WSR 08-22-039

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Management Services Administration)

[ Filed October 30, 2008, 3:04 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 07-11-097.

Title of Rule and Other Identifying Information: The department is amending WAC 388-06-0010 Purpose; and creating the following new sections WAC 388-06-0600 Background checks for employees and applicants for a covered position, 388-06-0605 Definition -- Covered position, 388-06-0610 Definition -- Vulnerable adults, juveniles and children, 388-06-0615 Definition -- Unsupervised access, 388-06-0620 Information considered and how results are used for a DSHS background check, 388-06-0625 Requirement for DSHS employees and applicants to authorize a background check and consequences for denying authorization, 388-06-0630 DSHS actions when a permanent employee is disqualified because of background check or refusal to authorize a background check, 388-06-0635 DSHS secretary's responsibilities in carrying out the requirements to conduct background checks, and 388-06-0640 A permanent DSHS employee who is disqualified from a covered position -- Right to request a review by DSHS secretary or designee.

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6094), on December 9, 2008, at 10:00 a.m.

Date of Intended Adoption: Not earlier that December 10, 2008.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by

5 p.m. on December 9, 2008.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by November 25, 2008, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: DSHS is proposing these rules to comply with RCW 43.43.832 and make permanent the emergency rules originally filed on July 20, 2007. These rules describe the requirements related to background checks for DSHS employees and applicants.

Reasons Supporting Proposal: RCW 43.43.832 requires the department of social and health services to adopt employee background check rules and standards. Chapter 387, Laws of 2007 (ESSB 5774) repealed the department of personnel (DOP) statute which required DOP to adopt DSHS employee background check rules. DOP repealed DSHS employee rules effective July 22, 2007.

Statutory Authority for Adoption: RCW 43.43.832, 43.20A.710.

Statute Being Implemented: RCW 43.43.832, 43.20A.710.

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

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Cindy LaRose, P.O. Box 45025, Olympia, WA 98504-5025, (360) 902-8072.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules apply to internal agency operations only and are exempt from the requirement for a small business economic impact statement.

A cost-benefit analysis is not required under RCW 34.05.328. These rules apply to internal agency operations only and are exempt from the requirement as described in RCW 34.05.328 (5)(b)(ii).

October 29, 2008

Stephanie E. Schiller

Rules Coordinator

3903.2
AMENDATORY SECTION(Amending WSR 01-18-025, filed 8/27/01, effective 10/1/01)

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

(3) WAC 388-06-0600 through 388-06-0640 of this chapter includes the background check requirements for DSHS employees and applicants seeking, working or serving in a covered position.

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0010, filed 8/27/01, effective 10/1/01.]


NEW SECTION
WAC 388-06-0600   Must the DSHS secretary or designee conduct background checks on all employees in covered positions and applicants under consideration for a covered position?   (1) The secretary of the department of social and health services (DSHS) or designee must conduct a background check, which may include fingerprinting as authorized by statute, on all employees in covered positions and applicants under final consideration for a covered position.

(2) The requirement to conduct a background check must include the following:

(a) Any employee seeking a covered position because of a layoff, reallocation, transfer, promotion or demotion or otherwise requesting a move to a covered position.

(b) Any applicant prior to appointment to a covered position, except when the appointment is made on a conditional basis in accordance with agency procedures authorized by WAC 388-06-0635.

(3) Applicant means any person who has applied for work or serves in a covered position, including current employees requesting transfer, promotion, demotion, or otherwise requesting a move to a covered position.

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NEW SECTION
WAC 388-06-0605   What is a covered position?   A covered position is one in which a person will or may have unsupervised access to vulnerable adults, juveniles or children.

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NEW SECTION
WAC 388-06-0610   Who are vulnerable adults, juveniles or children?   (1) Vulnerable adult means a person who is a client of DSHS and/or is:

(a) Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself;

(b) Found incapacitated under chapter 11.88 RCW;

(c) Developmental disabled as defined under RCW 71A.10.020;

(d) Admitted to any facility that is operated by DSHS;

(e) Receiving services from a DSHS contracted, authorized, certified, licensed or individual provider, including those certified under chapter 70.96A RCW;

(f) Receiving services through home health, hospice, or home care agencies required to be licensed under chapter 70.127 RCW; or

(g) Admitted to detoxification in a certified chemical dependency treatment facility in accordance with chapter 70.96A RCW.

(2) Juvenile means a person under the age of twenty-one under the juvenile rehabilitation administration's (JRA) jurisdiction, or under the department of corrections's jurisdiction while placed in a JRA facility.

(3) Child or children means any person under eighteen years of age.

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NEW SECTION
WAC 388-06-0615   What is unsupervised access?   Unsupervised access means a DSHS employee, volunteer or student intern who:

(1) Works or serves in a setting, such as an institution, that provides residential services to vulnerable adults, juveniles and children;

(2) Works or serves in a position where, during the course of his or her employment, the employee may transport, or visit the residence of, a vulnerable adult, juvenile or child; or

(3) Works or serves in a position, other than one described in (1) and (2) above, where the employee may be left alone with a vulnerable adult, juvenile or child. "Left alone" does not include the possibility of a public encounter, or public interaction.

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NEW SECTION
WAC 388-06-0620   What information is considered in a background check conducted by DSHS and what are the results of the background check used for?   (1) The background check information considered by the DSHS secretary will include but is not limited to conviction records, pending charges, and civil adjudications as defined in RCW 43.43.830.

(2) The background information must be used by DSHS to determine the character, competence, and suitability of the applicant and/or employee to have unsupervised access to vulnerable adults, juveniles and children.

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NEW SECTION
WAC 388-06-0625   Must an employee and/or applicant authorize the secretary of the department of social and health services or designee to conduct a background check and what happens if the employee or applicant does not provide authorization?   (1) An employee and/or applicant applying for or being considered for retention in a covered position must authorize the secretary of DSHS or designee to conduct a background check which may include fingerprinting.

(2) Failure to authorize the DSHS secretary or designee to conduct a background check disqualifies an employee or applicant from consideration for any covered position including their current covered position.

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NEW SECTION
WAC 388-06-0630   What happens when a permanent DSHS employee is disqualified because of a background check or failure to authorize a background check?   (1) A DSHS employee who fails to authorize a background check or who is disqualified based on a background check and character, competence, and suitability assessment will be denied unsupervised access to vulnerable adults, juveniles and children.

(2) A permanent employee with a background check disqualification or who fails to authorize a background check may be subject to any of the following actions in no specific order:

(a) Denial of a transfer, promotion, demotion, or elevation;

(b) Job restructuring;

(c) Job reassignment or transfer to a noncovered position;

(d) Nondisciplinary separation;

(e) Disciplinary action;

(f) Voluntary demotion to a noncovered position;

(g) Voluntary resignation from employment.

(3) An appointing authority may use the following interim measures or any combination while deciding which action to take. Use of these interim measures will generally not exceed thirty calendar days except in the case of ongoing investigations or 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; or

(c) Reassignment to another work location to prevent unsupervised access.

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

(4) Before an appointing authority implements the nondisciplinary separation of a permanent employee, a search for a noncovered position that is vacant, funded and for which the employee meets the skills and abilities will occur for a period of thirty calendar days. The search will be conducted in accordance with the layoff requirements listed in applicable collective bargaining agreements and DSHS administrative policies.

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NEW SECTION
WAC 388-06-0635   What are the DSHS secretary's responsibilities in carrying out the requirements to conduct background checks?   (1) The DSHS secretary or designee will:

(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) Use information contained in a background check for the purpose of determining the character, competence, and suitability of the applicant and/or employee to have unsupervised access to vulnerable adults, juveniles and children.

(2) The DSHS secretary or designee will not further disseminate background check information unless authorized or required by law to do so. In addition, results of a background check may be discoverable pursuant to the rules of civil discovery, or subject to disclosure pursuant to a public records request.

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NEW SECTION
WAC 388-06-0640   Does a DSHS permanent employee who is disqualified from a covered position as a result of a background check have the right to request a review of the disqualification?   A DSHS permanent employee who is disqualified from a covered position as a result of a background check has the right to present the DSHS secretary or designee evidence that may mitigate the disqualifying background information identified by the department. The permanent employee may present additional information for consideration that includes, but is not limited to:

(1) The employee's background check authorization and disclosure form;

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

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

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

(5) The nature and number of previous offenses;

(6) Vulnerability of the child, vulnerable adult, or individual with mental illness or developmental disabilities to which the employee will or may have unsupervised access; and

(7) The relationship between the potentially disqualifying event and the duties of the employee.

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Washington State Code Reviser's Office