AN
ACT Relating to drug offenses in background checks; amending RCW 43.43.830,
43.43.834, and 43.43.842; and adding a new section to chapter 43.43 RCW.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
43.43.830 and 1996 c 178 s 12 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout RCW 43.43.830 through 43.43.840.
(1)
"Applicant" means:
(a)
Any prospective employee who will or may have unsupervised access to children
under sixteen years of age or developmentally disabled persons or vulnerable
adults during the course of his or her employment or involvement with the
business or organization;
(b)
Any prospective volunteer who will have regularly scheduled unsupervised access
to children under sixteen years of age, developmentally disabled persons, or
vulnerable adults during the course of his or her employment or involvement
with the business or organization under circumstances where such access will or
may involve groups of (i) five or fewer children under twelve years of age,
(ii) three or fewer children between twelve and sixteen years of age, (iii)
developmentally disabled persons, or (iv) vulnerable adults; or
(c)
Any prospective adoptive parent, as defined in RCW 26.33.020.
(2)
"Business or organization" means a business or organization licensed
in this state, any agency of the state, or other governmental entity, that
educates, trains, treats, supervises, houses, or provides recreation to
developmentally disabled persons, vulnerable adults, or children under sixteen
years of age, including but not limited to public housing authorities, school
districts, and educational service districts.
(3)
"Civil adjudication" means a specific court finding of sexual abuse
or exploitation or physical abuse in a dependency action under RCW 13.34.040 or
in a domestic relations action under Title 26 RCW. In the case of vulnerable
adults, civil adjudication means a specific court finding of abuse or financial
exploitation in a protection proceeding under chapter 74.34 RCW. It does not
include administrative proceedings. The term "civil adjudication" is
further limited to court findings that identify as the perpetrator of the abuse
a named individual, over the age of eighteen years, who was a party to the
dependency or dissolution proceeding or was a respondent in a protection proceeding
in which the finding was made and who contested the allegation of abuse or
exploitation.
(4)
"Conviction record" means "conviction record" information
as defined in RCW 10.97.030(3) relating to a crime against children or other
persons committed by either an adult or a juvenile. It does not include a
conviction for an offense that has been the subject of an expungement, pardon,
annulment, certificate of rehabilitation, or other equivalent procedure based
on a finding of the rehabilitation of the person convicted, or a conviction
that has been the subject of a pardon, annulment, or other equivalent procedure
based on a finding of innocence. It does include convictions for offenses for
which the defendant received a deferred or suspended sentence, unless the
record has been expunged according to law.
(5)
"Crime against children or other persons" means a conviction of any
of the following offenses: Aggravated murder; first or second degree murder;
first or second degree kidnaping; first, second, or third degree assault;
first, second, or third degree assault of a child; first, second, or third
degree rape; first, second, or third degree rape of a child; first or second
degree robbery; first degree arson; first degree burglary; first or second degree
manslaughter; first or second degree extortion; indecent liberties; incest;
vehicular homicide; first degree promoting prostitution; communication with a
minor; unlawful imprisonment; simple assault; sexual exploitation of minors;
first or second degree criminal mistreatment; child abuse or neglect as defined
in RCW 26.44.020; first or second degree custodial interference; malicious
harassment; first, second, or third degree child molestation; first or second
degree sexual misconduct with a minor; ((first or second degree rape of a
child;)) patronizing a juvenile prostitute; child abandonment; promoting
pornography; selling or distributing erotic material to a minor; custodial
assault; violation of child abuse restraining order; child buying or selling; prostitution;
felony indecent exposure; criminal abandonment; or any of these crimes as they
may be renamed in the future.
(6)
"Crimes relating to drugs" means a conviction of a crime to
manufacture, delivery, or possession with intent to manufacture or deliver a
controlled substance.
(7)
"Crimes relating to financial exploitation" means a conviction for
first, second, or third degree extortion; first, second, or third degree theft;
first or second degree robbery; forgery; or any of these crimes as they may be
renamed in the future.
(((7)))
(8) "Disciplinary board final decision" means any final
decision issued by a disciplining authority under chapter 18.130 RCW or the
secretary of the department of health for the following businesses or
professions:
(a)
Chiropractic;
(b)
Dentistry;
(c)
Dental hygiene;
(d)
Massage;
(e)
Midwifery;
(f)
Naturopathy;
(g)
Osteopathic medicine and surgery;
(h)
Physical therapy;
(i)
Physicians;
(j)
Practical nursing;
(k)
Registered nursing; and
(l)
Psychology.
"Disciplinary
board final decision," for real estate brokers and salespersons, means any
final decision issued by the director of the department of licensing for real
estate brokers and salespersons.
(((8)))
(9) "Unsupervised" means not in the presence of:
(a)
Another employee or volunteer from the same business or organization as the
applicant; or
(b)
Any relative or guardian of any of the children or developmentally disabled
persons or vulnerable adults to which the applicant has access during the course
of his or her employment or involvement with the business or organization.
(((9)))
(10) "Vulnerable adult" means "vulnerable adult" as
defined in chapter 74.34 RCW, except that for the purposes of requesting and
receiving background checks pursuant to RCW 43.43.832, it shall also include
adults of any age who lack the functional, mental, or physical ability to care
for themselves.
(((10)))
(11) "Financial exploitation" means the illegal or improper
use of a vulnerable adult or that adult's resources for another person's profit
or advantage.
(((11)))
(12) "Agency" means any person, firm, partnership,
association, corporation, or facility which receives, provides services to,
houses or otherwise cares for vulnerable adults.
NEW
SECTION. Sec. 2. A
new section is added to chapter 43.43 RCW to read as follows:
For
purposes of background checks, convictions for crimes relating to drugs may be
used as a tool for investigation and may be used for any decision regarding the
person's suitability for a position in which the person may have unsupervised
access to children or vulnerable adults.
Sec.
3. RCW
43.43.834 and 1990 c 3 s 1103 are each amended to read as follows:
(1)
A business or organization shall not make an inquiry to the Washington state
patrol under RCW 43.43.832 or an equivalent inquiry to a federal law
enforcement agency unless the business or organization has notified the
applicant who has been offered a position as an employee or volunteer, that an
inquiry may be made.
(2)
A business or organization shall require each applicant to disclose to the
business or organization whether the applicant has been:
(a)
Convicted of any crime against children or other persons;
(b)
Convicted of crimes relating to financial exploitation if the victim was a
vulnerable adult;
(c)
Convicted of crimes related to drugs as defined in RCW 43.43.830;
(d)
Found in any dependency action under RCW 13.34.040 to have sexually assaulted
or exploited any minor or to have physically abused any minor;
(((d)))
(e) Found by a court in a domestic relations proceeding under Title 26
RCW to have sexually abused or exploited any minor or to have physically abused
any minor;
(((e)))
(f) Found in any disciplinary board final decision to have sexually or
physically abused or exploited any minor or developmentally disabled person or
to have abused or financially exploited any vulnerable adult; or
(((f)))
(g) Found by a court in a protection proceeding under chapter 74.34 RCW,
to have abused or financially exploited a vulnerable adult.
The
disclosure shall be made in writing and signed by the applicant and sworn under
penalty of perjury. The disclosure sheet shall specify all crimes against
children or other persons and all crimes relating to financial exploitation as
defined in RCW 43.43.830 in which the victim was a vulnerable adult.
(3)
The business or organization shall pay such reasonable fee for the records
check as the state patrol may require under RCW 43.43.838.
(4)
The business or organization shall notify the applicant of the state patrol's
response within ten days after receipt by the business or organization. The
employer shall provide a copy of the response to the applicant and shall notify
the applicant of such availability.
(5)
The business or organization shall use this record only in making the initial
employment or engagement decision. Further dissemination or use of the record
is prohibited. A business or organization violating this subsection is subject
to a civil action for damages.
(6)
An insurance company shall not require a business or organization to request
background information on any employee before issuing a policy of insurance.
(7)
The business and organization shall be immune from civil liability for failure
to request background information on an applicant unless the failure to do so
constitutes gross negligence.
Sec.
4. RCW
43.43.842 and 1997 c 392 s 518 are each amended to read as follows:
(1)(a)
The secretary of social and health services and the secretary of health shall
adopt additional requirements for the licensure or relicensure of agencies,
facilities, and licensed individuals who provide care and treatment to
vulnerable adults, including nursing pools registered under chapter 18.52C
RCW. These additional requirements shall ensure that any person associated
with a licensed agency or facility having unsupervised access with a vulnerable
adult shall not have been: (i) Convicted of a crime against persons as defined
in RCW 43.43.830, except as provided in this section; (ii) convicted of crimes
relating to financial exploitation as defined in RCW 43.43.830, except as
provided in this section; (iii) found in any disciplinary board final decision
to have abused a vulnerable adult under RCW 43.43.830; or (iv) the subject in a
protective proceeding under chapter 74.34 RCW.
(b)
A person associated with a licensed agency or facility who has unsupervised
access with a vulnerable adult shall make the disclosures specified in RCW
43.43.834(2). The person shall make the disclosures in writing, sign, and
swear to the contents under penalty of perjury. The person shall, in the
disclosures, specify all crimes against children or other persons, ((and))
all crimes relating to financial exploitation, and all crimes relating to
drugs as defined in RCW 43.43.830, committed by the person.
(2)
The rules adopted under this section shall permit the licensee to consider the
criminal history of an applicant for employment in a licensed facility when the
applicant has one or more convictions for a past offense and:
(a)
The offense was simple assault, assault in the fourth degree, or the same
offense as it may be renamed, and three or more years have passed between the
most recent conviction and the date of application for employment;
(b)
The offense was prostitution, or the same offense as it may be renamed, and
three or more years have passed between the most recent conviction and the date
of application for employment;
(c)
The offense was theft in the third degree, or the same offense as it may be
renamed, and three or more years have passed between the most recent conviction
and the date of application for employment;
(d)
The offense was theft in the second degree, or the same offense as it may be
renamed, and five or more years have passed between the most recent conviction
and the date of application for employment;
(e)
The offense was forgery, or the same offense as it may be renamed, and five or
more years have passed between the most recent conviction and the date of
application for employment.
The
offenses set forth in (a) through (e) of this subsection do not automatically
disqualify an applicant from employment by a licensee. Nothing in this section
may be construed to require the employment of any person against a licensee's
judgment.
(3) In consultation with law enforcement personnel, the secretary
of social and health services and the secretary of health shall investigate, or
cause to be investigated, the conviction record and the protection proceeding
record information under this chapter of the staff of each agency or facility
under their respective jurisdictions seeking licensure or relicensure. An
individual responding to a criminal background inquiry request from his or her
employer or potential employer shall disclose the information about his or her
criminal history under penalty of perjury. The secretaries shall use the
information solely for the purpose of determining eligibility for licensure or
relicensure. Criminal justice agencies shall provide the secretaries such
information as they may have and that the secretaries may require for such
purpose.
