WSR 97-09-106
PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Children's Administration)
(Public Assistance)
[Filed April 23, 1997, 11:33 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 97-02-031.
Title of Rule: Notification - CPS allegations and findings.
Purpose: The proposed amendments to the rules require the department to notify alleged perpetrators of child abuse and neglect of the nature of the allegations and the conclusions reached following investigation.
Other Identifying Information: WAC 388-330-035 and 388-15-134.
Statutory Authority for Adoption: RCW 74.15.030.
Statute Being Implemented: Chapter 26.44 RCW and RCW 74.15.030.
Summary: The amendments incorporate changes resulting from negotiations with the American Civil Liberties Union. The changes also reflect clarifications of policy.
Reasons Supporting Proposal: Provide notice and appeal rights of persons affected by CPS investigations.
Name of Agency Personnel Responsible for Drafting: Art Cantrall, Department of Social and Health Services, Olympia, (360) 902-7956; Implementation: Jennifer Strus, Department of Social and Health Services, Olympia, (360) 902-7911; and Enforcement: Rosalyn Oreskovich, Department of Social and Health Services, Olympia, (360) 902-7820.
Name of Proponent: American Civil Liberties Union, private; and Department of Social and Health Services, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: WAC 388-330-035 provides appeal procedures for a person disqualified from employment in a child care agency and restriction on use of records if the appeal is successful. The rule is amended to require the department to inform the person and any employer that nothing prohibits the person from being employed or associated with a child care agency, if the allegation was found in hearing to not be supported by a preponderance of the evidence.
WAC 388-15-134 is modified to require notification of alleged perpetrators of allegations of child abuse and neglect. It also requires notification to the alleged perpetrator of the results of the investigation, whether founded, unfounded, or inconclusive. It also requires notification about the existence of the department's record and of possible use of the information in future actions, as well of [as] the right to submit a written response to be included in the record and to ask for an informal meeting to contest the information in the record.
Proposal Changes the Following Existing Rules: The changes are described above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no fiscal impact on small businesses.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. This section (RCW 34.08.328 [34.05.328]) does not apply to the Department of Social and Health Services.
Hearing Location: Lacey Government Center (behind Tokyo Bento restaurant), 1009 College Street S.E., Room 104-A, Lacey, WA 98503, on May 27, 1997, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Leslie Baldwin by May 13, 1997, TTY (360) 902-8324, or (360) 902-7540.
Submit Written Comments to: Leslie Baldwin, Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, FAX (360) 902-8292, by May 27, 1997.
Date of Intended Adoption: No sooner than May 28, 1997.
April 23, 1997
Merry A. Kogut, Manager
Rules and Policies Assistance Unit
AMENDATORY SECTION (Amending Order 2773, filed 3/8/89)
WAC 388-15-134 Child protective services--Notification. (1) Duty to notify. The department shall notify the parent or legal custodian of a child when:
(a) The department is investigating a report alleging an act or acts of child abuse or neglect (CA/N); and
(i) Their child is alleged to be the victim; and/or
(ii) The department interviews a child alleged to be the victim of CA/N.
(b) The department takes a child into custody pursuant to a court order issued under RCW 13.34.050;
(c) The department receives custody of a child from law enforcement pursuant to RCW 26.44.050; and
(d) The department files a dependency petition.
(2) Notification of noncustodial parents.
(a) The department shall notify noncustodial parents when a child is taken into custody pursuant to RCW 26.44.050 or 13.34.050 and placed into the custody of the department, and
(b) Notification shall also occur when the department files a dependency petition.
(3) Notification of alleged perpetrator. The department shall notify the alleged perpetrator of the allegations of child abuse and neglect at the earliest point in the investigation that will not jeopardize the safety and protection of the child or the investigation process.
(4) Notification contents. Whenever a child is taken into custody under RCW 13.34.050 or 26.44.050, the notification required by this section shall comply with the requirement of RCW 26.44.120. The notification shall also include:
(a) A description of the department's action; and
(b) The reason or reasons for the department's actions.
(((4))) (5) Opportunity to review case information. The department
shall:
(a) Notify the person or persons legally responsible for the child of the address of the office where the case record information will be on file; and
(b) Provide them with the opportunity to read parts of the case record relating to the allegations, provided:
(i) They have requested access to the information, and
(ii) Such access is not otherwise prohibited by law.
(((5))) (6) Disclosure of case information. The department shall
not disclose case record information except as permitted under provisions
of chapter 388-320 WAC and applicable statutes. The department shall not
disclose the name and address of any ((referrant)) referent who requests
their identity be held in confidence. Even if disclosure is otherwise
permissible, the department may refuse disclosure of the name and address
of any victim.
(((6))) (7) Notification of CPS investigative findings. Whenever
the department completes an investigation of a child abuse or neglect
report under chapter 26.44 RCW, the department shall notify the alleged
perpetrator of the report and the department's investigative findings,
whether founded, unfounded, or inconclusive. The notice shall also
advise the person that:
(a) A written response to the report may be provided to the department and that such response will be filed in the record following receipt by the department;
(b) Information in the department's record may be considered in subsequent investigations or proceedings related to child protection or child custody;
(c) There is currently information in the department's record that may be considered in determining that the person is disqualified from being licensed to provide child care, employed by a licensed child care agency, or authorized by the department to care for children; and
(d) A person who has demonstrated a good faith desire to work in a licensed agency may request an informal meeting with the department to have an opportunity to discuss and contest the information currently in the record, pursuant to WAC 388-330-035(1).
(8) Method of notification. The notification required by this section shall be made by regular mail to the person's last known address, with a copy of the notice placed in the case file.
(9) Limits of duty to notify. The duty of notification created by
this section shall be subject to the ability of the department to
ascertain the location of the person to be notified. The department
shall exercise reasonable, good-faith efforts to ascertain the location
of persons entitled to notification under this section.
[Statutory Authority: RCW 74.15.030. 89-07-024 (Order 2773), 388-15-134, filed 3/8/89. Statutory Authority: RCW 74.08.090 and 1979 c 155.
79-10-026 (Order 1431), 388-15-134, filed 9/10/79; Order 1238, 388-15-134, filed 8/31/77.]
AMENDATORY SECTION (Amending Order 3974, filed 4/26/96, effective 5/27/96 WAC 388-330-035 Appeal of disqualification. (1) Whenever a person in good faith desires employment in an agency licensed under chapter 74.15 RCW, the person, prior to applying for employment, upon request, shall promptly receive from the department an informal meeting on whether the person is disqualified from employment for not meeting the minimum requirements pursuant to chapter 74.15 RCW or rules promulgated thereunder.
(a) Prior to receiving an informal meeting under this subsection, it shall be the responsibility of a person requesting the meeting to demonstrate a good faith desire for employment in an agency licensed under chapter 74.15 RCW. Such demonstration of good faith shall include, but not be limited to, a showing of educational qualifications, employment history information, current employment, and plans for obtaining employment in a licensed agency in the near future. The department's determination regarding whether the person requesting the meeting has demonstrated a good faith desire for employment is final and not subject to a proceeding under chapter 34.05 RCW. The department shall notify such person promptly following the meeting of its determination in writing.
(b) If the department determines, subsequent to an informal meeting under this subsection, that a person is disqualified, the department shall give written notice of the disqualification to the person. The notice shall state what the person is disqualified from doing, the reasons for the disqualification, the applicable law under which the person is disqualified, and their right to an adjudicative proceeding under chapter 34.05 RCW.
(2) If the department during employment or at the time of employment, determines that a person is disqualified from employment with a child care agency for not meeting minimum requirements under chapter 74.15 RCW or rules promulgated thereunder, the department shall give written notice of disqualification to the person. The notice shall state what the person is disqualified from doing, reasons for the disqualification, and the applicable law under which the person is disqualified, and their right to an adjudicative proceeding under chapter 34.05 RCW.
(3) The procedures in RCW 43.20A.205 shall apply whenever the department issues a notice of disqualification to a person under this section. If the disqualified person requests an adjudicative proceeding, the department shall have the burden of proving disqualification by a preponderance of the evidence.
(4) A licensee under chapter 74.15 RCW may not allow a person disqualified under this section to be employed by or associate with the licensee's agency. Disqualification of a person may not be contested by a licensee.
(5) The provisions of this section do not preclude the department from taking any action against a licensee in accordance with chapter 74.15 RCW or rules promulgated thereunder.
(6) ((If a notice of disqualification is based on a prior department
finding of abuse or neglect, and)) If after a hearing under chapter 34.05
RCW it is determined that the allegations are not supported by a
preponderance of the evidence, the department's records shall be
supplemented to so state and the person and any employer shall be
informed that there is nothing prohibiting the person from being employed
by or associated with a licensed child care agency. If an employer is
aware that the hearing has occurred, the employer shall additionally be
informed that the department failed to prove the allegations at issue in
the hearing.
(7) If at a hearing under chapter 34.05 RCW the appellant proves by clear, cogent and convincing evidence that the incident of abuse or neglect on which the notice of disqualification is based did not occur and that the allegation is false, the record shall be supplemented to so state, and the department shall restrict access to all such reports so that the reports will not thereafter be considered by the department in determining whether a person is disqualified.
(8) The department in accordance with WAC 388-330-030 may remove a disqualification based on conviction of a crime.
The department may remove a disqualification based on a reason other than
conviction of a crime if the disqualified person demonstrates by clear,
cogent, and convincing evidence that the person is sufficiently
rehabilitated to warrant public trust and to comply with the requirements
of chapter 74.15 RCW, and the rules promulgated thereunder.
[Statutory Authority: RCW 74.15.030. 96-10-043 (Order 3974), 388-330-035, filed 4/26/96, effective 5/27/96.]