WSR 12-17-131

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

[ Filed August 21, 2012, 2:57 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 12-11-039.

Title of Rule and Other Identifying Information: The operations support and services division, background check central unit, is proposing to add a new section to chapter 388-06 WAC and to amend the following sections related to division of developmental disabilities (DDD) long-term care fingerprint check requirements and one hundred twenty-day provisional hire: WAC 388-06-0020, 388-06-0110, 388-06-0130, 388-06-0150, 388-06-0525, and 388-06-0540.

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), on September 25, 2012, at 10:00 a.m.

Date of Intended Adoption: Not earlier than September 26, 2012.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on September 25, 2012.

Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by September 4, 2012, 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 department is amending chapter 388-06 WAC and adding a new section related [to] DDD long-term care fingerprint check requirements and one hundred twenty-day provisional hire. Revisions are necessary to implement Initiative 1163, passed by the voters on November 8, 2011, and ESHB 2314, signed into law on March 29, 2012. ESHB 2314 amends Initiative 1163 and chapters 74.39A, 18.20, and 43.20A RCW to require fingerprint-based background checks for long-term care workers beginning January 7, 2012.

Reasons Supporting Proposal: Initiative 1163 as subsequently amended by ESHB 2314 requires implementation of the long-term care fingerprint check requirements beginning January 7, 2012 (unless otherwise specified). Rule revisions are necessary to clarify the new fingerprint check requirements for long-term care workers contracted, hired, or otherwise authorized by DDD and to clarify when a one hundred twenty-day provisional hire is allowed pending the outcome of a fingerprint check. Emergency rules were filed to implement Initiative 1163 as WSR 12-03-049. A new emergency superseding the previous filing was filed as WSR 12-10-095 to implement ESHB 2314 on May 2, 2012.

Statutory Authority for Adoption: RCW 43.43.832 and 74.39A.056.

Statute Being Implemented: RCW 43.43.837, 74.39A.056, 74.39A.261, 43.20A.710.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of social and health services, background check central unit, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Cindy LaRose-Eatwell, P.O. Box 45025, Olympia, WA 98504-5025, (360) 725-8072.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule revision is exempt under RCW 19.85.025(3). Rule amendments are explicitly and specifically dictated by statute or rule amendments clarify language without changing the effect.

A cost-benefit analysis is not required under RCW 34.05.328. This rule revision is 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 clarify language without changing the effect.

August 14, 2012

Katherine I. Vasquez

Rules Coordinator

4337.7
AMENDATORY SECTION(Amending WSR 10-16-083, filed 7/30/10, effective 8/30/10)

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.

"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 child-placing agency to certify and supervise foster home and group care programs.

"Children" and "youth" 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.

"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.

"Community residential service businesses" include all division of developmental disabilities supported living providers with the exception of supported living providers who are also licensed as an assisted living facility or adult family home provider. Community residential service providers also include DDD companion homes, DDD alternative living and licensed residential homes for children.

"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.

"Individual provider" as defined in RCW 74.39A.240 means a person, including a personal aide, who has contracted with the department to provide personal care or respite care services to functionally disabled persons under the medicaid personal care, community options program entry system, chore services program, or respite care program, or to provide respite care or residential services and supports to persons with developmental disabilities under chapter 71A.12 RCW, or to provide respite care as defined in RCW 74.13.270.

"Individuals with a developmental disability" means individuals who meet eligibility requirements in Title 71A RCW. A developmental disability is any of the following: Intellectual disability, cerebral palsy, epilepsy, autism, or another neurological condition described in chapter 388-823 WAC; originates before the age of eighteen years; is expected to continue indefinitely; and constitutes a substantial limitation to the individual.

"Long-term care worker" has the same meaning as defined in RCW 74.39A.009.

"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 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, 388-06-0020, filed 7/30/10, effective 8/30/10. Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0020, filed 8/27/01, effective 10/1/01.]


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

WAC 388-06-0110   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. Parents are not exempt from the long-term care background check requirements)) As described in WAC 388-06-0115, the division of developmental disabilities requires background checks on all contracted providers, individual providers, employees of contracted providers, and any other individual who is qualified by DDD to have unsupervised access to individuals with developmental disabilities.

(3) Long-term care workers as defined in chapter 74.39A RCW hired after January 7, 2012 are subject to national fingerprint-based background checks. For individual providers and home care agency providers refer to WAC 388-71-0500 through 388-71-05909. For adult family homes refer to chapter 388-76 WAC, adult family home minimum licensing requirements. For assisted living facilities refer to chapter 388-78A WAC, assisted living licensing rules.

(4) 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.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
NEW SECTION
WAC 388-06-0115   What are the division of developmental disabilities background check requirements?   (1) Per RCW 74.39A.056, long-term care workers undergoing a background check for initial hire or initial contract will be screened through a state name and date of birth check and a national fingerprint-based background check; except that long-term care workers in community residential service businesses are subject to background checks as described in WAC 388-06-0115 (a) and (b). Parents are not exempt from the long-term care background check requirements.

(a) Prior to January 1, 2016 community residential service businesses as defined above will be screened as follows:

(i) Individuals who have continuously resided in Washington state for the past three consecutive years will be screened through a state name and date of birth background check.

(ii) Individuals who have lived outside of Washington state within the past three years consecutive will be screened through a state name and date of birth and a national fingerprint-based background check.

(b) Beginning January 1, 2016 community residential service businesses as defined above will be screened as described in WAC 388-06-0115(1).

(2) The division of developmental disabilities requires rechecks for all DDD contracted providers and their employees at least every three years or more frequently if required by program rule. Rechecks will be conducted as follows:

(a) Individuals who have continuously resided in Washington state for the past three consecutive years will be screened through a state name and date of birth background check.

(b) Individuals who have lived outside of Washington state within the past three consecutive years will be screened through a state name and date of birth check and a national fingerprint-based background check.

[]


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

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 or individuals with a developmental disability that are processed by the 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 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, 388-06-0130, filed 7/30/10, effective 8/30/10. Statutory Authority: RCW 74.15.030. 01-18-025, 388-06-0130, 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 consecutive 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 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)) as described in WAC 388-06-0115. 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, 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.]


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

WAC 388-06-0525   When are individuals eligible for the one hundred twenty-day provisional hire?   (1) Individuals are eligible for the one hundred twenty-day provisional hire immediately, except as provided under subsection (2) of this section and WAC 388-06-0540. The signed background check application and fingerprinting process must be completed as required by the applicable DSHS program.

(2) Long-term care workers as defined in chapter 74.39A RCW are eligible for the one hundred twenty-day provisional hire, pending the outcome of the fingerprint-based background check, as long as provisional hiring is allowed by the applicable DSHS program rules and the long-term care worker is not disqualified as a result of the initial name and date of birth background check.

[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, 388-06-0525, filed 7/30/10, effective 8/30/10. 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.]


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

WAC 388-06-0540   Are there instances when the one hundred twenty-day provisional hire is not available?   The one hundred twenty-day provisional hire is not available to an agency, entity, or hiring individual requesting:

(1) An initial license;

(2) An initial contract; ((or))

(3) Approval as a family child day care home provider, foster parent or adoptive parent (see 42 U.S.C. Sec 671 (a)(20)); or

(4) Any other individual listed in the assisted living facility or adult family home license application, such as an adult family home entity representative or resident manager, or an assisted living facility administrator.

[Statutory Authority: Chapter 43.20A RCW, RCW 72.05.440 and 74.15.030. 01-15-019, 388-06-0540, filed 7/10/01, effective 8/10/01.]