BILL REQ. #:  H-1651.2 

Read first time 02/09/09.   Referred to Committee on Health Care & Wellness.

     AN ACT Relating to criminal background checks; amending RCW 74.39A.009, 43.20A.710, and 43.43.837; providing an effective date; and declaring an emergency.

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

Sec. 1   RCW 74.39A.009 and 2009 c 2 s 2 (Initiative Measure No. 1029) are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Adult family home" means a home licensed under chapter 70.128 RCW.
     (2) "Adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.020 to provide personal care services.
     (3) "Assisted living services" means services provided by a boarding home that has a contract with the department under RCW 74.39A.010 to provide personal care services, intermittent nursing services, and medication administration services, and the resident is housed in a private apartment-like unit.
     (4) "Background check" or "fingerprint-based background check" means a fingerprint check submitted for the purpose of investigating conviction records both through the Washington state patrol and the federal bureau of investigation.
     (5) "Boarding home" means a facility licensed under chapter 18.20 RCW.
     (((5))) (6) "Core competencies" means basic training topics, including but not limited to, communication skills, worker self-care, problem solving, maintaining dignity, consumer directed care, cultural sensitivity, body mechanics, fall prevention, skin and body care, long-term care worker roles and boundaries, supporting activities of daily living, and food preparation and handling.
     (((6))) (7) "Cost-effective care" means care provided in a setting of an individual's choice that is necessary to promote the most appropriate level of physical, mental, and psychosocial well-being consistent with client choice, in an environment that is appropriate to the care and safety needs of the individual, and such care cannot be provided at a lower cost in any other setting. But this in no way precludes an individual from choosing a different residential setting to achieve his or her desired quality of life.
     (((7))) (8) "Department" means the department of social and health services.
     (((8))) (9) "Developmental disability" has the same meaning as defined in RCW 71A.10.020.
     (((9))) (10) "Direct care worker" means a paid caregiver who provides direct, hands-on personal care services to persons with disabilities or the elderly requiring long-term care.
     (((10))) (11) "Enhanced adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.010 to provide personal care services, intermittent nursing services, and medication administration services.
     (((11))) (12) "Functionally disabled person" or "person who is functionally disabled" is synonymous with chronic functionally disabled and means a person who because of a recognized chronic physical or mental condition or disease, or developmental disability, including chemical dependency, is impaired to the extent of being dependent upon others for direct care, support, supervision, or monitoring to perform activities of daily living. "Activities of daily living", in this context, means self-care abilities related to personal care such as bathing, eating, using the toilet, dressing, and transfer. Instrumental activities of daily living may also be used to assess a person's functional abilities as they are related to the mental capacity to perform activities in the home and the community such as cooking, shopping, house cleaning, doing laundry, working, and managing personal finances.
     (((12))) (13) "Home and community services" means adult family homes, in-home services, and other services administered or provided by contract by the department directly or through contract with area agencies on aging or similar services provided by facilities and agencies licensed by the department.
     (((13))) (14) "Home care aide" means a long-term care worker who has obtained certification as a home care aide by the department of health.
     (((14))) (15) "Individual provider" is defined according to RCW 74.39A.240.
     (((15))) (16) "Long-term care" is synonymous with chronic care and means care and supports delivered indefinitely, intermittently, or over a sustained time to persons of any age disabled by chronic mental or physical illness, disease, chemical dependency, or a medical condition that is permanent, not reversible or curable, or is long-lasting and severely limits their mental or physical capacity for self-care. The use of this definition is not intended to expand the scope of services, care, or assistance by any individuals, groups, residential care settings, or professions unless otherwise expressed by law.
     (((16))) (17)(a) "Long-term care workers for the elderly or persons with disabilities" or "long-term care workers" includes all persons who are long-term care workers for the elderly or persons with disabilities, including but not limited to individual providers of home care services, direct care employees of home care agencies, providers of home care services to persons with developmental disabilities under Title 71 RCW, all direct care workers in state-licensed boarding homes, assisted living facilities, and adult family homes, respite care providers, community residential service providers, and any other direct care worker providing home or community-based services to the elderly or persons with functional disabilities or developmental disabilities.
     (b) "Long-term care workers" do not include: (i) Persons employed in nursing homes subject to chapter 18.51 RCW, hospitals or other acute care settings, hospice agencies subject to chapter 70.127 RCW, adult day care centers, and adult day health care centers; or (ii) persons who are not paid by the state or by a private agency or facility licensed by the state to provide personal care services.
     (((17))) (18) "Nursing home" means a facility licensed under chapter 18.51 RCW.
     (((18))) (19) "Personal care services" means physical or verbal assistance with activities of daily living and instrumental activities of daily living provided because of a person's functional disability.
     (((19))) (20) "Population specific competencies" means basic training topics unique to the care needs of the population the long-term care worker is serving, including but not limited to, mental health, dementia, developmental disabilities, young adults with physical disabilities, and older adults.
     (((20))) (21) "Qualified instructor" means a registered nurse or other person with specific knowledge, training, and work experience in the provision of direct, hands-on personal care and other assistance services to the elderly or persons with disabilities requiring long-term care.
     (((21))) (22) "Secretary" means the secretary of social and health services.
     (((22))) (23) "Secretary of health" means the secretary of health or the secretary's designee.
     (((23))) (24) "Training partnership" means a joint partnership or trust that includes the office of the governor and the exclusive bargaining representative of individual providers under RCW 74.39A.270 with the capacity to provide training, peer mentoring, and workforce development, or other services to individual providers.
     (((24))) (25) "Tribally licensed boarding home" means a boarding home licensed by a federally recognized Indian tribe which home provides services similar to boarding homes licensed under chapter 18.20 RCW.

Sec. 2   RCW 43.20A.710 and 2001 c 296 s 5 are each amended to read as follows:
     (1) The secretary shall investigate the conviction records, pending charges and disciplinary board final decisions of:
     (a) Any current employee or applicant seeking or being considered for any position with the department who will or may have unsupervised access to children, vulnerable adults, or individuals with mental illness or developmental disabilities. This includes, but is not limited to, positions conducting comprehensive assessments, financial eligibility determinations, licensing and certification activities, investigations, surveys, or case management; or for state positions otherwise required by federal law to meet employment standards;
     (b) Individual providers who are paid by the state and providers who are paid by home care agencies to provide in-home services involving unsupervised access to persons with physical, mental, or developmental disabilities or mental illness, or to vulnerable adults as defined in chapter 74.34 RCW, including but not limited to services provided under chapter 74.39 or 74.39A RCW; and
     (c) Individuals or businesses or organizations for the care, supervision, case management, or treatment of children, ((developmentally disabled)) persons with developmental disabilities, or vulnerable adults, including but not limited to services contracted for under chapter 18.20, ((18.48,)) 70.127, 70.128, 72.36, or 74.39A RCW or Title 71A RCW.
     (2) The investigation may include an examination of state and national criminal identification data. The secretary shall use the information solely for the purpose of determining the character, suitability, and competence of these applicants.
     (3)(a) On or before January 1, 2010, an individual provider or home care agency provider who has resided in the state less than three years before applying for employment involving unsupervised access to a vulnerable adult as defined in chapter 74.34 RCW must be fingerprinted for the purpose of investigating conviction records both through the Washington state patrol and the federal bureau of investigation. This subsection applies only with respect to the provision of in-home services funded by medicaid personal care under RCW 74.09.520, community options program entry system waiver services under RCW 74.39A.030, or chore services under RCW 74.39A.110. However, this subsection does not supersede RCW 74.15.030(2)(b).
     (b) After January 1, 2010, state and federal criminal background checks for long-term care workers for the elderly or persons with disabilities are governed by RCW 74.39A.055.
     (4) An individual provider or home care agency provider hired to provide in-home care for and having unsupervised access to a vulnerable adult as defined in chapter 74.34 RCW must have no conviction for a disqualifying crime under RCW 43.43.830 and 43.43.842. An individual or home care agency provider must also have no conviction for a crime relating to drugs as defined in RCW 43.43.830. This subsection applies only with respect to the provision of in-home services funded by medicaid personal care under RCW 74.09.520, community options program entry system waiver services under RCW 74.39A.030, or chore services under RCW 74.39A.110.
     (5) Beginning January 1, 2010, pursuant to chapter 18.88B RCW, the department of health shall have concurrent responsibility with the department for suitability determinations regarding disqualifying crimes.
     (6) To the extent authorized by law, the secretary shall provide the results of the background check on individual providers to the persons hiring them or to their legal guardians, if any, for their determination of the character, suitability, and competence of the applicants. If the person elects to hire or retain an individual provider after receiving notice from the department that the applicant has a conviction for an offense that would disqualify the applicant from having unsupervised access to persons with physical, mental, or developmental disabilities or mental illness, or to vulnerable adults as defined in chapter 74.34 RCW, then the secretary shall deny payment for any subsequent services rendered by the disqualified individual provider.
     (((6))) (7) Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose.
     (8) For the purposes of this section, "background check" or "fingerprint-based background check" means the same as defined in RCW 74.39A.009.

Sec. 3   RCW 43.43.837 and 2007 c 387 s 1 are each amended to read as follows:
     (1) In order to determine the character, competence, and suitability of any applicant or service provider to have unsupervised access, the secretary may require a fingerprint-based background check through the Washington state patrol and the federal bureau of investigation at anytime, but shall require a fingerprint-based background check when the applicant or service provider has resided in the state less than three consecutive years before application, and:
     (a) Is an applicant or service provider providing services to children or people with developmental disabilities under RCW 74.15.030;
     (b) Is an individual residing in an applicant or service provider's home, facility, entity, agency, or business or who is authorized by the department to provide services to children or people with developmental disabilities under RCW 74.15.030; or
     (c) Is an applicant or service provider providing in-home services funded by:
     (i) Medicaid personal care under RCW 74.09.520;
     (ii) Community options program entry system waiver services under RCW 74.39A.030;
     (iii) Chore services under RCW 74.39A.110; or
     (iv) Other home and community long-term care programs, established pursuant to chapters 74.39 and 74.39A RCW, administered by the department.
     (2) The secretary shall require a fingerprint-based background check:
     (a) For long-term care workers pursuant to RCW 74.39A.055; and
     (b) Through the Washington state patrol identification and criminal history section and the federal bureau of investigation when the department seeks to approve an applicant or service provider for a foster or adoptive placement of children in accordance with federal and state law.
     (3) Any secure facility operated by the department under chapter 71.09 RCW shall require applicants and service providers to undergo a fingerprint-based background check through the Washington state patrol identification and criminal history section and the federal bureau of investigation.
     (4) Service providers and service provider applicants who are required to complete a fingerprint-based background check may be hired for a one hundred twenty-day provisional period as allowed under law or program rules when:
     (a) A fingerprint-based background check is pending; and
     (b) The applicant or service provider is not disqualified based on the immediate result of the background check.
     (5) Fees charged by the Washington state patrol and the federal bureau of investigation for fingerprint-based background checks shall be paid by the department for applicants or service providers providing:
     (a) Services to people with a developmental disability under RCW 74.15.030;
     (b) In-home services funded by medicaid personal care under RCW 74.09.520;
     (c) Community options program entry system waiver services under RCW 74.39A.030;
     (d) Chore services under RCW 74.39A.110;
     (e) Services under other home and community long-term care programs, established pursuant to chapters 74.39 and 74.39A RCW, administered by the department;
     (f) Services in, or to residents of, a secure facility under RCW 71.09.115; and
     (g) Foster care as required under RCW 74.15.030.
     (6) Service providers licensed under RCW 74.15.030 must pay fees charged by the Washington state patrol and the federal bureau of investigation for conducting fingerprint-based background checks.
     (7) Children's administration service providers licensed under RCW 74.15.030 may not pass on the cost of the background check fees to their applicants unless the individual is determined to be disqualified due to the background information.
     (8) The department shall develop rules identifying the financial responsibility of service providers, applicants, and the department for paying the fees charged by law enforcement to roll, print, or scan fingerprints-based for the purpose of a Washington state patrol or federal bureau of investigation fingerprint-based background check.
     (9) For purposes of this section, unless the context plainly indicates otherwise:
     (a) "Applicant" means a current or prospective department or service provider employee, volunteer, student, intern, researcher, contractor, or any other individual who will or may have unsupervised access because of the nature of the work or services he or she provides. "Applicant" includes but is not limited to any individual who will or may have unsupervised access and is:
     (i) Applying for a license or certification from the department;
     (ii) Seeking a contract with the department or a service provider;
     (iii) Applying for employment, promotion, reallocation, or transfer;
     (iv) An individual that a department client or guardian of a department client chooses to hire or engage to provide services to himself or herself or another vulnerable adult, juvenile, or child and who might be eligible to receive payment from the department for services rendered; or
     (v) A department applicant who will or may work in a department-covered position.
     (b) "Authorized" means the department grants an applicant, home, or facility permission to:
     (i) Conduct licensing, certification, or contracting activities;
     (ii) Have unsupervised access to vulnerable adults, juveniles, and children;
     (iii) Receive payments from a department program; or
     (iv) Work or serve in a department-covered position.
     (c) "Background check" or "fingerprint-based background check" means the same as defined in RCW 74.39A.009.
     (d) "Department" means the department of social and health services.
     (((d))) (e) "Secretary" means the secretary of the department of social and health services.
     (((e))) (f) "Secure facility" has the meaning provided in RCW 71.09.020.
     (((f))) (g) "Service provider" means entities, facilities, agencies, businesses, or individuals who are licensed, certified, authorized, or regulated by, receive payment from, or have contracts or agreements with the department to provide services to vulnerable adults, juveniles, or children. "Service provider" includes individuals whom a department client or guardian of a department client may choose to hire or engage to provide services to himself or herself or another vulnerable adult, juvenile, or child and who might be eligible to receive payment from the department for services rendered. "Service provider" does not include those certified under chapter 70.96A RCW.

NEW SECTION.  Sec. 4   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect April 1, 2009.