WSR 19-04-036
EMERGENCY RULES
DEPARTMENT OF
CHILDREN, YOUTH, AND FAMILIES
[Filed January 28, 2019, 3:21 p.m., effective January 29, 2019]
Effective Date of Rule: January 29, 2019.
Purpose: Changes are being made to the following WAC to align with the Family First Prevention Act. This change in legislation requires all employees working in a department of children, youth, and families licensed group care facility to complete fingerprint based background checks and out-of-state child abuse and neglect history checks of every state the individual has lived in the preceding five years before the background check application. These changes go into effect October 1, 2018.
Chapter 110-04 WAC, Background checks: WAC 110-04-0010 What is the purpose of this chapter?, 110-04-0020 What definitions apply to WAC 110-04-0030 through 110-04-0180 of this chapter?, 110-04-0030 Why are background checks done?, 110-04-0040 Who must have background checks?, 110-04-0060 Does the background check process apply to new and renewal licenses, certification, contracts, authorizations to be employees at a group care facility, and authorizations to have unsupervised access to children?, 110-04-0070 What happens if I don't comply with the background check requirement?, 110-04-0080 What does the background check cover?, 110-04-0100 Will a criminal conviction permanently prohibit me from being licensed, contracted, certified, authorized to be employed at a group care facility, or authorized to have unsupervised access to children?, 110-04-0110 Are there other criminal convictions that will prohibit me from being licensed, contracted, certified, authorized to be employed at a group care facility, or authorized to have unsupervised access to children or from working with children?, 110-04-0120 If I have a conviction, may I ever have unsupervised access to children?, 110-04-0130 Will I be disqualified if there are pending criminal charges on my background check?, 110-04-0140 Will you license, contract, authorize my employment at a group care facility, or authorize me to have unsupervised access to children if my conviction has been expunged, vacated from my record, or if I have been pardoned for a crime?, and 110-04-0150 How will I know the status of the background check?
Chapter 110-145 WAC: WAC 110-145-1325 What is required to apply for a group care facility license?
Citation of Rules Affected by this Order: Amending WAC 110-04-0010, 110-04-0020, 110-04-0030, 110-04-0040, 110-04-0060, 110-04-0070, 110-04-0080, 110-04-0100, 110-04-0110, 110-04-0120, 110-04-0130, 110-04-0140, 110-04-0150, and 110-145-1325.
Statutory Authority for Adoption: For chapter 110-04 WAC is RCW 43.43.832; and for WAC 110-145-1325 is RCW 74.15.010, 74.15.030, 74.15.040, 74.15.090, 74.13.031, 74.39A.056, 43.43.832, PL 115-123.
Under RCW 34.05.350 the agency for good cause finds 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: These rules were previously filed as an emergency on October 1, 2018 (WSR 18-20-095), to meet the requirements in the Family First Prevention Act that went into effect October 1, 2018. At this time, the department is going through the permanent rule-making process (WSR 18-21-126) and needs to extend these rules to continue being in compliance with the federal legislation and to continue receiving Title IV-E funding.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 14, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the 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 0, Amended 0, Repealed 0.
Date Adopted: January 29, 2019.
Brenda Villarreal
Rules Administrator
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0010What is the purpose of this chapter?
This chapter establishes rules for background checks conducted by ((children's administration (CA) at)) the department of ((social and health services (DSHS)))children, youth, and families (DCYF) for child welfare purposes and does not apply to background checks required for child care or early learning purposes as they are addressed in chapter 110-06 WAC. The department does background checks on individuals who are licensed, certified, contracted, employed in a group care facility, or authorized to care for or have unsupervised access to children. Background checks are conducted to find and evaluate any history of criminal convictions or civil adjudication proceedings, including those involving abuse, abandonment, financial exploitation, or neglect of a child or vulnerable adult.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0020What definitions apply to WAC ((388-06A-0100 through 388-06A-0260))110-04-0030 through 110-04-0180 of this chapter?
The following definitions apply to WAC ((388-06A-0100 through 388-06A-0260))110-04-0030 through 110-04-0180 of this chapter:
"Authorized" or "authorization" means not disqualified by the department to work in a group care facility or have unsupervised access to children. This includes persons who are certified, contracted, allowed to receive payments from department funded programs, or volunteer.
(("CA"))
"Certification" means:
(((1)))(a) 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)))(b) Department licensing of a child-placing agency to certify and supervise foster home and group care programs.
"Children" means a person who is one of the following:
(((1)))(a) Under eighteen years old;
(((2) Up to twenty-one years of age and pursuing a high school or equivalency course of study (GED/HSEC), or vocational program;
))(b) Up to twenty-one years of age and participating in the extended foster care program;
(((4)))(c) Up to twenty-one years of age and under the custody of the Washington state juvenile rehabilitation administration.
"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.
"Department" or ((DSHS))"DCYF" means the department of ((social and health services (DSHS)))children, youth, and families responsible for providing child welfare programs and services to children and their families and licensing foster homes, group care facilities and programs, and child placing agencies.
"I" and "you" refers to anyone who has unsupervised access to children 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.
"((DLR))Licensing division" or "LD" means the licensing division ((of licensed resources within children's administration. DLR))within DCYF. LD licenses and monitors foster homes, child placing agencies and licensed group care facilities.
(("I" and "you"))
"Licensor" means either:
(((1) A DLR))(a) An LD employee who recommends approvals for, or monitors licenses or certifications for facilities and agencies ((established under this chapter))that provide foster family homes or group care facilities under chapters 110-145, 110-147, and 110-148 WAC; or
(((2)))(b) An employee of a child-placing agency who certifies or monitors foster homes supervised by the child-placing agency.
"Unsupervised" means will not or may not be in the presence of:
(((1)))(a) The licensee, another employee or volunteer from the same business or organization as the applicant who has not been disqualified by the background check; or
(((2)))(b) Another individual who has been previously approved by ((children's administration))DCYF.
"We" refers to the department, including licensors and ((social workers))caseworkers.
"WSP" refers to the Washington state patrol.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0030Why are background checks done?
((The children's administration))DCYF does background checks to help safeguard the health, safety, and well-being of children in out of home care. By doing background checks, the department reduces the risk of harm to children from individuals ((that))who have been convicted of certain crimes. The department's regulations require the evaluation of your background to determine your character, suitability and competence before you are issued a license, contract, certificate, ((or authorized))authorization to be employed at a group care facility, or authorization to have unsupervised access to children.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0040Who must have background checks?
(1) Under RCW 74.15.030, prior to authorizing unsupervised access to children, the department requires background checks on all providers who may have unsupervised access to children. This includes licensed, certified, or contracted providers, their current or prospective employees and prospective adoptive parents as defined in RCW 26.33.020.
(2) Under RCW 74.15.030, prior to authorizing unsupervised access to children, the department also requires background checks on other individuals who may have unsupervised access to children in department licensed or contracted homes, or facilities that provide care. The department requires background checks on all of 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. However, a background check is not required when a caregiver approves the unsupervised access for a normal childhood activity that lasts less than seventy-two hours, as stated in RCW 74.13.710.
(c) A relative other than a parent who may be caring for a child.
(d) A person who is at least sixteen years old and resides in a foster, relative, or other suitable person's home and is not a foster child.
(e) A person who is younger than sixteen years old in situations where it may be warranted to ensure the safety of children in out-of-home care. The department may require a background check for persons younger than sixteen years old in situations where it may be warranted to ensure the safety of children in out-of-home care.
(3) Any person employed at a group care facility, including those not directly working with children.
(4) Under RCW 13.34.138, prior to returning a dependent child home, the department requires a background check on all adults residing in the home.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0060Does the background check process apply to new and renewal licenses, certification, contracts, authorizations to be employees at a group care facility, and authorizations to have unsupervised access to children?
For ((children's administration))DCYF, these regulations apply to all applications for new and renewal licenses, contracts, certifications, authorizations to be employees at a group care facility, and authorizations to have unsupervised access to children that are processed by ((the children's administration))DCYF after the effective date of this chapter.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0070What happens if I ((don't))do not comply with the background check requirement?
The department will deny, suspend or revoke your license, contract, or certification, or disqualify you to care for children if you or someone on the premises of your home or facility having unsupervised access, or an employee at a group care facility does not comply with the department's requirement for a background check.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0080What 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) Background checks conducted for ((children's administration))DCYF also includes:
(a) A review of child protective services case files information or other applicable information system.
(b) Administrative hearing decisions related to any DSHS or DCYF license that has been revoked, suspended, or denied.
(3) In addition to the requirements in subsections (1) ((through))and (2) of this section, background checks conducted by ((children's administration))DCYF for placement of a child in out-of-home care, including foster homes, group care facilities, 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 and for all staff working in a group care facility, including those not directly working with children:
(a) Child abuse and neglect registries in each state a person has lived in, 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.
(4) Except as required in ((WAC 388-06A-0150 (4)(b), children's administration))subsection (3)(b) of this section, DCYF will conduct a fingerprint-based background check on any individual who has resided in the state less than three consecutive years before application.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0100Will a criminal conviction permanently prohibit me from being licensed, contracted, certified, authorized to be employed at a group care facility, or authorized to have unsupervised access to children?
(1) There are convictions for certain crimes that will permanently prohibit you from being licensed, contracted, certified, authorized to be employed at a group care facility, or authorized to have unsupervised access to children. Those felony convictions are as follows:
(a) Child abuse and/or neglect;
(b) Spousal abuse;
(c) A crime against a child (including child pornography);
(d) A crime involving violence (including rape, sexual assault, or homicide but not including other physical assault or battery); or
(e) Any federal or out-of-state conviction for an offense that under the laws of this state would disqualify you from having unsupervised access to children in any home or facility.
(2) If you are convicted of one of the crimes listed in WAC ((388-06A-0170))110-04-0100 (1)(a) through (e), you will not be able to:
(a) Receive a license to provide care to children;
(b) Be approved for adoption of a child;
(c) Be a contractor;
(d) Be employed by a licensed agency or contractor, if you will have unsupervised access to children;
(e) Be authorized to be employed at a group care facility even if you do not work directly with children;
(f) Volunteer or participate as an intern in a home or facility that offers care to children; or
(((f)))(g) Provide any type of care to children, if the care is funded by the state.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0110Are there other criminal convictions that will prohibit me from being licensed, contracted, certified, authorized to be employed at a group care facility, or authorized to have unsupervised access to children or from working with children?
The department must disqualify you from licensing, contracting, certification, authorization for employment at a group care facility, or ((from having))authorization for unsupervised access to children if it has been less than five years from a conviction for the following crimes:
(1) Any felony physical assault or battery offense not included in WAC ((388-06A-0170))110-04-0100;
(2) Any felony violation of the following drug-related crimes:
(a) The Imitation Controlled Substances Act (for substances that are falsely represented as controlled substances (see chapter 69.52 RCW);
(b) The Legend Drug Act (prescription drugs, see chapter 69.41 RCW);
(c) The Precursor Drug Act (substances used in making controlled substances, see chapter 69.43 RCW);
(d) The Uniform Controlled Substances Act (illegal drugs or substances, see chapter 69.50 RCW); or
(e) Unlawfully manufacturing, delivering or possessing a controlled substance with intent to deliver, or unlawfully using a building for drug purposes.
(3) Any federal or out-of-state conviction for an offense that under the laws of Washington state would disqualify you for no less than five years from being authorized to be employed at a group care facility or having unsupervised access to children.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0120If I have a conviction, may I ever be authorized to be employed at a group care facility or have unsupervised access to children?
(1) In two situations, ((DSHS))DCYF may find a person with convictions able to be authorized to be employed at a group care facility or have unsupervised access to children:
(a) If the conviction for any crime listed in WAC ((388-06A-0180))110-04-0110 occurred more than five years ago; or
(b) If the conviction was for a crime other than those listed in WAC ((388-06A-0170 or 388-06A-0180))110-04-0100 or 110-04-0110.
(2) In both of these situations, ((DSHS))DCYF must review your background to determine your character, suitability, and competence to have unsupervised access to children. In this review, ((DSHS))DCYF must consider the following factors:
(a) The amount of time that has passed since you were convicted;
(b) The seriousness of the crime that led to the conviction;
(c) The number and types of other convictions in your background;
(d) Your age at the time of conviction;
(e) Documentation indicating you has successfully completed all court-ordered programs and restitution;
(f) Your behavior since the conviction; and
(g) The vulnerability of those that would be under your care.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0130Will I be disqualified if there are pending criminal charges on my background check?
(1) The department will not license, contract, certify, authorize employment at a group care facility, or authorize ((a person to have)) unsupervised access to children to a person who ((have))has a criminal charge pending for a disqualifying crime:
(a) Described in the Adoption and Safe Families Act of 1997((, or a criminal charge pending for a disqualifying crime)); or
(b) That relates directly to child safety, permanence, or well-being.
(2) You may reapply for a license, contract, certification, or approval to have unsupervised access to children by providing proof to the department that the charge against you has been dropped or that you were acquitted.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0140Will you license, contract, authorize my employment at a group care facility, or authorize me to have unsupervised access to children if my conviction has been expunged, vacated from my record, or I have been pardoned for a crime?
If you receive a pardon or a court of law acts to expunge or vacate a conviction on your record, the crime will not be considered a conviction for the purposes of licensing, contracting, certification, authorization for employment at a group care facility, or authorization for unsupervised access to children.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-04-0150How will I know the status of the background check?
(1) If you have been approved by the background check:
(a) The department will notify you((,)) and your prospective employer((, or your))or supervisor((,)) if you have requested a contract, authorization to be employed at a group care facility, or approval for unsupervised access to children.
(b) The department will not directly notify you, and will instead continue the process for approving your application if you have requested a license or certification to care for children.
(2) If you have been disqualified by the background check:
(a) The department will notify you in writing and include any laws and rules that require disqualification;
(b) The department will also notify the care provider, the prospective employer, or the licensor; and
(c) You will not receive a license, contract, certification, or be authorized to be employed at a group care facility or have unsupervised access to children.
AMENDATORY SECTION(Amending WSR 18-14-078, filed 6/29/18, effective 7/1/18)
WAC 110-145-1325What is required to apply for a group care facility license?
(1) You, the person responsible for the license, must submit a completed application which is available from the DCYF licensing division ((of licensed resources, children's administration)).
(2) You must submit a completed background authorization form for your executive director, agency staff including those not directly working with children, consultants, interns, volunteers, and anyone who may have unsupervised access to children per chapter ((388-06A))110-04 WAC.
(3) You must ensure ((that an))all paid agency employees((who may have unsupervised access to))and any other paid adults working at your facility, including those not directly working with children complete a FBI fingerprint check and a child abuse and neglect history check of every state the individual has lived in the preceding five years before the background check application.
(4) You must ensure that agency volunteers or interns that have lived outside of Washington state during any portion of the previous three years complete a FBI fingerprint check.
(5) You must ensure that ((no))all employees, volunteers, or subcontractors((has unsupervised access to children))meet the requirements in chapters 110-04 and 110-05 WAC. An individual is not authorized to work in the facility until you are notified by ((children's administration))the licensing division that a background check was completed that qualifies the individual to have unsupervised access. If you have both a license issued by ((DLR))DCYF licensing division and a contract with the department you must adhere to the most stringent background check requirement.