BILL REQ. #:  H-4051.2 

Read first time 01/23/2004.   Referred to Committee on Children & Family Services.

     AN ACT Relating to criminal history checks for persons having supervised and unsupervised contact with minors, developmentally disabled persons, or vulnerable adults; amending RCW 43.43.830, 43.43.834, and 43.43.838; and adding new sections to chapter 43.43 RCW.

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

Sec. 1   RCW 43.43.830 and 2003 c 105 s 5 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, and sections 2 and 5 of this act.
     (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));
     (c) Any prospective adoptive parent, as defined in RCW 26.33.020; or
     (d) Any prospective custodian in a nonparental custody proceeding under chapter 26.10 RCW.
     (2) "Business or organization" means a business or organization licensed in this state, any nonprofit entity, 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; endangerment with a controlled substance; child abuse or neglect as defined in RCW 26.44.020; first or second degree custodial interference; first or second degree custodial sexual misconduct; malicious harassment; first, second, or third degree child molestation; first or second degree sexual misconduct with a minor; 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.
     (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.
     (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.
     (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.
     (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.
     (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:
     (1) A business or organization shall investigate the conviction records of any person acting on behalf of, or serving, the business or organization who will, or may have, supervised or unsupervised access to a child, developmentally disabled person, or vulnerable adult.
     (a) "Person acting on behalf of, or serving, the business or organization" includes:
     (i) Current employees of the business or organization;
     (ii) Applicants seeking or being considered for any position with the business or organization; and
     (iii) Any service provider, contractor, student intern, volunteer, or other individual acting on behalf of, or serving, the business or organization.
     (b) The investigation shall consist of a criminal background check as allowed through the Washington state criminal records privacy act under RCW 10.97.050, the Washington state patrol criminal identification system under RCW 43.43.832 through 43.43.834, or the federal bureau of investigation. The background check may include a fingerprint check using a complete Washington state criminal identification fingerprint card. If the applicant or service provider has had a background check within the previous two years, the business or organization may waive the requirement.
     (c) When necessary, applicants may be employed or engaged on a conditional basis pending completion of the background check.
     (2) If the criminal background check indicates the employee or applicant has been convicted of any crimes against children or other persons, crimes relating to drugs, or crimes relating to financial exploitation, and the business or organization elects to accept or retain the employee or volunteer in a position in which that person will have supervised or unsupervised access to a child, developmentally disabled person, or vulnerable adult, the business or organization shall notify the parent or guardian of each child, developmentally disabled person, or vulnerable adult for whom it provides services. All notifications shall be made in writing and shall be made on or before the date the child, developmentally disabled person, or vulnerable adult commences participation in services provided by the organization or entity, or in the case of continuing employees or volunteers, within two weeks of the date the business or organization receives the conviction information.

Sec. 3   RCW 43.43.834 and 1999 c 21 s 2 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, section 2 of this act, or an equivalent inquiry to a federal law enforcement agency unless the business or organization has notified the current employee, person acting on behalf of the business or organization, or 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 current employee, person acting on behalf of the business or organization, or applicant to disclose to the business or organization whether the current employee, person acting on behalf of the business or organization, or 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;
     (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;
     (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
     (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 current employee, person acting on behalf of the business or organization, or 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 current employee, person acting on behalf of the business or organization, or 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 current employee, person acting on behalf of the business or organization, or applicant and shall notify the current employee, person acting on behalf of the business or organization, or applicant of such availability.
     (5) The business or organization shall use this record only in making the initial employment ((or)), engagement, or retention decision. Further dissemination or use of the record is prohibited, except as provided in RCW 28A.320.155. 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 43.43.838 and 1995 c 29 s 1 are each amended to read as follows:
     (1) After January 1, 1988, and notwithstanding any provision of RCW 43.43.700 through 43.43.810 to the contrary, the state patrol shall furnish a transcript of the conviction record, disciplinary board final decision and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision, or civil adjudication record pertaining to any person for whom the state patrol or the federal bureau of investigation has a record upon the written request of:
     (a) The subject of the inquiry;
     (b) Any business or organization for the purpose of conducting evaluations under RCW 43.43.832 or section 2 of this act;
     (c) The department of social and health services;
     (d) Any law enforcement agency, prosecuting authority, or the office of the attorney general; or
     (e) The department of social and health services for the purpose of meeting responsibilities set forth in chapter 74.15, 18.51, 18.20, or 72.23 RCW, or any later-enacted statute which purpose is to regulate or license a facility which handles vulnerable adults. However, access to conviction records pursuant to this subsection (1)(e) does not limit or restrict the ability of the department to obtain additional information regarding conviction records and pending charges as set forth in RCW 74.15.030(2)(b).
     After processing the request, if the conviction record, disciplinary board final decision and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision, or adjudication record shows no evidence of a crime against children or other persons or, in the case of vulnerable adults, no evidence of crimes relating to financial exploitation in which the victim was a vulnerable adult, an identification declaring the showing of no evidence shall be issued to the business or organization by the state patrol and shall be issued within fourteen working days of the request. The business or organization shall provide a copy of the identification declaring the showing of no evidence to the applicant. Possession of such identification shall satisfy future record check requirements for the applicant for a two-year period unless the prospective employee is any current school district employee who has applied for a position in another school district.
     (2) The state patrol shall by rule establish fees for disseminating records under this section to recipients identified in subsection (1)(a) and (b) of this section. The state patrol shall also by rule establish fees for disseminating records in the custody of the national crime information center. The revenue from the fees shall cover, as nearly as practicable, the direct and indirect costs to the state patrol of disseminating the records: PROVIDED, That no fee shall be charged to a nonprofit organization for the records check: PROVIDED FURTHER, That in the case of record checks using fingerprints requested by school districts and educational service districts, the state patrol shall charge only for the incremental costs associated with checking fingerprints in addition to name and date of birth. Record checks requested by school districts and educational service districts using only name and date of birth shall continue to be provided free of charge.
     (3) No employee of the state, employee of a business or organization, or the business or organization is liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information under RCW 43.43.830 through 43.43.840 or 43.43.760.
     (4) Before July 26, 1987, the state patrol shall adopt rules and forms to implement this section and to provide for security and privacy of information disseminated under this section, giving first priority to the criminal justice requirements of this chapter. The rules may include requirements for users, audits of users, and other procedures to prevent use of civil adjudication record information or criminal history record information inconsistent with this chapter.
     (5) Nothing in RCW 43.43.830 through 43.43.840 shall authorize an employer to make an inquiry not specifically authorized by this chapter, or be construed to affect the policy of the state declared in chapter 9.96A RCW.

NEW SECTION.  Sec. 5   A new section is added to chapter 43.43 RCW to read as follows:
     The Washington state commission on national and community service shall adopt, and make available through its web site, recommended best practices for businesses and organizations to follow when one or more volunteers of the business or organization have unsupervised access to one or more children, developmentally disabled persons, or vulnerable adults. The recommended best practices shall focus on, but shall not be limited to, ensuring the safety of children, developmentally disabled persons, and vulnerable adults, best methods of screening and supervising volunteers, how to obtain criminal records checks, and recordkeeping regarding the reports. The recommended best practices shall be adopted not later than six months after the effective date of this act.