Original Notice.

     Preproposal statement of inquiry was filed as WSR 02-22-071.

     Title of Rule: Amending WAC 388-533-1000 First steps childcare program.

     Purpose: To ensure consistency with other DSHS administrations' background check policies with the background check central unit (BCCU) and Washington State Patrol. To ensure conformity with the list of criminal activities that determine if a person may provide childcare under all Department of Social and Health Services (DSHS) applicable programs. To update and clarify current policy regarding the first steps childcare program.

     Statutory Authority for Adoption: RCW 74.08.090, 74.09.800.

     Statute Being Implemented: RCW 74.08.090, 74.09.800.

     Summary: The rules amend language to ensure consistency and conformity with: (1) Other DSHS administrations' background check policies with BCCU and Washington State Patrol; and (2) all DSHS applicable programs for the list of criminal activities that determine if a person is not eligible to provide childcare. In addition, the department is updating and clarifying current policy.

     Reasons Supporting Proposal: See Purpose above.

     Name of Agency Personnel Responsible for Drafting: Kathy Sayre, P.O. Box 45533, Olympia, WA 98504, (360) 725-1342; Implementation and Enforcement: Lenore Lawrence, P.O. Box 45530, Lacey, WA 98504, (360) 725-1666.

     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: See Purpose and Summary above.

     The anticipated effects are:

     (1) To reduce confusion and simplify the process for first steps childcare providers' submission of appropriate forms and claims for payment.

     (2) To update current rule by removing "children's health" as one of the programs clients must be currently eligible under to receive first steps childcare for their children. (As of October 10, 2002, the children's health program is no longer available.)

     (3) To add language to ensure consistency with other DSHS administrations' background check policies with BCCU and Washington State Patrol.

     (4) To add language to ensure conformity with all DSHS applicable programs for the list of criminal activities that determine if a person is not eligible to provide childcare.

     (5) To update and clarify current policy regarding the first steps childcare program.

     Proposal Changes the Following Existing Rules: A reference to the "children's health" program is removed. The proposal adds language to incorporate policies that are consistent with BCCU, Washington State Patrol, and other DSHS applicable programs.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the rules and concluded that no new costs will be imposed on small businesses.

     RCW 34.05.328 applies to this rule adoption. The department has determined that the rules meet the definition of a "significant legislative rule." The department has prepared a cost benefit analysis (CBA) regarding these rule changes. A copy of the CBA can be obtained from Lenore Lawrence, Medical Assistance Administration, Department of Social and Health Services, P.O. Box 45530, Lacey, WA 98504-5530, phone (360) 725-1666, e-mail lawrele@dshs.wa.gov.

     Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on August 5, 2003, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by August 1, 2003, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernnax@dshs.wa.gov [fernaax@dshs.wa.gov].

     Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, mail to P.O. Box 45850, Olympia, WA 98504-5850, deliver to 4500 10th Avenue S.E., Lacey, WA, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., August 5, 2003.

     Date of Intended Adoption: Not sooner than August 6, 2003.

June 27, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (1) For the purposes of this section, the following terms and definitions apply:

     (a) (("Postpregnancy" or "postpartum" means the period of time after the pregnancy ends (includes live birth, still birth, miscarriage or pregnancy termination), through the end of the month that includes the sixtieth day from the end of the pregnancy; and

     (b))) "Background check central unit (BCCU)" means the centralized unit established by the department of social and health services (DSHS) that performs background checks as directed by the Washington state legislature.

     (b) "Finding" means an action taken by the department of social and health services (DSHS) that shows an individual or entity has been found by the department to have abused, neglected, exploited or abandoned a vulnerable person. Findings reported by DSHS or the background check central unit (BCCU) or both are limited to official findings that have been established through legal due process or an administrative hearing process or both.

     (c) "First Steps agency" means an entity, public or private, that is contracted with the medical assistance administration (MAA) to provide First Steps program services.

     (d) "MAA First Steps childcare authorizers" or "authorizers" means the individuals eligible to authorize First Steps childcare through the First Steps childcare program. Authorizers include maternity support services (MSS) professional/paraprofessional agency staff members, community services office (CSO) social workers or designated staff members, and other MAA-designated professional/paraprofessional persons.

     (e) "MAA First Steps childcare coordinator or designee" means the individual designated by MAA to review special needs requests for First Steps childcare through the First Steps childcare program.

     (f) "MAA First Steps childcare program manager" means the individual designated by MAA to review all background check cases identified by the background check central unit (BCCU) as "needing further review."

     (g) "Postpregnancy" means the period of time after the pregnancy ends (includes live birth, still birth, miscarriage, or pregnancy termination) through the end of the month that includes the sixtieth day from the end of the pregnancy.

     (2) First Steps childcare is available for the children of either a managed care or fee-for-service client. Subject to the restrictions and limitations listed in this section, a client is eligible to receive First Steps childcare for her children if she:

     (a) Meets one of the following criteria:

     (i) Is pregnant; or

     (ii) Is within the postpregnancy period.

     (b) Is currently eligible under one of the following programs:

     (i) Categorically needy program (CNP);

     (ii) CNP - emergency medical only; or

     (iii) Children's health insurance program (CHIP); ((or

     (iv) Children's health)).

     (c) Requires one or more of the covered services listed in subsection (4) and (5) of this section;

     (d) Demonstrates a need for childcare; and

     (e) Shows that no other childcare resources are available.

     (3) The following persons are eligible to authorize First Steps childcare, subject to the restrictions and limitations in this chapter and other ((published)) WAC:

     (a) Maternity support services (MSS) professional/paraprofessional agency staff members. See WAC 388-533-0300 (3) and (7);

     (b) ((Maternity case management (MCM) providers. See WAC 388-533-0350;

     (c))) Community services office (CSO) social workers or designated staff members; and

     (((d))) (c) Other MAA-designated professional/paraprofessional persons.

     (4) First Steps childcare may be authorized for a client's ((children)) child(ren) during the client's pregnancy or postpregnancy period when the client pursues any of the following covered services for herself or her newborn children:

     (a) Childbirth education classes;

     (b) Delivery/birth (during the mother's hospitalization);

     (c) Dental care;

     (d) Hospital procedures;

     (e) Laboratory tests;

     (f) ((Maternity case management (MCM) visits;

     (g))) Maternity support services (MSS) visits, including nursing, social work, nutrition, and community health worker visits; ((and

     (h))) (g) Medical visits; and

     (h) Family planning services.

     (5) First Steps childcare authorized for a client's ((children)) child(ren) for the following special needs requires approval by the MAA First Steps childcare coordinator or designee prior to providing the childcare (see subsection (6) of this section for the prior approval process):

     (a) Bedrest for the pregnant client((; or)) for any of the following reasons:

     (i) Preterm labor, with evidence of cervical change or very high risk clinically or historically for preterm delivery;

     (ii) Incompetent cervix;

     (iii) Bleeding (abruption, placentia previa, etc.);

     (iv) Preterm ruptured membranes;

     (v) Intrauterine growth restriction;

     (vi) Oligohydramnios;

     (vii) Multiple gestations; or

     (viii) Other reasons if the obstetrical provider provides a complete clinical description of the client's circumstance (this special request for bedrest must be faxed to the MAA First Steps childcare coordinator or designee).

     (b) The newborn(s) is in a neonatal intensive care unit (NICU) and the parent(s) is visiting the NICU.

     (6) The prior approval process for a request for First Steps childcare for either of the reasons stated in subsection (5) of this section is as follows:

     (a) The authorizer completes appropriate sections of the First Steps Childcare Billing Form (DSHS 14-316(((X) form))) and submits the form to the MAA First Steps childcare coordinator or designee.

     (i) If ((the reason for the request is for)) bedrest is required for ((the)) a pregnant client due to one of the reasons listed in subsection (5)(a) of this section, the authorizer documents in the client's file the reason for the bedrest and that the prenatal caregiver has verified that bedrest is necessary; or

     (ii) If the reason for the request is to enable a parent(s) to visit the newborn(s) in a NICU, the authorizer documents in the client's file that hospital staff member has verified the parent(s) is visiting the newborn(s) regularly.

     (b) The MAA First Steps childcare coordinator or designee:

     (i) Approves the special needs request and signs and dates the ((form)) First Steps Childcare Billing Form (DSHS 14-316) in the appropriate section and returns the form to the authorizer; or

     (ii) Informs the authorizer in writing if the request is denied and payment will not be made.

     (7) MAA ((reimburses)) pays for authorized First Steps childcare when provided by any of the following, subject to the limitations and restrictions listed:

     (a) A licensed childcare home, center, facility, or foster home; and

     (b) A friend, neighbor, or relative, other than those listed in subsection (8) of this section, who is unlicensed and:

     (i) Has qualified based on a background check conducted prior to providing the childcare (see subsection (9) of this section for information on the background check process);

     (ii) Is eighteen years of age or older; ((and))

     (iii) Has a valid social security number; ((or)) and

     (iv) Is authorized to work in the United States.

     (8) The following individuals are not eligible to provide First Steps childcare:

     (a) The spouse of the client((;)).

     (b) The partner of the client((;)) if the client and her partner share the same residence.

     (c) The father of the ((baby, babies, or unborn(s);)) pregnant client's unborn child(ren).

     (d) The father of the client's other children(ren).

     (e) A parent or stepparent of the client.

     (f) A parent or stepparent of the client's spouse.

     (g) A parent or stepparent of the client's partner if the client and her partner share the same residence.

     (h) An older child(ren)_of the:

     (i) Client;

     (ii) Client's spouse; or

     (iii) Client's partner if the client and her partner share the same residence.

     (i) An unlicensed childcare provider:

     (i) Whose background check is pending; or

     (ii) Who was disqualified due to the background check((; and

     (e))).

     (j) Any person under age eighteen.

     (9) Each unlicensed individual childcare provider who a client ((designates)) chooses to be a First Steps childcare provider is subject to a background check under RCW 43.20A.710 and 74.15.030. First Steps childcare will not be authorized by ((the MSS or MCM agency or CSO, or reimbursed)) a First Steps child care authorizer, or paid by MAA, until MAA's background check has been completed on the unlicensed childcare provider. Each unlicensed First Steps childcare provider is subject to a new background check every two years from the date of the first background check.

     (a) MAA's background check process includes all of the following:

     (i) The unlicensed childcare provider completes and signs the First Steps childcare background check form ((and returns it to the MSS or MCM agency or CSO, or sends it directly to the department's background check central unit (BCCU))) and gives it to the client. The client returns it to a First Steps childcare authorizer who submits it to BCCU. The childcare provider's signature on the First Steps childcare background check form authorizes the department's BCCU to perform the background check.

     (ii) BCCU performs a background check on the individual((.

     (iii) BCCU provides)) and notifies the appropriate ((MSS or MCM)) First Steps agency or CSO ((with the results of the background check)) of the results. The First Steps childcare authorizer notifies both the client and childcare provider of one of the following results:

     (A) "No known record" (means the individual may provide First Steps childcare);

     (B) "Disqualifying record" (means the individual may not provide First Steps childcare); or

     (C) "Record" (means the individual has a criminal record that needs further review).

     (((iv))) For cases needing further review, ((BCCU notifies MAA and)) MAA:

     (((A))) (I) Follows the criteria described in this subsection to determine if the individual ((is approved or disqualified to)) may or may not provide First Steps childcare; and

     (((B))) (II) Notifies the ((MSS or MCM)) First Steps agency or CSO, in writing, of the decision.

     (((v) The MSS or MCM agency or CSO notifies the client, in writing, of the results of the designated childcare provider's background check.))

     (b) The ((department conducts the)) department's background check ((and)) of unlicensed childcare providers may include a review of:

     (i) Records of criminal convictions and pending criminal charges ((as listed)) as reported by the Washington state patrol (WSP);

     (ii) Department findings of abuse, neglect, ((and/or )) exploitation ((to)) , and/or abandonment of children ((of)) or vulnerable adults; and

     (iii) Disciplinary board final decisions.

     (c) The department's background check may include a review of law enforcement records of convictions and pending charges in other states or locations when the need for further information is indicated by:

     (i) A person's prior residences;

     (ii) Reports from credible community sources; or

     (iii) An identification number indicating the subject has a record on file with the Federal Bureau of Investigation.

     (d) For the purpose of conducting criminal history portions of background checks as required by chapters 43.20A and 74.15 RCW, the department:

     (i) Considers only a person's convictions and pending charges; and

     (ii) Does not solicit or use as the sole basis for disqualification, information about:

     (A) Arrests not resulting in charges; and

     (B) Dismissed charges.

     (e) ((The department maintains a listing of offenses which, because of their seriousness, automatically disqualifies prospective childcare providers from being authorized to provide First Steps childcare to children of eligible clients. See chapter 388-06 WAC for categories of offenses or, if jurisdiction is outside of the state of Washington, their equivalents.

     (f) If a criminal history check reveals a designated First Steps childcare provider has been charged with or convicted of an offense, or is found to have abused, neglected or exploited children of vulnerable adults, MAA takes the following actions:

     (i) If the check reveals charges are pending against the subject for any of the offenses listed in chapter 388-06 WAC, or their equivalents in other jurisdictions, MAA withholds approval to provide First Steps childcare until dismissal or acquittal occurs. Pending charges for other offenses may be grounds for withholding approval to provide childcare;

     (ii) If the check reveals the subject has been convicted of any the offenses listed in chapter 388-06 WAC, or their equivalents in other jurisdictions, MAA informs the MSS or MSM agency or CSO that the individual is not approved to provide First Steps childcare;

     (iii) If the check reveals the subject has been convicted of an offense not listed in a category in chapter 388-06 WAC, MAA considers such information in determining the character, suitability, and competence of the prospective caretaker as required by chapter 74.15 RCW. MAA will not use the conviction as the sole basis for not approving the person to provide First Steps childcare unless the conviction is directly related to the authorization being sought. MAA does consider the following factors:

     (A) The seriousness and circumstances of the illegal act;

     (B) The number of crimes for which the person was convicted;

     (C) The amount of time passed since the illegal act was committed;

     (D) The age of the person at the time of conviction;

     (E) The behavior of the person since the illegal act was committed;

     (F) Recommendations of persons closely associated with the person; and

     (G) The vulnerability of the persons under care.

     (g) MAA keeps confidential any nonconviction background information provided by BCCU. (Conviction history is not confidential.)

     (h) The department may provide disqualified individuals with background check findings about themselves at the individual's written request)) In certain situations, MAA may find an individual with conviction(s) to be eligible to provide childcare to children through the First Steps childcare program if:

     (i) A conviction for any crime listed in WAC 388-06-0180 occurred more than five years from the date of the First Steps childcare request; or

     (ii) A conviction was for a crime other than those listed in WAC 388-06-0180; and

     (iii) MAA uses the criteria in subsection (f) of this section and determines the individual qualifies to provide childcare.

     (f) When an individual's convictions for a crime meet the conditions in (e)(i) and (ii) of this subsection, MAA may review an individual's background to determine character, suitability and competence to have unsupervised access to children using the following factors:

     (i) The amount of time that has passed since the finding or conviction;

     (ii) The seriousness of the crime that led to the finding or conviction;

     (iii) The number and types of other convictions in the individual's background;

     (iv) The individual's age at the time of finding or conviction;

     (v) Documentation indicating successful completion of all court-ordered programs and restitution;

     (vi) The individual's behavior since the finding or conviction; and

     (vii) The vulnerability of the children for whom care is needed.

     (g) MAA considers findings or criminal charges that are pending to carry the same weight as a finding or conviction. The individual may provide proof to MAA that the charge has been dropped or there was an acquittal.

     (h) MAA does not consider a crime a conviction if a pardon is granted or a court of law expunges or vacates the conviction.

     (i) An MAA First Steps childcare program manager reviews all cases that are identified as "record," and reports the final decision to the First Steps agency staff. The First Steps agency staff notifies the client and the designated childcare provider of the results.

     (10) A client who does not agree with a department decision regarding First Steps childcare program services has a right to a fair hearing under chapter 388-02 WAC. After receiving a request for a fair hearing, MAA may request additional information from the client or the department. After MAA reviews the available information, the result may be:

     (a) A reversal of the initial department decision;

     (b) Resolution of the client's issue(s); or

     (c) A fair hearing conducted per chapter 388-02 WAC.

     (11) To be ((reimbursed, authorized First Steps childcare providers must submit claims for payment to MAA within ninety calendar days of the first date the childcare is provided. The childcare provider also must provide a W-9 form. The client receives the billing form and W-9 form from the authorizer listed in subsection (3) of this section, and gives the forms to the designated childcare provider.

     (a) First Steps childcare billing form DSHS 14-316(X):

     (i) Sections IV and V must be completed by the childcare provider and signed and dated (sections I, II, and if applicable, III, are completed by the authorizer).

     (ii) The childcare provider mails the original completed form to MAA, or gives it to the client and the client gives the form to the authorizer, who submits it to MAA.

     (b) W-9: The childcare provider completes and mails the original W-9 form to MAA, or gives the completed original to the client and the client gives it to the authorizer, who submits it to MAA. (An original W-9 is completed only once for MAA files unless the information changes.)

     (12))) A client who is authorized to receive First Steps childcare for her child(ren) receives the following forms from a First Steps childcare authorizer and gives the forms to the childcare provider:

     (a) First Steps Childcare Billing Form (DSHS 14-316);

     (b) W-9 Form (Request for Taxpayer Identification Number and Certification); and

     (c) A First Steps Childcare (MAA) Background Authorization Form (DSHS 15-253) if the childcare provider is unlicensed.

     (12) To be paid for providing First Steps childcare, an authorized childcare provider must, within ninety days of the first date the childcare is provided:

     (a) Complete, sign, and date the appropriate sections of the First Steps Childcare Billing Form (DSHS 14-316);

     (b) Complete an original W-9 Form (the W-9 is completed only once for MAA files unless the information changes); and

     (c) Mail (or give) the original completed First Steps Childcare Billing Form (DSHS 14-316) and W-9 Form (both forms must have the individual's original signature) to:

     (i) The First Steps authorizer, who submits them to MAA; or

     (ii) The client and the client mails (or gives) the forms to the First Steps authorizer, who submits them to MAA.

     (13) MAA sets ((reimbursement)) payment for First Steps childcare services at a maximum dollar amount per hour from legislatively appropriated funds. ((Reimbursement)) Payment is subject to any exceptions, restrictions, or other limitations listed in this section and other ((published)) WAC. MAA pays the childcare provider directly for First Steps childcare services when the client and the client's designated First Steps childcare provider meet all the criteria in this section.

     (((13) MAA reimburses MSS agencies for the time spent authorizing childcare through the First Steps childcare program if the client is not receiving MCM services. MAA reimburses once per client, per pregnancy/postpregnancy period, when childcare is authorized.))

[Statutory Authority: RCW 74.08.090, 74.09.800. 01-15-008, § 388-533-1000, filed 7/6/01, effective 8/6/01.]

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