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

     Purpose: The department amended these rules to comply with and to 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 clarified the provision related to disqualifying crimes related to drugs. The department added 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.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-76-10162; and amending WAC 388-76-10025, 388-76-10120, 388-76-10146, 388-76-10160, 388-76-10161, 388-76-10163, 388-76-10164, 388-76-10165, 388-76-10175, 388-76-10180, 388-76-10200, and 388-76-10955.

     Statutory Authority for Adoption: RCW 70.128.040.

      Adopted under notice filed as WSR 12-09-071 on April 17, 2012.

     Changes Other than Editing from Proposed to Adopted Version: WAC 388-76-10146 Qualifications -- Training and home care aide certification.

     (3) All persons listed in subsection (1) (2) of this section, must obtain the home-care aide certification if required by this section or chapters 246-980 WAC or 388-112 WAC.

     (4) All adult family home applicants on or after January 7, 2012, Even if an adult family home applicant does not intend to provide direct personal care, the applicant 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. requirements under chapter 388-112 WAC to the same extent that the requirements would apply if the applicant was a long-term care worker.

     (5) Under RCW 18.88B.0401 and chapter 246-980 WAC, certain persons individuals, including registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved certified nursing assistant programs, are exempt from home-care aide certification and long-term care worker training requirements. This exemption does not apply to Ccontinuing education; these individuals must comply with continuing education requirements still apply as outlined in under chapter 388-112 WAC.

     WAC 388-76-101631 Background checks -- Process Washington state name and date of birth background check. (1) Before receiving the results of the Washington state name and date of birth background check, the adult family home may conditionally employ, directly or by contract, a caregiver, entity representative or resident manager as provided in WAC 388-76-10175.

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

     (a1) Not employ, directly or by contract, a caregiver, entity representative or resident manager convicted of a disqualifying crime or a disqualifying finding under WAC 388-76-10180.

     (b2) 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.

     WAC 388-76-101632 Background checks -- Process National fingerprint background check. (1) Individuals specified in WAC 388-76-10161(2) who are hired after January 7, 2012 and are not disqualified by the Washington state name and date of birth background check, must complete a national fingerprint background check and follow department procedures.

     (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.

     (32) 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.

     (43) 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 background check central unit BCCU, provided the national fingerprint background check was completed after January 7, 2012.

     WAC 388-76-10180 Background checks -- Employment -- Disqualifying information. Except as provided in WAC 388-76-10175 and 388-76-10176, tThe adult family home must not employ anyone, directly or by contract, who is listed in WAC 388-76-10161(2) if the individual has any of the convictions, history, or findings, described below:

     (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;

     (2) Has been convicted of a crime in any federal or state court or in any other state, and the department determines that the crime is equivalent to a crime under subsections (c3), (d4), (e5), (f6), or (g7), below;

     (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 have passed since conviction;

     (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 have passed since conviction;

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

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

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

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

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

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

     (7) Has been convicted of criminal mistreatment;

     (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;

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

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

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

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

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

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

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

     (11) Pending the results of the background checks, conditional or provisional hiring may be allowed under WAC 388-76-10175 and WAC 388-76-10176.

     WAC 388-76-10181 Background checks -- Employment -- Nondisqualifying information. (1) If any background check results show that an employee or prospective employee has a conviction or finding that is not automatically disqualifying under WAC 388-76-10180, then the adult family home must:

     (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, and make it available to the department upon request.

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

     The changes were made because:

SUMMARY OF COMMENTS RECEIVED	THE DEPARTMENT CONSIDERED ALL THE COMMENTS. THE ACTIONS TAKEN IN RESPONSE TO THE COMMENTS, OR THE REASONS NO ACTIONS WERE TAKEN, FOLLOW.
WAC 388-76-10146 (3) Clarification is needed for references on home-care aide certification requirements.	The department has accepted this comment and clarified the references.
(4) Clarification is needed on what long-term care worker training and certification requirements apply to adult family home applicants.	The department has accepted this comment and clarified that applicants will have the same requirements around training and certification as long-term care workers.
(5) Clarification is needed that individuals who may be exempt from the home-care aide certification and long-term care worker training requirements, still need to comply with continuing education requirements.	The department has accepted this comment and clarified that continuing education requirements still apply to these individuals.
WAC 388-76-101631 and 388-76-101632 Suggest conditional and provisional language be deleted since it is duplicative and already in other WAC sections.	The department has accepted this comment and deleted WAC 388-76-101631(1) and 388-76-101632(2) since it is already covered in WAC 388-76-10175 and 388-76-10176.
WAC 388-76-10180 Suggest deleting the introductory phrase since the adult family home cannot hire anyone with these convictions if they have knowledge about it.	The department has accepted this comment and deleted the introductory phrase. The department has also added a new subsection (11) to clarify that pending the results of the background checks, conditional and provisional hiring may still be allowed under the relevant WAC sections.
WAC 388-76-10181 (1)(b) Documentation in writing for the basis of the decision needs to be kept in a consistent place.	The department has accepted this comment and clarified that the documented decision needs to be made available to the department upon request.

     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 5, Amended 0, 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 12, Repealed 1.

     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 5, Amended 12, Repealed 1.

     Date Adopted: July 30, 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 any federal or state 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) or (h), 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)) have 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)) have passed since conviction;

     (f) Has been convicted of the manufacture or delivery of drugs or of 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 proceedings 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))) (2) of this section, must obtain the home-care aide certification if required by this section or chapters 246-980 or 388-112 WAC.

     (4) ((All)) Even if an adult family home ((applicants on or after January 7, 2012,)) applicant does not intend to provide direct personal care, the applicant 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)) requirements under chapter 388-112 WAC to the same extent that the requirements would apply if the applicant was a long-term care worker.

     (5) Under RCW ((18.88B.040)) 18.88B.041 and chapter 246-980 WAC, certain ((persons)) individuals, including registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved certified nursing assistant programs, are exempt from home-care aide certification and long-term care worker training requirements. This exemption does not apply to continuing education; these individuals must comply with continuing education requirements ((still apply as outlined in)) under 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.

[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.]

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

     (2) 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) 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.

     (3) 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 from an individual who previously completed a national fingerprint background check through the background check central unit, 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 ((BCCU)) department's background check central unit every two years for each individual((s)) 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 background check central unit 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.

[]

     Reviser's note: The unnecessary underscoring 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.
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)) 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 any federal or state 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))) (3), (4), (5), (6), or (7), 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)) have 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)) have passed since conviction;

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

     (((i))) (a) Violation of the Imitation Controlled Substance((s)) 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.))

     (11) Pending the results of the background checks, conditional or provisional hiring may be allowed under WAC 388-76-10175 and WAC 388-76-10176.

[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, and make it available to the department upon request.

     (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 as required by chapter 388-112 WAC;

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

     (a) That the adult family home determines that the resident can be left unattended safely, based upon an assessment that identifies the resident's strengths and needs;

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

     (c) 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)) have 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 the 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)) have passed since conviction;

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

     (i) Violation of the Imitation Controlled Substance((s)) 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 any federal or state 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.