Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-05-088.

     Title of Rule and Other Identifying Information: The department intends to amend WAC 388-76-10025 License annual fee, 388-76-10146 Qualifications -- Training and home care aide certification, 388-76-10160 Background check -- General, 388-76-10161 Background check-Washington state -- Who is required to have, 388-76-10163 Background check -- Process, 388-76-10164 Background check -- Results, 388-76-10165 Background check -- Valid for two years, 388-76-10175 Background check -- Employment -- Conditional hire -- Pending results, 388-76-10180 Background checks -- Employment -- Disqualifying information, 388-76-10200 Adult family home -- Staff -- Availability -- Contact information, and 388-76-10955 Remedies -- Department must impose remedies.

     The department intends to repeal WAC 388-76-10162 Background check -- National fingerprint checks -- Who is required to have.

     The department intends to add new sections WAC 388-76-101631 Background checks -- Process -- Washington state name and date of birth background check, 388-76-101632 Background checks -- Process -- National fingerprint background check, 388-76-10166 Background checks -- Household members, noncaregiving and unpaid staff -- Unsupervised access, 388-76-10176 Background checks -- Employment -- Provisional hire -- Pending results of national fingerprint background check, and 388-76-10181 Background checks -- Employment -- Nondisqualifying information.

     Hearing Location(s): Office Building 2, Lookout Room, 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 June 5, 2012, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than June 6, 2012.

     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 June 5, 2012.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by May 22, 2012, 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: The department is amending these rules to comply with and be consistent with Initiative 1163, ESHB 1277 as codified in chapter 70.128 RCW, and ESHB 2314. In addition to implementing Initiative 1163, ESHB 1277 and 2314 the department is going to clarify the provision related to disqualifying crimes related to drugs.

     Reasons Supporting Proposal: See above.

     Statutory Authority for Adoption: RCW 70.128.040.

     Statute Being Implemented: Chapter 70.128 RCW.

     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: Mike Tornquist, P.O. Box 45600, Olympia, WA 98513, (360) 725-3204; Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98513, (360) 725-2404.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025(3), a small business economic impact statement is not required for rules adopting or incorporating, by reference without material change, Washington state statutes or federal statutes or regulations.

     A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b), a cost-benefit analysis is not required for rules that are explicitly dictated in statute and that only correct typographical errors, make address changes, or clarify language of rule without changing its effect.

April 16, 2012

Katherine I. Vasquez

Rules Coordinator

     (2) ((The home must send)) Each year, the home's annual license fee ((to the department upon receipt of notice of fee due)) is due during the same month in which the home was initially licensed. For example, if the home was licensed in June, 2010, then the annual licensing fee will be due in June of each year.

     (3) ((If)) The home must ensure that the department receives the annual license fee when it is due.

     (4) If the home does not pay the fee when it is due, the department will impose remedies.

[Statutory Authority: Chapter 70.128 RCW. 12-01-004, § 388-76-10025, filed 12/7/11, effective 1/7/12. Statutory Authority: RCW 70.128.040. 09-21-075, § 388-76-10025, filed 10/16/09, effective 11/16/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10025, filed 10/16/07, effective 1/1/08.]

     (1) The applicant has not successfully completed a department-approved forty-eight hour adult family home administration and business planning class except as provided in WAC 388-76-10064.

     (2) It has been less than twenty years since the applicant surrendered or relinquished an adult family home license after receiving notice ((that)) of the department's ((intended to deny, suspend, not renew or revoke)) initiation of a denial, suspension, nonrenewal or revocation of the license.

     (3) The applicant or the applicant's spouse, domestic partner, or any partner, officer, director, managerial employee or majority owner of the applying entity:

     (a) Has a history of significant noncompliance with federal or state laws or regulations in the provision of care or services to children or vulnerable adults;

     (b) Has prior violations of federal or state laws or regulations relating to residential care facilities resulting in revocation, suspension, or nonrenewal of a license or contract with the department within the past ten years;

     (c) Has been convicted of a crime in federal court or in any other state, and the department determines that the crime is equivalent to a crime under subsections (3)(c), (d), (e), (f), or (g) below;

     (d) Has been convicted of a "crime against children or other persons" as defined in RCW 43.43.830, unless the crime is simple assault, assault in the fourth degree, or prostitution and more than three years has passed since conviction;

     (e) Has been convicted of "crimes relating to financial exploitation" as defined in RCW 43.43.830, unless the crime is theft in third degree and more than three years have passed since conviction, or unless the crime is forgery or theft in the second degree and more than five years has passed since conviction;

     (f) Has been convicted of the manufacture, delivery, or possession with intent to manufacture or deliver drugs under one of the following laws:

     (i) Violation of the Imitation Controlled Substance Act (VICSA);

     (ii) Violation of the Uniform Controlled Substances Act (VUCSA);

     (iii) Violation of the Uniform Legend Drug Act (VULDA); or

     (iv) Violation of the Uniform Precursor Drug Act (VUPDA).

     (g) Has been convicted of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;

     (h) Has been convicted of criminal mistreatment;

     (i) Has been found to have abused, neglected, exploited, or abandoned a minor or vulnerable adult by court of law or a disciplining authority, including the department of health. Examples of legal proceedings in which such findings could be made include juvenile court proceedings under chapter 13.34 RCW, domestic relations proceeding under Title 26 RCW, and vulnerable adult protection proceedings under chapter 74.34 RCW;

     (j) Has a finding of abuse or neglect of a child that is:

     (i) Listed on the department's background check central unit (BCCU) report; or

     (ii) Disclosed by the individual, except for findings made before December, 1998.

     (k) Has a finding of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult that is:

     (i) Listed on any registry, including the department's registry;

     (ii) Listed on the department's background check central unit (BCCU) report; or

     (iii) Disclosed by the individual, except for adult protective services findings made before October, 2003.

[Statutory Authority: Chapter 70.128 RCW. 12-01-004, § 388-76-10120, filed 12/7/11, effective 1/7/12. Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10120, filed 1/15/10, effective 2/15/10; 09-03-028, § 388-76-10120, filed 1/12/09, effective 2/12/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10120, filed 10/16/07, effective 1/1/08.]

     (2) The adult family home must ensure all adult family home caregivers, entity representatives, and resident managers hired on or after January 7, 2012, meet the long-term care worker training requirements of chapter 388-112 WAC, including but not limited to:

     (a) Orientation and safety;

     (b) Basic;

     (c) Specialty for dementia, mental illness and/or developmental disabilities when serving residents with any of those primary special needs;

     (d) Cardiopulmonary resuscitation and first aid; and

     (e) Continuing education.

     (3) All persons listed in subsection (1) of this section, must obtain the home-care aide certification if required by chapter 246-980 WAC.

     (4) All adult family home applicants on or after January 7, 2012, must meet the long-term care worker training requirements of chapter 388-112 WAC and obtain the home-care aide certification if required by chapter 246-980 WAC.

     (5) Under RCW 18.88B.040 and chapter 246-980 WAC, certain persons including registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved certified nursing assistant program are exempt from home-care aide certification and long-term care worker training requirements. Continuing education requirements still apply as outlined in chapter 388-112 WAC.

     (6) The adult family home must ensure that all staff receive the orientation and training necessary to perform their job duties.

     (((7) The adult family home must ensure that a qualified caregiver is on-site whenever a resident is at the adult family home. For purposes of this subsection, a qualified caregiver means someone who has successfully completed orientation and basic training.))

[Statutory Authority: Chapter 70.128 RCW. 12-01-004, § 388-76-10146, filed 12/7/11, effective 1/7/12. Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10146, filed 7/30/10, effective 1/1/11.]

     (((1))) (a) Washington state name and date of birth background checks ((including:

     (a) Department and department of health findings; and

     (b) Criminal background check information from the Washington state patrol and the Washington state courts.)); and

     (((2))) (b) After ((January 1, 2012)) January 7, 2012, a national fingerprint((-based)) background check in accordance with RCW ((74.39A.055)) 74.39A.056.

     (((3))) (2) Nothing in this ((section)) chapter should be interpreted as requiring the employment of any person against the better judgment of the adult family home.

     (((4))) (3) In addition to chapter 70.128 RCW, these rules are authorized by RCW 43.20A.710, 43.43.830 through 43.43.842 and RCW ((74.39A.050(8))) 74.39A.051(8).

[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10160, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10160, filed 10/16/07, effective 1/1/08.]

     (b) If applying after January 7, 2012, a national fingerprint background check.

     (2) The adult family home must ensure ((the following individuals)) that all caregivers, entity representatives, and resident managers who are employed directly or by contract after January 7, 2012, have ((Washington state)) the following background checks:

     (a) ((Caregivers, including volunteers and students who may have unsupervised access to residents)) A Washington state name and date of birth background check; and

     (b) ((Entity representatives;

     (c) Resident managers; and

     (d) All household members over the age of eleven who may have unsupervised access to residents)) A national fingerprint background check.

     (3) All household members over the age of eleven, volunteers, students, and noncaregiving staff who may have unsupervised access to residents must have a Washington state name and date of birth background check. They are not required to have a national fingerprint background check.

[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10161, filed 7/30/10, effective 1/1/11.]

     (1) Require the person to complete a DSHS background authorization form; and

     (2) Send the completed form to the department's background check central unit (BCCU), including any additional documentation and information requested by the department.

[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10163, filed 7/30/10, effective 1/1/11.]

     (2) After receiving the results of the Washington state name and date of birth background check, the adult family home must:

     (a) Not employ, directly or by contract, a caregiver, entity representative or resident manager convicted of disqualifying crime or a disqualifying finding under WAC 388-76-10180.

     (b) Not allow a household member over the age of eleven, volunteer, student or noncaregiving staff to have unsupervised access to residents if they have been convicted of a disqualifying crime or disqualifying finding under WAC 388-76-10180.

[]

     (2) Before receiving the results of the national fingerprint background check, the adult family home may provisionally employ, directly or by contract, a caregiver, entity representative or resident manager as provided in WAC 388-76-10176.

     (3) After receiving the results of the national fingerprint background check the adult family home must not employ, directly or by contract, a caregiver, entity representative or resident manager who has been convicted of a disqualifying crime or who has a disqualifying finding under WAC 388-76-10180.

     (4) The provider may accept a copy of a national fingerprint background check result letter and any additional information from the department's background check central unit (BCCU) from an individual who previously completed a national fingerprint background check through the BCCU, provided the national fingerprint background check was completed after January 7, 2012.

[]

     (3))) After receiving the results of the Washington state name and date of birth background check, the adult family home must:

     (a) Inform the person of the results of the background checks;

     (b) Inform the person that they may request a copy of the results of the background check. If requested, a copy of the background check results must be provided within ten days of the request; and

     (c) Notify the department and the other appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record.

     (2) After receiving a copy of the results of the national fingerprint background check, the adult family home must:

     (a) Inform the person of the results of the background check; and

     (b) Inform the person that they may request a copy of the results of the national fingerprint background check result letter and that any additional information can only be obtained from the department's background check central unit.

[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10164, filed 7/30/10, effective 1/1/11.]

     (((1))) (a) A new DSHS background authorization form is submitted to the department's background check central unit (BCCU) every two years for all individuals listed in WAC 388-76-10161;

     (((2))) (b) There is a valid Washington state background check for all individuals listed in WAC 388-76-10161.

     (2) A national fingerprint background check is valid for an indefinite period of time. The adult family home must ensure there is a valid national fingerprint background check for individuals hired after January 7, 2012 as caregivers, entity representatives or resident managers. To be considered valid, the individual must have completed the national fingerprint background check through the BCCU after January 7, 2012.

[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10165, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10165, filed 10/16/07, effective 1/1/08.]

     (2) If any background check results show that the person has a conviction or finding that is not automatically disqualifying under WAC 388-76-10180, then the adult family home must:

     (a) Determine whether or not the person has the character, competence and suitability to have unsupervised access to residents; and

     (b) Document in writing the basis for making the decision.

[]

     (1) ((Requests)) Submits the Washington state name and date of birth background check no later than one business day after conditional employment;

     (2) Requires the individual to sign a disclosure statement and the individual denies having been convicted of a disqualifying crime or a disqualifying finding under WAC 388-76-10180;

     (3) Does not allow the individual to have unsupervised access to any resident;

     (4) Ensures direct supervision, ((of the individual,)) as defined in WAC 388-76-10000, of the individual; and

     (5) Ensures the individual is competent and receives the necessary training to perform assigned tasks and meets the staff training requirements under chapter 388-112 WAC.

[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10175, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10175, filed 10/16/07, effective 1/1/08.]

     (1) The individual is not disqualified based on the results of the Washington state name and date of birth background check; and

     (2) The results of the national fingerprint background check are pending.

[]

     (1))) any of the convictions, history, or findings, described below:

     (((a))) (1) Has a history of significant noncompliance with federal or state laws or regulations in the provision of care or services to children or vulnerable adults;

     (((b))) (2) Has been convicted of a crime in federal court or in any other state, and the department determines that the crime is equivalent to a crime under subsections (c), (d), (e), (f), or (g) below;

     (((c))) (3) Has been convicted of a "crime against children or other persons" as defined in RCW 43.43.830, unless the crime is simple assault, assault in the fourth degree, or prostitution and more than three years has passed since conviction;

     (((d))) (4) Has been convicted of "crimes relating to financial exploitation" as defined in RCW 43.43.830, unless the crime is theft in third degree and more than three years have passed since conviction, or unless the crime is forgery or theft in the second degree and more than five years has passed since conviction;

     (((e))) (5) Has been convicted of the manufacture, delivery, or possession with intent to manufacture or deliver drugs under one of the following laws:

     (((i))) (a) Violation of the Imitation Controlled Substances Act (VICSA);

     (((ii))) (b) Violation of the Uniform Controlled Substances Act (VUCSA);

     (((iii))) (c) Violation of the Uniform Legend Drug Act (VULDA); or

     (((iv))) (d) Violation of the Uniform Precursor Drug Act (VUPDA).

     (((f))) (6) Has been convicted of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;

     (((g))) (7) Has been convicted of criminal mistreatment;

     (((h))) (8) Has been found to have abused, neglected, financially exploited, or abandoned a minor or vulnerable adult by court of law or a disciplining authority, including the department of health. Examples of legal proceedings in which such findings could be made include juvenile court proceedings under chapter 13.34 RCW, domestic relations proceeding under Title 26, RCW, and vulnerable adult protection proceedings under chapter 74.34 RCW;

     (((i))) (9) Has a finding of abuse or neglect of a child that is:

     (((i))) (a) Listed on the department's background check central unit (BCCU) report; or

     (((ii))) (b) Disclosed by the individual, except for findings made before December, 1998.

     (((j))) (10) Has a finding of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult that is:

     (((i))) (a) Listed on any registry, including the department's registry;

     (((ii))) (b) Listed on the department's background check central unit (BCCU) report; or

     (((iii))) (c) Disclosed by the individual, except for adult protective services findings made before October, 2003.

     (((2) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the adult family home.))

[Statutory Authority: RCW 70.128.040, chapter 74.39A RCW. 10-16-082, § 388-76-10180, filed 7/30/10, effective 1/1/11. Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10180, filed 1/15/10, effective 2/15/10. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10180, filed 10/16/07, effective 1/1/08.]

     (a) Determine whether the person has the character, competence and suitability to work with vulnerable adults in long-term care; and

     (b) Document in writing the basis for making the decision.

     (2) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the adult family home.

[]

     (1) Ensure at least one qualified caregiver is present in the home whenever one or more residents are present in the home((, unless the resident has been assessed as being safe when left unattended for a specific period of time, and that information is included in the negotiated care plan)), except as provided in subsection (2). For purpose of this subsection, a qualified caregiver means someone who has completed orientation and basic training;

     (2) Ensure that before the adult family home leaves a resident unattended:

     (a) That the adult family home bases its determination of each resident's ability to safely be left unattended on the resident's identified strengths and needs from an assessment;

     (b) The resident knows what to do in an emergency and is able to successfully act on that knowledge; such as to, when necessary, leave the home or call 911;

     (c) That the adult family home individualizes each resident's negotiated care plan to the resident's identified strengths and needs and includes a limited and specific amount of time the resident is safe to be left unattended;

     (d) The resident consents to the plan to be left unattended; and

     (e) The resident is able to contact a responsible staff person at all times.

     (3) Designate an experienced, staff member who is capable of responding on behalf of the adult family home by phone or pager at all times.

     (((3))) (4) Give residents the telephone or pager number for the contact required in subsection (2) of this section;

     (((4))) (5) Ensure the provider, entity representative or resident manager is readily available to:

     (a) Each resident;

     (b) Residents' representatives;

     (c) Caregivers; and

     (d) Authorized state staff.

[Statutory Authority: RCW 70.128.040. 10-04-008, § 388-76-10200, filed 1/22/10, effective 2/22/10. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10200, filed 10/16/07, effective 1/1/08.]

     (2) The department must impose a remedy or remedies if the department substantiates, after licensure, that it has been less than twenty years since the adult family home voluntarily surrendered or relinquished an adult family home license in lieu of department initiated denial, suspension, nonrenewal, or revocation of a license.

     (3) The department must impose a remedy or remedies if the department finds any person listed in WAC 388-76-10950:

     (a) Has a history of significant noncompliance with federal or state laws or regulations in the provision of care or services to children or vulnerable adults;

     (b) Has been convicted of a "crime against children or other persons" as defined in RCW 43.43.830, unless the crime is simple assault, assault in the fourth degree, or prostitution and more than three years has passed since conviction;

     (c) Has been convicted of "crimes relating to financial exploitation" as defined in RCW 43.43.830, unless the crime is theft in third degree and more than three years have passed since conviction, or unless the crime is forgery or theft in the second degree and more than five years has passed since conviction;

     (d) Has been convicted of the manufacture, delivery, or possession with intent to manufacture or deliver drugs under one of the following laws:

     (i) Violation of the Imitation Controlled Substances Act (VICSA);

     (ii) Violation of the Uniform Controlled Substances Act (VUCSA);

     (iii) Violation of the Uniform Legend Drug Act (VULDA); or

     (iv) Violation of the Uniform Precursor Drug Act (VUPDA).

     (e) Has been convicted of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;

     (f) Has been convicted of criminal mistreatment;

     (g) Has been found to have abused, neglected, financially exploited, or abandoned a minor or vulnerable adult by court of law or a disciplining authority, including the department of health. Examples of legal proceedings in which such findings could be made include juvenile court proceedings under chapter 13.34 RCW, domestic relations proceedings under Title 26 RCW, and vulnerable adult protection proceedings under chapter 74.34 RCW.

     (h) Has a finding of abuse or neglect of a child that is:

     (i) Listed on the department's background check central unit (BCCU) report; or

     (ii) Disclosed by the individual, except for findings made before December, 1998.

     (i) Has a finding of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult that is:

     (i) Listed on any registry, including the department's registry;

     (ii) Listed on the department's background check central unit (BCCU) report; or

     (iii) Disclosed by the individual, except for adult protective services findings made before October, 2003.

     (j) Has been convicted of a crime in federal court or in the court of any other state, and the department determines that the conviction is equivalent to a conviction under subsection (3)(b), (c), (d), (e) or (f) above.

[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10955, filed 1/15/10, effective 2/15/10; 09-03-028, § 388-76-10955, filed 1/12/09, effective 2/12/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10955, filed 10/16/07, effective 1/1/08.]

     The following section of the Washington Administrative Code is repealed:

WAC 388-76-10162

Background check--National fingerprint checks--Who is required to have.

© Washington State Code Reviser's Office