WSR 14-05-073 PROPOSED RULES
DEPARTMENT OF
SOCIAL AND HEALTH SERVICES
(Aging and Long-Term Support Administration)
[Filed February 18, 2014, 10:39 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 13-15-172.
Title of Rule and Other Identifying Information: The department is considering adding new sections and amending the following sections in chapter 388-101 WAC, Certified community residential services and supports: WAC 388-101-1000 Definitions, 388-101-3080 The department may deny—Application, 388-101-3090 The department must deny—Application, 388-101-3245 Background check—General, 388-101-3250 Background checks—Washington state, and 388-101-3255 Background checks—Provisional hire—Pending results.
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 April 22, 2014, at 10:00 a.m.
Date of Intended Adoption: Not earlier than April 23, 2014.
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 April 22, 2014.
Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by April 1, 2014, TTY (360) 664-6178 or (360) 664-6094 or by e-mail jennisha.johnson@dshs.wa.gov.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending these rules to support the health and safety of residents living in residential setting, to consolidate various secretary's lists in aging and long-term support administration (ALTSA) thus providing a uniform background check standard for all caregivers and to reduce the overall costs of processing background checks.
In chapter 388-101 WAC, the disqualifying criminal convictions have been moved to a new WAC chapter, with pending charges added. This requires the amending of the certified community residential care service rules to remove the disqualifying crimes from each applicable section, amend the language to support the reference to the new WAC chapter, and to clarify amendments to the negative actions.
Reasons Supporting Proposal: See above.
Statutory Authority for Adoption: Chapter 71A.12 RCW.
Statute Being Implemented: Chapter 71A.12 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: Jeanette K. Childress, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2591; Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98504-5600, (360) 725-2404.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Small Business Economic Impact Statement
SUMMARY OF PROPOSED RULES: The department of social and health services' ALTSA is proposing amendments to chapter 388-101 WAC, Certified community residential care services, chapter 388-78A WAC, Assisted living facilities, chapter 388-76 WAC, Adult family homes, and chapter 388-97 WAC, Nursing homes.
The purpose of this chapter is to: The department is amending these rules to support: (1) The health and safety of residents living in residential settings, (2) the consolidation of various secretary's lists in ALTSA into a new WAC chapter that provides a uniform background check standard for all caregivers, and (3) the reduction of overall costs to process background checks.
The disqualifying criminal convictions have been moved to a new WAC chapter, with pending charges added. This requires the amending of the residential care services (RCS) WAC to remove the disqualifying crimes from each applicable section, amend the language to support the reference to the new WAC chapter, and to clarify amendments to the negative actions. This will result in increased clarity and decreased confusion for providers.
The proposed amendments to these chapters include:
(1) Aligning disqualifying criminal history standards with ALTSA.
(2) The disqualifying criminal convictions have been moved to a new WAC chapter, with pending charges added. This requires amending residential care facilities WAC to remove the disqualifying crimes from each applicable section, amend the language to support the reference to the new WAC chapter, and to clarify amendments to the negative actions.
(3) Creating grandfathering language for workers hired and qualified prior to implementation of new standards, for all but the most egregious crimes.
SMALL BUSINESS ECONOMIC IMPACT STATEMENT—DETERMINATION OF NEED: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. The WAC chapter changes related to background check consolidation will not have a disproportionate economic impact on small businesses. The department has thoroughly reviewed background check inefficiencies in place with current rules, as written including:
(1) Duplicate background check requirements for same staff person, driven by current rules.
(2) Conflicting rules in place for same provider/same setting serving clients from two divisions (e.g. home and community services and DDA).
(3) Poor compliance with program rules due to background check complexity, varying standards, and provider confusion.
(4) Negative fiscal and workload impact on both small and large business resulting from regulatory work, contradictory standards, duplicate background check requirements and training needs.
The consolidation and standardization of background check rules across the ALTSA and DDA administrations will result in clarity of rules, efficiency in checks, reduced training needs, improved compliance and will significantly reduce the number of duplicate background checks conducted by affected businesses across the state.
INDUSTRY ANALYSIS: These proposed rules impact all small businesses contracted to provide direct service to clients of RCS including: Certified community residential care services (CCRCS) (approximately one hundred fifty-three providers); adult family homes (AFH) (approximately two thousand seven hundred fifty); assisted living facilities (ALF) (approximately five hundred thirty facilities); and nursing homes (NH) (approximately two hundred thirty).
The majority of these businesses meet the definition of small business defined in RCW 19.85.020. Again, RCS has concluded any negative impact to any specific small business would be negligible and the impact on the industry as a whole will be fiscally positive, while improving the health and safety of vulnerable populations served by two administrations.
INVOLVEMENT OF SMALL BUSINESSES: These rule changes were driven, in part, by demand from businesses. Working drafts have also been shared with stakeholders including CCRCSs, ALFs, NHs, AFHs and associations, both in person and electronically. Stakeholder input is reflected in the proposed rules.
COST OF COMPLIANCE: Under chapter 19.85 RCW, DDA and ALTSA has considered annual costs to small businesses and concluded there will be no impact of fifty dollars or more per caregiver.
General Costs: RCS analysis revealed that there are no significant costs imposed by the proposed amendments.
Disproportionate Economic Impact Analysis: None.
Mitigating Costs: Not applicable.
Benefits for Proposed Rules: See above.
JOBS CREATED OR LOST: Not applicable.
CONCLUSION: RCS has given careful consideration to the impact of proposed rules in chapter 388-101 WAC, Certified community residential care services; chapter 388-78A WAC, Assisted living facilities; chapter 388-76 WAC, Adult family homes; and chapter 388-97 WAC, Nursing homes on small businesses. To comply with the Regulatory Fairness Act, chapter 19.85 RCW, RCS has analyzed impacts on small businesses and proposed ways to mitigate costs considered more than minor and disproportionate, however no significant costs were identified.
RCS has concluded that the intent of these rule-making changes are to improve the health and safety of vulnerable populations served by ALTSA.
Please contact Jeanette K. Childress if you have any questions at (360) 725-2591.
A copy of the statement may be obtained by contacting Jeanette Childress, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2591, e-mail Jeanette.childress@dshs.wa.gov. 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 regulations.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Jeanette Childress, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-2591, e-mail Jeanette.childress@dshs.wa.gov.
February 13, 2014
Katherine I. Vasquez
Rules Coordinator
AMENDATORY SECTION (Amending WSR 10-03-065, filed 1/15/10, effective 2/15/10)
WAC 388-101-3080 The department may deny—Application.
Under WAC 388-101-3090, the department is required to deny an application for initial certification or change of ownership under certain circumstances. The department may also deny ((the)) an application ((for initial certification or change of ownership)) if any person named in the application has:
(1) Shown a lack of the understanding, character, ability, or emotional stability that is necessary to meet the identified needs of vulnerable adults;
(2) Had a contract terminated or a certification or license revoked or denied by the department, or has been subjected to department enforcement actions;
(3) Had ((a)) an out-of-state contract or license involving the provision of services to children or vulnerable adults terminated, ((or a certification or license)) revoked or denied ((in another state,)) or has been ((subjected to)) the subject of an enforcement action ((in another state)) related to the out-of-state contract or license;
(4) Obtained or attempted to obtain a license or certification by fraudulent means or misrepresentation;
(5) Relinquished or been denied a license or license renewal to operate a home or facility that was licensed for the care of children or vulnerable adults;
(6) Refused to permit authorized department representatives to interview clients or to have access to client records;
(7) Been convicted of a drug-related conviction within the past five years without evidence of rehabilitation, unless denial is required under WAC ((388-06-0180(4))) 388-101-3090; or
(8) Been convicted of an alcohol-related conviction within the past five years without evidence of rehabilitation((.)); or
(9) Been convicted of any felony that the department determines is reasonably related to the competency of the person to be involved in the ownership or operation of the service provider.
AMENDATORY SECTION (Amending WSR 10-03-065, filed 1/15/10, effective 2/15/10)
WAC 388-101-3090 The department must deny—Application.
(1) The department must deny an application for initial certification or change of ownership if any person named in the application has:
(a) ((Been convicted of a crime listed under WAC 388-06-0170(1);
(b) Been convicted of a disqualifying crime under WAC 388-06-0180;
(c) Been found by a court in a criminal proceeding, a protection proceeding, or a civil damages lawsuit under chapter 74.34 RCW, to have abused, neglected, abandoned, or financially exploited a vulnerable adult;
(d) Been found to have abused, neglected, financially exploited, or abandoned a minor or vulnerable adult by a 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;
(e) A substantiated 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; or
(f) A substantiated 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.
(2) The department must deny an application for initial certification or change of ownership if any person named in the application has a pending charge for a crime that is disqualifying under this section.)) A disqualifying criminal conviction or pending criminal charge under chapter 388-113 WAC.
(b) Been convicted of a crime in any federal or state court, and the department determines that the conviction is equivalent to a disqualifying conviction under chapter 388-113 WAC.
(2) The department must also deny an application for initial certification or change of ownership if any person named in the application has a disqualifying negative action. The following are considered to be disqualifying negative actions:
(a) A court has issued a permanent restraining order or order of protection, either active or expired, against the person that was based upon abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult;
(b) The person is a registered sex offender;
(c) The person is on a registry based upon a final finding of abuse, neglect or financial exploitation of a vulnerable adult, unless the finding was made by adult protective services prior to October 2003;
(d) A founded finding of abuse or neglect of a child was made against the person, unless the finding was made by child protective services prior to October 1, 1998;
(e) The individual was found in any dependency action to have sexually assaulted or exploited any child or to have physically abused any child;
(f) The individual was found by a court in a domestic relations proceeding under Title 26 RCW, or under any comparable state or federal law, to have sexually abused or exploited any child or to have physically abused any child;
(g) The person has had a contract or license denied, terminated, revoked, or suspended due to abuse, neglect, financial exploitation, or mistreatment of a child or vulnerable adult; or
(h) The person has relinquished a license or terminated a contract because an agency was taking an action against the individual related to alleged abuse, neglect, financial exploitation or mistreatment of a child or vulnerable adult.
AMENDATORY SECTION (Amending WSR 12-02-048, filed 12/30/11, effective 1/30/12)
WAC 388-101-3245 Background check—General.
(1) The department is authorized to conduct background checks under the background check requirements of this chapter and of chapter 388-113 WAC. Background checks ((conducted by the department and required in this chapter)) include but are not limited to ((Washington state background checks including)) an inquiry into any of the following:
(a) Department and department of health findings; ((and))
(b) ((Criminal)) Administrative actions taken by the department or by other agencies;
(c) Washington state criminal background check information from the Washington state patrol;
(d) National fingerprint-based background check information from the Federal Bureau of Investigation, when required; and
(e) Information from Washington state courts.
(2) Nothing in this chapter should be interpreted as requiring the employment of a person against the better judgment of the service provider. In addition to chapter 71A.12 RCW, these rules are authorized by RCW 43.20A.710, RCW 43.43.830 through 43.43.842 and RCW 74.39A.056.
AMENDATORY SECTION (Amending WSR 12-02-048, filed 12/30/11, effective 1/30/12)
WAC 388-101-3250 Background checks—((Washington state)) Requirements for service providers.
(1) Service providers must follow the background check requirements described in chapter ((388-06)) 388-113 WAC and in this chapter. In the event of an inconsistency, this chapter applies.
(2) The service provider must obtain background checks from the department for all administrators, employees, volunteers, students, and subcontractors who may have unsupervised access to clients.
(3) The service provider must not allow the following persons to have unsupervised access to clients until the service provider receives the department's background check results((, verifying that the person does not have any convictions, pending criminal charges, or findings described in WAC 388-101-3090)):
(a) Administrators;
(b) Employees;
(c) Volunteers or students; and
(d) Subcontractors.
(4) If the department's background check results show that ((the individual has a conviction, pending criminal charge, or finding that is not disqualifying under WAC 388-101-3090)) an administrator, employee, volunteer, student, or subcontractor has any of the following, then the service provider must ((conduct a character, suitability, and competence review as described in WAC 388-06-0190.)) prevent that person from having unsupervised access to clients:
(a) A disqualifying conviction or pending criminal charge under chapter 388-113 WAC; or
(b) A disqualifying negative action under WAC 388-101-3090.
(5) ((The)) If the background check results show any of the following, then the service provider must conduct a character, suitability, and competence review before allowing the person unsupervised access to clients:
(a) The person has a conviction or pending criminal charge, but the conviction or criminal charge is not disqualifying under WAC 388-113-0020;
(b) The person has a conviction or pending criminal charge that meets one of the exceptions listed in WAC 388-113-0040; or
(c) Any of the circumstances described in WAC 388-101-3080 apply to the individual.
(6) When a service provider receives the results of a person's background check, the service provider must:
(a) Inform the person of the results of the background check;
(b) Inform the person that they may request a copy in writing of the results of the background check. If requested, a copy of the background check results must be provided within ten working days of the request; and
(c) Notify the department and other appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record.
(((6))) (7) The service provider must renew the Washington state background check for each administrator, employee, volunteer, student, or subcontractor of a service provider. The service provider must at least every thirty-six months ((and)) keep current background check results for each administrator, employee, volunteer, student, or subcontractor of a service provider.
(((7))) (8) Licensed ((boarding homes)) assisted living facilities or adult family homes must adhere to the current regulations in this chapter and in the applicable licensing laws.
(((8) Service providers must prevent unsupervised access to clients by any administrator, employee, subcontractor, student, or volunteer who has a disqualifying conviction, pending criminal charge, or finding described in WAC 388-101-3090.))
(9) All applicants for certification must have a background check.
AMENDATORY SECTION (Amending WSR 12-02-048, filed 12/30/11, effective 1/30/12)
WAC 388-101-3255 Background checks—Provisional hire—Pending results.
Persons identified in WAC ((388-101-3250(2))) 388-101-3250 and who have lived in Washington state less than three years, or who are otherwise required to complete a national fingerprint-based background check, may be hired for a one hundred twenty-day provisional period when:
(1) The person is not disqualified based on the initial results of the background check from the department; and
(2) A national fingerprint-based background check is pending.
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