READ FIRST TIME 02/24/11.   

     AN ACT Relating to background checks for child care licensees and employees; amending RCW 43.215.215; reenacting and amending RCW 43.215.010; adding new sections to chapter 43.215 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 43.215 RCW to read as follows:
     Subject to appropriation, the department of early learning shall establish and maintain an individual-based or portable background check clearance registry by July 1, 2012. Any individual seeking a child care license or employment in any child care facility licensed or regulated under current law shall submit a background application on a form prescribed by the department in rule.

Sec. 2   RCW 43.215.215 and 2007 c 415 s 5 are each amended to read as follows:
     (1) In determining whether an individual is of appropriate character, suitability, and competence to provide child care and early learning services to children, the department may consider the history of past involvement of child protective services or law enforcement agencies with the individual for the purpose of establishing a pattern of conduct, behavior, or inaction with regard to the health, safety, or welfare of a child. No report of child abuse or neglect that has been destroyed or expunged under RCW 26.44.031 may be used for such purposes. No unfounded or inconclusive allegation of child abuse or neglect as defined in RCW 26.44.020 may be disclosed to a provider licensed under this chapter.
     (2) In order to determine the suitability of ((applicants)) individuals newly applying for an agency license, new licensees, their new employees, and other persons who newly have unsupervised access to children in care, ((and who have not resided in the state of Washington during the three-year period before being authorized to care for children,)) shall be fingerprinted.
     (a) The fingerprints shall be forwarded to the Washington state patrol and federal bureau of investigation for a criminal history record check.
     (b) ((The fingerprint criminal history record checks shall be at the expense of the licensee. The licensee may not pass this cost on to the employee or prospective employee, unless the employee is determined to be unsuitable due to his or her criminal history record.)) (i) Effective July 1, 2012, all individuals applying for first-time agency licenses, all new employees, and other persons who have not been previously qualified by the department to have unsupervised access to children in care must be fingerprinted and obtain a criminal history record check pursuant to this section.
     (ii) Persons required to be fingerprinted and obtain a criminal record check pursuant to this section must pay for the cost of this check as follows: The fee established by the Washington state patrol for the criminal background history check, including the cost of obtaining the fingerprints; and a fee paid to the department for the cost of administering the individual-based/portable background check clearance registry. The fee paid to the department must be deposited into the individual-based/portable background check clearance account established in section 5 of this act. The licensee may, but need not, pay these costs on behalf of a prospective employee or reimburse the prospective employee for these costs. The licensee and the prospective employee may share these costs.
     (c) The director shall use the fingerprint criminal history record check information solely for the purpose of determining eligibility for a license and for determining the character, suitability, and competence of those persons or agencies, excluding parents, not required to be licensed who are authorized to care for children.
     (d) Criminal justice agencies shall provide the director such information as they may have and that the director may require for such purpose.
     (e) No later than July 1, 2013, all agency licensees holding licenses prior to July 1, 2012, persons who were employees before July 1, 2012, and persons who have been qualified by the department before July 1, 2012, to have unsupervised access to children in care, must submit a new background application to the department. The department must require persons submitting a new background application pursuant to this subsection (2)(e) to pay a fee to the department for the cost of administering the individual-based/portable background check clearance registry. This fee must be paid into the individual-based/portable background check clearance account established in section 5 of this act. The licensee may, but need not, pay these costs on behalf of a prospective employee or reimburse the prospective employee for these costs. The licensee and the prospective employee may share these costs.
     (f) The department shall issue a background check clearance card or certificate to the applicant if after the completion of a background check the department concludes the applicant is qualified for unsupervised access to children in care. The background check clearance card or certificate is valid for three years from the date of issuance. A valid card or certificate must be accepted by a potential employer as proof that the applicant has successfully completed a background check as required under this chapter.
     (g) The original applicant for an agency license, licensees, their employees, and other persons who have unsupervised access to children in care shall submit a new background check application to the department, on a form and by a date as determined by the department.
     (h) The applicant and agency shall maintain on-site for inspection a copy of the background check clearance card or certificate.
     (i) Individuals who have been issued a background check clearance card or certificate shall report nonconviction and conviction information to the department within twenty-four hours of the event constituting the nonconviction or conviction information.
     (j) The department shall investigate and conduct a redetermination of an applicant's or licensee's background clearance if the department receives a complaint or information from individuals, a law enforcement agency, or other federal, state, or local government agency. Subject to the requirements contained in RCW 43.215.300 and 43.215.305 and based on a determination that an individual lacks the appropriate character, suitability, or competence to provide child care or early learning services to children, the department may: (i) Invalidate the background card or certificate; or (ii) suspend, modify, or revoke any license authorized by this chapter.

Sec. 3   RCW 43.215.010 and 2007 c 415 s 2 and 2007 c 394 s 2 are each reenacted and amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Agency" means any person, firm, partnership, association, corporation, or facility that provides child care and early learning services outside a child's own home and includes the following irrespective of whether there is compensation to the agency:
     (a) "Child day care center" means an agency that regularly provides child day care and early learning services for a group of children for periods of less than twenty-four hours;
     (b) "Early learning" includes but is not limited to programs and services for child care; state, federal, private, and nonprofit preschool; child care subsidies; child care resource and referral; parental education and support; and training and professional development for early learning professionals;
     (c) "Family day care provider" means a child day care provider who regularly provides child day care and early learning services for not more than twelve children in the provider's home in the family living quarters;
     (d) "Nongovernmental private-public partnership" means an entity registered as a nonprofit corporation in Washington state with a primary focus on early learning, school readiness, and parental support, and an ability to raise a minimum of five million dollars in contributions;
     (e) "Service provider" means the entity that operates a community facility.
     (2) "Agency" does not include the following:
     (a) Persons related to the child in the following ways:
     (i) Any blood relative, including those of half-blood, and including first cousins, nephews or nieces, and persons of preceding generations as denoted by prefixes of grand, great, or great-great;
     (ii) Stepfather, stepmother, stepbrother, and stepsister;
     (iii) A person who legally adopts a child or the child's parent as well as the natural and other legally adopted children of such persons, and other relatives of the adoptive parents in accordance with state law; or
     (iv) Spouses of any persons named in (i), (ii), or (iii) of this subsection (2)(a), even after the marriage is terminated;
     (b) Persons who are legal guardians of the child;
     (c) Persons who care for a neighbor's or friend's child or children, with or without compensation, where the person providing care for periods of less than twenty-four hours does not conduct such activity on an ongoing, regularly scheduled basis for the purpose of engaging in business, which includes, but is not limited to, advertising such care;
     (d) Parents on a mutually cooperative basis exchange care of one another's children;
     (e) Nursery schools or kindergartens that are engaged primarily in educational work with preschool children and in which no child is enrolled on a regular basis for more than four hours per day;
     (f) Schools, including boarding schools, that are engaged primarily in education, operate on a definite school year schedule, follow a stated academic curriculum, accept only school-age children, and do not accept custody of children;
     (g) Seasonal camps of three months' or less duration engaged primarily in recreational or educational activities;
     (h) Facilities providing care to children for periods of less than twenty-four hours whose parents remain on the premises to participate in activities other than employment;
     (i) Any agency having been in operation in this state ten years before June 8, 1967, and not seeking or accepting moneys or assistance from any state or federal agency, and is supported in part by an endowment or trust fund;
     (j) An agency operated by any unit of local, state, or federal government or an agency, located within the boundaries of a federally recognized Indian reservation, licensed by the Indian tribe;
     (k) An agency located on a federal military reservation, except where the military authorities request that such agency be subject to the licensing requirements of this chapter;
     (l) An agency that offers early learning and support services, such as parent education, and does not provide child care services on a regular basis.
     (3) "Applicant" means a person who requests or seeks employment in an agency.
     (4) "Department" means the department of early learning.
     (5) "Director" means the director of the department.
     (6) "Employer" means a person or business that engages the services of one or more people, especially for wages or salary to work in an agency.
     (7) "Enforcement action" means denial, suspension, revocation, modification, or nonrenewal of a license pursuant to RCW 43.215.300(1) or assessment of civil monetary penalties pursuant to RCW 43.215.300(3).
     (8) "Probationary license" means a license issued as a disciplinary measure to an agency that has previously been issued a full license but is out of compliance with licensing standards.
     (9) "Requirement" means any rule, regulation, or standard of care to be maintained by an agency.
     (10) "Conviction information" means criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the applicant.
     (11) "Negative action" means a court order, court judgment, or an adverse action taken by an agency, in any state, federal, tribal, or foreign jurisdiction, which results in a finding against the applicant reasonably related to the individual's character, suitability, and competence to care for or have unsupervised access to children in child care. This may include, but is not limited to:
     (a) A decision issued by an administrative law judge;
     (b) A final determination, decision, or finding made by an agency following an investigation;
     (c) An adverse agency action, including termination, revocation, or denial of a license or certification, or if pending adverse agency action, the voluntary surrender of a license, certification, or contract in lieu of the adverse action;
     (d) A revocation, denial, or restriction placed on any professional license; or
     (e) A final decision of a disciplinary board.
     (12) "Nonconviction information" means arrest, founded allegations of child abuse, or neglect pursuant to chapter 26.44 RCW, or other negative action adverse to the applicant.

NEW SECTION.  Sec. 4   A new section is added to chapter 43.215 RCW to read as follows:
     Effective July 1, 2011, all agency licensees shall pay the department a one-time fee established by the department. When establishing the fee, the department must consider the cost of developing and administering the registry, and shall not set a fee which is estimated to generate revenue beyond estimated costs for the development and administration of the registry. Fee revenues must be deposited in the individual-based/portable background check clearance account created in section 5 of this act and may be expended only for the costs of developing and administering the individual-based/portable background check clearance registry created in section 1 of this act.

NEW SECTION.  Sec. 5   A new section is added to chapter 43.215 RCW to read as follows:
     The individual-based/portable background check clearance account is created in the custody of the state treasurer. All fees collected pursuant to RCW 43.215.215 and section 4 of this act must be deposited in the account. Expenditures from the account may be made only for development and administration, and implementation of the individual-based/portable background check registry established in section 1 of this act. Only the director of the department of early learning or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

NEW SECTION.  Sec. 6   A new section is added to chapter 43.215 RCW to read as follows:
     Upon resignation or termination with or without cause of any individual working in a child care agency, the child care agency shall report to the department within twenty-four hours if it has knowledge of the following with respect to the individual:
     (1) Any charge or conviction for a crime listed in WAC 170-06-0120;
     (2) Any other charge or conviction for a crime that could be reasonably related to the individual's suitability to provide care for or have unsupervised access to children or care; or
     (3) Any negative action as defined in RCW 43.215.010.

NEW SECTION.  Sec. 7   To the extent that existing resources are available, the department of early learning, the office of the superintendent of public instruction, and educational service districts shall develop a proposal to coordinate their common background check activities. The proposal shall include the development of an information sharing system, or protocol, that will operate in accord with federal regulations. These agencies shall submit their proposal to the legislature no later than December 15, 2011.