WSR 10-16-083

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Financial Services Administration)

[ Filed July 30, 2010, 11:22 a.m. , effective August 30, 2010 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The financial services administration is proposing these rules to comply with Initiative 1029 and chapter 580, Laws of 2009, requiring DSHS to conduct national fingerprint background checks for all long-term care workers beginning January 1, 2012, and requiring DSHS to share the results of long-term care background checks with the department of health. These rule changes describe the background check requirements for long-term care workers contracted or hired by the division of developmental disabilities; describe the responsibilities of the DSHS background check central unit; and include clarifying changes.

Citation of Existing Rules Affected by this Order: Amending WAC 388-06-0010, 388-06-0020, 388-06-0110, 388-06-0130, 388-06-0150, 388-06-0160, 388-06-0180, 388-06-0250, and 388-06-0525.

Statutory Authority for Adoption: RCW 43.43.832, 74.39A.055.

Other Authority: RCW 74.39A.050 and [74.39A.]055, 74.39A.095, 74.39A.260, 43.20A.710, 43.43.837.

Adopted under notice filed as WSR 10-11-034 on May 11, 2010.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 3, Amended 9, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 3, Amended 9, Repealed 0.

Date Adopted: July 27, 2010.

Katherine I. Vasquez

Rules Coordinator

4203.3
AMENDATORY SECTION(Amending WSR 09-03-003, filed 1/8/09, effective 2/8/09)

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)) or civil adjudication proceedings, including those involving abuse, abandonment, financial exploitation, or neglect of a child or vulnerable adult.

(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.

(4) WAC 388-06-0700 through 388-06-0720 of this chapter describes the responsibilities of the background check central unit.

[Statutory Authority: RCW 43.43.832, 43.20A.710, and 2007 c 387. 09-03-003, 388-06-0010, filed 1/8/09, effective 2/8/09. Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0010, filed 8/27/01, effective 10/1/01.]


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

WAC 388-06-0020   What definitions apply to WAC 388-06-0100 through 388-06-0260 of this chapter?   The following definitions apply to WAC 388-06-0100 through 388-06-0260 of this chapter:

"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, allowed to receive payments from department funded programs, or volunteer.

"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)) and "youth" ((means)) are used interchangeably in this chapter and refer to 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.))

"Civil adjudication proceeding" is a judicial or administrative adjudicative proceeding that results in a finding of, or upholds an agency finding of, domestic violence, abuse, sexual abuse, neglect, abandonment, violation of a professional licensing standard regarding a child or vulnerable adult, or exploitation or financial exploitation of a child or vulnerable adult under any provision of law, including but not limited to chapter 13.34, 26.44 or 74.34 RCW, or rules adopted under chapters 18.51 and 74.42 RCW. "Civil adjudication proceeding" also includes judicial or administrative findings that become final due to the failure of the alleged perpetrator to timely exercise a legal right to administratively challenge such findings.

"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 a 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)) Intellectual disability, cerebral palsy, epilepsy, autism, or another neurological condition described in ((WAC 388-825-030)) chapter 388-823 WAC; originates before the age of eighteen years; is expected to continue indefinitely; and ((results in)) constitutes a substantial ((handicap)) limitation to the individual.

"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) The licensee, another employee or volunteer from the same business or organization as the applicant who has not been disqualified by the background check.

(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.

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0020, filed 8/27/01, effective 10/1/01.]


AMENDATORY SECTION(Amending WSR 09-06-028, filed 2/24/09, effective 3/6/09)

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, relative's 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;

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

(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

(9) Prospective adoptive parents)) (1) Per RCW 74.15.030, the department requires background checks on all providers who may have unsupervised access to children or individuals with a developmental disability. This includes licensed, certified or contracted providers, their current or prospective employees and prospective adoptive parents as defined in RCW 26.33.020.

(2) Per RCW 74.39A.055, the department requires state and federal background checks on all long-term care workers for the elderly or persons with disabilities hired or contracted after January 1, 2012.

(a) This does not include long-term care workers qualified and contracted or hired on or before December 31, 2011.

(b) Parents are not exempt from the long-term care background check requirements.

(3) Per RCW 74.15.030, the department also requires background checks on other individuals who may have unsupervised access to children or to individuals with a developmental disability in department licensed or contracted homes, or facilities which provide care. The department requires background checks on the following people:

(a) A volunteer or intern with regular or unsupervised access to children;

(b) Any person who regularly has unsupervised access to a child or an individual with a developmental disability;

(c) A relative other than a parent who may be caring for a child;

(d) 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.

[Statutory Authority: RCW 43.43.832, 26.33.190, 26.44.030, 74.15.030, 2007 c 387 and Adam Walsh Act of 2006. 09-06-028, 388-06-0110, filed 2/24/09, effective 3/6/09. 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 388-06-0130   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?   (1) For children's administration these regulations apply to all applications for new and renewal licenses, contracts, certifications, and authorizations to have unsupervised access to children ((and)) or individuals with a developmental disability that are processed by the ((department)) children's administration after the effective date of this chapter.

(2) For the division of developmental disabilities these regulations apply to any of the following that may involve unsupervised access to children and individuals with a developmental disability:

(a) Initial contracts, licenses or certifications and renewals as required by the applicable DDD background check renewal schedule and program regulations; and

(b) Any contract, license or certification renewal when there was a lapse of one day or more following expiration.

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0130, filed 8/27/01, effective 10/1/01.]


AMENDATORY SECTION(Amending WSR 09-06-028, filed 2/24/09, effective 3/6/09)

WAC 388-06-0150   What does the background check cover?   (1) The department must review ((the following records)) criminal convictions and pending charges based on identifying information provided by you. The background check may include but is not limited to the following information sources:

(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)) Washington state patrol.

(b) ((If the)) Washington courts.

(c) Department of corrections.

(d) Department of health.

(e) Civil adjudication proceedings.

(f) Applicant's self-disclosure.

(g) Out-of-state law enforcement and court records.

(2) Except as required in WAC 388-06-0150 (4)(b) and (5), children's administration and division of developmental disabilities will conduct a fingerprint-based background check on any individual who has lived in Washington state for less than three years.

(3) Background ((check is being)) checks conducted for children's administration((, it must)) also include:

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

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

(((c) If the background check is being)) (4) In addition to the requirements in subsections (1) through (3) of this section, background checks 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)) include the following for each person over eighteen years of age residing in the home:

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

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

(((2))) (5) 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)) division of developmental disabilities requires fingerprint-based background checks for all long-term care workers as defined in RCW 74.39A.009(16) hired or contracted on or after January 1, 2012. These background checks must include a review of conviction records through the Washington state patrol, the federal bureau of investigation, and the national sex offender registry.

[Statutory Authority: RCW 43.43.832, 26.33.190, 26.44.030, 74.15.030, 2007 c 387 and Adam Walsh Act of 2006. 09-06-028, 388-06-0150, filed 2/24/09, effective 3/6/09. Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0150, filed 8/27/01, effective 10/1/01.]


AMENDATORY SECTION(Amending WSR 09-06-028, filed 2/24/09, effective 3/6/09)

WAC 388-06-0160   Who pays for the background check?   (1) Children's administration (CA) pays 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 the WSP and FBI-fingerprint processing fees for foster home applicants, CA relative and other suitable caregivers, CA adoptive home applicants, and other adults ((in)) associated with the home who require ((fingerprinting)) background clearances under chapter 13.34 RCW.

(3) Children's administration does not pay ((fingerprinting)) WSP and FBI fingerprint processing fees or expenses for employees, contractors, or volunteers associated with ((any)) facilities other ((type of home or facility)) than foster homes.

(4) The division of developmental disabilities pays for background checks, including fingerprint-based background checks, for individuals seeking authorization to provide services to ((their)) clients of the division.

[Statutory Authority: RCW 43.43.832, 26.33.190, 26.44.030, 74.15.030, 2007 c 387 and Adam Walsh Act of 2006. 09-06-028, 388-06-0160, filed 2/24/09, effective 3/6/09. Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0160, filed 8/27/01, effective 10/1/01.]


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

WAC 388-06-0180   Are there other criminal convictions that will prohibit me from working with children or individuals with a developmental disability?   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:

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

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

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

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

(a) The imitation controlled substances act (for substances that are falsely represented as controlled substances (see chapter 69.52 RCW));

(b) The legend drug act (prescription drugs, see chapter 69.41 RCW);

(c) The precursor drug act (substances used in making controlled substances, see chapter 69.43 RCW);

(d) The uniform controlled substances act (illegal drugs or substances, see chapter 69.50 RCW); or

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

(5) Any federal or out-of-state conviction for an offense that under the laws of ((this)) Washington state would disqualify you for no less than five years from having unsupervised access to children or individuals with a developmental ((disabilities in your home or facility no less than five years from a conviction listed in this section)) disability.

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0180, filed 8/27/01, effective 10/1/01.]


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

WAC 388-06-0250   Is the background check information released to my employer or prospective employer?   (1) ((The department)) Children's administration 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) Division of developmental disabilities will release the source of the disqualifying crime or negative action and WSP rap sheet to authorized requesters as allowed by state law.

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

[Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0250, filed 8/27/01, effective 10/1/01.]


AMENDATORY SECTION(Amending WSR 01-15-019, filed 7/10/01, effective 8/10/01)

WAC 388-06-0525   When are individuals eligible for the one hundred twenty-day provisional hire?   Individuals are eligible for the one hundred twenty-day provisional hire immediately. The signed background check application and ((two FBI fingerprint cards must be sent to the BCCU within forty-eight hours by the agency, entity or hiring individual)) fingerprinting process must be completed as required by the applicable DSHS program.

[Statutory Authority: Chapter 43.20A RCW, RCW 72.05.440 and 74.15.030. 01-15-019, 388-06-0525, filed 7/10/01, effective 8/10/01.]

BACKGROUND CHECK CENTRAL UNIT
NEW SECTION
WAC 388-06-0700   What definitions apply to WAC 388-06-0710 through 388-06-0720?   "Authorized entity" means a department of social and health services program, service provider, licensee, contractor, or other public or private agency that has permission from the department to conduct background checks through the background check central unit.

"Background check applicant" means an employee, volunteer, student, intern, licensee, service provider, contractor or other individual who is the subject of the background check and who will work in a position that:

(1) May have unsupervised access to vulnerable adults, juveniles or children as described in WAC 388-06-0610; or

(2) Is designated by the department as a sensitive position.

"Background check central unit" is the program responsible for conducting background checks for the department of social and health services.

(1) The background check central unit is responsible for:

(a) Compiling background check information from external and internal data sources; and

(b) Providing information to the authorized entity who requested the background check.

(2) The background check central unit does not:

(a) Make the final hiring, contracting, placement, or licensing decision for the department or authorized entity; or

(b) Determine what program, service provider, licensee, contractor, or other public or private agency qualifies as an authorized entity.

"Department" means the department of social and health services.

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NEW SECTION
WAC 388-06-0710   Who may submit a background check to the background check central unit?   An authorized entity may request a background check through the background check central unit when the authorized entity has:

(1) A valid background check central unit account number;

(2) A current department background authorization form filled out and signed by the applicant; and

(3) Submitted the background check request under the applicable program requirements.

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NEW SECTION
WAC 388-06-0720   Who receives the results of a background check conducted by the background check central unit?   (1) The background check central unit follows laws related to the release of criminal history records (chapter 10.97 and 43.43 RCW), public disclosure (chapter 42.56 RCW); and other applicable laws when releasing background information.

(2) The authorized entity who submits a background check request receives a copy of the background check results.

(3) The background check applicant may request a copy of his or her background check results.

(4) As required in RCW 74.39A.055(2), the department will share the results of state and national background checks with the Washington department of health to satisfy its certification responsibilities under chapter 18.88B RCW.

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Washington State Code Reviser's Office