WSR 01-10-062

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Children's Administration)

[ Filed April 27, 2001, 4:26 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-08-084.

Title of Rule: Chapter 388-06 WAC, Background checks.

Purpose: Clarify the language of the background check requirements for homes and facilities licensed by Children's Administration (CA), for providers with unsupervised access to clients. This includes care providers to clients of the Division of Developmental Disabilities. The changes incorporate federal legislation, the Adoption and Safe Families Act of 1997 (42 U.S.C. 671(a)), that designated the types of criminal convictions which would preclude an individual from ever having unsupervised access to children.

The Division of Developmental Disabilities will follow the changes in this chapter for their adult clients as well as children.

Statutory Authority for Adoption: RCW 74.15.030.

Statute Being Implemented: RCW 74.15.030.

Summary: The clear language and format change will lead to overall clarification of the chapter. The addition of the federal law changes brings the chapter current with the practice of the Division of Licensed Resources, Children's Administration (DSHS).

The addition of the FBI fingerprinting requirement for persons who are new to the state within three years. This places state statute and agency policy into WAC for consistent practice for CA licensees needing to meet this requirement. The chapter adds the process for completing the background check with both Children's Administration and the Division of Developmental Disabilities making available to those regulated by the WAC the information needed on how to comply with the rule.

Reasons Supporting Proposal: Overall clarity, efficiency and effectiveness of the background check for those having unsupervised access to children and individuals with developmental disability. Additionally, the WAC changes support the licensors of the Division of Licensed Resources with clear language about the process of completing background checks on prospective licensees and other providers.

Name of Agency Personnel Responsible for Drafting and Implementation: Jean L. Croisant, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7992; and Enforcement: Division of Licensed Resources, Children's Administration, Department of Social and Health Services, (360) 902-7992.

Name of Proponent: 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: The purpose of rewriting the chapter in clear question and answer style is to improve understanding of the rules and for consistency of interpretation. This chapter regulates the review of the criminal history and child abuse/neglect history of potential caregivers to children and developmental disabled adults.

The addition of the federal law changes (of specific categories of criminal convictions) brings the chapter current with the policy and practice of the Division of Licensed Resources, Children's Administration (DSHS). The addition of the FBI fingerprinting requirement for persons who are new to the state within the last three years places in WAC a state statute and agency policy that has been in effect since 1995. The chapter adds the process for completing the background check with both Children's Administration and the Division of Developmental Disabilities.

The process of screening caretakers, for children in licensed homes and facilities as well as for developmentally disabled adults, is clearly a very important health and safety issue. It is important to have the rules clear and easy to understand for consistent interpretation and implementation.

Proposal Changes the Following Existing Rules: WAC 388-06-0170, list the criminal convictions that permanently disqualify an individual from having unsupervised access to children and to individuals with developmental disability. This change in these crimes now clearly defines these as permanent disqualifiers.

WAC 388-06-0180, lists the crimes that would disqualify an individual for at least five years.

WAC 388-06-0190, outlines the criteria for seeking a license or authorization for unsupervised access to children and to individuals with developmental disability.

All of the changes have been clarified during the review of the chapter.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The substantive changes in the background check chapter were made to align the WAC with state law and federal law changes with the addition of several crimes to the list of disqualifying convictions. There will be no new costs to businesses.

RCW 34.05.328 applies to this rule adoption. The proposed rule changes for chapter 388-06 WAC, Background checks, are "significant legislative rules" as defined in RCW 34.05.328 and therefore require a cost benefit analysis (CBA). A copy of the CBA may be requested by contacting Jean L. Croisant, Division of Program and Policy Development, Children's Administration, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7992, or loje300@dshs.wa.gov.

Hearing Location: Blake Office Building East, 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on June 26, 2001, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kelly Cooper, DSHS Rules Coordinator, by June 21, 2001, phone (360) 664-6094, TTY (360) 664-6178.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by June 26, 2001.

Date of Intended Adoption: No sooner than June 27, 2001.

April 24, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

2935.2
Chapter 388-06 WAC

BACKGROUND CHECKS

PURPOSE
NEW SECTION
WAC 388-06-0010   What is the purpose of this chapter?   (1) The purpose of this chapter is to establish rules for background checks conducted by children's administration (CA), and the division of developmental disabilities (DDD) at the department of social and health services (DSHS). The department does background checks on individuals who are licensed, certified, contracted, or authorized to care for or have unsupervised access to children and to individuals with a developmental disability. Background checks are conducted to find and evaluate any history of criminal convictions and child abuse or neglect.

(2) This chapter also defines when the one hundred twenty-day provisional hire is allowed by DSHS. WAC 388-06-0500 through 388-06-0540 apply to all DSHS administrations.

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DEFINITIONS
NEW SECTION
WAC 388-06-0020   What definitions apply to this chapter?   The following definitions apply to these rules:

"Authorized" or "authorization" means not disqualified by the department to have unsupervised access to children and individuals with a developmental disability. This includes persons who are certified, contracted, or allowed to receive payments from department funded programs.

"CA" means children's administration, department of social and health services. Children's administration is the cluster of programs within DSHS responsible for the provision of licensing of foster homes, group facilities/programs and child-placing agencies, child protective services, child welfare services, and other services to children and their families.

"CAMIS" means case and management information system. This data system is used by children's administration.

"Certification" means:

(1) Department approval of a person, home, or facility that does not legally need to be licensed, but wishes to have evidence that they met the minimum licensing requirements.

(2) Department licensing of a of a child-placing agency to certify and supervise foster home and group care programs.

"Children" or "youth" means individuals who are under parental or department care including:

(1) Individuals under eighteen years old; or

(2) Foster children up to twenty-one years of age and enrolled in high school or a vocational school program; or

(3) Developmentally disabled individuals up to twenty-one years of age for whom there are no issues of child abuse and neglect; or

(4) JRA youth up to twenty-one years of age and who are under the jurisdiction of JRA or a youthful offender under the jurisdiction of the department of corrections who is placed in a JRA facility.

(5) These two terms are used interchangeably in this chapter.

"DCFS" means division of children and family services and is a division within children's administration that provides child welfare, child protective services, and support services to children in need of protection and their families.

"DDD" means the division of developmental disabilities, department of social and health services (DSHS).

"DLR" means the division of licensed resources that is a division within children's administration, the department of social and health services.

"Department" means the department of social and health services (DSHS).

"I" and "you" refers to anyone who has unsupervised access to children or to persons with developmental disabilities in a home, facility, or program. This includes, but is not limited to, persons seeking employment, a volunteer opportunity, an internship, a contract, certification, or a license for a home

or facility.

"JRA" means the juvenile rehabilitation administration, department of social and health services.

"Licensor" means an employee of DLR or of a child placing agency licensed or certified under chapter 74.15 RCW to approve and monitor licenses for homes or facilities that offer care to children. Licenses require that the homes and facilities meet the department's health and safety standards.

"Individuals with developmental disability" means individuals who meet eligibility requirements in Title 71A RCW, WAC 388-825-030, for services. A developmental disability is any of the following: Mental retardation, cerebral palsy, epilepsy, autism, or another neurological condition described in WAC 388-825-030; originates before the age of eighteen years; is expected to continue indefinitely; and results in a substantial handicap.

"Spousal abuse" includes any crime of domestic violence as defined in RCW 10.99.020 when committed against a spouse, former spouse, person with whom the perpetrator has a child regardless of whether the parents have been married or lived together at any time, or an adult with whom the perpetrator is presently residing or has resided in the past.

"Unsupervised" means not in the presence of:

(1) Another employee or volunteer from the same business or organization as the applicant; or

(2) Any relative or guardian of the child or developmentally disabled individual or vulnerable adult to whom the applicant has access during the course of his or her employment or involvement with the business or organization (RCW 43.43.080(9)).

"Unsupervised access" means that an individual will or may be left alone with a child or vulnerable adult (individual with developmental disability) at any time for any length of time.

"We" refers to the department, including licensors and social workers.

"WSP" refers to the Washington State Patrol.

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NEW SECTION
WAC 388-06-0100   Why are background checks done?   The department does background checks to help safeguard the health, safety and well being of children and of individuals with a developmental disability in licensed homes and facilities and in day treatment programs. By doing background checks, the department reduces the risk of harm to children and individuals with a developmental disability from caregivers that have been convicted of certain crimes. The department's regulations require the evaluation of your background to determine your character, suitability and competence before you are issued a license, contract, certificate, or authorized to have unsupervised access to children or to individuals with a developmental disability.

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NEW SECTION
WAC 388-06-0110   Who must have background checks?   The department requires background checks on individuals who will have unsupervised access to children or to individuals with a developmental disability in homes, facilities, or operations licensed, relicensed, or contracted by the department to provide care as required under chapter 74.15 RCW. The department requires background checks on the following people:

(1) A person licensed, certified, or contracted by us to care for children (chapter 74.15 RCW and RCW 43.43.832);

(2) A prospective or current employee for a licensed care provider or a person or entity contracting with us;

(3) A volunteer or intern with regular or unsupervised access to children who is in a home or facility that offers licensed care to children;

(4) A person who is at least sixteen years old, is residing in a foster home or child care home and is not a foster child;

(5) A relative other than a parent who may be caring for a child or an individual with a developmental disability;

(6) A person who regularly has unsupervised access to an individual with a developmental disability;

(7) A provider who has unsupervised access to a child or individual with a developmental disability in the home of the child or individual with a developmental disability; and

(8) Prospective adoptive parents as defined in RCW 26.33.020.

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NEW SECTION
WAC 388-06-0120   Who is not affected by this chapter?   This chapter does not apply to schools, hospitals, or other facilities where the primary focus is not custodial.

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NEW SECTION
WAC 388-06-0130   Does the background check process apply to new and renewal licenses, certification, contracts, and authorizations to have unsupervised access to children or individuals with a developmental disability?   These regulations apply to all applications for new and renewal licenses, contracts, certifications, and authorizations to have unsupervised access to children and individuals with a developmental disability that are processed by the department after the effective date of this chapter.

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NEW SECTION
WAC 388-06-0140   What happens if I don't comply with the background check requirement?   The department will deny, suspend or revoke your license, contract, certification, or authorization to care for children or for individuals with a developmental disability, if you or someone on the premises of your home or facility having unsupervised access does not comply with the department's requirement for a background check.

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NEW SECTION
WAC 388-06-0150   What does the background check cover?   (1) The department must review the following records:

(a) Criminal convictions and pending charges.

(b) For children's administration, child protective service case file information (CAMIS) for founded reports of child abuse or neglect; and

(c) For children's administration, administrative hearing decisions related to any DLR license that has been revoked, suspended or denied.

(2) The department may also review any civil judgment, determination or disciplinary board final decisions of child abuse or neglect.

(3) The department may review law enforcement records of convictions and pending charges in other states or locations if:

(a) You have lived in another state; and

(b) Reports from credible community sources indicate a need to investigate another state's records.

(4) If you have lived in Washington state less than three years immediately prior to your application to have unsupervised access to children or to individuals with a developmental disability, the department requires that you be fingerprinted for a background check.

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NEW SECTION
WAC 388-06-0160   Who pays for the background check?   (1) Children's administration pays for fingerprinting expenses for those foster home applicants and relatives who require fingerprinting.

(2) Children's administration does not pay for fingerprinting for employees, contractors, or volunteers associated with any other type of home or facility.

(3) The division of developmental disabilities pays for background checks for individuals seeking authorization to provide services to their clients.

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NEW SECTION
WAC 388-06-0170   Will a criminal conviction permanently prohibit me from being licensed, contracted, or authorized to have unsupervised access to children or to individuals with developmental disability?   (1) There are convictions for certain crimes that will permanently prohibit you from being licensed, contracted, or authorized to have unsupervised access to children or to individuals with developmental disability. Those felony convictions are as follows:

(a) Child abuse and/or neglect;

(b) Spousal abuse;

(c) A crime against a child (including child pornography);

(d) A crime involving violence (including rape, sexual assault, or homicide but not including other physical assault); or

(e) Any federal or out-of-state conviction for an offense that under the laws of this state would disqualify you from having unsupervised access to children or individuals with a developmental disabilities in any home or facility.

(2) If you are convicted of one of the crimes listed in WAC 388-06-0170 (1)(a) through (e) you will not be able to:

(a) Receive a license to provide care to children;

(b) Be approved for adoption of a child;

(c) Be a contractor;

(d) Be employed by a licensed agency or contractor, if you will have unsupervised access to children or to individuals with a developmental disability;

(e) Volunteer or participate as an intern in a home or facility that offers care to children or to individuals with a developmental disability; or

(f) Provide any type of care to children or to individuals with a developmental disability, if the care is funded by the state.

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NEW SECTION
WAC 388-06-0180   Are there other criminal convictions that will prohibit me from working with children or individuals with a developmental disability?   (1) The department must disqualify you from licensing, contracting, certification, or from having unsupervised access to children or to individuals with a developmental disability if it has been less than five years from a conviction for the following crimes:

(a) Any physical assault not included in WAC 388-06-0170;

(b) Any sex offense not included in WAC 388-06-0170;

(c) Any felony conviction not included in WAC 388-06-0170; or

(d) Felony violation of the following drug-related crimes:

(i) The Imitation Controlled Substances Act (for substances that are falsely represented as controlled substances (see chapter 69.52 RCW));

(ii) The Legend Drug Act (prescription drugs, see chapter 69.41 RCW);

(iii) The Precursor Drug Act (substances used in making controlled substances, see chapter 69.43 RCW);

(iv) The Uniform Controlled Substances Act (illegal drugs or substances, see chapter 69.50 RCW);or

(v) Unlawfully manufacturing, delivering or possessing a controlled substance with intent to deliver, or unlawfully using a building for drug purposes.

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NEW SECTION
WAC 388-06-0190   If I have a conviction, may I ever have unsupervised access to children or individuals with a developmental disability?   (1) In two situations, DSHS may find a person with convictions able to have unsupervised access to children or individuals with a developmental disability:

(a) If the conviction for any crime listed in WAC 388-06-0180 occurred more than five years ago; or

(b) If the conviction was for a crime other than those listed in WAC 388-06-0170 or 388-06-0180.

(2) In both of these situations, DSHS must review your background to determine your character, suitability, and competence to have unsupervised access to children or individuals with a developmental disability. In this review, DSHS must consider the following factors:

(a) The amount of time that has passed since you were convicted;

(b) The seriousness of the crime that led to the conviction;

(c) The number and types of other convictions in your background;

(d) The amount of time that has passed since you were convicted;

(e) Your age at the time of conviction;

(f) Documentation indicating you have successfully completed all court-ordered programs and restitution;

(g) Your behavior since the conviction; and

(h) The vulnerability of those that would be under your care.

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NEW SECTION
WAC 388-06-0200   Will I be disqualified if there are pending criminal charges on my background check?   (1) The department will not license, contract, certify, or authorize a person to have unsupervised access to children or individuals with a developmental disability who have a criminal charge pending.

(2) You may reapply for a license, contract, certification, or approval to have unsupervised access to children or to individuals with a developmental disability by providing proof to the department that the charge against you has been dropped or that you were acquitted.

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NEW SECTION
WAC 388-06-0210   Will you license, contract, or authorize me to have unsupervised access to children or individuals with a developmental disability if my conviction has been expunged, or vacated from my record or I have been pardoned for a crime?   If you receive a pardon or a court of law acts to expunge or vacate a conviction on your record, the crime will not be considered a conviction for the purposes of licensing, contracting, certification, or authorization for unsupervised access to children or to individuals with a developmental disability.

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NEW SECTION
WAC 388-06-0220   How will I know if I have not been disqualified by the background check?   (1) If you have not been disqualified by the background check and are applying for a license or certification to care for children, the department will not directly notify you. Instead, the department continues the process for approving your application.

(2) If you have requested a contract or approval for unsupervised access to children or to individuals with a developmental disability, the department will notify you, your prospective employer, or your supervisor.

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NEW SECTION
WAC 388-06-0230   How will I know if I have been disqualified by the background check?   (1) The department will notify you, and the care provider, the employer, or the licensor if you have been disqualified by the background check. The notice will be in writing and will include any laws and rules that require disqualification.

(2) If the department sends you a notice of disqualification, you will not receive a license, contract, certification, or be authorized to have unsupervised access to children or to individuals with a developmental disability.

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NEW SECTION
WAC 388-06-0240   What may I do if I disagree with the department's decision to deny me a license, certification, contract, or authorization?   (1) If you are seeking a license, you may request an administrative hearing to disagree with the department's decision process to deny authorization for unsupervised access to children or to individuals with a developmental disability (chapter 34.05 RCW). You cannot contest the conviction in the administrative hearing.

(2) Prospective volunteers, interns, contractors, or those seeking certification do not have the right to appeal the department's decision to deny authorization for unsupervised access to children and to individuals with a developmental disability.

(3) The employer or prospective employer cannot contest the department's decision on your behalf.

(4) The administrative hearing will take place before an administrative law judge employed by the office of administrative hearings (chapter 34.05 RCW).

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NEW SECTION
WAC 388-06-0250   Is the background check information released to my employer or prospective employer?   (1) The department will share with employers or approved care providers only that:

(a) You are disqualified; or

(b) You have not been disqualified by the background check.

(2) The department will follow laws related to the release of criminal history records (chapter 10.97 and 43.43 RCW) and public disclosure (chapter 42.17 RCW) when releasing any information.

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NEW SECTION
WAC 388-06-0260   May I receive a copy of my criminal background check results?   (1) The department will provide you a copy of your criminal background check results if you:

(a) Make the request in writing to the department; and

(b) Offer proof of identity, such as picture identification.

(2) A copy of your WSP criminal background check results may also be obtained from the Washington State Patrol (chapter 10.97 RCW).

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-330-010 Purpose and authority.
WAC 388-330-020 Scope.
WAC 388-330-030 Application of inquiry findings.
WAC 388-330-035 Appeal of disqualification.
WAC 388-330-040 Inquiry form to be submitted -- Time requirements.
WAC 388-330-050 Release of information.
WAC 388-330-060 Sanctions for noncompliance.

Washington State Code Reviser's Office