WSR 12-13-041

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed June 13, 2012, 12:59 p.m. , effective June 13, 2012, 12:59 p.m. ]


Effective Date of Rule: Immediately.

Purpose: The department is extending emergency rules (previously filed as WSR 12-05-089) for sections of chapter 388-76 WAC to comply with state laws: Initiative Measure 1163 and ESHB 1277. Initiative 1163 requires national fingerprint background checks for long-term care workers hired after January 7, 2012. It is estimated that it may be as long as three weeks and possibly longer before national fingerprint background check results are received. RCW 43.43.837(6) gives the department authority to adopt rules authorizing provisional hiring. Therefore, the department needs to extend emergency rules to allow adult family homes to hire long-term care workers provisionally, pending the results of the fingerprint based background check and following a name and date of birth background check result that shows no disqualifying crimes or findings. ESHB 1277 was passed during the 2011 legislative session and subsequently codified in chapter 70.128 RCW. RCW 70.128.130(16) includes language that requires a qualified caregiver be on-site. Current WAC 388-76-10200 allows for certain residents to be in the home when a qualified caregiver is not present and thus conflicts with the new law. The department has taken these steps to adopt the emergency rules as permanent rules: The department has filed an initial public notice (CR-101), WSR 12-05-088 on February 17, 2012. The department has shared drafts of the proposed rules with stakeholders. The department has filed a proposed rule notice (CR-102), WSR 12-09-071 on April 17, 2012, with a public hearing date of June 5, 2012. However, the department needs to file an emergency extension since the first emergency rules will expire before the permanent rules become effective. WAC 388-76-10166, 388-76-10176, and 388-76-10181 are added as new sections.

Citation of Existing Rules Affected by this Order: Repealing WAC 388-76-10162; and amending WAC 388-76-10160, 388-76-10161, 388-76-10163, 388-76-10164, 388-76-10165, 388-76-10175, 388-76-10180, and 388-76-10200.

Statutory Authority for Adoption: RCW 70.128.040.

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: Extension of these emergency rules is necessary because the first emergency rules will expire before the permanent rules become effective. The rules are necessary for the following reasons: Adult family homes often experience a significant amount of staff turnover. If a new adult family home employee is prevented from having unsupervised access to residents for several weeks, adult family homes may experience staffing shortages and the residents may suffer from a lack of caregivers. Without adequate staffing, the health and safety of residents could be jeopardized. In addition, emergency rules need to be extended to remove the conflicting language from WAC on the qualified caregiver on-site issue.

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 8, Repealed 1.

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 8, Repealed 1.

Date Adopted: June 7, 2012.

Katherine I. Vasquez

Rules Coordinator

4350.2
AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10160   Background checks -- General.   Background checks conducted ((by)) through the department and required in this chapter include but are not limited to:

(1) A Washington state name and date of birth background check((s 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) After January 1, 2012, a national fingerprint((-based)) background check in accordance with RCW ((74.39A.055)) 74.39A.056.

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

(4) 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.]


AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10161   Background checks--((Washington state--)) Who is required to have.   (1) An adult family home applicant and anyone affiliated with an applicant must have ((a Washington state)) the following background checks before licensure:

(a) A Washington state name and date of birth background check; and

(b) If applying after January 1, 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 1, 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, and students who may have unsupervised access to residents must have a Washington state name and date of birth background check, but 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.]


AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10163   Background checks--Process.   (1) Before the adult family home employs, directly or by contract, a resident manager, entity representative or caregiver, or accepts as a caregiver any volunteer or student, or allows a household member over the age of eleven unsupervised access to residents, the home must:

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

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

(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 resident manager, entity representative or caregiver convicted of a disqualifying crime or a disqualifying finding under WAC 388-76-10180;

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

(c) Require individuals specified in WAC 388-76-10161(2) who are hired after January 1, 2012 and are not disqualified by the Washington state name and date of birth background check, to complete a national fingerprint background check and follow department procedures.

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


AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10164   Background checks--Results.   (((1) The adult family home must not allow persons listed in WAC 388-76-10161(2) to have unsupervised access to residents until the adult family home receives background check results from the department verifying that the person does not have convictions, or findings described in WAC 388-76-10180.

(2) If the background check results show that the person has a conviction or finding that is not disqualifying under WAC 388-76-10180, then the adult family home must determine whether the person has the character, suitability and competence to work with vulnerable adults in long-term care.

(3))) After receiving the results of the background checks, the adult family home must:

(((a))) (1) Inform the person of the results of the background checks;

(((b))) (2) Inform the person that they may request a copy of the results of the background checks. If requested, a copy of the background checks results must be provided within ten days of the request; and

(((c))) (3) 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.

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


AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10165   Background checks--Washington state name and date of birth background check -- Valid for two years.   A Washington state name and date of birth background check is valid for two years from the initial date it is conducted. The adult family home must ensure:

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

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

[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.]


NEW SECTION
WAC 388-76-10166   Background checks--Household members and unpaid staff--Unsupervised access.   (1) The adult family home must not allow individuals specified in WAC 388-76-10161(3) to have unsupervised access to residents until the home receives results of the Washington state name and date of birth background check from the department verifying that the person does not have convictions or findings described in WAC 388-76-10180.

(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 determine whether or not the person has the character, competence and suitability to have unsupervised access to residents.

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AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10175   Background checks--Employment -- Conditional hire -- Pending results of Washington state name and date of birth background check.   An adult family home may conditionally employ a person directly or by contract, pending the result of a Washington state name and date of birth background check, provided the home:

(1) Requests 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.]


NEW SECTION
WAC 388-76-10176   Background checks--Employment--Provisional hire--Pending results of national fingerprint background checks.   The adult family home may provisionally employ individuals hired after January 1, 2012 and listed in WAC 388-76-10161(2) for one hundred twenty-days and allow those individuals to have unsupervised access to residents when:

(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.

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AMENDATORY SECTION(Amending WSR 10-16-082, filed 7/30/10, effective 1/1/11)

WAC 388-76-10180   Background checks--Employment--Disqualifying information.   ((Unless hired conditionally as specified in)) Except as provided in WAC 388-76-10175 and 388-76-10176, the adult family home must not ((use or)) employ anyone, directly or by contract, who is listed in WAC 388-76-10161(2) if the individual has((:

(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:

(((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.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-76-10181   Background checks--Employment--Nondisqualifying information.   (1) 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 determine whether the person has the character, competence and suitability to work with vulnerable adults in long-term care.

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

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AMENDATORY SECTION(Amending WSR 10-04-008, filed 1/22/10, effective 2/22/10)

WAC 388-76-10200   Adult family home -- Staff -- Availability -- Contact information.   In addition to other licensing requirements for staff availability, the adult family home must:

(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)). For purpose of this subsection, a qualified caregiver means someone who has completed orientation and basic training;

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

(4) 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.]


REPEALER

     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