WSR 00-08-061

EMERGENCY RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed March 31, 2000, 11:03 a.m. ]

Date of Adoption: March 31, 2000.

Purpose: The purpose of this emergency rule is to provide increased safety and welfare for children in child care settings where the department pays towards the cost of child care for an exempt in-home/relative provider. The provider must not have a conviction record which would place the child or the family at a potential risk of harm.

Citation of Existing Rules Affected by this Order: Amending WAC 388-290-850, 388-290-905, 388-290-910, 388-290-925, 388-290-940, and 388-290-945.

Statutory Authority for Adoption: RCW 43.43.830, 43.43.832, and 74.15.010.

Other Authority: RCW 10.97.050.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The department must increase the protection of children currently in the care of individuals who have conviction history which increases the likelihood of harm to the child or the household.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 10, Amended 6, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 10, Amended 6, Repealed 0. Effective Date of Rule: Immediately.

March 31, 2000

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

2723.4
AMENDATORY SECTION(Amending WSR 99-14-023, filed 6/28/99, effective 7/1/99)

WAC 388-290-850
What child care providers can the department pay under the WCCC program?

To receive payment under the WCCC program, your child care provider must fall into one of the following categories:

(1) Licensed as required by chapter 74.15 RCW and chapters 388-73, 388-155 (Minimum licensing requirements for family child day care homes), or 388-150 WAC (Minimum licensing requirements for child day care centers).

(2) Exempt from licensing but certified by the department, including:

(a) Tribal child care facilities meeting the requirements of tribal law;

(b) Child care facilities on a military installation;

(c) Child care facilities operated on public school property by a school district.

(3) Exempt from licensing and certification, but the provider must:

(a) Be a U.S. citizen or legally residing in the country;

(b) Be one of the following adult relatives providing care in either the child's or relative's home:

(i) An adult sibling living outside the child's home; or

(ii) A grandparent, aunt, uncle, first cousin, or great-grandparent, great-aunt, or great-uncle; and

(iii) Not the child's biological, adoptive, or step-parent; or

(iv) An extended tribal family member under chapter 74.15 RCW.

(c) Be an adult friend or neighbor providing care in the child's own home; ((and))

(d) Meet the in-home relative provider requirements in ((chapter 388-15 WAC. We can refuse to pay toward the cost of in-home/relative care if we have evidence your in-home/relative provider does not meet these requirements)) WAC 388-165-235;

(e) Complete and submit a criminal background inquiry form prescribed by the department; and

(f) Not be disqualified based on information in WAC 388-290-854 (3) or (4).

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99. 99-14-023, 388-290-850, filed 6/28/99, effective 7/1/99.]


NEW SECTION
WAC 388-290-854
When do we refuse to pay towards the cost of in-home/relative care?

DSHS refuses to pay towards the cost of in-home/relative care if we:

(1) Have evidence your in-home/relative provider does not meet the requirements in WAC 388-290-850;

(2) Fail to receive a completed criminal background inquiry form signed by the parent and potential provider;

(3) Have evidence, other than conviction information, indicating the provider may not be of sufficient physical, emotional or mental health to meets the needs of the child in care or the household may be at risk of harm by this provider; or

(4) Find the provider has been convicted of, or has charges pending for crimes listed in WAC 388-290-882 or 388-290-886.

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NEW SECTION
WAC 388-290-858
Why do we review your provider's criminal background information?

DSHS reviews the provider's criminal background information because:

(1) The department does not pay towards the cost of child care provided by individuals convicted of crimes listed in WAC 388-290-882 and 388-290-886; and

(2) DSHS wants you to have this information to help you to make informed, safe, and responsible decisions about your child(ren)'s care provider.

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NEW SECTION
WAC 388-290-862
When is a criminal background check required?

DSHS requires the criminal background check for each in-home/relative provider when:

(1) The family requests payment for services by a new provider;

(2) Every two years for existing providers; or

(3) When the department has information indicating the provider may have charges pending or convictions may have occurred.

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NEW SECTION
WAC 388-290-866
Where does the department get the criminal background information on the in-home/relative provider?

DSHS gets information on criminal background information from:

(1) The Washington state patrol under chapter 10.97 RCW;

(2) If available, we may also review criminal background information from other states and Federally Recognized Indian Tribes; and

(3) Disclosure by the provider.

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NEW SECTION
WAC 388-290-870
What does the department do with the criminal background information on the in-home relative/provider?

(1) DSHS compares the criminal background information including pending charges with convictions listed in WAC 388-290-882 and 388-290-886.

(2) A pending charge for a crime is given the same weight as a conviction.

(3) If the conviction has been renamed it is given the same weight as the previous named conviction. For example, larceny is now theft.

(4) Convictions whose titles are preceded with the word "attempted" are given the same weight as those titles without the word "attempted."

(5) Convictions that are considered the same as those listed in WAC 388-290-882 and 388-290-886 are given the same weight as those titles.

(6) DSHS determines if the provider's criminal background contains information that will not allow the authorization of payment towards the cost of WCCC.

(7) DSHS notifies the parent of the criminal background information.

(8) If the criminal background information disqualifies the provider, DSHS denies or stops payment towards the cost of care by this provider.

(9) DSHS assists parents in finding other child care arrangements.

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NEW SECTION
WAC 388-290-874
Will I be notified of the results of the criminal background information on my in-home/relative provider?

You will receive notification telling you the criminal background information and if DSHS is, or is not, able to authorize payment towards the cost of care.

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NEW SECTION
WAC 388-290-878
Can I still use my chosen provider to care for my child(ren) if the provider has been convicted of a disqualifying crime?

You may still use the in-home/relative provider to care for your child(ren), however, you must use your own money. DSHS will not pay towards the cost of care.

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NEW SECTION
WAC 388-290-882
What convictions permanently disqualify my in-home/relative provider from being authorized by WCCC?

If your provider has been convicted of any of the following crimes, DSHS will never authorize payment towards the cost of child care provided by that provider. Convictions whose title is preceded with the word "attempted" are given the same weight as those titles without the word "attempted":

(1) Aggravated murder;

(2) Arson in the first degree;

(3) Assault in the first, second or third degree;

(4) Assault of a child in the first, second or third degree;

(5) Burglary in the first degree;

(6) Child abandonment;

(7) Child abuse or neglect (RCW 26.44.020);

(8) Child buying or selling;

(9) Child molestation in the first, second or third degree;

(10) Communication with a minor for immoral purposes;

(11) Criminal abandonment;

(12) Criminal mistreatment in the first or second degree;

(13) Custodial assault;

(14) Custodial sexual misconduct in the first and second degree;

(15) Custodial interference in the first and second degree;

(16) Delivery of a controlled substance;

(17) Drive-by shooting;

(18) Extortion in the first or second degree;

(19) Felony indecent exposure;

(20) Incest;

(21) Leading organized crime;

(22) Luring;

(23) Patronizing a juvenile prostitute;

(24) Promoting a suicide attempt;

(25) Public indecency (if toward a child less than fourteen);

(26) Homicide by watercraft;

(27) Kidnapping in the first and second degree;

(28) Malicious explosion first, second and third degree;

(29) Malicious placement of an imitation device first degree;

(30) Malicious harassment;

(31) Manslaughter in the first and second degree;

(32) Manufacture of a controlled substance;

(33) Murder in the first and second degree;

(34) Possession with the intent to manufacture a controlled substance;

(35) Possession with the intent to deliver a controlled substance;

(36) Promoting prostitution in the first degree;

(37) Promoting pornography;

(38) Rape in the first, second and third degree (including the rape of a child);

(39) Reckless Endangerment;

(40) Robbery in the first and second degree;

(41) Selling or distributing erotic materials to a minor;

(42) Sexual exploitation of a minor;

(43) Sexual misconduct with a minor in the first or second degree;

(44) Sexually violating human remains;

(45) Stalking;

(46) Theft in the first degree;

(47) Unlawful imprisonment;

(48) Vehicular assault;

(49) Vehicular homicide;

(50) Violation of a child abuse restraining order-felony;

(51) Indecent liberties; or

(52) Any of these crimes as they may be renamed in the future; or

(53) Any convictions that results in the individual listed as a registered sex offender.

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NEW SECTION
WAC 388-290-886
What crimes require a set amount of time between the date of the conviction and the completion of the criminal background inquiry form for my provider to be authorized?

A set amount of time must pass between the date of conviction and the date of the criminal background information form for specific convictions. We authorize providers if the following time periods have passed for the following convictions. Convictions whose title is preceded with the word "attempted" are given the same weight as those titles without the word "attempted":

(1) Three years or more for:

(a) Assault in the fourth degree;

(b) Prostitution; or

(c) Theft in the third degree.

(2) Five years or more for:

(a) Forgery;

(b) Prostitution related crimes such as patronizing a prostitute; or

(c) Theft in the second degree.

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NEW SECTION
WAC 388-290-888
When can I ask the department to review the decision to deny authorization of my provider?

(1) If you disagree with the department's decision to deny payments towards the care of your provider you may request a review only if:

(a) The provider's conviction is listed in WAC 388-290-886; and

(b) The required amount of time has not elapsed.

(2) Your request must be made within thirty days of our decision and may be received in writing or by contacting DSHS.

(3) You may be requested to provide documentation of the appropriateness of the disqualified provider.

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AMENDATORY SECTION(Amending WSR 99-14-023, filed 6/28/99, effective 7/1/99)

WAC 388-290-905
What responsibilities does the department have under the WCCC program?

We will:

(1) Inform you of your rights and responsibilities under the WCCC program;

(2) Inform you which child care providers we can pay;

(3) ((Permit you to choose your own child care provider, as long as we can pay the provider under WAC 388-290-850)) Review and act upon information described in WAC 388-290-854 and 388-290-866 regarding your in-home/relative provider;

(4) Inform you of the community resources that can help you select child care, if needed;

(5) Only authorize payment when no adult in your family is able and available to care for your children;

(6) Only authorize payment to child care providers who allow you to see your children whenever they are in care;

(7) Respond to you within ten days if you report a change of circumstance;

(8) Provide prompt child care payments to your licensed or certified provider; and

(9) Notify you whenever we establish or change your WCCC copayment.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99. 99-14-023, 388-290-905, filed 6/28/99, effective 7/1/99.]


AMENDATORY SECTION(Amending WSR 99-14-023, filed 6/28/99, effective 7/1/99)

WAC 388-290-910
What responsibilities do I have under the WCCC program?

You ((will)) are responsible to:

(1) ((Be responsible to choose your)) Choose a provider meeting requirements of WAC 388-290-850 and make your own child care arrangements;

(2) Notify the department of any change in providers within five days;

(3) Pay your in-home/relative provider after we send you a check for in-home/relative care;

(4) Pay, or make arrangements to pay, your WCCC copayment directly to your child care provider;

(5) Supply the department with necessary information to allow us to correctly determine your eligibility and make proper payment to your provider;

(6) Notify your provider within ten days when we change your child care authorization;

(7) Provide notice to the department within ten days of any change in family size or income level; ((and))

(8) Assure your in-home/relative provider provides a valid social security number to the department, if you choose an in-home/relative provider; and

(9) Immediately report to your child care authorizing worker any pending charges or conviction information you learn about your in-home/relative provider.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99. 99-14-023, 388-290-910, filed 6/28/99, effective 7/1/99.]


AMENDATORY SECTION(Amending WSR 99-14-023, filed 6/28/99, effective 7/1/99)

WAC 388-290-925
When do advance and adequate notice rules not apply?

Advance and adequate notice requirements don't apply in the following circumstances:

(1) You tell the department you no longer want WCCC;

(2) Your whereabouts are unknown to the department;

(3) You are receiving duplicate child care benefits; ((or))

(4) Your normal WCCC authorization period is scheduled to end; or

(5) If DSHS finds evidence your in-home/relative provider has a criminal conviction under WAC 388-290-882 or 388-290-886 or other noncriminal conviction evidence indicates care by the provider may substantially jeopardize the safety or welfare of the child or may cause the household harm.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99. 99-14-023, 388-290-925, filed 6/28/99, effective 7/1/99.]


AMENDATORY SECTION(Amending WSR 99-14-023, filed 6/28/99, effective 7/1/99)

WAC 388-290-940
Do I have the right to request a fair hearing?

(1) WCCC consumers ((and child care providers)) can request fair hearings under chapter 388-08 WAC on any action affecting WCCC benefits except for mass changes resulting from a change in policy or law.

(2) Child care providers can request fair hearings under chapter 388-08 WAC only for WCCC overpayments.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99. 99-14-023, 388-290-940, filed 6/28/99, effective 7/1/99.]


AMENDATORY SECTION(Amending WSR 99-14-023, filed 6/28/99, effective 7/1/99)

WAC 388-290-945
Can I get WCCC pending the outcome of a fair hearing?

(1) If you are a WCCC consumer, you can get WCCC pending the outcome of a fair hearing if you request the fair hearing:

(a) On or before the effective date of an action; or

(b) No more that ten days after the department sends you a notice of adverse action.

"Adverse action" means an action to reduce or terminate your WCCC, or to set up a protective payee to receive your WCCC warrant for you.

(2) If you lose the fair hearing, any WCCC you use between the date of the adverse action and the date of the fair hearing or fair hearing decision is an overpayment to you, the consumer.

(3) If we obtain information that your provider may not be authorized to care for children under WAC 388-290-850 and you request a fair hearing on this decision, you are not eligible for WCCC payments to this provider pending the outcome of the fair hearing. If you are eligible for WCCC, you may receive child care benefits towards another eligible provider, pending the outcome of the fair hearing.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99. 99-14-023, 388-290-945, filed 6/28/99, effective 7/1/99.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office