WSR 11-22-101

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Financial Services Administration)

[ Filed November 2, 2011, 9:10 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-17-135.

Title of Rule and Other Identifying Information: The operations support and services division, background check central unit, is amending the following sections of chapter 388-06 WAC related to division of developmental disabilities long-term care fingerprint check requirements; WAC 388-06-0110(1) Who must have background checks? and 388-06-0150(5) What does the background check cover?

Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on December 6, 2011, at 10:00 a.m.

Date of Intended Adoption: Not earlier than December 7, 2011.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on December 6, 2011.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by November 22, 2011, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed changes are limited to changing the effective date for long-term care fingerprint check requirements for division of developmental disabilities services providers and reorganizing the subsections for clarity. This rule making is necessary to comply with ESHB 1548, passed by the legislature in 2011, which postpones the effective date for implementation of long-term care fingerprint check requirements to January 2014. These changes do not impose new background check requirements or change existing background check requirements except for changing the effective date for long-term care fingerprint checks.

Reasons Supporting Proposal: Same as above.

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

Statute Being Implemented: RCW 74.39A.050, 74.39A.055, 74.39A.095, 74.39A.260, 43.20A.710, 43.43.837.

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: Cindy LaRose-Eatwell, P.O. Box 45025, Olympia, WA 98504-5025, (360) 902-8072; Implementation and Enforcement: Shaw Seaman, P.O. Box 45310, Olympia, WA 98504-5310, (360) 902-3443.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule is exempt under RCW 19.85.025(3): Rule amendments to WAC 388-06-0110(1) and 388-06-0150(5) are explicitly and specifically dictated by statute or rule amendments [to] clarify language without changing the effect.

A cost-benefit analysis is not required under RCW 34.05.328. WAC 388-06-0110(1) and 388-06-0150(5) of this rule are exempt from preparing further analysis under RCW 34.05.328 (5)(b)(iv) and (v), rule content is explicitly and specifically dictated by statute or rule amendments [to] clarify language without changing the effect.

October 24, 2011

Katherine I. Vasquez

Rules Coordinator

4337.1
AMENDATORY SECTION(Amending WSR 10-16-083, filed 7/30/10, effective 8/30/10)

WAC 388-06-0110   Who must have background checks?   (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, 74.39A.055, 74.39A.050, 74.39A.095, 74.39A.260, 43.20A.710, and 43.43.837. 10-16-083, 388-06-0110, filed 7/30/10, effective 8/30/10. 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 10-16-083, filed 7/30/10, effective 8/30/10)

WAC 388-06-0150   What does the background check cover?   (1) The department must review 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) Washington state patrol.

(b) 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 checks conducted for children's administration also include:

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

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

(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, include the following for each person over eighteen years of age residing in the home:

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

(b) Washington state patrol (WSP) and Federal Bureau of Investigation (FBI) fingerprint-based background checks regardless of how long you have resided in Washington.

(5) The division of developmental disabilities requires fingerprint-based FBI 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)) 2014 per RCW 74.39A.055. Effective January 1, 2014 parents are not exempt from background check requirements. These fingerprint background checks include a review of Washington State Patrol criminal records and the national sex offender registry.

[Statutory Authority: RCW 43.43.832, 74.39A.055, 74.39A.050, 74.39A.095, 74.39A.260, 43.20A.710, and 43.43.837. 10-16-083, 388-06-0150, filed 7/30/10, effective 8/30/10. 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.]

Washington State Code Reviser's Office