WSR 08-07-042

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Management Services Administration)

[ Filed March 14, 2008, 8:43 a.m. , effective March 14, 2008, 8:43 a.m. ]


Effective Date of Rule: Immediately.

Purpose: The purpose of the emergency filing of amended chapter 388-06 WAC, Background checks, is to comply with new statutes, chapter 387, Laws of 2007 (ESSB 5774) and chapter 410, Laws of 2007 (SHB 1333), impacting background check requirements for certain child care providers and children returning to their home; and to comply with the federal Adam Walsh Act of 2006.

Citation of Existing Rules Affected by this Order: Amending WAC 388-06-0110, 388-06-0150, and 388-06-0160.

Statutory Authority for Adoption: RCW 43.43.832, 26.33.190, 26.44.030, 74.15.030.

Other Authority: Chapter 387, Laws of 2007; Adam Walsh Act of 2006.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: Amendments to chapter 388-06 WAC, Background checks, are needed due to changes in federal requirements and state statute. Permanent rule making could not be completed by the effective date of the federal requirements, July 1, 2007.

A notice to adopt permanent rules on this subject has been filed as WSR 07-11-097. The department is coordinating with DSHS administrations and stakeholders on the rule content and adoption process and is consulting with managers and legal advisors as to the best way to coordinate the permanent rule process with legislation and business needs. This filing extends the emergency rule filed as WSR 07-23-059.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 3, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 3, Repealed 0.

Date Adopted: March 7, 2008.

Stephanie E. Schiller

Rules Coordinator

3902.1
AMENDATORY SECTION(Amending WSR 01-18-025, filed 8/27/01, effective 10/1/01)

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, relatives home, or child care home and is not a foster child;

(5) A person not related to the child who the court has approved placement as allowed in RCW 13.34.130;

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

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

(((7))) (8) 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))) (9) Prospective adoptive parents as defined in RCW 26.33.020.

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0110, filed 8/27/01, effective 10/1/01.]


AMENDATORY SECTION(Amending WSR 01-18-025, filed 8/27/01, effective 10/1/01)

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

(a) Criminal convictions and pending charges based on identifying information provided by you. However, if you have lived in Washington State for less than three years prior to the check, the department must conduct a fingerprint based background check for you to have unsupervised access to children or to individuals with developmental disabilities.

(b) ((For children's administration, child protective service case file information (CAMIS) for founded reports of child abuse or neglect; and)) If the background check is being conducted for Children's Administration, it must also include:

(i) A review of child protective services case files information (CAMIS) or other applicable information system.

(ii) Administrative hearing decisions related to any DRL license that has been revoked, suspended, or denied.

(c) ((For children's administration, administrative hearing decisions related to any DLR license that has been revoked, suspended or denied)) If the background check is being conducted by Children's Administration for placement of a child in out-of-home care, including foster homes, adoptive homes, relative placements, and placement with other suitable persons under chapter 13.34 RCW, the department must check the following in addition to the requirements above for each person over eighteen years of age residing in the home:

(i) Child abuse and neglect registries in each state a person has lived in the five years prior to conducting the background check.

(ii) Washington state patrol (WSP) and federal bureau of investigation (FBI) fingerprint based background checks regardless of how long you have resided in Washington.

(2) The department may also review:

(a) Any civil judgment, determination or disciplinary board final decisions of child abuse or neglect.

(b) Law enforcement records of convictions and pending charges in other states or locations if:

(i) You have lived in another state.

(ii) Reports from other credible sources indicating a need to investigate another state's records.

(((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 with the Washington state patrol (WSP) and the Federal Bureau of Investigation (FBI), as mandated by chapter 74.15 RCW.))

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0150, filed 8/27/01, effective 10/1/01.]


AMENDATORY SECTION(Amending WSR 01-18-025, filed 8/27/01, effective 10/1/01)

WAC 388-06-0160   Who pays for the background check?   (1) Children's administration (CA) pays ((for)) the DSHS general administrative costs for background checks for foster home applicants, CA relative and other suitable caregivers, and CA adoptive home applicants.

(2) Children's administration pays ((for fingerprinting expenses)) the WSP and FBI-fingerprint processing fees for ((those)) foster home applicants ((and relatives)), CA relative and other suitable caregivers, CA adoptive home applicants, and other adults in the home who require fingerprinting under chapter 13.34 RCW.

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

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

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0160, filed 8/27/01, effective 10/1/01.]

Washington State Code Reviser's Office