WSR 04-07-110

EXPEDITED RULES

DEPARTMENT OF

SERVICES FOR THE BLIND

[ Filed March 18, 2004, 1:32 p.m. ]

Title of Rule: Chapter 67-16 WAC, Department -- General administration.

Purpose: The Department of Services for the Blind (DSB) plans to institute a new chapter in its WAC which will authorize criminal background checks for employees, interns, volunteers, employment applicants, contractors, and service providers who have or may have unsupervised access to vulnerable clients or potential clients.

Statutory Authority for Adoption: Chapter 74.18 RCW.

Statute Being Implemented: Chapter 74.18 RCW.

Summary: This WAC adoption will allow DSB to implement the criminal background checks authorized by revision to chapter 74.18 RCW adopted by the 2003 legislative session.

Reasons Supporting Proposal: To comply with current law.

Name of Agency Personnel Responsible for Drafting: Ellen Drumheller, Olympia, Washington, (360) 586-7022; Implementation and Enforcement: Bill Palmer, Director, Olympia, Washington, (360) 586-6981.

Name of Proponent: Department of Services for the Blind, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The new ruling will allow DSB to perform background checks, which will include checking for conviction records, pending charges, disciplinary board findings, and shall include a fingerprint check by the Federal Bureau of Investigation. The department will use the information gathered solely to determine the character, suitability, and competence of employees, applicants, service providers, contractors, student interns, volunteers and other individuals, in accordance with RCW 41.06.475, to determine if an individual(s) should be disqualified from a position.

Proposal does not change existing rules. New rule.

NOTICE

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THE USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Ellen Drumheller, Department of Services for the Blind, P.O. Box 40933, Olympia, WA 98504-0933 , AND RECEIVED BY May 24, 2004.


March 18, 2004

Ellen Drumheller

Rules Coordinator


NEW SECTION
WAC 67-16-020   Purpose and definition.   The authority for conducting background checks on contractors and service providers is established in Chapter 74.18 RCW. The purpose for background checks is to ensure the suitability, character and competence of contractors and service providers to work with clients with a visual disability defined in WAC 67-75-040 (3)(a).

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NEW SECTION
WAC 67-16-030   Background check process.   (1) The director of the department of services for the blind (DSB) shall investigate the conviction records, pending charges and disciplinary board final decisions for contractors and service providers who will or may have unsupervised access to DSB clients.

(2) The investigation shall consist of a background check as allowed under the Washington State Criminal Records Privacy Act, RCW 10.97.050; the Washington state patrol criminal identification system under RCW 43.43.832 through 43.43.834, and the Federal Bureau of Investigation. The background check shall include a fingerprint check using a complete Washington state criminal identification fingerprint card.

(3) The director may waive the requirement for a background check if the contractor or service provider has been cleared in a background check within the previous two years.

(4) When necessary, the director may engage a service provider or contractor on a conditional basis, pending completion of the background check.

(5) The investigation shall include an examination of state and national criminal identification data. The Director shall use the information solely for the purpose of determining the character, suitability and competence of the individual contractor or service provider to work with the department of services for the blind clients.

(6) The director shall provide the results of the background check in writing to the contractor or service provider within ten working days from receipt of the finding.

(7) The office of the director shall maintain confidential records of all background check information. Such information shall be limited to only those individuals processing the information within the department.

(8) The fingerprint criminal history records checks will be at the expense of the contractor or service provider.

(9) Current contractors or service providers for whom disqualifying crimes are discovered in the background check process will be notified in writing within ten working days from receipt of the finding. The written notification shall include notice of termination of the contract or service provider agreement and give the individual the right to request a review by the director of the department of services for the blind.

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NEW SECTION
WAC 67-16-040   Department of services for the blind -- Background check requirements for employees, applicants, volunteers and student interns.   (1) The executive director of the department of services for the blind shall conduct background checks on all employees in covered positions and applicants under final consideration for a covered position. A covered position is one in which a person will or may have unsupervised access to vulnerable clients or potential clients with vision disability. These clients or potential clients may also have other disabilities, such as developmental disabilities or mental health disabilities. Employees and applicants shall authorize the executive director of the department of services for the blind to conduct a background check.

(2) The requirement for background checks shall include the following:

(a) Current employees as of July 1, 2004.

(b) Any employee seeking a covered position because of a reduction in force, reallocation, transfer, promotion or demotion.

(c) Any applicant prior to appointment into a covered position, except when appointment is made on a conditional basis under subsection (6)(b).

(3) A background check will be conducted on the final preferred candidate prior to appointment.

(4) The executive director of the department of services for the blind shall use the results of a background check solely to determine the character, competence and suitability of a person for a covered position. The background check information shall consist of:

(a) A fingerprint check using a complete Washington State criminal identification fingerprint card.

(b) Conviction records, pending charges, and disciplinary board final decisions (if applicable).

(c) Evidence that substantiates or mitigates convictions, pending charges, and disciplinary board final decisions including, but not limited to:

(i) The employee or applicant's background check authorization and disclosure form;

(ii) The employee or applicant's age at the time of conviction, charge, or disciplinary board final decision;

(iii) The nature and severity of the conviction, charge, or disciplinary board final decision;

(iv) The length of time since the conviction, charge, or disciplinary board final decisions;

(v) The nature and number of previous offenses; and

(vi) The relationship between the nature of the conviction, pending charge, or disciplinary board final decision and the duties of the employee or applicant.

(5) A permanent employee with a background check disqualification may voluntarily resign, or be subject to any of the following:

(a) Nondisciplinary separation. The employee shall be separated by the executive director after fifteen calendar days written notice unless the employee requests a shorter notice period;

(b) Disciplinary action for any of the causes listed in WAC 356-34-010; and/or

(6) Interim measures that may be used while the executive director explores availability of actions (not to exceed 30 calendar days except in cases where there are investigations of pending charges):

(a) Voluntary use of accrued vacation, exchange, and/or compensatory time.

(b) Authorized leave without pay, if there is no paid leave available, or if the employee chooses not to use paid leave.

When considering the above actions, the agency will consider the least restrictive means necessary to prevent unsupervised access.

(7) The executive director of the department of services for the blind shall:

(a) Notify employees and applicants that a background check is required for covered positions;

(b) Develop procedures specifying when employees and applicants may be hired on a conditional basis pending the results of a background check; and

(c) Develop policies and procedures pertaining to background checks;

(d) Provide the employee/applicant with the results of the background check in writing;

(e) Notify employees of their promotional register rights when they have been separated from their position, either voluntarily or involuntarily due to a background disqualification.

(8) Failure to authorize the executive director of the department of services for the blind to conduct a background check disqualifies an employee or applicant from consideration for any covered position including an employee's current covered position.

(9) An applicant for a covered position who is denied employment due to a disqualifying finding, shall be given the right to request a review of the decision by the executive director.

(a) Requests for review must be in writing and received by the executive director within fifteen calendar days of the postmark date of the notification or date of hand-delivery.

(10) A separation under subsection (5)(a) shall not be considered a disciplinary action as set forth in WAC 356-34-010.

(11) Permanent employees may appeal to the personnel appeals board in accordance with RCW 41.06.170 and rules promulgated thereunder including WAC 358-20-101 and 358-20-020.

(12) Nothing in this rule shall limit the department of services for the blind executive director's use of other authorities to conduct background checks.

(13) Information pertaining to background checks is confidential and shall be used solely for the purpose of determining the character, suitability and competence of the applicant and/or employee. Access to background check information shall be limited to only those individuals processing the information for the department. Misuse of background check information is a criminal offense and may result in prosecution and/or disciplinary action as provided under WAC 356-34-010.

(14) The department of services for the blind will pay the costs associated with the background checks for current employees, applicants, volunteers, and student interns.

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