S-4119

AN ACT Relating to protecting children and vulnerable adults by using background checks; amending RCW 18.130.020; reenacting and amending RCW 18.130.040; adding new sections to chapter 18.130 RCW; creating new sections; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature intends to simplify the process of, and reduce the expense in, employing health care professionals by reducing unnecessary background checks and allowing portability of information among employers of persons in the health care field. The legislature also intends to reduce costs to the state patrol by allowing a current background check on a person seeking a health care professional credential to be used by more than one employer.

Sec. 2. RCW 18.130.040 and 1997 c 392 s 516, 1997 c 334 s 14, 1997 c 285 s 13, and 1997 c 275 s 2 are each reenacted and amended to read as follows:

(1) This chapter applies only to the secretary and the boards and commissions having jurisdiction in relation to the professions licensed under the chapters specified in this section. This chapter does not apply to any business or profession not licensed under the chapters specified in this section.

(2)(a) The secretary has authority under this chapter in relation to the following professions:

(i) Dispensing opticians licensed under chapter 18.34 RCW;

(ii) Naturopaths licensed under chapter 18.36A RCW;

(iii) Midwives licensed under chapter 18.50 RCW;

(iv) Ocularists licensed under chapter 18.55 RCW;

(v) Massage operators and businesses licensed under chapter 18.108 RCW;

(vi) Dental hygienists licensed under chapter 18.29 RCW;

(vii) Acupuncturists licensed under chapter 18.06 RCW;

(viii) Radiologic technologists certified and X-ray technicians registered under chapter 18.84 RCW;

(ix) Respiratory care practitioners licensed under chapter 18.89 RCW;

(x) Persons registered or certified under chapter 18.19 RCW;

(xi) Persons registered as nursing pool operators under chapter 18.52C RCW;

(xii) Nursing assistants registered or certified under chapter 18.88A RCW;

(xiii) Health care assistants certified under chapter 18.135 RCW;

(xiv) Dietitians and nutritionists certified under chapter 18.138 RCW;

(xv) Sex offender treatment providers certified under chapter 18.155 RCW;

(xvi) Persons licensed and certified under chapter 18.73 RCW or RCW 18.71.205;

(xvii) Persons registered as adult family home providers and resident managers under RCW 18.48.020;

(xviii) Denturists licensed under chapter 18.30 RCW; and

(xix) Orthotists and prosthetists licensed under chapter 18.200 RCW.

(b) The boards and commissions having authority under this chapter are as follows:

(i) The podiatric medical board as established in chapter 18.22 RCW;

(ii) The chiropractic quality assurance commission as established in chapter 18.25 RCW;

(iii) The dental quality assurance commission as established in chapter 18.32 RCW;

(iv) The board of hearing and speech as established in chapter 18.35 RCW;

(v) The board of examiners for nursing home administrators as established in chapter 18.52 RCW;

(vi) The optometry board as established in chapter 18.54 RCW governing licenses issued under chapter 18.53 RCW;

(vii) The board of osteopathic medicine and surgery as established in chapter 18.57 RCW governing licenses issued under chapters 18.57 and 18.57A RCW;

(viii) The board of pharmacy as established in chapter 18.64 RCW governing licenses issued under chapters 18.64 and 18.64A RCW;

(ix) The medical quality assurance commission as established in chapter 18.71 RCW governing licenses and registrations issued under chapters 18.71 and 18.71A RCW;

(x) The board of physical therapy as established in chapter 18.74 RCW;

(xi) The board of occupational therapy practice as established in chapter 18.59 RCW;

(xii) The nursing care quality assurance commission as established in chapter 18.79 RCW governing licenses issued under that chapter;

(xiii) The examining board of psychology and its disciplinary committee as established in chapter 18.83 RCW; and

(xiv) The veterinary board of governors as established in chapter 18.92 RCW.

(3) In addition to the authority to discipline license holders, the disciplining authority has the authority to grant or deny licenses based on the conditions and criteria established in this chapter ((~~and~~)), the chapters specified in subsection (2) of this section, and sections 4 and 5 of this act. This chapter also governs any investigation, hearing, or proceeding relating to denial of licensure or issuance of a license conditioned on the applicant's compliance with an order entered pursuant to RCW 18.130.160 by the disciplining authority.

(4) All disciplining authorities shall adopt procedures to ensure substantially consistent application of this chapter, the Uniform Disciplinary Act, among the disciplining authorities listed in subsection (2) of this section.

Sec. 3. RCW 18.130.020 and 1995 c 336 s 1 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Disciplining authority" means the agency, board, or commission having the authority to take disciplinary action against a holder of, or applicant for, a professional or business license upon a finding of a violation of this chapter or a chapter specified under RCW 18.130.040.

(2) "Department" means the department of health.

(3) "Secretary" means the secretary of health or the secretary's designee.

(4) "Board" means any of those boards specified in RCW 18.130.040.

(5) "Commission" means any of the commissions specified in RCW 18.130.040.

(6) "Unlicensed practice" means:

(a) Practicing a profession or operating a business identified in RCW 18.130.040 without holding a valid, unexpired, unrevoked, and unsuspended license to do so; or

(b) Representing to a consumer, through offerings, advertisements, or use of a professional title or designation, that the individual is qualified to practice a profession or operate a business identified in RCW 18.130.040, without holding a valid, unexpired, unrevoked, and unsuspended license to do so.

(7) "Disciplinary action" means sanctions identified in RCW 18.130.160.

(8) "Practice review" means an investigative audit of records related to the complaint, without prior identification of specific patient or consumer names, or an assessment of the conditions, circumstances, and methods of the professional's practice related to the complaint, to determine whether unprofessional conduct may have been committed.

(9) "Health agency" means city and county health departments and the department of health.

(10) "License," "licensing," and "licensure" shall be deemed equivalent to the terms "license," "licensing," "licensure," "certificate," "certification," and "registration" as those terms are defined in RCW 18.120.020.

(11) "May have unsupervised access" means unsupervised access that will or may occur as part of an individual's regularly scheduled activities or work duties or that will or may occur as a likely consequence of the work environment.

(12) "Unsupervised access" means access, for more than a nominal period of time, outside the presence of: Another person who has cleared a background check; or any relative or guardian of the child or vulnerable adult to which the individual may have unsupervised access. For the purposes of this subsection, a person has "cleared a background check" when the disciplining authority, using the results of its background check investigation, determines, solely for purposes of this chapter, that the individual is suitable to have unsupervised access to children or vulnerable adults.

NEW SECTION. Sec. 4. A new section is added to chapter 18.130 RCW to read as follows:

(1) This section applies to individuals who apply for an initial license for a health profession under this chapter on or after the effective date of this section.

(2) Under RCW 18.130.050(13), the disciplining authority shall conduct a background check on each applicant for an initial license. The background check shall include:

(a) A fingerprint-based state background check through the state patrol; and

(b) A national conviction record check through the federal bureau of investigation.

(3) The disciplining authority shall:

(a) Notify the individual applying for an initial license that, subject to subsection (5) of this section, a background check must be completed before the license is issued;

(b) Require the individual to furnish two full sets of fingerprints to the state patrol, one of which shall be used for exchange with the federal bureau of investigation;

(d) Acknowledge in writing, on a form provided by the state patrol, that:

(i) Federal law prohibits disclosure or dissemination of federal bureau national conviction records outside of a governmental agency except to the subject of the record; and

(ii) The absence of a state patrol or federal bureau of investigation record does not mean the individual has no criminal record, or adverse civil or administrative decision, nor does it represent a determination by the state patrol that the individual is suitable to obtain an initial license;

(e) Notify the individual of the results of the background check within ten days after receipt by the disciplining authority if a conviction record, adverse civil or administrative proceeding, dependency adjudication, or protection order was found;

(f) Restrict use of the background check results to determining the individual's suitability for an initial license; and

(g) Protect from further disclosure or dissemination the results of the individual's background check unless such further disclosure is permitted or required by law.

(4) The individual applying for his or her initial license shall pay the expense of the background check and obtaining fingerprint data.

(5) The disciplining authority may, by rule, determine appropriate circumstances for granting a conditional license, pending completion of the national investigation after the applicant has completed the fingerprint-based state background check through the state patrol.

(6) This section does not limit the authority of the disciplining authority to investigate the suitability of individuals through other public records including adverse civil or administrative proceedings.

(7) For the purposes of this section, "adverse civil or administrative proceeding" means:

(a) An adverse dependency adjudication in which there is a final adverse adjudication in a dependency action under chapter 13.34 RCW that includes a finding of physical or sexual abuse, neglect, or exploitation of a child;

(b) Decisions that include final decisions issued by the secretary of health, the secretary of social and health services, a disciplining authority under this chapter, the personnel appeals board, or the director of licensing, that include a finding of abuse, abandonment, neglect, or exploitation of a child or vulnerable adult; or

(c) Protection orders that include court orders, other than ex parte or temporary orders, issued for the purpose of protecting someone from contact, harassment, or domestic violence. Protection orders include: Criminal no-harassment orders issued under chapter 9A.46 RCW; civil antiharassment protection orders issued under chapter 10.14 RCW; domestic violence no-contact orders issued under chapter 10.99 RCW; dissolution decree restraining orders issued under chapter 26.09 RCW; nonparental custody action restraining orders issued under chapter 26.10 RCW; uniform parentage act restraining orders issued under chapter 26.26 RCW; domestic violence protection orders issued under chapter 26.50 RCW; and orders for protection of vulnerable adults issued under chapter 74.34 RCW.

NEW SECTION. Sec. 5. A new section is added to chapter 18.130 RCW to read as follows:

(1) This section applies to individuals who apply for a renewal or reinstatement of a license for a health profession under this chapter on or after the effective date of this section.

(2) The disciplining authority shall conduct a background check, under the schedule adopted under subsection (3) of this section, on each individual applying for a renewal or reinstatement of a license. The background check shall include a state background check through the state patrol, which need not be fingerprint-based unless the authority has reasonable cause to believe a fingerprint-based background check is necessary.

(3) The disciplining authority shall establish a schedule for conducting the background checks required under subsection (2) of this section. The schedule shall require all individuals to have a background check conducted within four years, and at least once every four years thereafter.

(4) In addition to any other conditions or criteria under this title, the disciplining authority:

(a) Shall deny a renewal or reinstatement of a license to an individual whose background check reveals a conviction for any offense in section 6(2) of this act or an offense in section 6(3) of this act if it is less than ten years from the date of conviction or release from confinement, whichever is later, unless the disciplining authority finds good cause to grant a renewed or reinstated license. In determining whether good cause exists, the disciplining authority shall consider the criteria in subsection (6) of this section; and

(b) May deny a renewal or reinstatement of a license to an individual whose background check reveals: (i) A conviction for any offense in section 6(3) of this act; (ii) an adverse civil or administrative proceeding, dependency adjudication, or protection order; or (iii) a conviction for any offense identified in rule under subsection (5) of this section.

(5) The disciplining authority may identify, by rule, additional offenses that are directly related to an individual's suitability to obtain a renewed or reinstated license and that may disqualify an individual, for an appropriate period of time, from renewing or reinstating the license. The rules may distinguish between offenses for which a disqualification must be made and offenses for which an individual may be disqualified by the disciplining authority.

(6) In determining whether to grant or deny the renewal or reinstatement of a license on the basis of an individual's background check results, the disciplining authority shall consider:

(a) The age of the individual at the time of the conviction or adverse civil or administrative decision;

(b) The length of time that has passed since the conviction or adverse civil or administrative decision;

(c) Evidence of conduct subsequent to the conviction or adverse civil or administrative decision relating to the individual's suitability to obtain the renewal or reinstatement, including the individual's conduct while previously licensed; and

(d) The appropriateness of issuing a license with conditions as provided for in this chapter.

(7) The disciplining authority may, by rule, determine that the requirements of this section do not apply to persons with a license who have: (a) Been subject to at least four updated record checks; (b) not been disqualified for an offense in section 6 of this act; and (c) met other requirements established by the disciplining authority. The disciplining authority may, at any time, conduct a background check for any person meeting the requirements of this section when the authority has probable cause to believe there is a legitimate reason for doing so.

NEW SECTION. Sec. 6. A new section is added to chapter 18.130 RCW to read as follows:

Subject to section 7 of this act:

(1) The disqualification provisions of this section apply to those individuals required to undergo the background checks provided for in section 4 of this act.

(2) An individual is permanently disqualified from obtaining a license that would allow the individual to have unsupervised access to children or vulnerable adults if the individual has a conviction record for any of the following criminal offenses:

(a) A serious violent offense as defined in RCW 9.94A.030;

(b) A sex offense as defined in RCW 9.94A.030;

(c) Any felony offense constituting: (i) Sexual exploitation of a minor under chapter 9.68A RCW; (ii) criminal mistreatment of a child or dependent person under chapter 9A.42 RCW; or (iii) the sale or purchase of a minor child under RCW 9A.64.030; or

(d) The federal or out-of-state equivalent to those in (a) through (c) of this subsection.

(3) An individual is disqualified from obtaining a license that would allow the individual to have unsupervised access to children or vulnerable adults for a period of at least ten years from the date of conviction or release from confinement, whichever is longer, if the individual has a conviction record for any of the following offenses:

(a) A violent offense;

(b) A sex-related offense under chapter 9.68, 9A.44, or 9A.88 RCW, that does not constitute a sex offense under RCW 9.94A.030;

(c) A felony offense constituting: (i) Malicious harassment under chapter 9A.36 RCW; (ii) residential burglary under chapter 9A.52 RCW; (iii) theft in the first degree or theft in the second degree under chapter 9A.56 RCW; (iv) unlawful issuance of checks or drafts under chapter 9A.56 RCW; or (v) fraud under chapter 9A.60 RCW; or

(d) Any federal or out-of-state equivalent to those in (a) through (c) of this subsection.

(4) An individual may be disqualified from obtaining a license that would allow the individual to have unsupervised access to children or vulnerable adults if the individual has a conviction record for any of the following offenses, regardless of the length of time that has elapsed since the individual's conviction or release from confinement:

(a) Any offense identified in subsection (3) of this section for which the latter of the date of conviction or release from confinement is more than ten years old;

(b) A misdemeanor offense, or its federal or out-of-state equivalent, constituting: (i) Assault in the fourth degree under chapter 9A.36 RCW; (ii) unlawful imprisonment under chapter 9A.40 RCW; (iii) criminal mistreatment under chapter 9A.42 RCW; (iv) theft in the third degree under chapter 9A.56 RCW; or (v) custodial interference under chapter 9A.40 RCW; or

(c) Any other offense identified by a disciplining authority by rule as being directly related to an individual's suitability to obtain an initial license.

(5) The disciplining authority may identify, by rule, additional offenses that are directly related to an individual's suitability to obtain an initial license and that may disqualify an individual from receiving such a license. The rules may distinguish between offenses for which disqualification must be made and offenses for which disqualification is discretionary, and the appropriate periods of time for which the specified offenses act to disqualify individuals.

(6) In determining whether to disqualify an individual under subsections (3) through (5) of this section, the disciplining authority shall consider:

(a) The likelihood and extent that the individual may have unsupervised access to children or vulnerable adults as a result of the license;

(b) The age of the individual at the time of the conviction;

(d) Evidence of conduct subsequent to the conviction relating to the individual's suitability to obtain an initial license; and

(e) The appropriateness of issuing a license with conditions as provided for in this chapter.

(7) Prior to denying a license based on an adverse finding in a background check, the disciplining authority must provide the applicant with an opportunity for a brief adjudicative proceeding as provided in RCW 34.05.485 through 34.05.494.

NEW SECTION. Sec. 7. A new section is added to chapter 18.130 RCW to read as follows:

The disciplining authority shall determine whether the person would be subject to section 6 (2) through (5) of this act. If the authority determines the licensee would otherwise be disqualified from renewal of a license, the authority shall, upon the request of the licensee or applicant licensed under this title, hold a hearing on whether to renew the license. In determining whether to renew the license, the disciplining authority shall make its determination using the criteria set forth in section 6(6) of this act. If the disciplining authority determines to renew the license, it shall require the license to include a conspicuous statement indicating the licensee was subject to the appropriate provisions of section 6 (2) through (5) of this act, but was permitted by the authority to continue his or her status as a licensee.

NEW SECTION. Sec. 8. A new section is added to chapter 18.130 RCW to read as follows:

(1) An individual with a license issued under this chapter shall report to the appropriate disciplining authority any conviction occurring after the effective date of this section for an offense set forth in, or adopted in rule under, section 6 of this act. The report must be made within seven days of the conviction.

(2) The disciplining authorities shall adopt rules to implement this section.

(3) Failure by an individual to report a conviction shall be considered by the disciplining authority in any application for renewal or reinstatement of the license.

(4) When an individual required to report under subsection (1) of this section is employed, the individual shall also report the conviction to his or her employer within seven days of the conviction.

NEW SECTION. Sec. 9. The code reviser shall alphabetize the definitions in RCW 18.130.020 and correct any references.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 11. This act takes effect July 1, 1998.