Reviser's note: The agency filed this document, WSR 18-21-051, on October 8, 2018, attaching amendments to chapter 110-06 WAC, instead of chapter 110-90 WAC as stated on the front form. Pursuant to the requirements of RCW 34.08.040 it is published in the same form as filed by the agency. This document, WSR 18-21-051, has been rescinded by the agency (see WSR 18-21-089). The agency has refiled the emergency rule with the proper attachments on October 15, 2018, as WSR 18-21-090.

(1) The purpose of this chapter is to establish rules for background checks conducted by the department of ((early learning (DEL or department)))of children, youth, and families (DCYF).

(2) The department conducts background checks on subject individuals who are authorized to:

(a) Care for or have unsupervised access to children receiving early learning services; or

(b) Care for children in the child's or provider's home. These providers, also known as family, friends, and neighbors (FFN) or in-home/relative care providers are exempt from licensing and receive working connections child care (WCCC) subsidies.

(3) The department conducts background checks to reduce the risk of harm to children from subject individuals who have been convicted of certain crimes or who pose a risk to children.

(4) The department's rules and state law require the evaluation of background information to determine the character, suitability, or competence of persons who will care for or have unsupervised access to children receiving early learning services or other agency authorized services.

(5) If any provision of this chapter conflicts with any provision in any chapter containing a substantive rule relating to background checks and qualifications of persons who are authorized to care for or have unsupervised access to children receiving early learning services, the provisions in this chapter shall govern.

(6) These rules implement chapters ((43.215))43.216 and 43.43 RCW, including ((DEL)), but not limited to, DCYF responsibilities in RCW ((43.215.200, 43.215.205, 43.215.215 through 43.215.218, 43.43.830, and 43.43.832))43.216.260, 43.216.270 through 43.216.273, and 43.43.830 through 43.43.832.

(7) ((Effective date: These rules are initially effective July 3, 2006, and apply prospectively. Effective July 1, 2012,))These rules are amended to allow for increased and continued portability of background check clearances for subject individuals who are authorized to care for or may have unsupervised access to children receiving early learning services.

The following definitions apply to this chapter:

"Agency" has the same meaning as "agency" in RCW ((43.215.010(2)))43.216.010.

"Appellant" means only those with the right of appeal under this chapter.

"Authorized" or "authorization" means approval by ((DEL))DCYF to care for or have unsupervised access to children receiving early learning services or to work in or reside on the premises of a child care agency or certified facility.

"Certification" or "certified by ((DEL))DCYF" means an agency that is legally exempt from licensing that has been certified by ((DEL))DCYF as meeting minimum licensing requirements.

"Conviction information" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject individual.

(("DEL"))"DCYF" or "department" means the department of ((early learning.

"Director's list" means a list of crimes, the commission of which disqualifies a subject individual from being authorized by DEL to care for or have unsupervised access to children receiving early learning services, WAC 170-06-0120))children, youth, and families.

"Disqualified" means ((DEL))DCYF has determined that a person's background information prevents that person ((from being licensed or certified by DEL or)) from being authorized by ((DEL))DCYF to care for or have unsupervised access to children receiving early learning services.

"Early learning service(s)" for purposes of this chapter means the early childhood education and assistance program ((and)), head start, licensed child care, and license-exempt child care services.

"Licensee" means the individual, person, organization, or legal entity named on the child care license issued by DCYF and responsible for operating the child care facility or agency.

"Negative action" means a court order, court judgment or an adverse action taken by an agency, in any state, federal, tribal or foreign jurisdiction, which results in a finding against the subject individual reasonably related to the subject individual's character, suitability and competence to care for or have unsupervised access to children receiving early learning services. This may include, but is not limited to:

(a) A decision issued by an administrative law judge.

(b) A final determination, decision or finding made by an agency following an investigation.

(c) An adverse agency action, including termination, revocation or denial of a license or certification, or if pending adverse agency action, the voluntary surrender of a license, certification or contract in lieu of the adverse action.

(d) A revocation, denial or restriction placed on any professional license.

(e) A final decision of a disciplinary board.

"Nonconviction information" means arrest, pending charges, founded allegations of child abuse, or neglect pursuant to chapter 26.44 RCW, or other negative action adverse to the subject individual.

"Nonexpiring license" or "nonexpiring full license" means a ((full)) license that is issued to a licensee following the initial licensing period, as provided in ((WAC 170-151-087, 170-295-0095, or 170-296A-1450))chapter 110-300 WAC, as appropriate.

(a) Means an individual who:

(i) Is seeking a background check authorization or upon whom the department may conduct a background check authorization;

(ii) Is sixteen years of age or older;

(iii) Is an in-home/relative provider or is employed ((by)), contracted with, or ((volunteering))volunteers to provide early learning services; and

(iv) Will care for or have unsupervised access to children receiving early learning services; and

(b) Includes, but is not limited to, the following:

(i) Personnel, including employees and staff;

(ii) Contractors, including contracted providers;

(iii) Temporary workers;

(iv) Assistants;

(v) Volunteers;

(vi) Interns;

(vii) Each person who is sixteen years of age or older residing on, or moving into, the premises where early learning services are provided;

(viii) All other individuals who are sixteen years of age or older who will care for or have unsupervised access to children receiving early learning services;

(ix) All owners, operators, lessees, or directors of the agency or facility, or their designees;

(x) Applicants((. As used in this definition, "applicant" means an individual who is seeking a DEL background check authorization as part of:

(B) A continuation of a nonexpiring license or renewal of a certificate, or renewal of DEL's authorization to care for or have unsupervised access to children receiving early learning services, with respect to an individual who is a currently licensed or certified child care provider; and));

(xi) Licensees((. As used in this definition, "licensee" means the individual, person, organization, or legal entity named on the child care license issued by DEL and responsible for operating the child care facility or agency)); or

(xii) In-home/relative providers and their household members who are sixteen years of age or older.

"Unsupervised access" means:

(a) A subject individual will or may have the opportunity to be alone with a child receiving early learning services at any time and for any length of time; and

(b) Access to a child receiving early learning services that is not within constant visual or auditory range of the ((licensee, an employee))individual authorized by ((DEL, nor a relative or guardian of the child receiving early learning services))DCYF.

(1) ((Effective July 1, 2012, all new))Subject individuals associated with early learning services applying for a first-time background check must complete the background check application process through ((DEL))DCYF to include:

(a) ((Completion of))Submitting a completed background check application;

(b) Completing the required fingerprint process; and

(((b) Payment of))(c) Paying all required fees as provided in WAC ((170-06-0044))110-06-0044.

(2) All ((other)) subject individuals who have been previously qualified by the department to have unsupervised access to children in care((, prior to July 1, 2012, must submit a new background check application no later than July 1, 2013. The subject person))and are renewing their applications must:

(a) Submit the new background check application through ((DEL))DCYF;

(b) Submit payment of all required fees as provided in WAC ((170-06-0044;))110-06-0044; and

(c) ((Complete the required fingerprint process if the subject individual has lived in Washington state for fewer than three consecutive years prior to July 1, 2013;

(d))) Complete the required fingerprint process if the subject individual lives or has lived outside of Washington state since the previous background check was completed.

(3) Each subject individual completing the ((DEL))DCYF background check process must disclose:

(a) Whether he or she has been convicted of any crime;

(b) Whether he or she has any pending criminal charges; and

(c) Whether ((there is))he or she has been subject to any negative action((s, to which he or she has been subject)), as defined by WAC ((170-06-0020))110-06-0020.

(4) A subject individual must not have unsupervised access to children in care unless he or she has obtained ((DEL))DCYF authorization under this chapter.

(5) A subject individual who has been disqualified by ((DEL))DCYF must not be present on the premises when early learning services are provided to children.

(1) ((An agency, licensee, certified facility or))This section applies to all providers other than in-home/relative providers.

(2) Early learning services providers must require a subject individual to complete the ((DEL))DCYF background check application process:

(a) ((Within seven days of))Prior to the date of hire;

(b) By the date a subject individual age sixteen or older moves onto the premises; or

(c) By the date a subject individual who lives on the premises turns sixteen years old.

(((2) The early learning services provider must keep on-site a copy of each subject individual's background check clearance authorization.

(4) The early learning services provider must verify annually that each subject individual who is required to have a background check has either obtained a department clearance or has applied for a department background check through the DEL system. The verification must be submitted with the licensee's annual license fee and declarations.))

(1) Subject individuals associated with early learning services must pay for the cost of the background check process. The fees include:

(a) Fingerprint process fees as defined by the ((WSP, FBI))Washington state patrol, Federal Bureau of Investigation, and the ((DEL))DCYF fingerprint contractor; and

(b) The ((DEL))DCYF administrative fee of:

(i) ((The cost of administration of the portable background check clearance based upon electronic submission has been determined to be))Twelve dollars ((for any background check application received in the period after June 30, 2012, therefore the fee)) for an electronic submission ((is twelve dollars for the described period)); or

(ii) ((The cost of administration of the portable background check clearance based upon a manual paper submission has been determined to be))Twenty-four dollars ((for any background check received after June 30, 2012, therefore the fee for a manual paper-based submission is twenty-four dollars for the described period))for a paper submission.

(2) DCYF administrative fee payments may be:

(a) By debit or credit card;

(b) In the form of a personal check, cashier's check, or money order, which shall be sent by mail; or

(((b)))(c) By electronic funds transfer (((when available))). As used in this section, "electronic funds transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account.

(3) The department will not issue a background check clearance authorization to a subject individual:

(a) Who fails to pay the required fees in subsection (1) of this section; or

(b) Whose ((check, money order, or electronic funds transfer))payment is reported as having nonsufficient funds (NSF) or is otherwise dishonored by nonacceptance or nonpayment.

An additional processing fee of twenty-five dollars will be charged by the department for any check, money order, or electronic funds transfer that is reported as not having sufficient funds.

(1) When applicable within ((Title 170))chapter 110-300 WAC, an agency, licensee, or certified facility must have subject individuals complete the required ((DEL noncriminal))DCYF minor individual background check application process for subject individuals:

(a) Fourteen to sixteen years of age, ((within seven days after the subject individual starts to work in the))prior to the date of hire by a licensed or certified child care.

(b) Thirteen to sixteen years of age residing in a licensed or certified family home child care.

(c) Thirteen to sixteen years of age, within seven days after moving into the licensed family home child care.

(2) A subject individual identified in subsection (1)(a), (b) or (c) of this section must not have unsupervised access to children in child care.

(3) ((The licensee must verify annually that each subject individual who is required to have a noncriminal background check has either obtained a department clearance or has applied for a department noncriminal background check. The verification must be submitted with the licensee's annual license fee and declarations.

(4))) When conducting a ((noncriminal))minor individual background check, the department:

(a) Requires the minor's parent or guardian to sign the noncriminal background check application;

(b) Does not review convictions or pending charges for immediate disqualification for crimes under WAC ((170-06-0050(1)))110-06-0050(1), unless the conviction was the result of prosecution of the juvenile as an adult; and

(c) Does not immediately disqualify an individual for a conviction under WAC ((170-06-0070))110-06-0070 (1) and (2), unless the conviction was the result of prosecution of the juvenile as an adult.

(1) The background check process must be completed for:

(a) All license-exempt in-home/relative providers who apply to care for a WCCC consumer's child; and

(b) Any individual sixteen years of age or older who is residing with a license-exempt in-home/relative provider when the provider cares for the child in the provider's own home where the child does not reside.

(2) Additional background checks must be completed for individuals listed in subsection (1)(a) and (b) of this section when an individual sixteen years of age or older is newly residing with a license-exempt in-home/relative provider when the provider cares for the child in the provider's own home where the child does not reside.

(3) The background check process for license-exempt in-home/relative providers requires:

(a) Submitting a completed background check application; and

(b) Completing the required fingerprint process.

(4) Each subject individual completing the DCYF background check process must disclose:

(a) Whether he or she has been convicted of any crime;

(b) Whether he or she has any pending criminal charges; and

(c) Whether he or she has been subject to any negative actions, as defined by WAC 110-06-0020.

(5) A subject individual must not have unsupervised access to children in care unless he or she has obtained DCYF background check clearance authorization under this chapter.

(6) A subject individual who has been disqualified by DCYF must not be present on the premises when early learning services are provided to children.

(7) DCYF pays for the cost of the background check process. The fees include:

(a) Fingerprint process fees as defined by the Washington state patrol, Federal Bureau of Investigation and the DCYF fingerprint contractor; and

(b) The DCYF administrative fee.

(1) A subject individual who has a background containing any of the permanent convictions on the ((director's))secretary's list, WAC ((170-06-0120(1)))110-06-0120(1), will be permanently disqualified from ((providing licensed child care,)) caring for children or having unsupervised access to children receiving early learning services.

(2) A subject individual who has a background containing any of the nonpermanent convictions on the ((director's))secretary's list, WAC ((170-06-0120(2)))110-06-0120(2), will be disqualified from providing licensed child care, caring for children or having unsupervised access to children receiving early learning services for five years after the conviction date.

(3) A subject individual will be disqualified when ((their))his or her background contains a negative action, as defined in WAC ((170-06-0020))110-06-0020 that relates to:

(a) An act, finding, determination, decision, or the commission of abuse or neglect of a child as defined in chapters 26.44 RCW and ((388-15))110-30 WAC.

(b) An act, finding, determination, decision, or commission of abuse or neglect or financial exploitation of a vulnerable adult as defined in chapter 74.34 RCW.

((Background information that may disqualify a subject individual.))

(4) A subject individual who has a "founded" finding for child abuse or neglect will not be authorized to care for or have unsupervised access to children during the administrative hearing and appeals process.

(5) Background information that may disqualify a subject individual. A subject individual may be disqualified for other negative action(s), as defined in WAC ((170-06-0020))110-06-0020 which reasonably relate to his or her character, suitability, or competence to care for or have unsupervised access to children receiving early learning services.

(((5)))(6) A subject individual may be disqualified from caring for or having unsupervised access to children if the individual is the subject of a pending child protective services (CPS) investigation.

(((6) A subject individual who has a "founded" finding for child abuse or neglect will not be authorized to care for or have unsupervised access to children during the administrative hearing and appeals process.))

(7) The department may also disqualify a subject individual if that person has other nonconviction background information that renders him or her unsuitable to care for or have unsupervised access to children receiving early learning services. Among the factors the department may consider are:

(a) The subject individual attempts to obtain a license, certification, or authorization by deceitful means, such as making false statements or omitting material information on an application.

(b) The subject individual used illegal drugs or misused or abused prescription drugs or alcohol that either affected their ability to perform their job duties while on the premises when children were present or presented a risk of harm to any child receiving early learning services.

(c) The subject individual attempted, committed, permitted, or assisted in an illegal act on the premises. For purposes of this subsection, a subject individual attempted, committed, permitted, or assisted in an illegal act if he or she knew or reasonably should have known that the illegal act occurred or would occur.

(d) Subject to federal and state law, the subject individual lacks sufficient physical or mental health to meet the needs of children receiving early learning services.

(e) The subject individual had a license or certification for the care of children or vulnerable adults terminated, revoked, suspended or denied.

(1) A subject individual may request an administrative hearing to contest the department's disqualification decision under WAC ((170-06-0070))110-06-0070.

(2) The ((licensee or prospective employer))early learning services provider cannot contest the department's decision on behalf of any other person, including a prospective employee.

(3) The administrative hearing will take place before an administrative law judge employed by the office of administrative hearings, pursuant to chapter 34.05 RCW, and chapter ((170-03))110-03 WAC.