) Verification reports shall require school districts to report only the information necessary to comply with this section.

      Sec. 9. RCW 28A.230.125 and 2006 c 263 s 401 and 2006 c 115 s 6 are each reenacted and amended to read as follows:

      (1) The superintendent of public instruction, in consultation with the higher education coordinating board, the state board for community and technical colleges, and the workforce training and education coordinating board, shall develop for use by all public school districts a standardized high school transcript. The superintendent shall establish clear definitions for the terms "credits" and "hours" so that school programs operating on the quarter, semester, or trimester system can be compared.

      (2) The standardized high school transcript shall include a notation of whether the student has earned a certificate of individual achievement or a certificate of academic achievement.

      (((3) Transcripts are important documents to students who will apply for admission to postsecondary institutions of higher education. Transcripts are also important to students who will seek employment upon or prior to graduation from high school. It is recognized that student transcripts may be the only record available to employers in their decision-making processes regarding prospective employees. The superintendent of public instruction shall require school districts to inform annually all high school students that prospective employers may request to see transcripts and that the prospective employee's decision to release transcripts can be an important part of the process of applying for employment.))

      Sec. 10. RCW 28A.300.040 and 2006 c 263 s 104 are each amended to read as follows:

      In addition to any other powers and duties as provided by law, the powers and duties of the superintendent of public instruction shall be:

      (1) To have supervision over all matters pertaining to the public schools of the state;

       (2) To report to the governor and the legislature such information and data as may be required for the management and improvement of the schools;

      (3) To prepare and have printed such forms, registers, courses of study, rules for the government of the common schools, and such other material and books as may be necessary for the discharge of the duties of teachers and officials charged with the administration of the laws relating to the common schools, and to distribute the same to educational service district superintendents;

      (4) To travel, without neglecting his or her other official duties as superintendent of public instruction, for the purpose of attending educational meetings or conventions, of visiting schools, and of consulting educational service district superintendents or other school officials;

      (5) To prepare and from time to time to revise a manual of the Washington state common school code, copies of which shall be ((provided in such numbers as determined by the superintendent of public instruction at no cost to those public agencies within the common school system)) made available online and which shall be sold at approximate actual cost of publication and distribution per volume to ((all other)) public and nonpublic agencies or individuals, said manual to contain Titles 28A and 28C RCW, rules related to the common schools, and such other matter as the state superintendent or the state board of education shall determine. Proceeds of the sale of such code shall be transmitted to the public printer who shall credit the state superintendent's account within the state printing plant revolving fund by a like amount;

      (6) To file all papers, reports and public documents transmitted to the superintendent by the school officials of the several counties or districts of the state, each year separately. Copies of all papers filed in the superintendent's office, and the superintendent's official acts, may, or upon request, shall be certified by the superintendent and attested by the superintendent's official seal, and when so certified shall be evidence of the papers or acts so certified to;

      (7) To require annually, on or before the 15th day of August, of the president, manager, or principal of every educational institution in this state, a report as required by the superintendent of public instruction; and it is the duty of every president, manager, or principal, to complete and return such forms within such time as the superintendent of public instruction shall direct;

      (8) To keep in the superintendent's office a record of all teachers receiving certificates to teach in the common schools of this state;

      (9) To issue certificates as provided by law;

      (10) To keep in the superintendent's office at the capital of the state, all books and papers pertaining to the business of the superintendent's office, and to keep and preserve in the superintendent's office a complete record of statistics, as well as a record of the meetings of the state board of education;

      (11) With the assistance of the office of the attorney general, to decide all points of law which may be submitted to the superintendent in writing by any educational service district superintendent, or that may be submitted to the superintendent by any other person, upon appeal from the decision of any educational service district superintendent; and the superintendent shall publish his or her rulings and decisions from time to time for the information of school officials and teachers; and the superintendent's decision shall be final unless set aside by a court of competent jurisdiction;

      (12) To administer oaths and affirmations in the discharge of the superintendent's official duties;

      (13) To deliver to his or her successor, at the expiration of the superintendent's term of office, all records, books, maps, documents and papers of whatever kind belonging to the superintendent's office or which may have been received by the superintendent's for the use of the superintendent's office;

      (14) To administer family services and programs to promote the state's policy as provided in RCW 74.14A.025;

      (15) To promote the adoption of school-based curricula and policies that provide quality, daily physical education for all students, and to encourage policies that provide all students with opportunities for physical activity outside of formal physical education classes;


      (16) To perform such other duties as may be required by law.

      Sec. 11. RCW 28A.300.525 and 2008 c 297 s 2 are each amended to read as follows:

      (1) The superintendent of public instruction shall provide an annual aggregate report to the legislature on the educational experiences and progress of students in children's administration out- of-home care. This data should be disaggregated in the smallest units allowable by law that do not identify an individual student, in order to learn which school districts are experiencing the greatest success and challenges in achieving quality educational outcomes with students in children's administration out-of-home care.

      (2) This section is suspended until July 1, 2011.

      Sec. 12. RCW 28A.320.165 and 2001 c 333 s 4 are each amended to read as follows:

      Schools as defined in RCW 17.21.415 shall provide notice of pesticide use to parents or guardians of students and employees pursuant to chapter 17.21 RCW, upon the request of the parent or guardian.

      Sec. 13. RCW 28A.320.180 and 2007 c 396 s 11 are each amended to read as follows:

      (1) Subject to funding appropriated for this purpose and beginning in the fall of 2009, school districts shall provide all high school students enrolled in the district the option of taking the mathematics college readiness test developed under RCW 28B.10.679 once at no cost to the students. Districts shall encourage, but not require, students to take the test in their junior or senior year of high school.

      (2) Subject to funding appropriated for this purpose, the office of the superintendent of public instruction shall reimburse each district for the costs incurred by the district in providing students the opportunity to take the mathematics placement test.

      (3) This section is suspended until July 1, 2011.

      Sec. 14. RCW 28A.600.160 and 1998 c 225 s 2 are each amended to read as follows:

      Any middle school, junior high school, or high school using educational pathways shall ensure that all participating students will continue to have access to the courses and instruction necessary to meet admission requirements at baccalaureate institutions. Students shall be allowed to enter the educational pathway of their choice. Before accepting a student into an educational pathway, the school shall inform the student's parent of the pathway chosen, the opportunities available to the student through the pathway, and the career objectives the student will have exposure to while pursuing the pathway. Providing online access to the information satisfies the requirements of this section unless a parent or guardian specifically request information to be provided in written form. Parents and students dissatisfied with the opportunities available through the selected educational pathway shall be provided with the opportunity to transfer the student to any other pathway provided in the school. Schools may not develop educational pathways that retain students in high school beyond the date they are eligible to graduate, and may not require students who transfer between pathways to complete pathway requirements beyond the date the student is eligible to graduate. Educational pathways may include, but are not limited to, programs such as work-based learning, ((school-to-work transition,)) tech prep, ((vocational-technical)) career and technical education, running start, and preparation for technical college, community college, or university education.

      Sec. 15. RCW 28A.655.075 and 2007 c 396 s 16 are each amended to read as follows:

      (1) Within funds specifically appropriated therefor, by December 1, 2008, the superintendent of public instruction shall develop essential academic learning requirements and grade level expectations for educational technology literacy and technology fluency that identify the knowledge and skills that all public school students need to know and be able to do in the areas of technology and technology literacy. The development process shall include a review of current standards that have been developed or are used by other states and national and international technology associations. To the maximum extent possible, the superintendent shall integrate goal four and the knowledge and skill areas in the other goals in the technology essential academic learning requirements.

      (a) As used in this section, "technology literacy" means the ability to responsibly, creatively, and effectively use appropriate technology to communicate; access, collect, manage, integrate, and evaluate information; solve problems and create solutions; build and share knowledge; and improve and enhance learning in all subject areas and experiences.

      (b) Technology fluency builds upon technology literacy and is demonstrated when students: Apply technology to real-world experiences; adapt to changing technologies; modify current and create new technologies; and personalize technology to meet personal needs, interests, and learning styles.

      (2)(a) Within funds specifically appropriated therefor, the superintendent shall obtain or develop education technology assessments that may be administered in the elementary, middle, and high school grades to assess the essential academic learning requirements for technology. The assessments shall be designed to be classroom or project-based so that they can be embedded in classroom instruction and be administered and scored by school staff throughout the regular school year using consistent scoring criteria and procedures. By the 2010-11 school year, these assessments shall be made available to school districts for the districts' voluntary use. If a school district uses the assessments created under this section, then the school district shall notify the superintendent of public instruction of the use. The superintendent shall report annually to the legislature on the number of school districts that use the assessments each school year.

      (b) Beginning December 1, 2010, and annually thereafter, the superintendent of public instruction shall provide a report to the relevant legislative committees regarding the use of the assessments.

      (3) This section is suspended until July 1, 2011.

      Sec. 16. RCW 17.21.415 and 2001 c 333 s 3 are each amended to read as follows:

      (1) As used in this section, "school" means a licensed day care center or a public kindergarten or a public elementary or secondary school.

      (2) A school shall provide written notification ((annually or upon enrollment)), upon request, to parents or guardians of students and employees describing the school's pest control policies and methods, including the posting and notification requirements of this section.

      (3) A school shall establish a notification system that, as a minimum, notifies interested parents or guardians of students and employees at least forty-eight hours before a pesticide application to a school facility. The notification system shall include posting of the notification in a prominent place in the main office of the school.

      (4) All notifications to parents, guardians, and employees shall include the heading "Notice: Pesticide Application" and, at a minimum, shall state:

      (a) The product name of the pesticide to be applied;


      (b) The intended date and time of application;

      (c) The location to which the pesticide is to be applied;

      (d) The pest to be controlled; and

      (e) The name and phone number of a contact person at the school.

      (5) A school facility application must be made within forty-eight hours following the intended date and time stated in the notification or the notification process shall be repeated.

      (6) A school shall, at the time of application, post notification signs for all pesticide applications made to school facilities unless the application is otherwise required to be posted by a certified applicator under the provisions of RCW 17.21.410(1)(d).

      (a) Notification signs for applications made to school grounds by school employees shall be placed at the location of the application and at each primary point of entry to the school grounds. The signs shall be a minimum of four inches by five inches and shall include the words: "THIS LANDSCAPE HAS BEEN RECENTLY SPRAYED OR TREATED WITH PESTICIDES BY YOUR SCHOOL" as the headline and "FOR MORE INFORMATION PLEASE CALL" as the footer. The footer shall provide the name and telephone number of a contact person at the school.

      (b) Notification signs for applications made to school facilities other than school grounds shall be posted at the location of the application. The signs shall be a minimum of eight and one-half by eleven inches and shall include the heading "Notice: Pesticide Application" and, at a minimum, shall state:

      (i) The product name of the pesticide applied;

      (ii) The date and time of application;

      (iii) The location to which the pesticide was applied;

      (iv) The pest to be controlled; and

      (v) The name and phone number of a contact person at the school.

      (c) Notification signs shall be printed in colors contrasting to the background.

       (d) Notification signs shall remain in place for at least twenty-four hours from the time the application is completed. In the event the pesticide label requires a restricted entry interval greater than twenty-four hours, the notification sign shall remain in place consistent with the restricted entry interval time as required by the label.

      (7) A school facility application does not include the application of antimicrobial pesticides or the placement of insect or rodent baits that are not accessible to children.

      (8) The prenotification requirements of this section do not apply if the school facility application is made when the school is not occupied by students for at least two consecutive days after the application.

      (9) The prenotification requirements of this section do not apply to any emergency school facility application for control of any pest that poses an immediate human health or safety threat, such as an application to control stinging insects. When an emergency school facility application is made, notification consistent with the school's notification system shall occur as soon as possible after the application. The notification shall include information consistent with subsection (6)(b) of this section.

      (10) A school shall make the records of all pesticide applications to school facilities required under this chapter, including an annual summary of the records, readily accessible to interested persons.

      (11) A school is not liable for the removal of signs by unauthorized persons. A school that complies with this section may not be held liable for personal property damage or bodily injury resulting from signs that are placed as required.

      Sec. 17. RCW 28A.650.015 and 2006 c 263 s 917 are each amended to read as follows:

      (1) The superintendent of public instruction, to the extent funds are appropriated, shall develop and implement a Washington state K-12 education technology plan. The technology plan shall be updated on at least a biennial basis, shall be developed to coordinate and expand the use of education technology in the common schools of the state. The plan shall be consistent with applicable provisions of chapter 43.105 RCW. The plan, at a minimum, shall address:

       (a) The provision of technical assistance to schools and school districts for the planning, implementation, and training of staff in the use of technology in curricular and administrative functions;

      (b) The continued development of a network to connect school districts, institutions of higher learning, and other sources of online information; and

      (c) Methods to equitably increase the use of education technology by students and school personnel throughout the state.

      (2) The superintendent of public instruction shall appoint an educational technology advisory committee to assist in the development and implementation of the technology plan in subsection (1) of this section. The committee shall include, but is not limited to, persons representing: The department of information services, educational service districts, school directors, school administrators, school principals, teachers, classified staff, higher education faculty, parents, students, business, labor, scientists and mathematicians, the higher education coordinating board, the workforce training and education coordinating board, and the state library.

      (3) The plan adopted and implemented under this section may not impose on school districts any requirements that are not specifically required by federal law or regulation, including requirements to maintain eligibility for the federal schools and libraries program of the universal service fund.

      Sec. 18. RCW 28A.210.020 and 1971 c 32 s 2 are each amended to read as follows:

      Every board of school directors shall have the power, and it shall be its duty to provide for and require screening for the visual and auditory acuity of all children attending schools in their districts to ascertain which if any of such children have defects sufficient to retard them in their studies. Auditory and visual screening shall be made in accordance with procedures and standards adopted by rule or regulation of the state board of health. Prior to the adoption or revision of such rules or regulations the state board of health shall seek the recommendations of the superintendent of public instruction regarding the administration of visual and auditory screening and the qualifications of persons competent to administer such screening. Persons performing visual screening may include, but are not limited to, ophthalmologists, optometrists, or opticians who donate their professional services to schools or school districts. If a vision professional who donates his or her services identifies a vision defect sufficient to affect a student's learning, the vision professional must notify the school nurse and/or the school principal in writing and may not contact the student's parents or guardians directly. A school official shall inform parents or guardians of students in writing that a visual examination was recommended, but may not communicate the name or contact information of the vision professional conducting the screening.


      Sec. 19. RCW 28A.655.065 and 2008 c 170 s 205 are each amended to read as follows:

      (1) The legislature has made a commitment to rigorous academic standards for receipt of a high school diploma. The primary way that students will demonstrate that they meet the standards in reading, writing, mathematics, and science is through the Washington assessment of student learning. Only objective assessments that are comparable in rigor to the state assessment are authorized as an alternative assessment. Before seeking an alternative assessment, the legislature expects students to make a genuine effort to meet state standards, through regular and consistent attendance at school and participation in extended learning and other assistance programs.

      (2) Under RCW 28A.655.061, beginning in the 2006-07 school year, the superintendent of public instruction shall implement objective alternative assessment methods as provided in this section for students to demonstrate achievement of the state standards in content areas in which the student has not yet met the standard on the high school Washington assessment of student learning. A student may access an alternative if the student meets applicable eligibility criteria in RCW 28A.655.061 and this section and other eligibility criteria established by the superintendent of public instruction, including but not limited to attendance criteria and participation in the remediation or supplemental instruction contained in the student learning plan developed under RCW 28A.655.061. A school district may waive attendance and/or remediation criteria for special, unavoidable circumstances.

       (3) For the purposes of this section, "applicant" means a student seeking to use one of the alternative assessment methods in this section.

      (4) One alternative assessment method shall be a combination of the applicant's grades in applicable courses and the applicant's highest score on the high school Washington assessment of student learning, as provided in this subsection. A student is eligible to apply for the alternative assessment method under this subsection (4) if the student has a cumulative grade point average of at least 3.2 on a four point grading scale. The superintendent of public instruction shall determine which high school courses are applicable to the alternative assessment method and shall issue guidelines to school districts.

      (a) Using guidelines prepared by the superintendent of public instruction, a school district shall identify the group of students in the same school as the applicant who took the same high school courses as the applicant in the applicable content area. From the group of students identified in this manner, the district shall select the comparison cohort that shall be those students who met or slightly exceeded the state standard on the Washington assessment of student learning.

      (b) The district shall compare the applicant's grades in high school courses in the applicable content area to the grades of students in the comparison cohort for the same high school courses. If the applicant's grades are equal to or above the mean grades of the comparison cohort, the applicant shall be deemed to have met the state standard on the alternative assessment.

      (c) An applicant may not use the alternative assessment under this subsection (4) if there are fewer than six students in the comparison cohort.

      (5) The superintendent of public instruction shall develop an alternative assessment method that shall be an evaluation of a collection of work samples prepared and submitted by the applicant. Effective September 1, 2009, collection of work samples may be submitted only in content areas where meeting the state standard on the high school assessment is required for purposes of graduation.

      (a) The superintendent of public instruction shall develop guidelines for the types and number of work samples in each content area that may be submitted as a collection of evidence that the applicant has met the state standard in that content area. Work samples may be collected from academic, career and technical, or remedial courses and may include performance tasks as well as written products. The superintendent shall submit the guidelines for approval by the state board of education.

      (b) The superintendent shall develop protocols for submission of the collection of work samples that include affidavits from the applicant's teachers and school district that the samples are the work of the applicant and a requirement that a portion of the samples be prepared under the direct supervision of a classroom teacher. The superintendent shall submit the protocols for approval by the state board of education.

      (c) The superintendent shall develop uniform scoring criteria for evaluating the collection of work samples and submit the scoring criteria for approval by the state board of education. Collections shall be scored at the state level or regionally by a panel of educators selected and trained by the superintendent to ensure objectivity, reliability, and rigor in the evaluation. An educator may not score work samples submitted by applicants from the educator's school district. If the panel awards an applicant's collection of work samples the minimum required score, the applicant shall be deemed to have met the state standard on the alternative assessment.

      (d) Using an open and public process that includes consultation with district superintendents, school principals, and other educators, the state board of education shall consider the guidelines, protocols, scoring criteria, and other information regarding the collection of work samples submitted by the superintendent of public instruction. The collection of work samples may be implemented as an alternative assessment after the state board of education has approved the guidelines, protocols, and scoring criteria and determined that the collection of work samples: (i) Will meet professionally accepted standards for a valid and reliable measure of the grade level expectations and the essential academic learning requirements; and (ii) is comparable to or exceeds the rigor of the skills and knowledge that a student must demonstrate on the Washington assessment of student learning in the applicable content area. The state board shall make an approval decision and determination no later than December 1, 2006, and thereafter may increase the required rigor of the collection of work samples.

      (e) By September of 2006, the superintendent of public instruction shall develop informational materials for parents, teachers, and students regarding the collection of work samples and the status of its development as an alternative assessment method. The materials shall provide specific guidance regarding the type and number of work samples likely to be required, include examples of work that meets the state learning standards, and describe the scoring criteria and process for the collection. The materials shall also encourage students in the graduating class of 2008 to begin creating a collection if they believe they may seek to use the collection once it is implemented as an alternative assessment.

      (6)(a) For students enrolled in a career and technical education program approved under RCW 28A.700.030, the superintendent of public instruction shall develop additional guidelines for collections of work samples that are tailored to different career and technical programs. The additional guidelines shall:

      (i) Provide multiple examples of work samples that are related to the particular career and technical program;

      (ii) Permit work samples based on completed activities or projects where demonstration of academic knowledge is inferred; and

      (iii) Provide multiple examples of work samples drawn from career and technical courses.

      (b) The purpose of the additional guidelines is to provide a clear pathway toward a certificate of academic achievement for career and technical students by showing them applied and relevant opportunities to demonstrate their knowledge and skills, and to provide guidance to teachers in integrating academic and career and technical instruction and assessment and assisting career and technical students in compiling a collection. The superintendent of public instruction shall develop and disseminate additional guidelines for no fewer than ten career and technical education programs representing a variety of program offerings by no later than September 1, 2008. Guidelines for ten additional programs shall be developed and disseminated no later than June 1, 2009.

      (c) The superintendent shall consult with community and technical colleges, employers, the workforce training and education coordinating board, apprenticeship programs, and other regional and national experts in career and technical education to create appropriate guidelines and examples of work samples and other evidence of a career and technical student's knowledge and skills on the state academic standards.

      (7) The superintendent of public instruction shall study the feasibility of using existing mathematics assessments in languages other than English as an additional alternative assessment option. The study shall include an estimation of the cost of translating the tenth grade mathematics assessment into other languages and scoring the assessments should they be implemented.

      (8) The superintendent of public instruction shall implement:

      (a) By June 1, 2006, a process for students to appeal the score they received on the high school assessments; and

      (b) By January 1, 2007, guidelines and appeal processes for waiving specific requirements in RCW 28A.655.061 pertaining to the certificate of academic achievement and to the certificate of individual achievement for students who: (i) Transfer to a Washington public school in their junior or senior year with the intent of obtaining a public high school diploma, or (ii) have special, unavoidable circumstances.

      (9) The state board of education shall examine opportunities for additional alternative assessments, including the possible use of one or more standardized norm-referenced student achievement tests and the possible use of the reading, writing, or mathematics portions of the ACT ASSET and ACT COMPASS test instruments as objective alternative assessments for demonstrating that a student has met the state standards for the certificate of academic achievement. The state board shall submit its findings and recommendations to the education committees of the legislature by January 10, 2008.

      (10) The superintendent of public instruction shall adopt rules to implement this section.

      NEW SECTION. Sec. 20. The following acts or parts of acts, as now existing or hereafter amended, are each repealed:

      20.1.1.1. RCW 28A.230.092 (Washington state history and government-- Course content) and 2008 c 190 s 2;

      20.1.1.2. RCW 28A.230.185 (Family preservation education program) and 2005 c 491 s 2;

       20.1.1.3. RCW 28A.300.412 (Washington civil liberties public education program--Report) and 2000 c 210 s 6;

      20.1.1.4. RCW 28A.600.415 (Alternatives to suspension--Community service encouraged--Information provided to school districts) and 1992 c 155 s 2;

      20.1.1.5. RCW 28A.625.010 (Short title) and 1995 c 335 s 107, 1990 c 33 s 513, & 1986 c 147 s 1;

      20.1.1.6. RCW 28A.625.020 (Recipients--Awards) and 1991 c 255 s 1;

      20.1.1.7. RCW 28A.625.030 (Washington State Christa McAuliffe award for teachers) and 1991 c 255 s 2 & 1986 c 147 s 3;

      20.1.1.8. RCW 28A.625.042 (Certificates--Recognition awards) and 1994 c 279 s 4;

      20.1.1.9. RCW 28A.625.050 (Rules) and 1995 c 335 s 108, 1991 c 255 s 8, 1990 c 33 s 516, 1988 c 251 s 2, & 1986 c 147 s 5;

      20.1.1.10. RCW 28A.625.350 (Short title) and 1990 1st ex.s. c 10 s 1;

      20.1.1.11. RCW 28A.625.360 (Excellence in teacher preparation award) and 2006 c 263 s 804 & 1990 1st ex.s. c 10 s 2;

      20.1.1.12. RCW 28A.625.370 (Award for teacher educator) and 2006 c 263 s 820 & 1990 1st ex.s. c 10 s 3;

      20.1.1.13. RCW 28A.625.380 (Rules) and 2006 c 263 s 821 & 1990 1st ex.s. c 10 s 4;

      20.1.1.14. RCW 28A.625.390 (Educational grant--Eligibility--Award) and 2006 c 263 s 822 & 1990 1st ex.s. c 10 s 5;

      20.1.1.15. RCW 28A.625.900 (Severability--1990 1st ex.s. c 10) and 1990 1st ex.s. c 10 s 10;

      20.1.1.16. RCW 28A.630.045 (Local control and flexibility in assessments--Pilot project) and 2006 c 175 s 1; and

      20.1.1.17. RCW 28A.630.881 (School-to-work transition project--Findings-- Intent--Outreach--Technical assistance) and 1997 c 58 s 304.

      NEW SECTION. Sec. 21. Sections 11, 13, and 15 of this act expire July 1, 2011."

      Correct the title.

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Hobbs moved that the Senate concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5889.

      Senator Hobbs spoke in favor of the motion.

 

The President declared the question before the Senate to be the motion by Senator Hobbs that the Senate concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5889.

The motion by Senator Hobbs carried and the Senate concurred in the House amendment(s) to Engrossed Substitute Senate Bill No. 5889 by voice vote.

The President declared the question before the Senate to be the final passage of Engrossed Substitute Senate Bill No. 5889, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Engrossed Substitute Senate Bill No. 5889, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 49; Nays, 0; Absent, 0; Excused, 0.


      Voting yea: Senators Becker, Benton, Berkey, Brandland, Brown, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

ENGROSSED SUBSTITUTE SENATE BILL NO. 5889, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

      The House receded in its amendment to ENGROSSED SUBSTITUTE SENATE BILL NO. 5811. Under suspension of rules, the bill was returned to second reading for the purpose of an amendment. The House adopted the following amendment:5811-S.E AMH KAGI H3432.4, and passed the bill as amended by the House.

      Strike everything after the enacting clause and insert the following:

      "Sec. 1. RCW 13.34.065 and 2008 c 267 s 2 are each amended to read as follows:

      (1)(a) When a child is taken into custody, the court shall hold a shelter care hearing within seventy-two hours, excluding Saturdays, Sundays, and holidays. The primary purpose of the shelter care hearing is to determine whether the child can be immediately and safely returned home while the adjudication of the dependency is pending.

      (b) Any parent, guardian, or legal custodian who for good cause is unable to attend the shelter care hearing may request that a subsequent shelter care hearing be scheduled. The request shall be made to the clerk of the court where the petition is filed prior to the initial shelter care hearing. Upon the request of the parent, the court shall schedule the hearing within seventy-two hours of the request, excluding Saturdays, Sundays, and holidays. The clerk shall notify all other parties of the hearing by any reasonable means.

      (2)(a) The department of social and health services shall submit a recommendation to the court as to the further need for shelter care in all cases in which it is the petitioner. In all other cases, the recommendation shall be submitted by the juvenile court probation counselor.

      (b) All parties have the right to present testimony to the court regarding the need or lack of need for shelter care.

      (c) Hearsay evidence before the court regarding the need or lack of need for shelter care must be supported by sworn testimony, affidavit, or declaration of the person offering such evidence.

      (3)(a) At the commencement of the hearing, the court shall notify the parent, guardian, or custodian of the following:

      (i) The parent, guardian, or custodian has the right to a shelter care hearing;

       (ii) The nature of the shelter care hearing, the rights of the parents, and the proceedings that will follow; and

      (iii) If the parent, guardian, or custodian is not represented by counsel, the right to be represented. If the parent, guardian, or custodian is indigent, the court shall appoint counsel as provided in RCW 13.34.090; and

      (b) If a parent, guardian, or legal custodian desires to waive the shelter care hearing, the court shall determine, on the record and with the parties present, whether such waiver is knowing and voluntary. A parent may not waive his or her right to the shelter care hearing unless he or she appears in court and the court determines that the waiver is knowing and voluntary. Regardless of whether the court accepts the parental waiver of the shelter care hearing, the court must provide notice to the parents of their rights required under (a) of this subsection and make the finding required under subsection (4) of this section.

      (4) At the shelter care hearing the court shall examine the need for shelter care and inquire into the status of the case. The paramount consideration for the court shall be the health, welfare, and safety of the child. At a minimum, the court shall inquire into the following:

      (a) Whether the notice required under RCW 13.34.062 was given to all known parents, guardians, or legal custodians of the child. The court shall make an express finding as to whether the notice required under RCW 13.34.062 was given to the parent, guardian, or legal custodian. If actual notice was not given to the parent, guardian, or legal custodian and the whereabouts of such person is known or can be ascertained, the court shall order the supervising agency or the department of social and health services to make reasonable efforts to advise the parent, guardian, or legal custodian of the status of the case, including the date and time of any subsequent hearings, and their rights under RCW 13.34.090;

      (b) Whether the child can be safely returned home while the adjudication of the dependency is pending;

      (c) What efforts have been made to place the child with a relative. The court shall ask the parents whether the department discussed with them the placement of the child with a relative or other suitable person described in RCW 13.34.130(1)(b) and shall determine what efforts have been made toward such a placement;

      (d) What services were provided to the family to prevent or eliminate the need for removal of the child from the child's home;

      (e) Is the placement proposed by the agency the least disruptive and most family-like setting that meets the needs of the child;

      (f) Whether it is in the best interest of the child to remain enrolled in the school, developmental program, or child care the child was in prior to placement and what efforts have been made to maintain the child in the school, program, or child care if it would be in the best interest of the child to remain in the same school, program, or child care;

      (g) Appointment of a guardian ad litem or attorney;

      (h) Whether the child is or may be an Indian child as defined in 25 U.S.C. Sec. 1903, whether the provisions of the Indian child welfare act apply, and whether there is compliance with the Indian child welfare act, including notice to the child's tribe;

      (i) Whether, as provided in RCW 26.44.063, restraining orders, or orders expelling an allegedly abusive household member from the home of a nonabusive parent, guardian, or legal custodian, will allow the child to safely remain in the home;

      (j) Whether any orders for examinations, evaluations, or immediate services are needed. The court may not order a parent to undergo examinations, evaluation, or services at the shelter care hearing unless the parent agrees to the examination, evaluation, or service;

      (k) The terms and conditions for parental, sibling, and family visitation.

      (5)(a) The court shall release a child alleged to be dependent to the care, custody, and control of the child's parent, guardian, or legal custodian unless the court finds there is reasonable cause to believe that:

      (i) After consideration of the specific services that have been provided, reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home; and

      (ii)(A) The child has no parent, guardian, or legal custodian to provide supervision and care for such child; or


       (B) The release of such child would present a serious threat of substantial harm to such child, notwithstanding an order entered pursuant to RCW 26.44.063; or

      (C) The parent, guardian, or custodian to whom the child could be released has been charged with violating RCW 9A.40.060 or 9A.40.070.

      (b) If the court does not release the child to his or her parent, guardian, or legal custodian, the court shall order placement with a relative or other suitable person as described in RCW 13.34.130(1)(b), unless there is reasonable cause to believe the health, safety, or welfare of the child would be jeopardized or that the efforts to reunite the parent and child will be hindered. The court must also determine whether placement with the relative or other suitable person is in the child's best interests. The relative or other suitable person must be willing and available to:

      (i) Care for the child and be able to meet any special needs of the child;

      (ii) Facilitate the child's visitation with siblings, if such visitation is part of the supervising agency's plan or is ordered by the court; and

      (iii) Cooperate with the department in providing necessary background checks and home studies.

      (c) If the child was not initially placed with a relative or other suitable person, and the court does not release the child to his or her parent, guardian, or legal custodian, the supervising agency shall make reasonable efforts to locate a relative or other suitable person pursuant to RCW 13.34.060(1).

      (d) If a relative or other suitable person is not available, the court shall order continued shelter care ((or order placement with another suitable person, and the court)) and shall set forth its reasons for the order. If the court orders placement of the child with a person not related to the child and not licensed to provide foster care, the placement is subject to all terms and conditions of this section that apply to relative placements.

      (e) Any placement with a relative, or other suitable person approved by the court pursuant to this section, shall be contingent upon cooperation with the agency case plan and compliance with court orders related to the care and supervision of the child including, but not limited to, court orders regarding parent-child contacts, sibling contacts, and any other conditions imposed by the court. Noncompliance with the case plan or court order is grounds for removal of the child from the home of the relative or other suitable person, subject to review by the court.

      (f) Uncertainty by a parent, guardian, legal custodian, relative, or other suitable person that the alleged abuser has in fact abused the child shall not, alone, be the basis upon which a child is removed from the care of a parent, guardian, or legal custodian under (a) of this subsection, nor shall it be a basis, alone, to preclude placement with a relative or other suitable person under (b) of this subsection ((or with another suitable person under (d) of this subsection)).

      (6)(a) A shelter care order issued pursuant to this section shall include the requirement for a case conference as provided in RCW 13.34.067. However, if the parent is not present at the shelter care hearing, or does not agree to the case conference, the court shall not include the requirement for the case conference in the shelter care order.

      (b) If the court orders a case conference, the shelter care order shall include notice to all parties and establish the date, time, and location of the case conference which shall be no later than thirty days before the fact-finding hearing.

      (c) The court may order another conference, case staffing, or hearing as an alternative to the case conference required under RCW 13.34.067 so long as the conference, case staffing, or hearing ordered by the court meets all requirements under RCW 13.34.067, including the requirement of a written agreement specifying the services to be provided to the parent.

      (7)(a) A shelter care order issued pursuant to this section may be amended at any time with notice and hearing thereon. The shelter care decision of placement shall be modified only upon a showing of change in circumstances. No child may be placed in shelter care for longer than thirty days without an order, signed by the judge, authorizing continued shelter care.

      (b)(i) An order releasing the child on any conditions specified in this section may at any time be amended, with notice and hearing thereon, so as to return the child to shelter care for failure of the parties to conform to the conditions originally imposed.

       (ii) The court shall consider whether nonconformance with any conditions resulted from circumstances beyond the control of the parent, guardian, or legal custodian and give weight to that fact before ordering return of the child to shelter care.

      (8)(a) If a child is returned home from shelter care a second time in the case, or if the supervisor of the caseworker deems it necessary, the multidisciplinary team may be reconvened.

      (b) If a child is returned home from shelter care a second time in the case a law enforcement officer must be present and file a report to the department.

      Sec. 2. RCW 13.34.130 and 2007 c 413 s 6 and 2007 c 412 s 2 are each reenacted and amended to read as follows:

      If, after a fact-finding hearing pursuant to RCW 13.34.110, it has been proven by a preponderance of the evidence that the child is dependent within the meaning of RCW 13.34.030 after consideration of the social study prepared pursuant to RCW 13.34.110 and after a disposition hearing has been held pursuant to RCW 13.34.110, the court shall enter an order of disposition pursuant to this section.

      (1) The court shall order one of the following dispositions of the case:

      (a) Order a disposition other than removal of the child from his or her home, which shall provide a program designed to alleviate the immediate danger to the child, to mitigate or cure any damage the child has already suffered, and to aid the parents so that the child will not be endangered in the future. In determining the disposition, the court should choose those services, including housing assistance, that least interfere with family autonomy and are adequate to protect the child.

      (b) Order the child to be removed from his or her home and into the custody, control, and care of a relative or other suitable person or the department or a licensed child placing agency for supervision of the child's placement. The department or agency supervising the child's placement has the authority to place the child, subject to review and approval by the court (i) with a relative as defined in RCW 74.15.020(2)(a), (ii) ((in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW, or (iii))) in the home of another suitable person if the child or family has a preexisting relationship with that person, and the person has completed all required criminal history background checks and otherwise appears to the department or supervising agency to be suitable and competent to provide care for the child, or (iii) in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW. Absent good cause, the department or supervising agency shall follow the wishes of the natural parent regarding the placement of the child in accordance with RCW 13.34.260. The department or supervising agency may only place a child with a person not related to the child as defined in RCW 74.15.020(2)(a) when the court finds that such placement is in the best interest of the child. Unless there is reasonable cause to believe that the health, safety, or welfare of the child would be jeopardized or that efforts to reunite the parent and child will be hindered, ((such)) the child shall be placed with a person who is: (A) Related to the child as defined in RCW 74.15.020(2)(a) with whom the child has a relationship and is comfortable; or (B) a suitable person as described in this subsection (1)(b); and (((B))) (C) willing, appropriate, and available to care for the child. The court shall consider the child's existing relationships and attachments when determining placement.

      (2) Placement of the child with a relative ((under this subsection)) or other suitable person as described in subsection (1)(b) of this section shall be given preference by the court. An order for out-of-home placement may be made only if the court finds that reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home, specifying the services that have been provided to the child and the child's parent, guardian, or legal custodian, and that preventive services have been offered or provided and have failed to prevent the need for out-of-home placement, unless the health, safety, and welfare of the child cannot be protected adequately in the home, and that:

      (a) There is no parent or guardian available to care for such child;

      (b) The parent, guardian, or legal custodian is not willing to take custody of the child; or

      (c) The court finds, by clear, cogent, and convincing evidence, a manifest danger exists that the child will suffer serious abuse or neglect if the child is not removed from the home and an order under RCW 26.44.063 would not protect the child from danger.

      (3) If the court has ordered a child removed from his or her home pursuant to subsection (1)(b) of this section, the court shall consider whether it is in a child's best interest to be placed with, have contact with, or have visits with siblings.

      (a) There shall be a presumption that such placement, contact, or visits are in the best interests of the child provided that:

      (i) The court has jurisdiction over all siblings subject to the order of placement, contact, or visitation pursuant to petitions filed under this chapter or the parents of a child for whom there is no jurisdiction are willing to agree; and

      (ii) There is no reasonable cause to believe that the health, safety, or welfare of any child subject to the order of placement, contact, or visitation would be jeopardized or that efforts to reunite the parent and child would be hindered by such placement, contact, or visitation. In no event shall parental visitation time be reduced in order to provide sibling visitation.

      (b) The court may also order placement, contact, or visitation of a child with a step-brother or step-sister provided that in addition to the factors in (a) of this subsection, the child has a relationship and is comfortable with the step-sibling.

      (4) If the court has ordered a child removed from his or her home pursuant to subsection (1)(b) of this section and placed into nonparental or nonrelative care, the court shall order a placement that allows the child to remain in the same school he or she attended prior to the initiation of the dependency proceeding when such a placement is practical and in the child's best interest.

      (5) If the court has ordered a child removed from his or her home pursuant to subsection (1)(b) of this section, the court may order that a petition seeking termination of the parent and child relationship be filed if the requirements of RCW 13.34.132 are met.

      (6) If there is insufficient information at the time of the disposition hearing upon which to base a determination regarding the suitability of a proposed placement with a relative or other suitable person, the child shall remain in foster care and the court shall direct the supervising agency to conduct necessary background investigations as provided in chapter 74.15 RCW and report the results of such investigation to the court within thirty days. However, if such relative or other person appears otherwise suitable and competent to provide care and treatment, the criminal history background check need not be completed before placement, but as soon as possible after placement. Any placements with relatives or other suitable persons, pursuant to this section, shall be contingent upon cooperation by the relative or other suitable person with the agency case plan and compliance with court orders related to the care and supervision of the child including, but not limited to, court orders regarding parent- child contacts, sibling contacts, and any other conditions imposed by the court. Noncompliance with the case plan or court order shall be grounds for removal of the child from the relative's or other suitable person's home, subject to review by the court.

      Sec. 3. RCW 13.34.138 and 2007 c 413 s 8 and 2007 c 410 s 1 are each reenacted and amended to read as follows:

      (1) ((Except for children whose cases are reviewed by a citizen review board under chapter 13.70 RCW,)) The status of all children found to be dependent shall be reviewed by the court at least every six months from the beginning date of the placement episode or the date dependency is established, whichever is first. The purpose of the hearing shall be to review the progress of the parties and determine whether court supervision should continue.

      (a) The initial review hearing shall be an in-court review and shall be set six months from the beginning date of the placement episode or no more than ninety days from the entry of the disposition order, whichever comes first. The requirements for the initial review hearing, including the in-court review requirement, shall be accomplished within existing resources.

      (b) The initial review hearing may be a permanency planning hearing when necessary to meet the time frames set forth in RCW 13.34.145 (1)(a) or 13.34.134.

      (2)(a) A child shall not be returned home at the review hearing unless the court finds that a reason for removal as set forth in RCW 13.34.130 no longer exists. The parents, guardian, or legal custodian shall report to the court the efforts they have made to correct the conditions which led to removal. If a child is returned, casework supervision shall continue for a period of six months, at which time there shall be a hearing on the need for continued intervention.

      (b) Prior to the child returning home, the department must complete the following:

      (i) Identify all adults residing in the home and conduct background checks on those persons;

      (ii) Identify any persons who may act as a caregiver for the child in addition to the parent with whom the child is being placed and determine whether such persons are in need of any services in order to ensure the safety of the child, regardless of whether such persons are a party to the dependency. The department or supervising agency may recommend to the court and the court may order that placement of the child in the parent's home be contingent on or delayed based on the need for such persons to engage in or complete services to ensure the safety of the child prior to placement. If services are recommended for the caregiver, and the caregiver fails to engage in or follow through with the recommended services, the department or supervising agency must promptly notify the court; and

      (iii) Notify the parent with whom the child is being placed that he or she has an ongoing duty to notify the department or supervising agency of all persons who reside in the home or who may act as a caregiver for the child both prior to the placement of the child in the home and subsequent to the placement of the child in the home as long as the court retains jurisdiction of the dependency proceeding or the department is providing or monitoring either remedial services to the parent or services to ensure the safety of the child to any caregivers.

      Caregivers may be required to engage in services under this subsection solely for the purpose of ensuring the present and future safety of a child who is a ward of the court. This subsection does not grant party status to any individual not already a party to the dependency proceeding, create an entitlement to services or a duty on the part of the department or supervising agency to provide services, or create judicial authority to order the provision of services to any person other than for the express purposes of this section or RCW 13.34.025 or if the services are unavailable or unsuitable or the person is not eligible for such services.

      (c) If the child is not returned home, the court shall establish in writing:


       (i) Whether the agency is making reasonable efforts to provide services to the family and eliminate the need for placement of the child. If additional services, including housing assistance, are needed to facilitate the return of the child to the child's parents, the court shall order that reasonable services be offered specifying such services;

      (ii) Whether there has been compliance with the case plan by the child, the child's parents, and the agency supervising the placement;

      (iii) Whether progress has been made toward correcting the problems that necessitated the child's placement in out-of-home care;

      (iv) Whether the services set forth in the case plan and the responsibilities of the parties need to be clarified or modified due to the availability of additional information or changed circumstances;

      (v) Whether there is a continuing need for placement;

      (vi) Whether the child is in an appropriate placement which adequately meets all physical, emotional, and educational needs;

      (vii) Whether preference has been given to placement with the child's relatives if such placement is in the child's best interests;

      (viii) Whether both in-state and, where appropriate, out-of-state placements have been considered;

      (ix) Whether the parents have visited the child and any reasons why visitation has not occurred or has been infrequent;

      (x) Whether terms of visitation need to be modified;

      (xi) Whether the court-approved long-term permanent plan for the child remains the best plan for the child;

      (xii) Whether any additional court orders need to be made to move the case toward permanency; and

      (xiii) The projected date by which the child will be returned home or other permanent plan of care will be implemented.

      (d) The court at the review hearing may order that a petition seeking termination of the parent and child relationship be filed.

      (3)(a) In any case in which the court orders that a dependent child may be returned to or remain in the child's home, the in-home placement shall be contingent upon the following:

      (i) The compliance of the parents with court orders related to the care and supervision of the child, including compliance with an agency case plan; and

       (ii) The continued participation of the parents, if applicable, in available substance abuse or mental health treatment if substance abuse or mental illness was a contributing factor to the removal of the child.

      (b) The following may be grounds for removal of the child from the home, subject to review by the court:

      (i) Noncompliance by the parents with the agency case plan or court order;

      (ii) The parent's inability, unwillingness, or failure to participate in available services or treatment for themselves or the child, including substance abuse treatment if a parent's substance abuse was a contributing factor to the abuse or neglect; or

      (iii) The failure of the parents to successfully and substantially complete available services or treatment for themselves or the child, including substance abuse treatment if a parent's substance abuse was a contributing factor to the abuse or neglect.

      (c) In a pending dependency case in which the court orders that a dependent child may be returned home and that child is later removed from the home, the court shall hold a review hearing within thirty days from the date of removal to determine whether the permanency plan should be changed, a termination petition should be filed, or other action is warranted. The best interests of the child shall be the court's primary consideration in the review hearing.

      (4) The court's ability to order housing assistance under RCW 13.34.130 and this section is: (a) Limited to cases in which homelessness or the lack of adequate and safe housing is the primary reason for an out-of-home placement; and (b) subject to the availability of funds appropriated for this specific purpose.

      (5) The court shall consider the child's relationship with siblings in accordance with RCW 13.34.130(3).

      Sec. 4. RCW 13.34.145 and 2008 c 152 s 3 are each amended to read as follows:

      (1) The purpose of a permanency planning hearing is to review the permanency plan for the child, inquire into the welfare of the child and progress of the case, and reach decisions regarding the permanent placement of the child.

       (a) A permanency planning hearing shall be held in all cases where the child has remained in out-of-home care for at least nine months and an adoption decree, guardianship order, or permanent custody order has not previously been entered. The hearing shall take place no later than twelve months following commencement of the current placement episode.

      (b) Whenever a child is removed from the home of a dependency guardian or long-term relative or foster care provider, and the child is not returned to the home of the parent, guardian, or legal custodian but is placed in out-of-home care, a permanency planning hearing shall take place no later than twelve months, as provided in this section, following the date of removal unless, prior to the hearing, the child returns to the home of the dependency guardian or long-term care provider, the child is placed in the home of the parent, guardian, or legal custodian, an adoption decree, guardianship order, or a permanent custody order is entered, or the dependency is dismissed.

      (c) Permanency planning goals should be achieved at the earliest possible date, preferably before the child has been in out-of-home care for fifteen months. In cases where parental rights have been terminated, the child is legally free for adoption, and adoption has been identified as the primary permanency planning goal, it shall be a goal to complete the adoption within six months following entry of the termination order.

      (2) No later than ten working days prior to the permanency planning hearing, the agency having custody of the child shall submit a written permanency plan to the court and shall mail a copy of the plan to all parties and their legal counsel, if any.

      (3) At the permanency planning hearing, the court shall conduct the following inquiry:

      (a) If a goal of long-term foster or relative care has been achieved prior to the permanency planning hearing, the court shall review the child's status to determine whether the placement and the plan for the child's care remain appropriate.

      (b) In cases where the primary permanency planning goal has not been achieved, the court shall inquire regarding the reasons why the primary goal has not been achieved and determine what needs to be done to make it possible to achieve the primary goal. The court shall review the permanency plan prepared by the agency and make explicit findings regarding each of the following:

      (i) The continuing necessity for, and the safety and appropriateness of, the placement;

      (ii) The extent of compliance with the permanency plan by the agency and any other service providers, the child's parents, the child, and the child's guardian, if any;

      (iii) The extent of any efforts to involve appropriate service providers in addition to agency staff in planning to meet the special needs of the child and the child's parents;

      (iv) The progress toward eliminating the causes for the child's placement outside of his or her home and toward returning the child safely to his or her home or obtaining a permanent placement for the child;

      (v) The date by which it is likely that the child will be returned to his or her home or placed for adoption, with a guardian or in some other alternative permanent placement; and

      (vi) If the child has been placed outside of his or her home for fifteen of the most recent twenty-two months, not including any period during which the child was a runaway from the out-of-home placement or the first six months of any period during which the child was returned to his or her home for a trial home visit, the appropriateness of the permanency plan, whether reasonable efforts were made by the agency to achieve the goal of the permanency plan, and the circumstances which prevent the child from any of the following:

      (A) Being returned safely to his or her home;

      (B) Having a petition for the involuntary termination of parental rights filed on behalf of the child;

      (C) Being placed for adoption;

      (D) Being placed with a guardian;

      (E) Being placed in the home of a fit and willing relative of the child; or

      (F) Being placed in some other alternative permanent placement, including independent living or long-term foster care.

      At this hearing, the court shall order the department to file a petition seeking termination of parental rights if the child has been in out-of-home care for fifteen of the last twenty-two months since the date the dependency petition was filed unless the court makes a good cause exception as to why the filing of a termination of parental rights petition is not appropriate. Any good cause finding shall be reviewed at all subsequent hearings pertaining to the child. For purposes of this section, "good cause exception" includes but is not limited to the following: The child is being cared for by a relative; the department has not provided to the child's family such services as the court and the department have deemed necessary for the child's safe return home; or the department has documented in the case plan a compelling reason for determining that filing a petition to terminate parental rights would not be in the child's best interests.

      (c)(i) If the permanency plan identifies independent living as a goal, the court shall make a finding that the provision of services to assist the child in making a transition from foster care to independent living will allow the child to manage his or her financial, personal, social, educational, and nonfinancial affairs prior to approving independent living as a permanency plan of care.

      (ii) The permanency plan shall also specifically identify the services that will be provided to assist the child to make a successful transition from foster care to independent living.

      (iii) The department shall not discharge a child to an independent living situation before the child is eighteen years of age unless the child becomes emancipated pursuant to chapter 13.64 RCW.

      (d) If the child has resided in the home of a foster parent or relative for more than six months prior to the permanency planning hearing, the court shall ((also)):

      (i) Enter a finding regarding whether the foster parent or relative was informed of the hearing as required in RCW 74.13.280, 13.34.215(5), and 13.34.096; and

      (ii) If the department or supervising agency is recommending a placement other than the child's current placement with a foster parent, relative, or other suitable person, enter a finding as to the reasons for the recommendation for a change in placement.

      (4) In all cases, at the permanency planning hearing, the court shall:

      (a)(i) Order the permanency plan prepared by the agency to be implemented; or

      (ii) Modify the permanency plan, and order implementation of the modified plan; and

       (b)(i) Order the child returned home only if the court finds that a reason for removal as set forth in RCW 13.34.130 no longer exists; or

      (ii) Order the child to remain in out-of-home care for a limited specified time period while efforts are made to implement the permanency plan.

      (5) Following the first permanency planning hearing, the court shall hold a further permanency planning hearing in accordance with this section at least once every twelve months until a permanency planning goal is achieved or the dependency is dismissed, whichever occurs first.

      (6) Prior to the second permanency planning hearing, the agency that has custody of the child shall consider whether to file a petition for termination of parental rights.

      (7) If the court orders the child returned home, casework supervision shall continue for at least six months, at which time a review hearing shall be held pursuant to RCW 13.34.138, and the court shall determine the need for continued intervention.

      (8) The juvenile court may hear a petition for permanent legal custody when: (a) The court has ordered implementation of a permanency plan that includes permanent legal custody; and (b) the party pursuing the permanent legal custody is the party identified in the permanency plan as the prospective legal custodian. During the pendency of such proceeding, the court shall conduct review hearings and further permanency planning hearings as provided in this chapter. At the conclusion of the legal guardianship or permanent legal custody proceeding, a juvenile court hearing shall be held for the purpose of determining whether dependency should be dismissed. If a guardianship or permanent custody order has been entered, the dependency shall be dismissed.

      (9) Continued juvenile court jurisdiction under this chapter shall not be a barrier to the entry of an order establishing a legal guardianship or permanent legal custody when the requirements of subsection (8) of this section are met.

      (10) Nothing in this chapter may be construed to limit the ability of the agency that has custody of the child to file a petition for termination of parental rights or a guardianship petition at any time following the establishment of dependency. Upon the filing of such a petition, a fact-finding hearing shall be scheduled and held in accordance with this chapter unless the agency requests dismissal of the petition prior to the hearing or unless the parties enter an agreed order terminating parental rights, establishing guardianship, or otherwise resolving the matter.

      (11) The approval of a permanency plan that does not contemplate return of the child to the parent does not relieve the supervising agency of its obligation to provide reasonable services, under this chapter, intended to effectuate the return of the child to the parent, including but not limited to, visitation rights. The court shall consider the child's relationships with siblings in accordance with RCW 13.34.130.

      (12) Nothing in this chapter may be construed to limit the procedural due process rights of any party in a termination or guardianship proceeding filed under this chapter.

      Sec. 5. RCW 13.34.260 and 2003 c 226 s 2 are each amended to read as follows:

      (1) In an attempt to minimize the inherent intrusion in the lives of families involved in the foster care system and to maintain parental authority where appropriate, the department, absent good cause, shall follow the wishes of the natural parent regarding the placement of the child with a relative or other suitable person pursuant to RCW 13.34.130. Preferences such as family constellation, sibling relationships, ethnicity, and religion shall be considered when matching children to foster homes. Parental authority is appropriate in areas that are not connected with the abuse or neglect that resulted in the dependency and shall be integrated through the foster care team.

      (2) When a child is placed in out-of-home care, relatives, other suitable persons, and foster parents are encouraged to:

      (a) Provide consultation to the foster care team based upon their experience with the child placed in their care;

      (b) Assist the birth parents by helping them understand their child's needs and correlating appropriate parenting responses;

      (c) Participate in educational activities, and enter into community-building activities with birth families and other foster families;


      (d) Transport children to family time visits with birth families and assist children and their families in maximizing the purposefulness of family time.

      (3) For purposes of this section, "foster care team" means the relative, other suitable person, or foster parent currently providing care, the currently assigned social worker, and the parent or parents; and "birth family" means the persons described in RCW 74.15.020(2)(a).

      NEW SECTION. Sec. 6. A new section is added to chapter 13.34 RCW to read as follows:

      (1) The administrative office of the courts shall develop standard court forms and format rules for mandatory use by parties in dependency matters commenced under this chapter or chapter 26.44 RCW. Forms shall be developed not later than November 1, 2009, and the mandatory use requirement shall be effective January 1, 2010. The administrative office of the courts has continuing responsibility to develop and revise mandatory forms and format rules as appropriate.

      (2) According to rules established by the administrative office of the courts, a party may delete unnecessary portions of the forms and may supplement the mandatory forms with additional material.

      (3) Failure by a party to use the mandatory forms or follow the format rules shall not be a reason to dismiss a case, refuse a filing, or strike a pleading. The court may, however, require the party to submit a corrected pleading and may impose terms payable to the opposing party or payable to the court, or both.

      (4) The administrative office of the courts shall distribute a master copy of the mandatory forms to all county court clerks. Upon request, the administrative office of the courts and county clerks must distribute the forms to the public and may charge for the cost of production and distribution of the forms. Private vendors also may distribute the forms. Distribution of forms may be in printed or electronic form.

      Sec. 7. RCW 74.13.031 and 2008 c 267 s 6 are each amended to read as follows:

      The department shall have the duty to provide child welfare services and shall:

      (1) Develop, administer, supervise, and monitor a coordinated and comprehensive plan that establishes, aids, and strengthens services for the protection and care of runaway, dependent, or neglected children.

      (2) Within available resources, recruit an adequate number of prospective adoptive and foster homes, both regular and specialized, i.e. homes for children of ethnic minority, including Indian homes for Indian children, sibling groups, handicapped and emotionally disturbed, teens, pregnant and parenting teens, and annually report to the governor and the legislature concerning the department's success in: (a) Meeting the need for adoptive and foster home placements; (b) reducing the foster parent turnover rate; (c) completing home studies for legally free children; and (d) implementing and operating the passport program required by RCW 74.13.285. The report shall include a section entitled "Foster Home Turn-Over, Causes and Recommendations."

      (3) Investigate complaints of any recent act or failure to act on the part of a parent or caretaker that results in death, serious physical or emotional harm, or sexual abuse or exploitation, or that presents an imminent risk of serious harm, and on the basis of the findings of such investigation, offer child welfare services in relation to the problem to such parents, legal custodians, or persons serving in loco parentis, and/or bring the situation to the attention of an appropriate court, or another community agency. An investigation is not required of nonaccidental injuries which are clearly not the result of a lack of care or supervision by the child's parents, legal custodians, or persons serving in loco parentis. If the investigation reveals that a crime against a child may have been committed, the department shall notify the appropriate law enforcement agency.

      (4) Offer, on a voluntary basis, family reconciliation services to families who are in conflict.

      (5) Monitor placements of children in out-of-home care and in-home dependencies to assure the safety, well-being, and quality of care being provided is within the scope of the intent of the legislature as defined in RCW 74.13.010 and 74.15.010. The policy for monitoring placements under this section shall require that children in out-of- home care and in-home dependencies and their caregivers receive a private and individual face-to-face visit each month.

      (a) The department shall conduct the monthly visits with children and caregivers required under this section unless the child's placement is being supervised under a contract between the department and a private agency accredited by a national child welfare accrediting entity, in which case the private agency shall, within existing resources, conduct the monthly visits with the child and with the child's caregiver according to the standards described in this subsection and shall provide the department with a written report of the visits within fifteen days of completing the visits.

      (b) In cases where the monthly visits required under this subsection are being conducted by a private agency, the department shall conduct a face-to-face health and safety visit with the child at least once every ninety days.

      (6) Have authority to accept custody of children from parents and to accept custody of children from juvenile courts, where authorized to do so under law, to provide child welfare services including placement for adoption, to provide for the routine and necessary medical, dental, and mental health care, or necessary emergency care of the children, and to provide for the physical care of such children and make payment of maintenance costs if needed. Except where required by Public Law 95-608 (25 U.S.C. Sec. 1915), no private adoption agency which receives children for adoption from the department shall discriminate on the basis of race, creed, or color when considering applications in their placement for adoption.

      (7) Have authority to provide temporary shelter to children who have run away from home and who are admitted to crisis residential centers.

      (8) Have authority to purchase care for children; and shall follow in general the policy of using properly approved private agency services for the actual care and supervision of such children insofar as they are available, paying for care of such children as are accepted by the department as eligible for support at reasonable rates established by the department.

      (9) Establish a children's services advisory committee which shall assist the secretary in the development of a partnership plan for utilizing resources of the public and private sectors, and advise on all matters pertaining to child welfare, licensing of child care agencies, adoption, and services related thereto. At least one member shall represent the adoption community.

      (10)(a) Have authority to provide continued foster care or group care as needed to participate in or complete a high school or vocational school program.

      (b)(i) Beginning in 2006, the department has the authority to allow up to fifty youth reaching age eighteen to continue in foster care or group care as needed to participate in or complete a posthigh school academic or vocational program, and to receive necessary support and transition services.

      (ii) In 2007 and 2008, the department has the authority to allow up to fifty additional youth per year reaching age eighteen to remain in foster care or group care as provided in (b)(i) of this subsection.

      (iii) A youth who remains eligible for such placement and services pursuant to department rules may continue in foster care or group care until the youth reaches his or her twenty-first birthday. Eligibility requirements shall include active enrollment in a posthigh school academic or vocational program and maintenance of a 2.0 grade point average.

      (11) Refer cases to the division of child support whenever state or federal funds are expended for the care and maintenance of a child, including a child with a developmental disability who is placed as a result of an action under chapter 13.34 RCW, unless the department finds that there is good cause not to pursue collection of child support against the parent or parents of the child. Cases involving individuals age eighteen through twenty shall not be referred to the division of child support unless required by federal law.

      (12) Have authority within funds appropriated for foster care services to purchase care for Indian children who are in the custody of a federally recognized Indian tribe or tribally licensed child-placing agency pursuant to parental consent, tribal court order, or state juvenile court order; and the purchase of such care shall be subject to the same eligibility standards and rates of support applicable to other children for whom the department purchases care.

      Notwithstanding any other provision of RCW 13.32A.170 through 13.32A.200 and 74.13.032 through 74.13.036, or of this section all services to be provided by the department of social and health services under subsections (4), (6), and (7) of this section, subject to the limitations of these subsections, may be provided by any program offering such services funded pursuant to Titles II and III of the federal juvenile justice and delinquency prevention act of 1974.

       (13) Within amounts appropriated for this specific purpose, provide preventive services to families with children that prevent or shorten the duration of an out-of-home placement.

      (14) Have authority to provide independent living services to youths, including individuals who have attained eighteen years of age, and have not attained twenty-one years of age who are or have been in foster care.

      (15) Consult at least quarterly with foster parents, including members of the foster parent association of Washington state, for the purpose of receiving information and comment regarding how the department is performing the duties and meeting the obligations specified in this section and RCW 74.13.250 and 74.13.320 regarding the recruitment of foster homes, reducing foster parent turnover rates, providing effective training for foster parents, and administering a coordinated and comprehensive plan that strengthens services for the protection of children. Consultation shall occur at the regional and statewide levels.

      (16)(a) Within current funding levels, place on the public web site maintained by the department a document listing the duties and responsibilities the department has to a child subject to a dependency petition including, but not limited to, the following:

      (i) Reasonable efforts, including the provision of services, toward reunification of the child with his or her family;

      (ii) Sibling visits subject to the restrictions in RCW 13.34.136(2)(b)(ii);

      (iii) Parent-child visits;

      (iv) Statutory preference for placement with a relative or other suitable person, if appropriate; and

      (v) Statutory preference for an out-of-home placement that allows the child to remain in the same school or school district, if practical and in the child's best interests.

      (b) The document must be prepared in conjunction with a community- based organization and must be updated as needed.

      NEW SECTION. Sec. 8. A new section is added to chapter 74.13 RCW to read as follows:

      Once a dependency is established under chapter 13.34 RCW, the social worker assigned to the case shall provide the dependent child age twelve years and older with a document containing the information described in RCW 74.13.031(16). The social worker shall explain the contents of the document to the child and direct the child to the department's web site for further information. The social worker shall document, in the electronic data system, that this requirement was met.

      Sec. 9. RCW 74.13.109 and 1990 c 285 s 7 are each amended to read as follows:

      (1) The secretary shall issue rules and regulations to assist in the administration of the program of adoption support authorized by RCW 26.33.320 and 74.13.100 through 74.13.145.

      (2) Disbursements from the appropriations available from the general fund shall be made pursuant to such rules and regulations and pursuant to agreements conforming thereto to be made by the secretary with parents for the purpose of supporting the adoption of children in, or likely to be placed in, foster homes or child caring institutions who are found by the secretary to be difficult to place in adoption because of physical or other reasons; including, but not limited to, physical or mental handicap, emotional disturbance, ethnic background, language, race, color, age, or sibling grouping.

      (3) Such agreements shall meet the following criteria:

      (((1))) (a) The child whose adoption is to be supported pursuant to such agreement shall be or have been a child hard to place in adoption.

      (((2))) (b) Such agreement must relate to a child who was or is residing in a foster home or child-caring institution or a child who, in the judgment of the secretary, is both eligible for, and likely to be placed in, either a foster home or a child-caring institution.

      (((3))) (c) Such agreement shall provide that adoption support shall not continue beyond the time that the adopted child reaches eighteen years of age, becomes emancipated, dies, or otherwise ceases to need support, provided that if the secretary shall find that continuing dependency of such child after such child reaches eighteen years of age warrants the continuation of support pursuant to RCW 26.33.320 and 74.13.100 through 74.13.145 the secretary may do so, subject to all the provisions of RCW 26.33.320 and 74.13.100 through 74.13.145, including annual review of the amount of such support.

      (((4))) (d) Any prospective parent who is to be a party to such agreement shall be a person who has the character, judgment, sense of responsibility, and disposition which make him or her suitable as an adoptive parent of such child.

      (4) At least six months before an adoption is finalized under chapter 26.33 RCW and RCW 74.13.100 through 74.13.145, the department must provide to the prospective adoptive parent, in writing, information describing the limits of the adoption support program including the following information:

      (a) The limits on monthly cash payments to adoptive families;

      (b) The limits on the availability of children's mental health services and the funds with which to pay for these services;

      (c) The process for accessing mental health services for children receiving adoption support services;

      (d) The limits on the one-time cash payments to adoptive families for expenses related to their adopted children; and

      (e) That payment for residential or group care is not available for adopted children under the adoption support program.

      Sec. 10. RCW 74.13.250 and 1990 c 284 s 2 are each amended to read as follows:

      (1) Preservice training is recognized as a valuable tool to reduce placement disruptions, the length of time children are in care, and foster parent turnover rates. Preservice training also assists potential foster parents in making their final decisions about foster parenting and assists social service agencies in obtaining information about whether to approve potential foster parents.

      (2) Foster parent preservice training shall include information about the potential impact of placement on foster children; social service agency administrative processes; the requirements, responsibilities, expectations, and skills needed to be a foster parent; attachment, separation, and loss issues faced by birth parents, foster children, and foster parents; child management and discipline; birth family relationships; information on the limits of the adoption support program as provided in RCW 74.13.109(4); and helping children leave foster care. Preservice training shall assist applicants in making informed decisions about whether they want to be foster parents. Preservice training shall be designed to enable the agency to assess the ability, readiness, and appropriateness of families to be foster parents. As a decision tool, effective preservice training provides potential foster parents with enough information to make an appropriate decision, affords potential foster parents an opportunity to discuss their decision with others and consider its implications for their family, clarifies foster family expectations, presents a realistic picture of what foster parenting involves, and allows potential foster parents to consider and explore the different types of children they might serve.

      (3) Preservice training shall be completed prior to the issuance of a foster care license, except that the department may, on a case by case basis, issue a written waiver that allows the foster parent to complete the training after licensure, so long as the training is completed within ninety days following licensure.

      Sec. 11. RCW 74.13.333 and 2004 c 181 s 1 are each amended to read as follows:

      (1) A foster parent who believes that a department employee has retaliated against the foster parent or in any other manner discriminated against the foster parent because:

      (((1))) (a) The foster parent made a complaint with the office of the family and children's ombudsman, the attorney general, law enforcement agencies, or the department, provided information, or otherwise cooperated with the investigation of such a complaint;

      (((2))) (b) The foster parent has caused to be instituted any proceedings under or related to Title 13 RCW;

      (((3))) (c) The foster parent has testified or is about to testify in any proceedings under or related to Title 13 RCW;

      (((4))) (d) The foster parent has advocated for services on behalf of the foster child;

      (((5))) (e) The foster parent has sought to adopt a foster child in the foster parent's care; or

      (((6))) (f) The foster parent has discussed or consulted with anyone concerning the foster parent's rights under this chapter or chapter 74.15 or 13.34 RCW, may file a complaint with the office of the family and children's ombudsman.

      (2) The ombudsman may investigate the allegations of retaliation. The ombudsman shall have access to all relevant information and resources held by or within the department by which to conduct the investigation. Upon the conclusion of its investigation, the ombudsman shall provide its findings in written form to the department.

      (3) The department shall notify the office of the family and children's ombudsman in writing, within thirty days of receiving the ombudsman's findings, of any personnel action taken or to be taken with regard to the department employee.

      (4) The office of the family and children's ombudsman shall also include its recommendations regarding complaints filed under this section in its annual report pursuant to RCW 43.06A.030. The office of the family and children's ombudsman shall identify trends which may indicate a need to improve relations between the department and foster parents."

      Correct the title.

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Hargrove moved that the Senate concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5811.

      Senator Hargrove spoke in favor of the motion.

 

The President declared the question before the Senate to be the motion by Senator Hargrove that the Senate concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5811.

The motion by Senator Hargrove carried and the Senate concurred in the House amendment(s) to Engrossed Substitute Senate Bill No. 5811 by voice vote.

The President declared the question before the Senate to be the final passage of Engrossed Substitute Senate Bill No. 5811, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Engrossed Substitute Senate Bill No. 5811, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 49; Nays, 0; Absent, 0; Excused, 0.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Brown, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

ENGROSSED SUBSTITUTE SENATE BILL NO. 5811, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

      The House receded in its amendment to SUBSTITUTE SENATE BILL NO. 5777. Under suspension of rules, the bill was returned to second reading for the purpose of an amendment. The House adopted the following amendment: 5777-S AMH CODY H3433.1 and passed the bill as amended by the House.

      Strike everything after the enacting clause and insert the following:

      "NEW SECTION. Sec. 1. A new section is added to chapter 48.66 RCW to read as follows:

      Any medicare eligible person who is rejected for medical reasons, is required to accept restrictive riders, an up-rated premium, or preexisting conditions limitations, the effect of which is to substantially reduce coverage from that received by a person considered a standard risk by at least one member as defined in RCW 48.41.030(14) shall be provided written notice from the issuer of medicare supplement coverage to whom application was made of the decision not to accept the person's application for enrollment, or to require such restrictions. The notice shall further state that the person is eligible for medicare part C coverage offered in the person's geographic area or coverage provided by the Washington state health insurance pool for Washington residents, and shall include information about medicare part C plans offered in the person's geographic area, about the Washington state health insurance pool, and about available resources to assist the person in choosing appropriate coverage.

      Sec. 2. RCW 48.41.060 and 2008 c 217 s 47 are each amended to read as follows:

      (1) The board shall have the general powers and authority granted under the laws of this state to insurance companies, health care service contractors, and health maintenance organizations, licensed or registered to offer or provide the kinds of health coverage defined under this title. In addition thereto, the board shall:

      (a) Designate or establish the standard health questionnaire to be used under RCW 48.41.100 and 48.43.018, including the form and content of the standard health questionnaire and the method of its application. The questionnaire must provide for an objective evaluation of an individual's health status by assigning a discreet measure, such as a system of point scoring to each individual. The questionnaire must not contain any questions related to pregnancy, and pregnancy shall not be a basis for coverage by the pool. The questionnaire shall be designed such that it is reasonably expected to identify the eight percent of persons who are the most costly to treat who are under individual coverage in health benefit plans, as defined in RCW 48.43.005, in Washington state or are covered by the pool, if applied to all such persons;

      (b) Obtain from a member of the American academy of actuaries, who is independent of the board, a certification that the standard health questionnaire meets the requirements of (a) of this subsection;

      (c) Approve the standard health questionnaire and any modifications needed to comply with this chapter. The standard health questionnaire shall be submitted to an actuary for certification, modified as necessary, and approved at least every ((eighteen)) thirty-six months. The designation and approval of the standard health questionnaire by the board shall not be subject to review and approval by the commissioner. The standard health questionnaire or any modification thereto shall not be used until ninety days after public notice of the approval of the questionnaire or any modification thereto, except that the initial standard health questionnaire approved for use by the board after March 23, 2000, may be used immediately following public notice of such approval;

      (d) Establish appropriate rates, rate schedules, rate adjustments, expense allowances, claim reserve formulas and any other actuarial functions appropriate to the operation of the pool. Rates shall not be unreasonable in relation to the coverage provided, the risk experience, and expenses of providing the coverage. Rates and rate schedules may be adjusted for appropriate risk factors such as age and area variation in claim costs and shall take into consideration appropriate risk factors in accordance with established actuarial underwriting practices consistent with Washington state individual plan rating requirements under RCW 48.44.022 and 48.46.064;

      (e)(i) Assess members of the pool in accordance with the provisions of this chapter, and make advance interim assessments as may be reasonable and necessary for the organizational or interim operating expenses. Any interim assessments will be credited as offsets against any regular assessments due following the close of the year.

      (ii) Self-funded multiple employer welfare arrangements are subject to assessment under this subsection only in the event that assessments are not preempted by the employee retirement income security act of 1974, as amended, 29 U.S.C. Sec. 1001 et seq. The arrangements and the commissioner shall initially request an advisory opinion from the United States department of labor or obtain a declaratory ruling from a federal court on the legality of imposing assessments on these arrangements before imposing the assessment. Once the legality of the assessments has been determined, the multiple employer welfare arrangement certified by the insurance commissioner must begin payment of these assessments.

      (iii) If there has not been a final determination of the legality of these assessments, then beginning on the earlier of (A) the date the fourth multiple employer welfare arrangement has been certified by the insurance commissioner, or (B) April 1, 2006, the arrangement shall deposit the assessments imposed by this subsection into an interest bearing escrow account maintained by the arrangement. Upon a final determination that the assessments are not preempted by the employee retirement income security act of 1974, as amended, 29 U.S.C. Sec. 1001 et seq., all funds in the interest bearing escrow account shall be transferred to the board;

      (f) Issue policies of health coverage in accordance with the requirements of this chapter;

      (g) Establish procedures for the administration of the premium discount provided under RCW 48.41.200(3)(a)(iii);

      (h) Contract with the Washington state health care authority for the administration of the premium discounts provided under RCW 48.41.200(3)(a) (i) and (ii);

      (i) Set a reasonable fee to be paid to an insurance producer licensed in Washington state for submitting an acceptable application for enrollment in the pool; and

      (j) Provide certification to the commissioner when assessments will exceed the threshold level established in RCW 48.41.037.

      (2) In addition thereto, the board may:

       (a) Enter into contracts as are necessary or proper to carry out the provisions and purposes of this chapter including the authority, with the approval of the commissioner, to enter into contracts with similar pools of other states for the joint performance of common administrative functions, or with persons or other organizations for the performance of administrative functions;

      (b) Sue or be sued, including taking any legal action as necessary to avoid the payment of improper claims against the pool or the coverage provided by or through the pool;

      (c) Appoint appropriate legal, actuarial, and other committees as necessary to provide technical assistance in the operation of the pool, policy, and other contract design, and any other function within the authority of the pool; and

      (d) Conduct periodic audits to assure the general accuracy of the financial data submitted to the pool, and the board shall cause the pool to have an annual audit of its operations by an independent certified public accountant.

      (3) Nothing in this section shall be construed to require or authorize the adoption of rules under chapter 34.05 RCW.

      Sec. 3. RCW 48.41.100 and 2007 c 259 s 30 are each amended to read as follows:

      (1)(a) The following persons who are residents of this state are eligible for pool coverage:

      (((a))) (i) Any person who provides evidence of a carrier's decision not to accept him or her for enrollment in an individual health benefit plan as defined in RCW 48.43.005 based upon, and within ninety days of the receipt of, the results of the standard health questionnaire designated by the board and administered by health carriers under RCW 48.43.018;

      (((b))) (ii) Any person who continues to be eligible for pool coverage based upon the results of the standard health questionnaire designated by the board and administered by the pool administrator pursuant to subsection (3) of this section;

      (((c))) (iii) Any person who resides in a county of the state where no carrier or insurer eligible under chapter 48.15 RCW offers to the public an individual health benefit plan other than a catastrophic health plan as defined in RCW 48.43.005 at the time of application to the pool, and who makes direct application to the pool; ((and
      (d))) (iv) Any ((medicare eligible)) person ((upon providing)) becoming eligible for medicare before August 1, 2009, who provides evidence of (A) a rejection for medical reasons, (B) a requirement of restrictive riders, (C) an up-rated premium, ((or)) (D) a preexisting conditions limitation ((on a)), or (E) lack of access to or for a comprehensive medicare supplemental insurance policy under chapter 48.66 RCW, the effect of any of which is to substantially reduce coverage from that received by a person considered a standard risk by at least one member within six months of the date of application; and
      (v) Any person becoming eligible for medicare on or after August 1, 2009, who does not have access to a reasonable choice of comprehensive medicare part C plans, as defined in (b) of this subsection, and who provides evidence of (A) a rejection for medical reasons, (B) a requirement of restrictive riders, (C) an up-rated premium, (D) a preexisting conditions limitation, or (E) lack of access to or for a comprehensive medicare supplemental insurance policy under chapter 48.66 RCW, the effect of any of which is to substantially reduce coverage from that received by a person considered a standard risk by at least one member within six months of the date of application.
      (b) For purposes of (a)(v) of this subsection (1), a person does not have access to a reasonable choice of plans unless the person has a choice of health maintenance organization or preferred provider organization medicare part C plans offered by at least three different carriers that have had provider networks in the person's county of residence for at least five years. The plan options must include coverage at least as comprehensive as a plan F medicare supplement plan combined with medicare parts A and B. The plan options must also provide access to adequate and stable provider networks that make up- to-date provider directories easily accessible on the carrier web site, and will provide them in hard copy, if requested. In addition, if no health maintenance organization or preferred provider organization plan includes the health care provider with whom the person has an established care relationship and from whom he or she has received treatment within the past twelve months, the person does not have reasonable access.

       (2) The following persons are not eligible for coverage by the pool:

      (a) Any person having terminated coverage in the pool unless (i) twelve months have lapsed since termination, or (ii) that person can show continuous other coverage which has been involuntarily terminated for any reason other than nonpayment of premiums. However, these exclusions do not apply to eligible individuals as defined in section 2741(b) of the federal health insurance portability and accountability act of 1996 (42 U.S.C. Sec. 300gg-41(b));

      (b) Any person on whose behalf the pool has paid out two million dollars in benefits;

      (c) Inmates of public institutions and those persons ((whose benefits are duplicated under public programs)) who become eligible for medical assistance after June 30, 2008, as defined in RCW 74.09.010. However, these exclusions do not apply to eligible individuals as defined in section 2741(b) of the federal health insurance portability and accountability act of 1996 (42 U.S.C. Sec. 300gg-41(b));

      (d) Any person who resides in a county of the state where any carrier or insurer regulated under chapter 48.15 RCW offers to the public an individual health benefit plan other than a catastrophic health plan as defined in RCW 48.43.005 at the time of application to the pool and who does not qualify for pool coverage based upon the results of the standard health questionnaire, or pursuant to subsection (1)(((d))) (a)(iv) of this section.

      (3) When a carrier or insurer regulated under chapter 48.15 RCW begins to offer an individual health benefit plan in a county where no carrier had been offering an individual health benefit plan:

      (a) If the health benefit plan offered is other than a catastrophic health plan as defined in RCW 48.43.005, any person enrolled in a pool plan pursuant to subsection (1)(((c))) (a)(iii) of this section in that county shall no longer be eligible for coverage under that plan pursuant to subsection (1)(((c))) (a)(iii) of this section, but may continue to be eligible for pool coverage based upon the results of the standard health questionnaire designated by the board and administered by the pool administrator. The pool administrator shall offer to administer the questionnaire to each person no longer eligible for coverage under subsection (1)(((c))) (a)(iii) of this section within thirty days of determining that he or she is no longer eligible;

       (b) Losing eligibility for pool coverage under this subsection (3) does not affect a person's eligibility for pool coverage under subsection (1)(a)(i), (((b))) (ii), or (((d))) (iv) of this section; and

      (c) The pool administrator shall provide written notice to any person who is no longer eligible for coverage under a pool plan under this subsection (3) within thirty days of the administrator's determination that the person is no longer eligible. The notice shall: (i) Indicate that coverage under the plan will cease ninety days from the date that the notice is dated; (ii) describe any other coverage options, either in or outside of the pool, available to the person; (iii) describe the procedures for the administration of the standard health questionnaire to determine the person's continued eligibility for coverage under subsection (1)(((b))) (a)(ii) of this section; and (iv) describe the enrollment process for the available options outside of the pool.

      (4) The board shall ensure that an independent analysis of the eligibility standards for the pool coverage is conducted, including examining the eight percent eligibility threshold, eligibility for medicaid enrollees and other publicly sponsored enrollees, and the impacts on the pool and the state budget. The board shall report the findings to the legislature by December 1, 2007.

      Sec. 4. RCW 48.41.100 and 2008 c 317 s 4 are each amended to read as follows:

      (1)(a) The following persons who are residents of this state are eligible for pool coverage:

      (((a))) (i) Any person who provides evidence of a carrier's decision not to accept him or her for enrollment in an individual health benefit plan as defined in RCW 48.43.005 based upon, and within ninety days of the receipt of, the results of the standard health questionnaire designated by the board and administered by health carriers under RCW 48.43.018;

      (((b))) (ii) Any person who continues to be eligible for pool coverage based upon the results of the standard health questionnaire designated by the board and administered by the pool administrator pursuant to subsection (3) of this section;

       (((c))) (iii) Any person who resides in a county of the state where no carrier or insurer eligible under chapter 48.15 RCW offers to the public an individual health benefit plan other than a catastrophic health plan as defined in RCW 48.43.005 at the time of application to the pool, and who makes direct application to the pool; ((and
      (d) Any medicare eligible person upon providing)) (iv) Any person becoming eligible for medicare before August 1, 2009, who provides evidence of (A) a rejection for medical reasons, (B) a requirement of restrictive riders, (C) an up-rated premium, ((or)) (D) a preexisting conditions limitation ((on a)), or (E) lack of access to or for a comprehensive medicare supplemental insurance policy under chapter 48.66 RCW, the effect of any of which is to substantially reduce coverage from that received by a person considered a standard risk by at least one member within six months of the date of application; and
      (v) Any person becoming eligible for medicare on or after August 1, 2009, who does not have access to a reasonable choice of comprehensive medicare part C plans, as defined in (b) of this subsection, and who provides evidence of (A) a rejection for medical reasons, (B) a requirement of restrictive riders, (C) an up-rated premium, (D) a preexisting conditions limitation, or (E) lack of access to or for a comprehensive medicare supplemental insurance policy under chapter 48.66 RCW, the effect of any of which is to substantially reduce coverage from that received by a person considered a standard risk by at least one member within six months of the date of application.
      (b) For purposes of (a)(v) of this subsection (1), a person does not have access to a reasonable choice of plans unless the person has a choice of health maintenance organization or preferred provider organization medicare part C plans offered by at least three different carriers that have had provider networks in the person's county of residence for at least five years. The plan options must include coverage at least as comprehensive as a plan F medicare supplement plan combined with medicare parts A and B. The plan options must also provide access to adequate and stable provider networks that make up- to-date provider directories easily accessible on the carrier web site, and will provide them in hard copy, if requested. In addition, if no health maintenance organization or preferred provider organization plan includes the health care provider with whom the person has an established care relationship and from whom he or she has received treatment within the past twelve months, the person does not have reasonable access.

      (2) The following persons are not eligible for coverage by the pool:

      (a) Any person having terminated coverage in the pool unless (i) twelve months have lapsed since termination, or (ii) that person can show continuous other coverage which has been involuntarily terminated for any reason other than nonpayment of premiums. However, these exclusions do not apply to eligible individuals as defined in section 2741(b) of the federal health insurance portability and accountability act of 1996 (42 U.S.C. Sec. 300gg-41(b));

      (b) Any person on whose behalf the pool has paid out two million dollars in benefits;

      (c) Inmates of public institutions, and those persons who become eligible for medical assistance after June 30, 2008, as defined in RCW 74.09.010. However, these exclusions do not apply to eligible individuals as defined in section 2741(b) of the federal health insurance portability and accountability act of 1996 (42 U.S.C. Sec. 300gg-41(b));

      (d) Any person who resides in a county of the state where any carrier or insurer regulated under chapter 48.15 RCW offers to the public an individual health benefit plan other than a catastrophic health plan as defined in RCW 48.43.005 at the time of application to the pool and who does not qualify for pool coverage based upon the results of the standard health questionnaire, or pursuant to subsection (1)(((d))) (a)(iv) of this section.

      (3) When a carrier or insurer regulated under chapter 48.15 RCW begins to offer an individual health benefit plan in a county where no carrier had been offering an individual health benefit plan:

      (a) If the health benefit plan offered is other than a catastrophic health plan as defined in RCW 48.43.005, any person enrolled in a pool plan pursuant to subsection (1)(((c))) (a)(iii) of this section in that county shall no longer be eligible for coverage under that plan pursuant to subsection (1)(((c))) (a)(iii) of this section, but may continue to be eligible for pool coverage based upon the results of the standard health questionnaire designated by the board and administered by the pool administrator. The pool administrator shall offer to administer the questionnaire to each person no longer eligible for coverage under subsection (1)(((c))) (a)(iii) of this section within thirty days of determining that he or she is no longer eligible;

      (b) Losing eligibility for pool coverage under this subsection (3) does not affect a person's eligibility for pool coverage under subsection (1)(a)(i), (((b))) (ii), or (((d))) (iv) of this section; and

      (c) The pool administrator shall provide written notice to any person who is no longer eligible for coverage under a pool plan under this subsection (3) within thirty days of the administrator's determination that the person is no longer eligible. The notice shall: (i) Indicate that coverage under the plan will cease ninety days from the date that the notice is dated; (ii) describe any other coverage options, either in or outside of the pool, available to the person; (iii) describe the procedures for the administration of the standard health questionnaire to determine the person's continued eligibility for coverage under subsection (1)(((b))) (a)(ii) of this section; and (iv) describe the enrollment process for the available options outside of the pool.

      (4) The board shall ensure that an independent analysis of the eligibility standards for the pool coverage is conducted, including examining the eight percent eligibility threshold, eligibility for medicaid enrollees and other publicly sponsored enrollees, and the impacts on the pool and the state budget. The board shall report the findings to the legislature by December 1, 2007.

      NEW SECTION. Sec. 5. The board of the Washington state health insurance pool shall conduct a study of options for equitable, stable, and broad-based funding sources for the operation of the pool. The board is authorized to solicit funds to conduct the study. The board shall report its findings and recommendations to the appropriate committees of the senate and house of representatives by December 15, 2009.

      NEW SECTION. Sec. 6. Section 3 of this act takes effect if section 4, chapter 317, Laws of 2008 is null and void on the effective date of this act; otherwise section 3 of this act is null and void.

      NEW SECTION. Sec. 7. Section 4 of this act takes effect if section 4, chapter 317, Laws of 2008 is in effect on the effective date of this act; otherwise section 4 of this act is null and void."

      Correct the title.

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Keiser moved that the Senate concur in the House amendment(s) to Substitute Senate Bill No. 5777.

      Senators Keiser and Parlette spoke in favor of passage of the motion.

 

The President declared the question before the Senate to be the motion by Senator Keiser that the Senate concur in the House amendment(s) to Substitute Senate Bill No. 5777.

The motion by Senator Keiser carried and the Senate concurred in the House amendment(s) to Substitute Senate Bill No. 5777 by voice vote.


The President declared the question before the Senate to be the final passage of Substitute Senate Bill No. 5777, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Substitute Senate Bill No. 5777, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 49; Nays, 0; Absent, 0; Excused, 0.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Brown, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

SUBSTITUTE SENATE BILL NO. 5777, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 24, 2009

 

MR. PRESIDENT:

      The House receded in its amendment to SENATE BILL NO. 5554. Under suspension of rules, the bill was returned to second reading for the purpose of an amendment. The House adopted the following amendment: 5554 AMH HASE CLYN 128 and passed the bill as amended by the House.

      On page 4, at the beginning of line 12, insert the following:

      "(a) Proposing training that leads to transferable skills that are interchangeable among different jobs, employers, or workplaces;"

      Renumber the remaining subsections consecutively and correct any internal references accordingly.

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Kilmer moved that the Senate concur in the House amendment(s) to Senate Bill No. 5554.

      Senator Kilmer spoke in favor of the motion.

 

The President declared the question before the Senate to be the motion by Senator Kilmer that the Senate concur in the House amendment(s) to Senate Bill No. 5554.

The motion by Senator Kilmer carried and the Senate concurred in the House amendment(s) to Senate Bill No. 5554 by voice vote.

The President declared the question before the Senate to be the final passage of Senate Bill No. 5554, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Senate Bill No. 5554, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 48; Nays, 0; Absent, 1; Excused, 0.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      Absent: Senator Brown

SENATE BILL NO. 5554, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

      The House receded in its amendment to SUBSTITUTE SENATE BILL NO. 5431. Under suspension of rules, the bill was returned to second reading for the purpose of an amendment. The House adopted the following amendment: 5431-S AMH KAGI H3436.1

      On page 1, line 9, after "child." insert "Pursuant to RCW 13.34.060 and 13.34.130, placement of the child with a relative or other suitable person is the preferred option."

      Beginning on page 1, line 14, after "care," strike all material through "and the" on page 2, line 3, and insert "and the department cannot locate an appropriate and available relative or other suitable person, the preferred placement for the child is in a foster family home where the child previously was placed, if the following conditions are met:
      (a) The foster family home is available and willing to care for the child;
      (b) The foster family is appropriate and able to meet the child's needs; and
      (c) The"

      On page 2, after line 3, insert the following:

      "NEW SECTION. Sec. 2. A new section is added to chapter 13.34 RCW to read as follows:

      If a child has been previously placed in out-of-home care and is subsequently returned to out-of-home care, and the department cannot locate an appropriate and available relative or other suitable person, the preferred placement for the child is in a foster family home where the child previously was placed, if the following conditions are met:

      (1) The foster family home is available and willing to care for the child;

      (2) The foster family is appropriate and able to meet the child's needs; and

      (3) The placement is in the best interest of the child."

       Correct the title.

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Hargrove moved that the Senate concur in the House amendment(s) to Substitute Senate Bill No. 5431.

      Senators Hargrove and Roach spoke in favor of passage of the motion.

 


The President declared the question before the Senate to be the motion by Senator Hargrove that the Senate concur in the House amendment(s) to Substitute Senate Bill No. 5431.

The motion by Senator Hargrove carried and the Senate concurred in the House amendment(s) to Substitute Senate Bill No. 5431 by voice vote.

 

MOTION

 

On motion of Senator Kauffman, Senator Brown was excused.

 

The President declared the question before the Senate to be the final passage of Substitute Senate Bill No. 5431, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Substitute Senate Bill No. 5431, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 48; Nays, 0; Absent, 0; Excused, 1.

      Voting yea: Senators Becker, Benton, Berkey, Brandland, Carrell, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hewitt, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Morton, Murray, Oemig, Parlette, Pflug, Prentice, Pridemore, Ranker, Regala, Roach, Rockefeller, Schoesler, Sheldon, Shin, Stevens, Swecker, Tom and Zarelli

      Excused: Senator Brown

SUBSTITUTE SENATE BILL NO. 5431, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

      The House receded in its amendment to SENATE BILL NO. 5354. Under suspension of rules, the bill was returned to second reading for the purpose of an amendment. The House adopted the following amendment: 5354 AMH SIMP MOET 395, and passed the bill as amended by the House.

      Beginning on page 1, line 18, after "islands" strike all material through "boundaries" on page 2, line 4, and insert "that receives medical services from a hospital district, but is prevented by geography and the absence of contiguous boundaries from annexing to that district"

      Beginning on page 2, line 16, strike all of section 3 and insert the following:

      "NEW SECTION. Sec. 3. ESTABLISHING A PUBLIC HOSPITAL CAPITAL FACILITY AREA--BALLOT PROPOSITIONS. (1)(a) Upon receipt of a completed petition to both establish a public hospital capital facility area and submit a ballot proposition under section 7 of this act to finance public hospital capital facilities and other capital health care facilities, the legislative authority of the county in which a proposed public hospital capital facility area is to be established shall submit separate ballot propositions to voters to authorize establishing the proposed public hospital capital facility area and authorizing the public hospital capital facility area, if established, to finance public hospital capital facilities or other capital health care facilities by issuing general indebtedness and imposing excess levies to retire the indebtedness. A petition submitted under this section must be accompanied by a written request to establish a public hospital capital facility area that is signed by a majority of the commissioners of the public hospital district serving the proposed area.

      (b) The ballot propositions must be submitted to voters of the proposed public hospital capital facility area at a general or special election. If the proposed election date is not a general election, the county legislative authority is encouraged to request an election when another unit of local government with territory located in the proposed public hospital capital facility area is already holding a special election under RCW 29A.04.330. Approval of the ballot proposition to create a public hospital capital facility area requires a simple majority vote by the voters participating in the election.

      (2) A completed petition submitted under this section must include:

      (a) A description of the boundaries of the public hospital capital facility area; and

      (b) A copy of a resolution of the legislative authority of each city, town, and hospital district with territory in the proposed public hospital capital facility area indicating both: (i) Approval of the creation of the proposed public hospital capital facility area; and (ii) agreement on how election costs will be paid for ballot propositions to voters that authorize the public hospital capital facility area to incur general indebtedness and impose excess levies to retire the general indebtedness."

      On page 3, line 16, after "facility" insert "area"

      On page 3, line 21, after "proposed" strike "district" and insert "public hospital capital facility area"

      On page 5, at the beginning of line 36, strike "chapter 70.44 RCW" and insert "this chapter"

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Haugen moved that the Senate concur in the House amendment(s) to Senate Bill No. 5354.

      Senator Haugen spoke in favor of the motion.

 

The President declared the question before the Senate to be the motion by Senator Haugen that the Senate concur in the House amendment(s) to Senate Bill No. 5354.

The motion by Senator Haugen carried and the Senate concurred in the House amendment(s) to Senate Bill No. 5354 by voice vote.

The President declared the question before the Senate to be the final passage of Senate Bill No. 5354, as amended by the House.

      Senator Roach spoke against passage of the bill.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Senate Bill No. 5354, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 41; Nays, 7; Absent, 0; Excused, 1.

      Voting yea: Senators Becker, Berkey, Brandland, Delvin, Eide, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Hobbs, Holmquist, Honeyford, Jacobsen, Jarrett, Kastama, Kauffman, Keiser, Kilmer, King, Kline, Kohl-Welles, Marr, McAuliffe, McCaslin, McDermott, Murray, Oemig, Parlette, Prentice, Pridemore, Ranker, Regala, Rockefeller, Schoesler, Sheldon, Shin, Swecker, Tom and Zarelli


      Voting nay: Senators Benton, Carrell, Hewitt, Morton, Pflug, Roach and Stevens

      Excused: Senator Brown

SENATE BILL NO. 5354, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MESSAGE FROM THE HOUSE

 

April 21, 2009

 

MR. PRESIDENT:

      The House has passed ENGROSSED SUBSTITUTE SENATE BILL NO. 5288 with the following amendment:5288-S.E AMH ENGR H3253.E

      Strike everything after the enacting clause and insert the following:

      "Sec. 1. RCW 9.94A.501 and 2005 c 362 s 1 are each amended to read as follows:

      (1) ((When the department performs a risk assessment pursuant to RCW 9.94A.500, or to determine a person's conditions of supervision, the risk assessment shall classify the offender or a probationer sentenced in superior court into one of at least four risk categories.

      (2) The department shall supervise every offender sentenced to a term of community custody, community placement, or community supervision and every misdemeanor and gross misdemeanor probationer ordered by a superior court to probation under the supervision of the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210:

      (a) Whose risk assessment places that offender or probationer in one of the two highest risk categories; or

      (b) Regardless of the offender's or probationer's risk category if:

      (i) The offender's or probationer's current conviction is for:

      (A) A sex offense;

      (B) A violent offense;

      (C) A crime against persons as defined in RCW 9.94A.411;

      (D) A felony that is domestic violence as defined in RCW 10.99.020;

      (E) A violation of RCW 9A.52.025 (residential burglary);

      (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or

      (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor);

      (ii) The offender or probationer has a prior conviction for:

      (A) A sex offense;

      (B) A violent offense;

       (C) A crime against persons as defined in RCW 9.94A.411;

      (D) A felony that is domestic violence as defined in RCW 10.99.020;

      (E) A violation of RCW 9A.52.025 (residential burglary);

      (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or

      (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor);

      (iii) The conditions of the offender's community custody, community placement, or community supervision or the probationer's supervision include chemical dependency treatment;

      (iv) The offender)) The department shall supervise every offender convicted of a misdemeanor or gross misdemeanor offense who is sentenced to probation in superior court, pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, for an offense included in (a) and (b) of this subsection. The superior court shall order probation for:

      (a) Offenders convicted of fourth degree assault, violation of a domestic violence court order pursuant to RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145, and who also have a prior conviction for one or more of the following:

      (i) A violent offense;

      (ii) A sex offense;

      (iii) A crime against a person as provided in RCW 9.94A.411;

      (iv) Fourth degree assault; or

      (v) Violation of a domestic violence court order; and

      (b) Offenders convicted of:

      (i) Sexual misconduct with a minor second degree;

      (ii) Custodial sexual misconduct second degree;

      (iii) Communication with a minor for immoral purposes; and

      (iv) Failure to register pursuant to RCW 9A.44.130.

      (2) Misdemeanor and gross misdemeanor offenders supervised by the department pursuant to this section shall be placed on community custody.

      (3) The department shall supervise every felony offender sentenced to community custody whose risk assessment, conducted pursuant to subsection (6) of this section, places the offender in one of the two highest risk categories.

       (4) Notwithstanding any other provision of this section, the department shall supervise an offender sentenced to community custody regardless of risk classification if the offender:

      (a) Has a current conviction for a sex offense;

      (b) Has been identified by the department as a dangerous mentally ill offender pursuant to RCW 72.09.370;

      (c) Has an indeterminate sentence and is subject to parole pursuant to RCW 9.95.017;

      (d) Was sentenced under RCW 9.94A.650, 9.94A.660, or 9.94A.670; or

      (((v) The offender)) (e) Is subject to supervision pursuant to RCW 9.94A.745.

      (((3))) (5) The department is not authorized to, and may not, supervise any offender sentenced to a term of community custody, community placement, or community supervision or any probationer unless the offender or probationer is one for whom supervision is required under subsection (1), (2), (3), or (4) of this section.

      (((4) This section expires July 1, 2010)) (6) The department shall conduct a risk assessment for every felony offender sentenced to a term of community custody, community placement, or community supervision who may be subject to supervision under this section.

      Sec. 2. RCW 9.94A.501 and 2008 c 231 s 24 are each amended to read as follows:

      (1) ((When the department performs a risk assessment pursuant to RCW 9.94A.500, or to determine a person's conditions of supervision, the risk assessment shall classify the offender or a probationer sentenced in superior court into one of at least four risk categories.

      (2) The department shall supervise every offender sentenced to a term of community custody and every misdemeanor and gross misdemeanor probationer ordered by a superior court to probation under the supervision of the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210:

      (a) Whose risk assessment places that offender or probationer in one of the two highest risk categories; or

      (b) Regardless of the offender's or probationer's risk category if:

      (i) The offender's or probationer's current conviction is for:

      (A) A sex offense;

      (B) A violent offense;

       (C) A crime against persons as defined in RCW 9.94A.411;

      (D) A felony that is domestic violence as defined in RCW 10.99.020;

      (E) A violation of RCW 9A.52.025 (residential burglary);


      (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or

      (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor);

      (ii) The offender or probationer has a prior conviction for:

      (A) A sex offense;

      (B) A violent offense;

      (C) A crime against persons as defined in RCW 9.94A.411;

      (D) A felony that is domestic violence as defined in RCW 10.99.020;

      (E) A violation of RCW 9A.52.025 (residential burglary);

      (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or

      (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor);

      (iii) The conditions of the offender's community custody or the probationer's supervision include chemical dependency treatment;

      (iv) The offender)) The department shall supervise every offender convicted of a misdemeanor or gross misdemeanor offense who is sentenced to probation in superior court, pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, for an offense included in (a) and (b) of this subsection. The superior court shall order probation for:

      (a) Offenders convicted of fourth degree assault, violation of a domestic violence court order pursuant to RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145, and who also have a prior conviction for one or more of the following:

      (i) A violent offense;

      (ii) A sex offense;

      (iii) A crime against a person as provided in RCW 9.94A.411;

      (iv) Fourth degree assault; or

      (v) Violation of a domestic violence court order; and

      (b) Offenders convicted of:

      (i) Sexual misconduct with a minor second degree;

      (ii) Custodial sexual misconduct second degree;

       (iii) Communication with a minor for immoral purposes; and

      (iv) Failure to register pursuant to RCW 9A.44.130.

      (2) Misdemeanor and gross misdemeanor offenders supervised by the department pursuant to this section shall be placed on community custody.

      (3) The department shall supervise every felony offender sentenced to community custody whose risk assessment, conducted pursuant to subsection (6) of this section, classifies the offender as one who is at a high risk to reoffend.

      (4) Notwithstanding any other provision of this section, the department shall supervise an offender sentenced to community custody regardless of risk classification if the offender:

      (a) Has a current conviction for a sex offense;

      (b) Has been identified by the department as a dangerous mentally ill offender pursuant to RCW 72.09.370;

      (c) Has an indeterminate sentence and is subject to parole pursuant to RCW 9.95.017;

      (d) Was sentenced under RCW 9.94A.650, 9.94A.660, or 9.94A.670; or

      (((v) The offender)) (e) Is subject to supervision pursuant to RCW 9.94A.745.

      (((3))) (5) The department is not authorized to, and may not, supervise any offender sentenced to a term of community custody or any probationer unless the offender or probationer is one for whom supervision is required under subsection (1), (2), (3), or (4) of this section.

      (((4) This section expires July 1, 2010)) (6) The department shall conduct a risk assessment for every felony offender sentenced to a term of community custody who may be subject to supervision under this section.

      Sec. 3. RCW 9.94A.030 and 2008 c 276 s 309 and 2008 c 7 s 1 are each reenacted and amended to read as follows:

      Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

      (1) "Board" means the indeterminate sentence review board created under chapter 9.95 RCW.

      (2) "Collect," or any derivative thereof, "collect and remit," or "collect and deliver," when used with reference to the department, means that the department, either directly or through a collection agreement authorized by RCW 9.94A.760, is responsible for monitoring and enforcing the offender's sentence with regard to the legal financial obligation, receiving payment thereof from the offender, and, consistent with current law, delivering daily the entire payment to the superior court clerk without depositing it in a departmental account.

      (3) "Commission" means the sentencing guidelines commission.

      (4) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions.

      (5) "Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time or imposed ((pursuant to RCW 9.94A.505(2)(b), 9.94A.650 through 9.94A.670, 9.94A.690, 9.94A.700 through 9.94A.715, or 9.94A.545,)) as part of a sentence under this chapter and served in the community subject to controls placed on the offender's movement and activities by the department. For offenders placed on community custody for crimes committed on or after July 1, 2000, the department shall assess the offender's risk of reoffense and may establish and modify conditions of community custody, in addition to those imposed by the court, based upon the risk to community safety.

      (6) "Community custody range" means the minimum and maximum period of community custody included as part of a sentence under RCW 9.94A.715, as established by the commission or the legislature under RCW 9.94A.850, for crimes committed on or after July 1, 2000.

      (7) "Community placement" means that period during which the offender is subject to the conditions of community custody and/or postrelease supervision, which begins either upon completion of the term of confinement (postrelease supervision) or at such time as the offender is transferred to community custody in lieu of earned release. Community placement may consist of entirely community custody, entirely postrelease supervision, or a combination of the two.

      (8) "Community protection zone" means the area within eight hundred eighty feet of the facilities and grounds of a public or private school.

      (9) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender.

      (10) "Community supervision" means a period of time during which a convicted offender is subject to crime-related prohibitions and other sentence conditions imposed by a court pursuant to this chapter or RCW 16.52.200(6) or 46.61.524. Where the court finds that any offender has a chemical dependency that has contributed to his or her offense, the conditions of supervision may, subject to available resources, include treatment. For purposes of the interstate compact for out-of-state supervision of parolees and probationers, RCW 9.95.270, community supervision is the functional equivalent of probation and should be considered the same as probation by other states.

      (11) "Confinement" means total or partial confinement.

      (12) "Conviction" means an adjudication of guilt pursuant to Title((s)) 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.


      (13) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct. However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department.

      (14) "Criminal history" means the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.

      (a) The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration.

      (b) A conviction may be removed from a defendant's criminal history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor's pardon.

      (c) The determination of a defendant's criminal history is distinct from the determination of an offender score. A prior conviction that was not included in an offender score calculated pursuant to a former version of the sentencing reform act remains part of the defendant's criminal history.

      (15) "Criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having a common name or common identifying sign or symbol, having as one of its primary activities the commission of criminal acts, and whose members or associates individually or collectively engage in or have engaged in a pattern of criminal street gang activity. This definition does not apply to employees engaged in concerted activities for their mutual aid and protection, or to the activities of labor and bona fide nonprofit organizations or their members or agents.

      (16) "Criminal street gang associate or member" means any person who actively participates in any criminal street gang and who intentionally promotes, furthers, or assists in any criminal act by the criminal street gang.

      (17) "Criminal street gang-related offense" means any felony or misdemeanor offense, whether in this state or elsewhere, that is committed for the benefit of, at the direction of, or in association with any criminal street gang, or is committed with the intent to promote, further, or assist in any criminal conduct by the gang, or is committed for one or more of the following reasons:

      (a) To gain admission, prestige, or promotion within the gang;

      (b) To increase or maintain the gang's size, membership, prestige, dominance, or control in any geographical area;

      (c) To exact revenge or retribution for the gang or any member of the gang;

      (d) To obstruct justice, or intimidate or eliminate any witness against the gang or any member of the gang;

      (e) To directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage for the gang, its reputation, influence, or membership; or

      (f) To provide the gang with any advantage in, or any control or dominance over any criminal market sector, including, but not limited to, manufacturing, delivering, or selling any controlled substance (chapter 69.50 RCW); arson (chapter 9A.48 RCW); trafficking in stolen property (chapter 9A.82 RCW); promoting prostitution (chapter 9A.88 RCW); human trafficking (RCW 9A.40.100); or promoting pornography (chapter 9.68 RCW).

      (18) "Day fine" means a fine imposed by the sentencing court that equals the difference between the offender's net daily income and the reasonable obligations that the offender has for the support of the offender and any dependents.

      (19) "Day reporting" means a program of enhanced supervision designed to monitor the offender's daily activities and compliance with sentence conditions, and in which the offender is required to report daily to a specific location designated by the department or the sentencing court.

      (20) "Department" means the department of corrections.

      (21) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community restitution work, or dollars or terms of a legal financial obligation. The fact that an offender through earned release can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.

      (22) "Disposable earnings" means that part of the earnings of an offender remaining after the deduction from those earnings of any amount required by law to be withheld. For the purposes of this definition, "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy a court-ordered legal financial obligation, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type, but does not include payments made under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW.

      (23) "Drug offender sentencing alternative" is a sentencing option available to persons convicted of a felony offense other than a violent offense or a sex offense and who are eligible for the option under RCW 9.94A.660.

      (24) "Drug offense" means:

       (a) Any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.4013) or forged prescription for a controlled substance (RCW 69.50.403);

      (b) Any offense defined as a felony under federal law that relates to the possession, manufacture, distribution, or transportation of a controlled substance; or

      (c) Any out-of-state conviction for an offense that under the laws of this state would be a felony classified as a drug offense under (a) of this subsection.

      (25) "Earned release" means earned release from confinement as provided in RCW 9.94A.728.

      (26) "Escape" means:

      (a) Sexually violent predator escape (RCW 9A.76.115), escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful failure to return from work release (RCW 72.65.070), or willful failure to be available for supervision by the department while in community custody (RCW 72.09.310); or

      (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as an escape under (a) of this subsection.

      (27) "Felony traffic offense" means:

      (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding a police officer (RCW 46.61.024), felony hit-and-run injury-accident (RCW 46.52.020(4)), felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)), or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)); or

      (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a felony traffic offense under (a) of this subsection.

      (28) "Fine" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specific period of time.

      (29) "First-time offender" means any person who has no prior convictions for a felony and is eligible for the first-time offender waiver under RCW 9.94A.650.


       (30) "Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance.

      (31) "Legal financial obligation" means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction. Upon conviction for vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial obligations may also include payment to a public agency of the expense of an emergency response to the incident resulting in the conviction, subject to RCW 38.52.430.

      (32) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies:

      (a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;

      (b) Assault in the second degree;

      (c) Assault of a child in the second degree;

      (d) Child molestation in the second degree;

      (e) Controlled substance homicide;

      (f) Extortion in the first degree;

      (g) Incest when committed against a child under age fourteen;

      (h) Indecent liberties;

      (i) Kidnapping in the second degree;

      (j) Leading organized crime;

      (k) Manslaughter in the first degree;

      (l) Manslaughter in the second degree;

      (m) Promoting prostitution in the first degree;

      (n) Rape in the third degree;

      (o) Robbery in the second degree;

      (p) Sexual exploitation;

       (q) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner;

      ®) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

      (s) Any other class B felony offense with a finding of sexual motivation;

      (t) Any other felony with a deadly weapon verdict under RCW 9.94A.602;

      (u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection;

      (v)(i) A prior conviction for indecent liberties under RCW 9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988;

      (ii) A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988, if: (A) The crime was committed against a child under the age of fourteen; or (B) the relationship between the victim and perpetrator is included in the definition of indecent liberties under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993, through July 27, 1997;

      (w) Any out-of-state conviction for a felony offense with a finding of sexual motivation if the minimum sentence imposed was ten years or more; provided that the out-of-state felony offense must be comparable to a felony offense under Title 9 or 9A RCW and the out-of-state definition of sexual motivation must be comparable to the definition of sexual motivation contained in this section.

      (33) "Nonviolent offense" means an offense which is not a violent offense.

       (34) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case is under superior court jurisdiction under RCW 13.04.030 or has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. Throughout this chapter, the terms "offender" and "defendant" are used interchangeably.

      (35) "Partial confinement" means confinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of government, or, if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community. Partial confinement includes work release, home detention, work crew, and a combination of work crew and home detention.

      (36) "Pattern of criminal street gang activity" means:

      (a) The commission, attempt, conspiracy, or solicitation of, or any prior juvenile adjudication of or adult conviction of, two or more of the following criminal street gang-related offenses:

      (i) Any "serious violent" felony offense as defined in ((RCW 9.94A.030)) this section, excluding Homicide by Abuse (RCW 9A.32.055) and Assault of a Child 1 (RCW 9A.36.120);

      (ii) Any "violent" offense as defined by ((RCW 9.94A.030)) this section, excluding Assault of a Child 2 (RCW 9A.36.130);

      (iii) Deliver or Possession with Intent to Deliver a Controlled Substance (chapter 69.50 RCW);

      (iv) Any violation of the firearms and dangerous weapon act (chapter 9.41 RCW);

      (v) Theft of a Firearm (RCW 9A.56.300);

      (vi) Possession of a Stolen Firearm (RCW 9A.56.310);

      (vii) Malicious Harassment (RCW 9A.36.080);

      (viii) Harassment where a subsequent violation or deadly threat is made (RCW 9A.46.020(2)(b));

      (ix) Criminal Gang Intimidation (RCW 9A.46.120);

      (x) Any felony conviction by a person eighteen years of age or older with a special finding of involving a juvenile in a felony offense under RCW 9.94A.833;

      (xi) Residential Burglary (RCW 9A.52.025);

       (xii) Burglary 2 (RCW 9A.52.030);

      (xiii) Malicious Mischief 1 (RCW 9A.48.070);

      (xiv) Malicious Mischief 2 (RCW 9A.48.080);

      (xv) Theft of a Motor Vehicle (RCW 9A.56.065);

      (xvi) Possession of a Stolen Motor Vehicle (RCW 9A.56.068);

      (xvii) Taking a Motor Vehicle Without Permission 1 (RCW 9A.56.070);

      (xviii) Taking a Motor Vehicle Without Permission 2 (RCW 9A.56.075);

      (xix) Extortion 1 (RCW 9A.56.120);

      (xx) Extortion 2 (RCW 9A.56.130);

      (xxi) Intimidating a Witness (RCW 9A.72.110);

      (xxii) Tampering with a Witness (RCW 9A.72.120);

      (xxiii) Reckless Endangerment (RCW 9A.36.050);

      (xxiv) Coercion (RCW 9A.36.070);

      (xxv) Harassment (RCW 9A.46.020); or

      (xxvi) Malicious Mischief 3 (RCW 9A.48.090);

      (b) That at least one of the offenses listed in (a) of this subsection shall have occurred after July 1, 2008;


      (c) That the most recent committed offense listed in (a) of this subsection occurred within three years of a prior offense listed in (a) of this subsection; and

      (d) Of the offenses that were committed in (a) of this subsection, the offenses occurred on separate occasions or were committed by two or more persons.

      (37) "Persistent offender" is an offender who:

      (a)(i) Has been convicted in this state of any felony considered a most serious offense; and

      (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted; or

      (b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, assault of a child in the second degree, or burglary in the first degree; or (C) an attempt to commit any crime listed in this subsection (37)(b)(i); and

      (ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection or any federal or out-of-state offense or offense under prior Washington law that is comparable to the offenses listed in (b)(i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under (b)(i) of this subsection only when the offender was sixteen years of age or older when the offender committed the offense. A conviction for rape of a child in the second degree constitutes a conviction under (b)(i) of this subsection only when the offender was eighteen years of age or older when the offender committed the offense.

      (38) "Postrelease supervision" is that portion of an offender's community placement that is not community custody.

      (39) "Predatory" means: (a) The perpetrator of the crime was a stranger to the victim, as defined in this section; (b) the perpetrator established or promoted a relationship with the victim prior to the offense and the victimization of the victim was a significant reason the perpetrator established or promoted the relationship; or (c) the perpetrator was: (i) A teacher, counselor, volunteer, or other person in authority in any public or private school and the victim was a student of the school under his or her authority or supervision. For purposes of this subsection, "school" does not include home-based instruction as defined in RCW 28A.225.010; (ii) a coach, trainer, volunteer, or other person in authority in any recreational activity and the victim was a participant in the activity under his or her authority or supervision; or (iii) a pastor, elder, volunteer, or other person in authority in any church or religious organization, and the victim was a member or participant of the organization under his or her authority.

       (40) "Private school" means a school regulated under chapter 28A.195 or 28A.205 RCW.

      (41) "Public school" has the same meaning as in RCW 28A.150.010.

      (42) "Restitution" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specified period of time as payment of damages. The sum may include both public and private costs.

      (43) "Risk assessment" means the application of ((an objective)) the risk instrument ((supported by research and adopted by)) recommended to the department ((for the purpose of assessing an offender's risk of reoffense, taking into consideration the nature of the harm done by the offender, place and circumstances of the offender related to risk, the offender's relationship to any victim, and any information provided to the department by victims. The results of a risk assessment shall not be based on unconfirmed or unconfirmable allegations)) by the Washington state institute for public policy as having the highest degree of predictive accuracy for assessing an offender's risk of reoffense.

      (44) "Serious traffic offense" means:

      (a) Nonfelony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502), nonfelony actual physical control while under the influence of intoxicating liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5)); or

      (b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection.

      (45) "Serious violent offense" is a subcategory of violent offense and means:

      (a)(i) Murder in the first degree;

      (ii) Homicide by abuse;

      (iii) Murder in the second degree;

      (iv) Manslaughter in the first degree;

      (v) Assault in the first degree;

      (vi) Kidnapping in the first degree;

      (vii) Rape in the first degree;

      (viii) Assault of a child in the first degree; or

       (ix) An attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or

      (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious violent offense under (a) of this subsection.

      (46) "Sex offense" means:

      (a)(i) A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(12);

      (ii) A violation of RCW 9A.64.020;

      (iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.080; or

      (iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;

      (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection;

      (c) A felony with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135; or

      (d) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.

      (47) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.

      (48) "Standard sentence range" means the sentencing court's discretionary range in imposing a nonappealable sentence.

      (49) "Statutory maximum sentence" means the maximum length of time for which an offender may be confined as punishment for a crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other statute defining the maximum penalty for a crime.

      (50) "Stranger" means that the victim did not know the offender twenty-four hours before the offense.

      (51) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060.

      (52) "Transition training" means written and verbal instructions and assistance provided by the department to the offender during the two weeks prior to the offender's successful completion of the work ethic camp program. The transition training shall include instructions in the offender's requirements and obligations during the offender's period of community custody.

      (53) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged.

      (54) "Violent offense" means:

      (a) Any of the following felonies:

      (i) Any felony defined under any law as a class A felony or an attempt to commit a class A felony;

      (ii) Criminal solicitation of or criminal conspiracy to commit a class A felony;

      (iii) Manslaughter in the first degree;

      (iv) Manslaughter in the second degree;

      (v) Indecent liberties if committed by forcible compulsion;

      (vi) Kidnapping in the second degree;

      (vii) Arson in the second degree;

      (viii) Assault in the second degree;

      (ix) Assault of a child in the second degree;

      (x) Extortion in the first degree;

      (xi) Robbery in the second degree;

      (xii) Drive-by shooting;

      (xiii) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; and

      (xiv) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

      (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in (a) of this subsection; and

      (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under (a) or (b) of this subsection.

       (55) "Work crew" means a program of partial confinement consisting of civic improvement tasks for the benefit of the community that complies with RCW 9.94A.725.

      (56) "Work ethic camp" means an alternative incarceration program as provided in RCW 9.94A.690 designed to reduce recidivism and lower the cost of corrections by requiring offenders to complete a comprehensive array of real-world job and vocational experiences, character-building work ethics training, life management skills development, substance abuse rehabilitation, counseling, literacy training, and basic adult education.

      (57) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school.

      Sec. 4. RCW 9.94A.030 and 2009 c 28 s 4 are each amended to read as follows:

      Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

      (1) "Board" means the indeterminate sentence review board created under chapter 9.95 RCW.

      (2) "Collect," or any derivative thereof, "collect and remit," or "collect and deliver," when used with reference to the department, means that the department, either directly or through a collection agreement authorized by RCW 9.94A.760, is responsible for monitoring and enforcing the offender's sentence with regard to the legal financial obligation, receiving payment thereof from the offender, and, consistent with current law, delivering daily the entire payment to the superior court clerk without depositing it in a departmental account.

      (3) "Commission" means the sentencing guidelines commission.

      (4) "Community corrections officer" means an employee of the department who is responsible for carrying out specific duties in supervision of sentenced offenders and monitoring of sentence conditions.

      (5) "Community custody" means that portion of an offender's sentence of confinement in lieu of earned release time or imposed as part of a sentence under this chapter and served in the community subject to controls placed on the offender's movement and activities by the department.

       (6) (("Community custody range" means the minimum and maximum period of community custody included as part of a sentence under RCW 9.94A.701, as established by the commission or the legislature under RCW 9.94A.850.

      (7))) "Community protection zone" means the area within eight hundred eighty feet of the facilities and grounds of a public or private school.

      (((8))) (7) "Community restitution" means compulsory service, without compensation, performed for the benefit of the community by the offender.

      (((9))) (8) "Confinement" means total or partial confinement.

      (((10))) (9) "Conviction" means an adjudication of guilt pursuant to Title 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.

      (((11))) (10) "Crime-related prohibition" means an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted, and shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct. However, affirmative acts necessary to monitor compliance with the order of a court may be required by the department.

      (((12))) (11) "Criminal history" means the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere.

      (a) The history shall include, where known, for each conviction (i) whether the defendant has been placed on probation and the length and terms thereof; and (ii) whether the defendant has been incarcerated and the length of incarceration.

      (b) A conviction may be removed from a defendant's criminal history only if it is vacated pursuant to RCW 9.96.060, 9.94A.640, 9.95.240, or a similar out-of-state statute, or if the conviction has been vacated pursuant to a governor's pardon.

      (c) The determination of a defendant's criminal history is distinct from the determination of an offender score. A prior conviction that was not included in an offender score calculated pursuant to a former version of the sentencing reform act remains part of the defendant's criminal history.

       (((13))) (12) "Criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, having a common name or common identifying sign or symbol, having as one of its primary activities the commission of criminal acts, and whose members or associates individually or collectively engage in or have engaged in a pattern of criminal street gang activity. This definition does not apply to employees engaged in concerted activities for their mutual aid and protection, or to the activities of labor and bona fide nonprofit organizations or their members or agents.

      (((14))) (13) "Criminal street gang associate or member" means any person who actively participates in any criminal street gang and who intentionally promotes, furthers, or assists in any criminal act by the criminal street gang.

      (((15))) (14) "Criminal street gang-related offense" means any felony or misdemeanor offense, whether in this state or elsewhere, that is committed for the benefit of, at the direction of, or in association with any criminal street gang, or is committed with the intent to promote, further, or assist in any criminal conduct by the gang, or is committed for one or more of the following reasons:

      (a) To gain admission, prestige, or promotion within the gang;

      (b) To increase or maintain the gang's size, membership, prestige, dominance, or control in any geographical area;

      (c) To exact revenge or retribution for the gang or any member of the gang;

      (d) To obstruct justice, or intimidate or eliminate any witness against the gang or any member of the gang;

      (e) To directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage for the gang, its reputation, influence, or membership; or

      (f) To provide the gang with any advantage in, or any control or dominance over any criminal market sector, including, but not limited to, manufacturing, delivering, or selling any controlled substance (chapter 69.50 RCW); arson (chapter 9A.48 RCW); trafficking in stolen property (chapter 9A.82 RCW); promoting prostitution (chapter 9A.88 RCW); human trafficking (RCW 9A.40.100); or promoting pornography (chapter 9.68 RCW).

       (((16))) (15) "Day fine" means a fine imposed by the sentencing court that equals the difference between the offender's net daily income and the reasonable obligations that the offender has for the support of the offender and any dependents.

      (((17))) (16) "Day reporting" means a program of enhanced supervision designed to monitor the offender's daily activities and compliance with sentence conditions, and in which the offender is required to report daily to a specific location designated by the department or the sentencing court.

      (((18))) (17) "Department" means the department of corrections.

      (((19))) (18) "Determinate sentence" means a sentence that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community custody, the number of actual hours or days of community restitution work, or dollars or terms of a legal financial obligation. The fact that an offender through earned release can reduce the actual period of confinement shall not affect the classification of the sentence as a determinate sentence.

      (((20))) (19) "Disposable earnings" means that part of the earnings of an offender remaining after the deduction from those earnings of any amount required by law to be withheld. For the purposes of this definition, "earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonuses, or otherwise, and, notwithstanding any other provision of law making the payments exempt from garnishment, attachment, or other process to satisfy a court-ordered legal financial obligation, specifically includes periodic payments pursuant to pension or retirement programs, or insurance policies of any type, but does not include payments made under Title 50 RCW, except as provided in RCW 50.40.020 and 50.40.050, or Title 74 RCW.

      (((21))) (20) "Drug offender sentencing alternative" is a sentencing option available to persons convicted of a felony offense other than a violent offense or a sex offense and who are eligible for the option under RCW 9.94A.660.

      (((22))) (21) "Drug offense" means:

      (a) Any felony violation of chapter 69.50 RCW except possession of a controlled substance (RCW 69.50.4013) or forged prescription for a controlled substance (RCW 69.50.403);

       (b) Any offense defined as a felony under federal law that relates to the possession, manufacture, distribution, or transportation of a controlled substance; or

      (c) Any out-of-state conviction for an offense that under the laws of this state would be a felony classified as a drug offense under (a) of this subsection.

      (((23))) (22) "Earned release" means earned release from confinement as provided in RCW 9.94A.728.

      (((24))) (23) "Escape" means:

      (a) Sexually violent predator escape (RCW 9A.76.115), escape in the first degree (RCW 9A.76.110), escape in the second degree (RCW 9A.76.120), willful failure to return from furlough (RCW 72.66.060), willful failure to return from work release (RCW 72.65.070), or willful failure to be available for supervision by the department while in community custody (RCW 72.09.310); or

      (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as an escape under (a) of this subsection.

      (((25))) (24) "Felony traffic offense" means:

      (a) Vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), eluding a police officer (RCW 46.61.024), felony hit-and-run injury-accident (RCW 46.52.020(4)), felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)), or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)); or

      (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a felony traffic offense under (a) of this subsection.

      (((26))) (25) "Fine" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specific period of time.

      (((27))) (26) "First-time offender" means any person who has no prior convictions for a felony and is eligible for the first-time offender waiver under RCW 9.94A.650.

      (((28))) (27) "Home detention" means a program of partial confinement available to offenders wherein the offender is confined in a private residence subject to electronic surveillance.

       (((29))) (28) "Legal financial obligation" means a sum of money that is ordered by a superior court of the state of Washington for legal financial obligations which may include restitution to the victim, statutorily imposed crime victims' compensation fees as assessed pursuant to RCW 7.68.035, court costs, county or interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any other financial obligation that is assessed to the offender as a result of a felony conviction. Upon conviction for vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), or vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a), legal financial obligations may also include payment to a public agency of the expense of an emergency response to the incident resulting in the conviction, subject to RCW 38.52.430.

      (((30))) (29) "Most serious offense" means any of the following felonies or a felony attempt to commit any of the following felonies:

      (a) Any felony defined under any law as a class A felony or criminal solicitation of or criminal conspiracy to commit a class A felony;

      (b) Assault in the second degree;

      (c) Assault of a child in the second degree;

      (d) Child molestation in the second degree;

      (e) Controlled substance homicide;

      (f) Extortion in the first degree;

      (g) Incest when committed against a child under age fourteen;

      (h) Indecent liberties;

      (i) Kidnapping in the second degree;

      (j) Leading organized crime;

      (k) Manslaughter in the first degree;

      (l) Manslaughter in the second degree;

      (m) Promoting prostitution in the first degree;

      (n) Rape in the third degree;

      (o) Robbery in the second degree;

      (p) Sexual exploitation;


      (q) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner;

       ®) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;

      (s) Any other class B felony offense with a finding of sexual motivation;

      (t) Any other felony with a deadly weapon verdict under RCW 9.94A.602;

      (u) Any felony offense in effect at any time prior to December 2, 1993, that is comparable to a most serious offense under this subsection, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a most serious offense under this subsection;

      (v)(i) A prior conviction for indecent liberties under RCW 9A.88.100(1) (a), (b), and (c), chapter 260, Laws of 1975 1st ex. sess. as it existed until July 1, 1979, RCW 9A.44.100(1) (a), (b), and (c) as it existed from July 1, 1979, until June 11, 1986, and RCW 9A.44.100(1) (a), (b), and (d) as it existed from June 11, 1986, until July 1, 1988;

      (ii) A prior conviction for indecent liberties under RCW 9A.44.100(1)(c) as it existed from June 11, 1986, until July 1, 1988, if: (A) The crime was committed against a child under the age of fourteen; or (B) the relationship between the victim and perpetrator is included in the definition of indecent liberties under RCW 9A.44.100(1)(c) as it existed from July 1, 1988, through July 27, 1997, or RCW 9A.44.100(1) (d) or (e) as it existed from July 25, 1993, through July 27, 1997;

      (w) Any out-of-state conviction for a felony offense with a finding of sexual motivation if the minimum sentence imposed was ten years or more; provided that the out-of-state felony offense must be comparable to a felony offense under Title 9 or 9A RCW and the out-of-state definition of sexual motivation must be comparable to the definition of sexual motivation contained in this section.

      (((31))) (30) "Nonviolent offense" means an offense which is not a violent offense.

      (((32))) (31) "Offender" means a person who has committed a felony established by state law and is eighteen years of age or older or is less than eighteen years of age but whose case is under superior court jurisdiction under RCW 13.04.030 or has been transferred by the appropriate juvenile court to a criminal court pursuant to RCW 13.40.110. In addition, for the purpose of community custody requirements under this chapter, "offender" also means a misdemeanor or gross misdemeanor probationer convicted of an offense included in RCW 9.94A.501(1) and ordered by a superior court to probation under the supervision of the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210. Throughout this chapter, the terms "offender" and "defendant" are used interchangeably.

      (((33))) (32) "Partial confinement" means confinement for no more than one year in a facility or institution operated or utilized under contract by the state or any other unit of government, or, if home detention or work crew has been ordered by the court, in an approved residence, for a substantial portion of each day with the balance of the day spent in the community. Partial confinement includes work release, home detention, work crew, and a combination of work crew and home detention.

      (((34))) (33) "Pattern of criminal street gang activity" means:

      (a) The commission, attempt, conspiracy, or solicitation of, or any prior juvenile adjudication of or adult conviction of, two or more of the following criminal street gang-related offenses:

      (i) Any "serious violent" felony offense as defined in ((RCW 9.94A.030)) this section, excluding Homicide by Abuse (RCW 9A.32.055) and Assault of a Child 1 (RCW 9A.36.120);

      (ii) Any "violent" offense as defined by ((RCW 9.94A.030)) this section, excluding Assault of a Child 2 (RCW 9A.36.130);

      (iii) Deliver or Possession with Intent to Deliver a Controlled Substance (chapter 69.50 RCW);

      (iv) Any violation of the firearms and dangerous weapon act (chapter 9.41 RCW);

      (v) Theft of a Firearm (RCW 9A.56.300);

      (vi) Possession of a Stolen Firearm (RCW 9A.56.310);

      (vii) Malicious Harassment (RCW 9A.36.080);

      (viii) Harassment where a subsequent violation or deadly threat is made (RCW 9A.46.020(2)(b));

      (ix) Criminal Gang Intimidation (RCW 9A.46.120);

      (x) Any felony conviction by a person eighteen years of age or older with a special finding of involving a juvenile in a felony offense under RCW 9.94A.833;

       (xi) Residential Burglary (RCW 9A.52.025);

      (xii) Burglary 2 (RCW 9A.52.030);

      (xiii) Malicious Mischief 1 (RCW 9A.48.070);

      (xiv) Malicious Mischief 2 (RCW 9A.48.080);

      (xv) Theft of a Motor Vehicle (RCW 9A.56.065);

      (xvi) Possession of a Stolen Motor Vehicle (RCW 9A.56.068);

      (xvii) Taking a Motor Vehicle Without Permission 1 (RCW 9A.56.070);

      (xviii) Taking a Motor Vehicle Without Permission 2 (RCW 9A.56.075);

      (xix) Extortion 1 (RCW 9A.56.120);

      (xx) Extortion 2 (RCW 9A.56.130);

      (xxi) Intimidating a Witness (RCW 9A.72.110);

      (xxii) Tampering with a Witness (RCW 9A.72.120);

      (xxiii) Reckless Endangerment (RCW 9A.36.050);

      (xxiv) Coercion (RCW 9A.36.070);

      (xxv) Harassment (RCW 9A.46.020); or

      (xxvi) Malicious Mischief 3 (RCW 9A.48.090);

      (b) That at least one of the offenses listed in (a) of this subsection shall have occurred after July 1, 2008;

      (c) That the most recent committed offense listed in (a) of this subsection occurred within three years of a prior offense listed in (a) of this subsection; and

      (d) Of the offenses that were committed in (a) of this subsection, the offenses occurred on separate occasions or were committed by two or more persons.

      (((35))) (34) "Persistent offender" is an offender who:

      (a)(i) Has been convicted in this state of any felony considered a most serious offense; and

      (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.525; provided that of the two or more previous convictions, at least one conviction must have occurred before the commission of any of the other most serious offenses for which the offender was previously convicted; or

      (b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; (B) any of the following offenses with a finding of sexual motivation: Murder in the first degree, murder in the second degree, homicide by abuse, kidnapping in the first degree, kidnapping in the second degree, assault in the first degree, assault in the second degree, assault of a child in the first degree, assault of a child in the second degree, or burglary in the first degree; or (C) an attempt to commit any crime listed in this subsection (((35))) (34)(b)(i); and

      (ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection or any federal or out-of-state offense or offense under prior Washington law that is comparable to the offenses listed in (b)(i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under (b)(i) of this subsection only when the offender was sixteen years of age or older when the offender committed the offense. A conviction for rape of a child in the second degree constitutes a conviction under (b)(i) of this subsection only when the offender was eighteen years of age or older when the offender committed the offense.

      (((36))) (35) "Predatory" means: (a) The perpetrator of the crime was a stranger to the victim, as defined in this section; (b) the perpetrator established or promoted a relationship with the victim prior to the offense and the victimization of the victim was a significant reason the perpetrator established or promoted the relationship; or (c) the perpetrator was: (i) A teacher, counselor, volunteer, or other person in authority in any public or private school and the victim was a student of the school under his or her authority or supervision. For purposes of this subsection, "school" does not include home-based instruction as defined in RCW 28A.225.010; (ii) a coach, trainer, volunteer, or other person in authority in any recreational activity and the victim was a participant in the activity under his or her authority or supervision; or (iii) a pastor, elder, volunteer, or other person in authority in any church or religious organization, and the victim was a member or participant of the organization under his or her authority.

       (((37))) (36) "Private school" means a school regulated under chapter 28A.195 or 28A.205 RCW.

      (((38))) (37) "Public school" has the same meaning as in RCW 28A.150.010.

      (((39))) (38) "Restitution" means a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specified period of time as payment of damages. The sum may include both public and private costs.

      (((40))) (39) "Risk assessment" means the application of ((an objective)) the risk instrument ((supported by research and adopted by)) recommended to the department ((for the purpose of assessing an offender's risk of reoffense, taking into consideration the nature of the harm done by the offender, place and circumstances of the offender related to risk, the offender's relationship to any victim, and any information provided to the department by victims. The results of a risk assessment shall not be based on unconfirmed or unconfirmable allegations)) by the Washington state institute for public policy as having the highest degree of predictive accuracy for assessing an offender's risk of reoffense.

      (((41))) (40) "Serious traffic offense" means:

      (a) Nonfelony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502), nonfelony actual physical control while under the influence of intoxicating liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an attended vehicle (RCW 46.52.020(5)); or

      (b) Any federal, out-of-state, county, or municipal conviction for an offense that under the laws of this state would be classified as a serious traffic offense under (a) of this subsection.

      (((42))) (41) "Serious violent offense" is a subcategory of violent offense and means:

      (a)(i) Murder in the first degree;

      (ii) Homicide by abuse;

      (iii) Murder in the second degree;

      (iv) Manslaughter in the first degree;

      (v) Assault in the first degree;

      (vi) Kidnapping in the first degree;

      (vii) Rape in the first degree;

      (viii) Assault of a child in the first degree; or

       (ix) An attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies; or

      (b) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious violent offense under (a) of this subsection.

      (((43))) (42) "Sex offense" means:

      (a)(i) A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(12);

      (ii) A violation of RCW 9A.64.020;

      (iii) A felony that is a violation of chapter 9.68A RCW other than RCW 9.68A.080; or

      (iv) A felony that is, under chapter 9A.28 RCW, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes;

      (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a sex offense in (a) of this subsection;

      (c) A felony with a finding of sexual motivation under RCW 9.94A.835 or 13.40.135; or

      (d) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a sex offense under (a) of this subsection.

      (((44))) (43) "Sexual motivation" means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.

      (((45))) (44) "Standard sentence range" means the sentencing court's discretionary range in imposing a nonappealable sentence.

      (((46))) (45) "Statutory maximum sentence" means the maximum length of time for which an offender may be confined as punishment for a crime as prescribed in chapter 9A.20 RCW, RCW 9.92.010, the statute defining the crime, or other statute defining the maximum penalty for a crime.

      (((47))) (46) "Stranger" means that the victim did not know the offender twenty-four hours before the offense.

      (((48))) (47) "Total confinement" means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day, or pursuant to RCW 72.64.050 and 72.64.060.

      (((49))) (48) "Transition training" means written and verbal instructions and assistance provided by the department to the offender during the two weeks prior to the offender's successful completion of the work ethic camp program. The transition training shall include instructions in the offender's requirements and obligations during the offender's period of community custody.

      (((50))) (49) "Victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged.

      (((51))) (50) "Violent offense" means:

      (a) Any of the following felonies:

      (i) Any felony defined under any law as a class A felony or an attempt to commit a class A felony;

      (ii) Criminal solicitation of or criminal conspiracy to commit a class A felony;

      (iii) Manslaughter in the first degree;

      (iv) Manslaughter in the second degree;

      (v) Indecent liberties if committed by forcible compulsion;

      (vi) Kidnapping in the second degree;

      (vii) Arson in the second degree;

      (viii) Assault in the second degree;

      (ix) Assault of a child in the second degree;

      (x) Extortion in the first degree;

      (xi) Robbery in the second degree;

      (xii) Drive-by shooting;

      (xiii) Vehicular assault, when caused by the operation or driving of a vehicle by a person while under the influence of intoxicating liquor or any drug or by the operation or driving of a vehicle in a reckless manner; and

      (xiv) Vehicular homicide, when proximately caused by the driving of any vehicle by any person while under the influence of intoxicating liquor or any drug as defined by RCW 46.61.502, or by the operation of any vehicle in a reckless manner;


      (b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, that is comparable to a felony classified as a violent offense in (a) of this subsection; and

      (c) Any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a violent offense under (a) or (b) of this subsection.

       (((52))) (51) "Work crew" means a program of partial confinement consisting of civic improvement tasks for the benefit of the community that complies with RCW 9.94A.725.

      (((53))) (52) "Work ethic camp" means an alternative incarceration program as provided in RCW 9.94A.690 designed to reduce recidivism and lower the cost of corrections by requiring offenders to complete a comprehensive array of real-world job and vocational experiences, character-building work ethics training, life management skills development, substance abuse rehabilitation, counseling, literacy training, and basic adult education.

      (((54))) (53) "Work release" means a program of partial confinement available to offenders who are employed or engaged as a student in a regular course of study at school.

      Sec. 5. RCW 9.94A.701 and 2009 c 28 s 10 are each amended to read as follows:

      (1) If an offender is sentenced to the custody of the department for one of the following crimes, the court shall ((impose a term of community custody for the community custody range established under RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728 (1) and (2), whichever is longer)), in addition to the other terms of the sentence, sentence the offender to community custody for three years:

      (a) A sex offense not sentenced under RCW 9.94A.507;

      (b) A serious violent offense; or

      (c) ((A crime against persons under RCW 9.94A.411(2);

      (d) An offense involving the unlawful possession of a firearm under RCW 9.41.040, where the offender is a criminal street gang member or associate;

      (e) A felony offender under chapter 69.50 or 69.52 RCW)) A violation of RCW 9A.44.130(11)(a) committed on or after June 7, 2006, when a court sentences the person to a term of confinement of one year or less.

      (2) ((If an offender is sentenced to a term of confinement of one year or less for a violation of RCW 9A.44.130(11)(a), the court shall impose a term of community custody for the community custody range established under RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728 (1) and (2), whichever is longer)) A court shall, in addition to the other terms of the sentence, sentence an offender to community custody for eighteen months when the court sentences the person to the custody of the department for a violent offense that is not considered a serious violent offense.

      (3) A court shall, in addition to the other terms of the sentence, sentence an offender to community custody for one year when the court sentences the person to the custody of the department for:

      (a) Any crime against persons under RCW 9.94A.411(2);

      (b) An offense involving the unlawful possession of a firearm under RCW 9.41.040, where the offender is a criminal street gang member or associate; or

      (c) A felony offense under chapter 69.50 or 69.52 RCW, committed on or after July 1, 2000.

      (((3))) (4) If an offender is sentenced under the drug offender sentencing alternative, the court shall impose community custody as provided in RCW 9.94A.660.

      (((4))) (5) If an offender is sentenced under the special sexual offender sentencing alternative, the court shall impose community custody as provided in RCW 9.94A.670.

      (((5))) (6) If an offender is sentenced to a work ethic camp, the court shall impose community custody as provided in RCW 9.94A.690.

      (((6))) (7) If a sex offender is sentenced as a nonpersistent offender pursuant to RCW 9.94A.507, the court shall impose community custody as provided in that section.

      (((7) If the offender is a criminal street gang associate or member and is found guilty of unlawful possession of a firearm under RCW 9.41.040, the court shall impose a term of community custody under subsection (1)(d) of this section)) (8) The term of community custody specified by this section shall be reduced by the court whenever an offender's standard range term of confinement in combination with the term of community custody exceeds the statutory maximum for the crime as provided in RCW 9A.20.021.

      Sec. 6. RCW 9.94A.704 and 2009 c 28 s 12 are each amended to read as follows:

      (1) Every person who is sentenced to a period of community custody shall report to and be placed under the supervision of the department, subject to RCW 9.94A.501.

       (2)(a) The department shall assess the offender's risk of reoffense and may establish and modify additional conditions of community custody based upon the risk to community safety.

      (b) Within the funds available for community custody, the department shall determine conditions ((and duration of community custody)) on the basis of risk to community safety, and shall supervise offenders during community custody on the basis of risk to community safety and conditions imposed by the court. The secretary shall adopt rules to implement the provisions of this subsection (2)(b).

      (3) If the offender is supervised by the department, the department shall at a minimum instruct the offender to:

      (a) Report as directed to a community corrections officer;

      (b) Remain within prescribed geographical boundaries;

      (c) Notify the community corrections officer of any change in the offender's address or employment;

      (d) Pay the supervision fee assessment; and

      (e) Disclose the fact of supervision to any mental health or chemical dependency treatment provider, as required by RCW 9.94A.722.

      (4) The department may require the offender to participate in rehabilitative programs, or otherwise perform affirmative conduct, and to obey all laws.

      (5) If the offender was sentenced pursuant to a conviction for a sex offense, the department may impose electronic monitoring. Within the resources made available by the department for this purpose, the department shall carry out any electronic monitoring using the most appropriate technology given the individual circumstances of the offender. As used in this section, "electronic monitoring" means the monitoring of an offender using an electronic offender tracking system including, but not limited to, a system using radio frequency or active or passive global positioning system technology.

      (6) The department may not impose conditions that are contrary to those ordered by the court and may not contravene or decrease court-imposed conditions.

      (7)(a) The department shall notify the offender in writing of any additional conditions or modifications.

      (b) By the close of the next business day after receiving notice of a condition imposed or modified by the department, an offender may request an administrative review under rules adopted by the department. The condition shall remain in effect unless the reviewing officer finds that it is not reasonably related to the crime of conviction, the offender's risk of reoffending, or the safety of the community.

      (8) The department may require offenders to pay for special services rendered including electronic monitoring, day reporting, and telephone reporting, dependent on the offender's ability to pay. The department may pay for these services for offenders who are not able to pay.

      (9)(a) When a sex offender has been sentenced pursuant to RCW 9.94A.507, the department shall assess the offender's risk of recidivism and shall recommend to the board any additional or modified conditions based upon the offender's risk to community safety and may recommend affirmative conduct or electronic monitoring consistent with subsections (4) through (6) of this section.

      (b) The board may impose conditions in addition to court-ordered conditions. The board must consider and may impose department-recommended conditions.

      (c) By the close of the next business day, after receiving notice of a condition imposed by the board or the department, an offender may request an administrative hearing under rules adopted by the board. The condition shall remain in effect unless the hearing examiner finds that it is not reasonably related to any of the following:

      (i) The crime of conviction;

      (ii) The offender's risk of reoffending;

      (iii) The safety of the community.

      (d) If the department finds that an emergency exists requiring the immediate imposition of additional conditions in order to prevent the offender from committing a crime, the department may impose such conditions. The department may not impose conditions that are contrary to those set by the board or the court and may not contravene or decrease court-imposed or board-imposed conditions. Conditions imposed under this subsection shall take effect immediately after notice to the offender by personal service, but shall not remain in effect longer than seven working days unless approved by the board.

      (10) In setting, modifying, and enforcing conditions of community custody, the department shall be deemed to be performing a quasi-judicial function.

      Sec. 7. RCW 9.94A.707 and 2008 c 231 s 12 are each amended to read as follows:

      (1) Community custody shall begin: (a) Upon completion of the term of confinement; or (b) ((at such time as the offender is transferred to community custody in lieu of earned release in accordance with RCW 9.94A.728 (1) or (2); or (c))) at the time of sentencing if no term of confinement is ordered.

      (2) When an offender is sentenced to community custody, the offender is subject to the conditions of community custody as of the date of sentencing, unless otherwise ordered by the court.

      (((3) When an offender is sentenced to a community custody range pursuant to RCW 9.94A.701 (1) or (2), the department shall discharge the offender from community custody on a date determined by the department, which the department may modify, based on risk and performance of the offender, within the range or at the end of the period of earned release, whichever is later.))

      Sec. 8. RCW 9.94A.850 and 2009 c 28 s 17 are each amended to read as follows:

      (1) A sentencing guidelines commission is established as an agency of state government.

      (2) The legislature finds that the commission, having accomplished its original statutory directive to implement this chapter, and having expertise in sentencing practice and policies, shall:

      (a) Evaluate state sentencing policy, to include whether the sentencing ranges and standards are consistent with and further:

      (i) The purposes of this chapter as defined in RCW 9.94A.010; and

      (ii) The intent of the legislature to emphasize confinement for the violent offender and alternatives to confinement for the nonviolent offender.

      The commission shall provide the governor and the legislature with its evaluation and recommendations under this subsection not later than December 1, 1996, and every two years thereafter;

      (b) Recommend to the legislature revisions or modifications to the standard sentence ranges, state sentencing policy, prosecuting standards, and other standards. If implementation of the revisions or modifications would result in exceeding the capacity of correctional facilities, then the commission shall accompany its recommendation with an additional list of standard sentence ranges which are consistent with correction capacity;

      (c) Study the existing criminal code and from time to time make recommendations to the legislature for modification;

      (d)(i) Serve as a clearinghouse and information center for the collection, preparation, analysis, and dissemination of information on state and local adult and juvenile sentencing practices; (ii) develop and maintain a computerized adult and juvenile sentencing information system by individual superior court judge consisting of offender, offense, history, and sentence information entered from judgment and sentence forms for all adult felons; and (iii) conduct ongoing research regarding adult and juvenile sentencing guidelines, use of total confinement and alternatives to total confinement, plea bargaining, and other matters relating to the improvement of the adult criminal justice system and the juvenile justice system;

      (e) Assume the powers and duties of the juvenile disposition standards commission after June 30, 1996;

      (f) Evaluate the effectiveness of existing disposition standards and related statutes in implementing policies set forth in RCW 13.40.010 generally, specifically review the guidelines relating to the confinement of minor and first-time offenders as well as the use of diversion, and review the application of current and proposed juvenile sentencing standards and guidelines for potential adverse impacts on the sentencing outcomes of racial and ethnic minority youth;

      (g) Solicit the comments and suggestions of the juvenile justice community concerning disposition standards, and make recommendations to the legislature regarding revisions or modifications of the standards. The evaluations shall be submitted to the legislature on December 1 of each odd-numbered year. The department of social and health services shall provide the commission with available data concerning the implementation of the disposition standards and related statutes and their effect on the performance of the department's responsibilities relating to juvenile offenders, and with recommendations for modification of the disposition standards. The administrative office of the courts shall provide the commission with available data on diversion, including the use of youth court programs, and dispositions of juvenile offenders under chapter 13.40 RCW; and

       (h) Not later than December 1, 1997, and at least every two years thereafter, based on available information, report to the governor and the legislature on:

      (i) Racial disproportionality in juvenile and adult sentencing, and, if available, the impact that diversions, such as youth courts, have on racial disproportionality in juvenile prosecution, adjudication, and sentencing;

      (ii) The capacity of state and local juvenile and adult facilities and resources; and

      (iii) Recidivism information on adult and juvenile offenders.

      (3) Each of the commission's recommended standard sentence ranges shall include one or more of the following: Total confinement, partial confinement, community supervision, community restitution, and a fine.

      (4) The standard sentence ranges of total and partial confinement under this chapter, except as provided in RCW 9.94A.517, are subject to the following limitations:

      (a) If the maximum term in the range is one year or less, the minimum term in the range shall be no less than one-third of the maximum term in the range, except that if the maximum term in the range is ninety days or less, the minimum term may be less than one-third of the maximum;

      (b) If the maximum term in the range is greater than one year, the minimum term in the range shall be no less than seventy-five percent of the maximum term in the range, except that for murder in the second degree in seriousness level XIV under RCW 9.94A.510, the minimum term in the range shall be no less than fifty percent of the maximum term in the range; and


      (c) The maximum term of confinement in a range may not exceed the statutory maximum for the crime as provided in RCW 9A.20.021.

      (5)(((a) Not later than December 31 of each year, the commission may propose modifications to the community custody ranges to be included in sentences under RCW 9.94A.701. The ranges shall be based on the principles in RCW 9.94A.010, and shall take into account the funds available to the department for community custody. The minimum term in each range shall not be less than one-half of the maximum term.

      (b) The legislature may, by enactment of a legislative bill, adopt or modify the community custody ranges proposed by the commission. If the legislature fails to adopt or modify the initial ranges in its next regular session after they are proposed, the proposed ranges shall take effect without legislative approval for crimes committed on or after July 1, 2000.

      (c) When the commission proposes modifications to ranges pursuant to this subsection, the legislature may, by enactment of a bill, adopt or modify the ranges proposed by the commission for crimes committed on or after July 1 of the year after they were proposed. Unless the legislature adopts or modifies the commission's proposal in its next regular session, the proposed ranges shall not take effect.

      (6))) The commission shall exercise its duties under this section in conformity with chapter 34.05 RCW.

      NEW SECTION. Sec. 9. The department of corrections shall recalculate the term of community custody and reset the date that community custody will end for each offender currently in confinement or serving a term of community custody for a crime specified in RCW 9.94A.701. The recalculation shall not extend a term of community custody beyond that to which an offender is currently subject.

      Sec. 10. 2008 c 231 s 6 (uncodified) is amended to read as follows:

      The existing sentencing reform act contains numerous provisions for supervision of different types of offenders. This duplication has caused great confusion for judges, lawyers, offenders, and the department of corrections, and often results in inaccurate sentences. The clarifications in this act are intended to support continued discussions by the sentencing guidelines commission with the courts and the criminal justice community to identify and propose policy changes that will further simplify and improve the sentencing reform act relating to the supervision of offenders. The sentencing guidelines commission shall submit policy change proposals to the legislature on or before December 1, 2008.

      Sections 7 through 58 of this act are intended to simplify the supervision provisions of the sentencing reform act and increase the uniformity of its application. These sections are not intended to either increase or decrease the authority of sentencing courts or the department relating to supervision, except for those provisions instructing the court to apply the provisions of the current community custody law to offenders sentenced after July 1, 2009, but who committed their crime prior to August 1, 2009, to the extent that such application is constitutionally permissible.

      This will effect a change for offenders who committed their crimes prior to the offender accountability act, chapter 196, Laws of 1999. These offenders will be ordered to a term of community custody rather than community placement or community supervision. To the extent constitutionally permissible, the terms of the offender's supervision will be as provided in current law. With the exception of this change, the legislature does not intend to make, and no provision of sections 7 through 58 of this act may be construed as making, a substantive change to the supervision provisions of the sentencing reform act.

      ((It is the intent of the legislature to reaffirm that section 3, chapter 379, Laws of 2003, expires July 1, 2010.))

 

      Sec. 11. RCW 9.95.220 and 1957 c 227 s 5 are each amended to read as follows:

      (1) Except as provided in subsection (2) of this section, whenever the state parole officer or other officer under whose supervision the probationer has been placed shall have reason to believe such probationer is violating the terms of his or her probation, or engaging in criminal practices, or is abandoned to improper associates, or living a vicious life, he or she shall cause the probationer to be brought before the court wherein the probation was granted. For this purpose any peace officer or state parole officer may rearrest any such person without warrant or other process. The court may thereupon in its discretion without notice revoke and terminate such probation. In the event the judgment has been pronounced by the court and the execution thereof suspended, the court may revoke such suspension, whereupon the judgment shall be in full force and effect, and the defendant shall be delivered to the sheriff to be transported to the penitentiary or reformatory as the case may be. If the judgment has not been pronounced, the court shall pronounce judgment after such revocation of probation and the defendant shall be delivered to the sheriff to be transported to the penitentiary or reformatory, in accordance with the sentence imposed.

      (2) If a probationer is being supervised by the department of corrections pursuant to RCW 9.95.204, the department shall have authority to issue a warrant for the arrest of an offender who violates a condition of community custody, as provided in RCW 9.94A.716. Any sanctions shall be imposed by the department pursuant to RCW 9.94A.737. The department shall provide a copy of the violation hearing report to the sentencing court in a timely manner. Nothing in this subsection is intended to limit the power of the sentencing court to respond to a probationer's violation of conditions.

      Sec. 12. RCW 9.94A.633 and 2009 c 28 s 7 are each amended to read as follows:

      (1)(a) An offender who violates any condition or requirement of a sentence may be sanctioned with up to sixty days' confinement for each violation.

      (b) In lieu of confinement, an offender may be sanctioned with work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community.

      (2) If an offender was under community custody pursuant to one of the following statutes, the offender may be sanctioned as follows:

      (a) If the offender was transferred to community custody in lieu of earned early release in accordance with RCW 9.94A.728(2), the offender may be transferred to a more restrictive confinement status to serve up to the remaining portion of the sentence, less credit for any period actually spent in community custody or in detention awaiting disposition of an alleged violation.

      (b) If the offender was sentenced under the drug offender sentencing alternative set out in RCW 9.94A.660, the offender may be sanctioned in accordance with that section.

      (c) If the offender was sentenced under the special sexual offender sentencing alternative set out in RCW 9.94A.670, the suspended sentence may be revoked and the offender committed to serve the original sentence of confinement.

      (d) If the offender was sentenced to a work ethic camp pursuant to RCW 9.94A.690, the offender may be reclassified to serve the unexpired term of his or her sentence in total confinement.

       (e) If a sex offender was sentenced pursuant to RCW 9.94A.507, the offender may be transferred to a more restrictive confinement status to serve up to the remaining portion of the sentence, less credit for any period actually spent in community custody or in detention awaiting disposition of an alleged violation.


      (3) If a probationer is being supervised by the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, the probationer may be sanctioned pursuant to subsection (1) of this section. The department shall have authority to issue a warrant for the arrest of an offender who violates a condition of community custody, as provided in RCW 9.94A.716. Any sanctions shall be imposed by the department pursuant to RCW 9.94A.737. The department shall provide a copy of the violation hearing report to the sentencing court in a timely manner. Nothing in this subsection is intended to limit the power of the sentencing court to respond to a probationer's violation of conditions.

      Sec. 13. RCW 9.94A.737 and 2007 c 483 s 305 are each amended to read as follows:

      (1) If an offender violates any condition or requirement of community custody, the department may transfer the offender to a more restrictive confinement status to serve up to the remaining portion of the sentence, less credit for any period actually spent in community custody or in detention awaiting disposition of an alleged violation and subject to the limitations of subsection (3) of this section.

      (2) If an offender has not completed his or her maximum term of total confinement and is subject to a third violation hearing for any violation of community custody and is found to have committed the violation, the department shall return the offender to total confinement in a state correctional facility to serve up to the remaining portion of his or her sentence, unless it is determined that returning the offender to a state correctional facility would substantially interfere with the offender's ability to maintain necessary community supports or to participate in necessary treatment or programming and would substantially increase the offender's likelihood of reoffending.

      (3)(a) For a sex offender sentenced to a term of community custody under RCW 9.94A.670 who violates any condition of community custody, the department may impose a sanction of up to sixty days' confinement in a local correctional facility for each violation. If the department imposes a sanction, the department shall submit within seventy-two hours a report to the court and the prosecuting attorney outlining the violation or violations and the sanctions imposed.

      (b) For a sex offender sentenced to a term of community custody under RCW 9.94A.710 who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in a local correctional facility for each violation.

      (c) For an offender sentenced to a term of community custody under RCW 9.94A.505(2)(b), 9.94A.650, or 9.94A.715, or under RCW 9.94A.545, for a crime committed on or after July 1, 2000, who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community.

      (d) For an offender sentenced to a term of community placement under RCW 9.94A.705 who violates any condition of community placement after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community.

      (e) If a probationer is being supervised by the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, the probationer may be sanctioned by the department pursuant to (c) of this subsection. The department shall have authority to issue a warrant for the arrest of an offender who violates a condition of community custody, as provided in RCW 9.94A.740. The department shall provide a copy of the violation hearing report to the sentencing court in a timely manner. Nothing in this subsection is intended to limit the power of the sentencing court to respond to a probationer's violation of conditions.

      (4) If an offender has been arrested for a new felony offense while under community supervision, community custody, or community placement, the department shall hold the offender in total confinement until a hearing before the department as provided in this section or until the offender has been formally charged for the new felony offense, whichever is earlier. Nothing in this subsection shall be construed as to permit the department to hold an offender past his or her maximum term of total confinement if the offender has not completed the maximum term of total confinement or to permit the department to hold an offender past the offender's term of community supervision, community custody, or community placement.

      (5) The department shall be financially responsible for any portion of the sanctions authorized by this section that are served in a local correctional facility as the result of action by the department.

      (6) If an offender is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the department prior to the imposition of sanctions. The hearing shall be considered as offender disciplinary proceedings and shall not be subject to chapter 34.05 RCW. The department shall develop hearing procedures and a structure of graduated sanctions.

      (7) The hearing procedures required under subsection (6) of this section shall be developed by rule and include the following:

      (a) Hearing officers shall report through a chain of command separate from that of community corrections officers;

      (b) The department shall provide the offender with written notice of the violation, the evidence relied upon, and the reasons the particular sanction was imposed. The notice shall include a statement of the rights specified in this subsection, and the offender's right to file a personal restraint petition under court rules after the final decision of the department;

      (c) The hearing shall be held unless waived by the offender, and shall be electronically recorded. For offenders not in total confinement, the hearing shall be held within fifteen working days, but not less than twenty-four hours, after notice of the violation. For offenders in total confinement, the hearing shall be held within five working days, but not less than twenty-four hours, after notice of the violation;

      (d) The offender shall have the right to: (i) Be present at the hearing; (ii) have the assistance of a person qualified to assist the offender in the hearing, appointed by the hearing officer if the offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and present documentary evidence; and (v) question witnesses who appear and testify; and

      (e) The sanction shall take effect if affirmed by the hearing officer. Within seven days after the hearing officer's decision, the offender may appeal the decision to a panel of three reviewing officers designated by the secretary or by the secretary's designee. The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to any of the following: (i) The crime of conviction; (ii) the violation committed; (iii) the offender's risk of reoffending; or (iv) the safety of the community.


      (8) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations.

      (9) The department shall work with the Washington association of sheriffs and police chiefs to establish and operate an electronic monitoring program for low-risk offenders who violate the terms of their community custody. Between January 1, 2006, and December 31, 2006, the department shall endeavor to place at least one hundred low-risk community custody violators on the electronic monitoring program per day if there are at least that many low-risk offenders who qualify for the electronic monitoring program.

      (10) Local governments, their subdivisions and employees, the department and its employees, and the Washington association of sheriffs and police chiefs and its employees shall be immune from civil liability for damages arising from incidents involving low-risk offenders who are placed on electronic monitoring unless it is shown that an employee acted with gross negligence or bad faith.

      Sec. 14. RCW 9.94A.6332 and 2009 c 28 s 8 are each amended to read as follows:

      The procedure for imposing sanctions for violations of sentence conditions or requirements is as follows:

       (1) If the offender was sentenced under the drug offender sentencing alternative, any sanctions shall be imposed by the department or the court pursuant to RCW 9.94A.660.

      (2) If the offender was sentenced under the special sexual offender sentencing alternative, any sanctions shall be imposed by the department or the court pursuant to RCW 9.94A.670.

      (3) If a sex offender was sentenced pursuant to RCW 9.94A.507, any sanctions shall be imposed by the board pursuant to RCW 9.95.435.

      (4) In any other case, if the offender is being supervised by the department, any sanctions shall be imposed by the department pursuant to RCW 9.94A.737. If a probationer is being supervised by the department pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, upon receipt of a violation hearing report from the department, the court retains any authority that those statutes provide to respond to a probationer's violation of conditions.

      (5) If the offender is not being supervised by the department, any sanctions shall be imposed by the court pursuant to RCW 9.94A.6333.

      NEW SECTION. Sec. 15. The legislature directs the sentencing guidelines commission to include in its biennial report to the legislature, as required by RCW 9.94A.850(2)(h)(iii), and due no later than December 1, 2011, an analysis of the impact on recidivism of the following:

      (1) The supervision of offenders pursuant to sections 1 and 2 of this act;

      (2) The department's authority to issue warrants for offenders under its supervision who are sentenced for misdemeanor and gross misdemeanor offenses in superior court; and

      (3) The community custody terms of supervision pursuant to section 5 of this act.

      NEW SECTION. Sec. 16. The following acts or parts of acts are each repealed:

      16.1.1.1. RCW 9.95.206 (Misdemeanant probation services--Offender classification system--Supervision standards) and 1996 c 298 s 2; and

      16.1.1.2. RCW 9.95.212 (Standards for supervision of misdemeanant probationers) and 1998 c 245 s 2 & 1995 1st sp.s. c 19 s 31.

      NEW SECTION. Sec. 17. 2008 c 231 s 60 (uncodified) is repealed.

      NEW SECTION. Sec. 18. (1) Sections 1, 3, 11, 13, 16, 17, and 20 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately.

      (2) Sections 2, 4 through 10, 12, and 14 of this act take effect August 1, 2009.

      NEW SECTION. Sec. 19. Sections 1, 3, and 13 of this act expire August 1, 2009.

      NEW SECTION. Sec. 20. This act applies retroactively and prospectively regardless of whether the offender is currently on community custody or probation with the department, currently incarcerated with a term of community custody or probation with the department, or sentenced after the effective date of this section."

      Correct the title.

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

MOTION

 

Senator Hargrove moved that the Senate concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5288.

      Senator Hargrove spoke in favor of the motion.

      Senator Carrell spoke against the motion.

 

The President declared the question before the Senate to be the motion by Senator Hargrove that the Senate concur in the House amendment(s) to Engrossed Substitute Senate Bill No. 5288.

The motion by Senator Hargrove carried and the Senate concurred in the House amendment(s) to Engrossed Substitute Senate Bill No. 5288 by voice vote.

      Senators Carrell, Sheldon, Roach and Benton spoke against passage of the bill.

      Senators Hargrove and Brown spoke in favor of passage of the bill.

The President declared the question before the Senate to be the final passage of Engrossed Substitute Senate Bill No. 5288, as amended by the House.

 

ROLL CALL

 

      The Secretary called the roll on the final passage of Engrossed Substitute Senate Bill No. 5288, as amended by the House, and the bill passed the Senate by the following vote: Yeas, 26; Nays, 23; Absent, 0; Excused, 0.

      Voting yea: Senators Berkey, Brandland, Brown, Fairley, Franklin, Fraser, Hargrove, Hatfield, Haugen, Jacobsen, Jarrett, Kastama, Keiser, Kline, Kohl-Welles, McAuliffe, McDermott, Murray, Oemig, Prentice, Pridemore, Ranker, Regala, Rockefeller, Shin and Tom

      Voting nay: Senators Becker, Benton, Carrell, Delvin, Eide, Hewitt, Hobbs, Holmquist, Honeyford, Kauffman, Kilmer, King, Marr, McCaslin, Morton, Parlette, Pflug, Roach, Schoesler, Sheldon, Stevens, Swecker and Zarelli

ENGROSSED SUBSTITUTE SENATE BILL NO. 5288, as amended by the House, having received the constitutional majority, was declared passed. There being no objection, the title of the bill was ordered to stand as the title of the act.

 

MOTION

 

      Senator Eide, pursuant to Rule 48, moved that the Committee on Rules be relieved of further consideration of Senate Bill No. 6160 and the measure be placed on the day’s second reading calendar.

      The President declared the question before the Senate to be the motion by Senator Eide that the Committee on Rules be relieved of further consideration of Senate Bill No. 6160 and the measure be placed on the day’s second reading calendar.


      The motion by Senator Eide carried and Senate Bill No. 6160 was placed on the day’s second reading calendar by voice vote.

 

MOTION

 

At 3:05 p.m., on motion of Senator Eide, the Senate was declared to be at ease subject to the call of the President.

 

The Senate was called to order at 4:13 p.m. by President Owen.

 

MESSAGE FROM THE HOUSE

 

April 25, 2009

 

MR. PRESIDENT:

      The House concurred in Senate amendment to the following bills and passed the bills as amended by the Senate:

      SUBSTITUTE HOUSE BILL NO. 1332,

      ENGROSSED SECOND SUBSTITUTE HOUSE BILL NO. 1701,

      SUBSTITUTE HOUSE BILL NO. 1751,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 2211,

      ENGROSSED SUBSTITUTE HOUSE BILL NO. 2254,

and the same are herewith transmitted.

 

BARBARA BAKER, Chief Clerk

 

SIGNED BY THE PRESIDENT

 

      The President signed:

      SENATE BILL NO. 5359,

      SENATE BILL NO. 5470,

      SENATE BILL NO. 5525,

      SUBSTITUTE SENATE BILL NO. 5684,

      SUBSTITUTE SENATE BILL NO. 5734,

      ENGROSSED SUBSTITUTE SENATE BILL NO. 5768,

      ENGROSSED SUBSTITUTE SENATE BILL NO. 5892,

      ENGROSSED SENATE BILL NO. 5894,

      ENGROSSED SUBSTITUTE SENATE BILL NO. 6108,

      ENGROSSED SUBSTITUTE SENATE BILL NO. 6169,

 

MESSAGE FROM THE HOUSE

 

April 23, 2009

 

MR. PRESIDENT:

The House has receded in its amendment to SUBSTITUTE SENATE BILL NO. 5285. Under suspension of rules, the bill was returned to second reading for the purpose of an amendment. The House adopted the following amendment: 5285-S AMH GOOD TANG 107, and passed the bill as amended by the House.

      Strike everything after the enacting clause and insert the following:

      "Sec. 1. RCW 26.44.030 and 2008 c 211 s 5 are each amended to read as follows:

      (1)(a) When any practitioner, county coroner or medical examiner, law enforcement officer, professional school personnel, registered or licensed nurse, social service counselor, psychologist, pharmacist, employee of the department of early learning, licensed or certified child care providers or their employees, employee of the department, juvenile probation officer, placement and liaison specialist, responsible living skills program staff, HOPE center staff, or state family and children's ombudsman or any volunteer in the ombudsman's office has reasonable cause to believe that a child has suffered abuse or neglect, he or she shall report such incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040.

      (b) When any person, in his or her official supervisory capacity with a nonprofit or for-profit organization, has reasonable cause to believe that a child has suffered abuse or neglect caused by a person over whom he or she regularly exercises supervisory authority, he or she shall report such incident, or cause a report to be made, to the proper law enforcement agency, provided that the person alleged to have caused the abuse or neglect is employed by, contracted by, or volunteers with the organization and coaches, trains, educates, or counsels a child or children or regularly has unsupervised access to a child or children as part of the employment, contract, or voluntary service. No one shall be required to report under this section when he or she obtains the information solely as a result of a privileged communication as provided in RCW 5.60.060.

      Nothing in this subsection (1)(b) shall limit a person's duty to report under (a) of this subsection.

      For the purposes of this subsection, the following definitions apply:

      (i) "Official supervisory capacity" means a position, status, or role created, recognized, or designated by any nonprofit or for-profit organization, either for financial gain or without financial gain, whose scope includes, but is not limited to, overseeing, directing, or managing another person who is employed by, contracted by, or volunteers with the nonprofit or for-profit organization.

      (ii) "Regularly exercises supervisory authority" means to act in his or her official supervisory capacity on an ongoing or continuing basis with regards to a particular person.

      (c) The reporting requirement also applies to department of corrections personnel who, in the course of their employment, observe offenders or the children with whom the offenders are in contact. If, as a result of observations or information received in the course of his or her employment, any department of corrections personnel has reasonable cause to believe that a child has suffered abuse or neglect, he or she shall report the incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040.

      (d) The reporting requirement shall also apply to any adult who has reasonable cause to believe that a child who resides with them, has suffered severe abuse, and is able or capable of making a report. For the purposes of this subsection, "severe abuse" means any of the following: Any single act of abuse that causes physical trauma of sufficient severity that, if left untreated, could cause death; any single act of sexual abuse that causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness.

      (e) The reporting requirement also applies to guardians ad litem, including court appointed special advocates, appointed under Titles 11, 13, and 26 RCW, who in the course of their representation of children in these actions have reasonable cause to believe a child has been abused or neglected.
      (f) The report must be made at the first opportunity, but in no case longer than forty-eight hours after there is reasonable cause to believe that the child has suffered abuse or neglect. The report must include the identity of the accused if known.

      (2) The reporting requirement of subsection (1) of this section does not apply to the discovery of abuse or neglect that occurred during childhood if it is discovered after the child has become an adult. However, if there is reasonable cause to believe other children are or may be at risk of abuse or neglect by the accused, the reporting requirement of subsection (1) of this section does apply.

      (3) Any other person who has reasonable cause to believe that a child has suffered abuse or neglect may report such incident to the proper law enforcement agency or to the department of social and health services as provided in RCW 26.44.040.

      (4) The department, upon receiving a report of an incident of alleged abuse or neglect pursuant to this chapter, involving a child who has died or has had physical injury or injuries inflicted upon him or her other than by accidental means or who has been subjected to alleged sexual abuse, shall report such incident to the proper law enforcement agency. In emergency cases, where the child's welfare is endangered, the department shall notify the proper law enforcement agency within twenty-four hours after a report is received by the department. In all other cases, the department shall notify the law enforcement agency within seventy-two hours after a report is received by the department. If the department makes an oral report, a written report must also be made to the proper law enforcement agency within five days thereafter.

       (5) Any law enforcement agency receiving a report of an incident of alleged abuse or neglect pursuant to this chapter, involving a child who has died or has had physical injury or injuries inflicted upon him or her other than by accidental means, or who has been subjected to alleged sexual abuse, shall report such incident in writing as provided in RCW 26.44.040 to the proper county prosecutor or city attorney for appropriate action whenever the law enforcement agency's investigation reveals that a crime may have been committed. The law enforcement agency shall also notify the department of all reports received and the law enforcement agency's disposition of them. In emergency cases, where the child's welfare is endangered, the law enforcement agency shall notify the department within twenty-four hours. In all other cases, the law enforcement agency shall notify the department within seventy-two hours after a report is received by the law enforcement agency.

      (6) Any county prosecutor or city attorney receiving a report under subsection (5) of this section shall notify the victim, any persons the victim requests, and the local office of the department, of the decision to charge or decline to charge a crime, within five days of making the decision.

      (7) The department may conduct ongoing case planning and consultation with those persons or agencies required to report under this section, with consultants designated by the department, and with designated representatives of Washington Indian tribes if the client information exchanged is pertinent to cases currently receiving child protective services. Upon request, the department shall conduct such planning and consultation with those persons required to report under this section if the department determines it is in the best interests of the child. Information considered privileged by statute and not directly related to reports required by this section must not be divulged without a valid written waiver of the privilege.

      (8) Any case referred to the department by a physician licensed under chapter 18.57 or 18.71 RCW on the basis of an expert medical opinion that child abuse, neglect, or sexual assault has occurred and that the child's safety will be seriously endangered if returned home, the department shall file a dependency petition unless a second licensed physician of the parents' choice believes that such expert medical opinion is incorrect. If the parents fail to designate a second physician, the department may make the selection. If a physician finds that a child has suffered abuse or neglect but that such abuse or neglect does not constitute imminent danger to the child's health or safety, and the department agrees with the physician's assessment, the child may be left in the parents' home while the department proceeds with reasonable efforts to remedy parenting deficiencies.

      (9) Persons or agencies exchanging information under subsection (7) of this section shall not further disseminate or release the information except as authorized by state or federal statute. Violation of this subsection is a misdemeanor.

      (10) Upon receiving a report of alleged abuse or neglect, the department shall make reasonable efforts to learn the name, address, and telephone number of each person making a report of abuse or neglect under this section. The department shall provide assurances of appropriate confidentiality of the identification of persons reporting under this section. If the department is unable to learn the information required under this subsection, the department shall only investigate cases in which:

      (a) The department believes there is a serious threat of substantial harm to the child;

      (