WSR 12-21-016

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Aging and Disability Services Administration)

[ Filed October 8, 2012, 9:04 a.m. , effective October 8, 2012, 9:04 a.m. ]


     Effective Date of Rule: Immediately.

     Purpose: The department is extending emergency rules (previously filed as WSR 12-13-069) for certain sections of chapter 388-78A WAC that are needed to comply with Initiative Measure 1163. 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 that allow boarding homes/assisted living facilities 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. The department has taken the following steps to adopt the emergency rules as permanent rules: Filed an initial public notice (CR-101), WSR 12-05-114 on February 22, 2012; shared drafts of the proposed rules with stakeholders; filed the CR-102 on July 23, 2012; and had a public hearing on September 4, 2012. The department has received comments on the proposed rules that will be reviewed and considered. The department needs to extend the emergency rules because they will expire before the permanent rules become effective. WAC 388-78A-24681 and 388-78A-24701 are new sections.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-78A-2463; and amending WAC 388-78A-2461, 388-78A-2462, 388-78A-2464, 388-78A-2465, 388-78A-2466, 388-78A-2468, and 388-78A-2469.

     Statutory Authority for Adoption: Chapter 18.20 RCW.

     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 emergency rules will expire before the permanent rules become effective. The rules are necessary for the following reasons: Boarding homes often experience a significant amount of staff turnover. If a new boarding home employee is prevented from having unsupervised access to resident for several weeks, pending the results of the national fingerprint check, boarding 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.

     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 2, Amended 7, 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 2, Amended 7, Repealed 1.

     Date Adopted: September 26, 2012.

Katherine I. Vasquez

Rules Coordinator

4304.4
AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2461   Background checks--General.   (1) Background checks conducted by the department and required in this chapter include ((but are not limited to)):

     (((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;

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

     (((3))) (2) Nothing in this chapter should be interpreted as requiring the employment of a person against the better judgment of the boarding home.

     (((4))) (3) In addition to chapter 18.20 RCW, these rules are authorized by RCW 43.20A.710, RCW 43.43.830 through 43.43.842 and RCW ((74.39A.050(8))) 74.39A.051(8).

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, § 388-78A-2461, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2462   Background checks--((Washington state--))Who is required to have.   (1) Applicants for a boarding home license, as defined in WAC 388-78A-2740, ((are required to have a Washington state)) must have the following background checks before licensure:

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

     (b) A national fingerprint background check.

     (2) For purposes of this section, the administrator is presumed to provide direct care.

     (3) For purposes of this section the term "caregiver" has the same meaning as the term "long-term care worker" as defined in RCW 74.39A.009 and chapter 388-112 WAC.

     (4) The boarding home must ensure ((the following have Washington state)) that the administrator and all caregivers employed directly or by contract after January 1, 2012 have the following background checks:

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

     (b) A national fingerprint background check.

     (5) The boarding home must ensure that the following individuals have a Washington state name and date of birth background check. They are not required to have a national fingerprint background check:

     (a) ((Caregivers, including)) Volunteers who are not residents, and students who may have unsupervised access to residents;

     (b) ((Administrators;

     (c) Licensee;

     (d))) Staff persons other than caregivers and administrators;

     (((e))) (c) Managers unless they provide direct care to residents; and

     (((f))) (d) Contractors other than the administrator and caregivers who may have unsupervised access to residents.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, § 388-78A-2462, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2464   Background checks--Process.   (1) Before the boarding home employs, directly or by contract, an administrator, staff person or caregiver, or accepts as a caregiver, any volunteer who is not a resident, or student, the home must:

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

     (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) ((For purposes of this section, the administrator is presumed to provide direct care)) After receiving the results of the Washington state name and date of birth background check the boarding home must:

     (a) Not allow individuals to have unsupervised access to residents if they have been convicted of a disqualifying crime or finding under WAC 388-78A-2470.

     (b) Require individuals listed in WAC 388-78A-2462(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: Chapters 18.20 and 74.39A RCW. 10-16-085, § 388-78A-2464, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2465   Background check--Results.   (((1) The boarding home must not allow the persons listed in WAC 388-78A-2462(2) to have unsupervised access to residents until the boarding home receives background check results from the department verifying that the person does not have any convictions, or findings described in WAC 388-78A-2470.

     (2) If the background check results show that the person has a conviction or finding that is not disqualifying under WAC 388-78A-2470, then the boarding 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 boarding 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 check. If requested, a copy of the background check results must be provided within ten days of the request; and

     (((c))) (3) Notify the department and other appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, § 388-78A-2465, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2466   Background check--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 boarding home must ensure:

     (1) A new DSHS background authorization form is submitted to BCCU every two years for individuals listed in WAC 388-78A-2462; and

     (2) There is a valid Washington state name and date of birth background check for all individuals listed in WAC 388-78A-2462.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, § 388-78A-2466, filed 7/30/10, effective 1/1/11.]


AMENDATORY SECTION(Amending WSR 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2468   Background checks--Employment--Conditional hire--Pending results of Washington state name and date of birth background check.   The boarding home may conditionally hire an individual described in WAC 388-78A-2462, directly or by contract, pending the result of ((a)) the Washington state name and date of birth background check, provided that the boarding home:

     (1) Submits the background authorization form for the individual to the department no later than one business day after the individual starts working;

     (2) Requires the individual to sign a disclosure statement, and the individual denies having been convicted of a disqualifying crime or have a disqualifying finding under WAC 388-78A-2470;

     (3) Has received three positive references for the individual;

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

     (5) Ensures direct supervision((, of the individual,)) as defined in RCW 18.20.270, of the individual; and

     (6) Ensures that the person is competent, and receives the necessary training to perform assigned tasks and meets the training requirements under chapter 388-112 WAC.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, § 388-78A-2468, filed 7/30/10, effective 1/1/11.]


NEW SECTION
WAC 388-78A-24681   Background checks--Employment--Provisional hire--Pending results of national fingerprint background check.   The boarding home may provisionally employ caregivers and an administrator hired after January 1, 2012 as specified in WAC 388-78A-2462(2) for one hundred and 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 10-16-085, filed 7/30/10, effective 1/1/11)

WAC 388-78A-2469   Background check--Disclosure statement.   (1) Prior to first starting his or her duties, the boarding home must require each individual described in WAC 388-78A-2462 to make disclosures((,)) of any crimes or findings consistent with RCW 43.43.834(2). The disclosures must be in writing and signed by the individual under penalty of perjury.

     (2) The department may require the boarding home or any individual described in WAC 388-78A-2462 to complete additional disclosure statements or background authorization forms if the department has reason to believe that offenses specified in WAC 388-78A-2470 have occurred since completion of the previous disclosure statement or background check.

[Statutory Authority: Chapters 18.20 and 74.39A RCW. 10-16-085, § 388-78A-2469, filed 7/30/10, effective 1/1/11.]


NEW SECTION
WAC 388-78A-24701   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 388-78A-2470, then the boarding 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 chapter should be interpreted as requiring the employment of any person against the better judgment of the boarding home.

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REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 388-78A-2463 Background check--National fingerprint checks--Who is required to have.