WSR 00-17-159

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Children's Administration)

[ Filed August 22, 2000, 3:24 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-07-039.

Title of Rule: Chapter 388-146 WAC, Background checks.

Purpose: Clarify the language of the background check requirements for homes and facilities licensed by Children's Administration (CA), for providers with unsupervised access to clients. This includes care providers to clients of the Division of Development Disabilities. The changes incorporate federal legislation, the Adoption and Safe Families Act of 1997 (42 U.S.C. 671(a)) that designated the types of criminal convictions which would preclude an individual from ever having unsupervised access to children.

The Division of Developmental Disabilities will follow the changes in this chapter for their adult clients as well as children.

Statutory Authority for Adoption: Chapter 74.15 RCW.

Statute Being Implemented: RCW 74.15.030.

Summary: The clear language and format change will lead to overall clarification of the chapter. The addition of the federal law changes brings the chapter current with the practice of the Division of Licensed Resources, Children's Administration (DSHS).

The addition of the FBI fingerprinting requirement for persons who are new to the state within three years. This places state statute and agency policy into WAC for consistent practice for CA licensees needing to meet this requirement. The chapter adds the process for completing the background check with both Children's Administration and the Division of Developmental Disabilities making available to those regulated by the WAC the information needed on how to comply with the rule.

Reasons Supporting Proposal: Overall clarity, efficiency and effectiveness of the background check for those having unsupervised access to children and persons with developmental disabilities. Additionally, the WAC changes support the licensors of the Division of Licensed Resources with clear language about the process of completing background checks on prospective licensees and other providers.

Name of Agency Personnel Responsible for Drafting and Implementation: Jean L. Croisant, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7992; and Enforcement: Division of Licensed Resources, Children's Administration, DSHS.

Name of Proponent: Department of Social and Health Services, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The purpose of rewriting the chapter in clear question and answer style is to improve understanding of the rules and for consistency of interpretation. This chapter regulates the review of the criminal history and child abuse/neglect history of potential caregivers to children and developmental disabled adults.

The addition of the federal law changes (of specific categories of criminal convictions) brings the chapter current with the policy and practice of the Division of Licensed Resources, Children's Administration (DSHS). The addition of the FBI fingerprinting requirement for persons who are new to the state within the last three years places in WAC a state statute and agency policy that has been in effect since 1995. The chapter adds the process for completing the background check with both Children's Administration and the Division of Developmental Disabilities.

The process of screening caretakers, for children in licensed homes and facilities as well as for developmentally disabled adults, is clearly a very important health and safety issue. It is important to have the rules clear and easy to understand for consistent interpretation and implementation.

Proposal Changes the Following Existing Rules: WAC 388-146-0120, list the criminal convictions that permanently disqualify an individual from having unsupervised access to children and to persons with developmental disabilities. This change in these crimes now clearly defines these as permanent disqualifiers.

WAC 388-146-0130, lists the crimes that would disqualify an individual for at least five years.

WAC 388-146-0140, outlines the criteria for seeking a license or authorization for unsupervised access to children and to persons with developmental disabilities.

All of the changes have been clarified during the review of the chapter.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The substantive changes in the background check chapter were made to align the WAC with state law and federal law changes with the addition of several crimes to the list of disqualifying convictions. There will be no new costs to businesses.

RCW 34.05.328 applies to this rule adoption. The proposed rule changes for chapter 388-146 WAC, Background checks, are "significant legislative rules" as defined in RCW 34.05.328 and therefore require a cost benefit analysis (CBA). A copy of the CBA may be requested by contacting Jean L. Croisant, at Division of Program and Policy Development, Children's Administration, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7992, or loje300@dshs.wa.gov.

Hearing Location: The hearing will be conducted using Washington Interactive Technologies' videoconferencing service. There will be four sites available for a simultaneous hearing: SPOKANE, 1101 North Argonne, Suite 109, Spokane, WA 99201, (509) 921-2371; RENTON, 1107 S.W. Grady Way, Suite 112, Renton, WA 98055, (425) 277-7290; TRICITIES, 8551 West Gage Boulevard, Suite H, Kennewick, WA 99336, (509) 734-7180; and LACEY, DIS Interactive Technologies, 710 Sleater-Kinney Road S.E., Suite Q, Lacey, WA 98504, (360) 407-9487; on October 26, 2000, at 1:30 p.m. Please contact Kelly Cooper, DSHS Rules Coordinator at (360) 664-6094 for directions.

Assistance for Persons with Disabilities: Contact DSHS Rules Coordinator by October 19, 2000, phone (360) 664-6094, TTY (360) 664-6178, e-mail myercme@dshs.wa.gov [coopekd@dshs.wa.gov].

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by October 26, 2000.

Date of Intended Adoption: No sooner than October 27, 2000.

August 18, 2000

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

2761.6
Chapter 388-146 WAC

BACKGROUND CHECKS

PURPOSE
NEW SECTION
WAC 388-146-0010
What is the purpose of this chapter?

The purpose of this chapter is to establish rules for background checks conducted by children's administration (CA) and the division of developmental disabilities (DDD) at the department of social and health services (DSHS). We do background checks on individuals who are licensed or authorized by the department to care for or have unsupervised access to children and to persons with developmental disabilities. Background checks are conducted to find and evaluate any history of criminal convictions and/or history of abuse or neglect.

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DEFINITIONS
NEW SECTION
WAC 388-146-0020
What definitions apply to this chapter?

The following definitions are important to understand these rules:

"CA" means children's administration, department of social and health services. Children's administration is the cluster of programs within DSHS responsible for the provision of child welfare, child protective services, and other services to children and their families.

"CAMIS" means case and management information system. This data system is used by children's administration.

"Children" or "youth" means individuals who are under parental or department care including:

(1) Individuals under eighteen years old; or

(2) Foster children up to twenty-one years of age and enrolled in high school or a vocational school program; or

(3) Developmentally disabled individuals up to twenty-one years of age for whom there are no issues of child abuse and neglect; or

(4) JRA youth up to twenty-one years of age and who are under the jurisdiction of JRA or a youthful offender under the jurisdiction of the department of corrections who is placed in a JRA facility.

"DCFS" means division of children and family services and is a division within children's administration that provides child welfare, child protective services, and support services to children in need of protection and their families.

"DDD" means the division of developmental disabilities.

"Department" means the department of social and health services (DSHS).

"I" and "you" refers to anyone who has unsupervised access to children or to persons with developmental disabilities in a home, facility, or program. This includes, but is not limited to, persons seeking employment, a volunteer opportunity or a license for a home or facility.

"JRA" means the juvenile rehabilitation administration, department of social and health services.

"Licensor" means an employee of DLR or of a child placing agency licensed or certified under chapter 74.15 RCW to approve and monitor licenses for homes or facilities that offer care to children. Licenses require that the homes and facilities meet the department's health and safety standards.

"Persons with developmental disabilities" means individuals who meet eligibility requirements in Title 71A RCW, WAC 388-825-030, for services. A developmental disability is any of the following: Mental retardation, cerebral palsy, epilepsy, autism, or another neurological condition described in WAC 388-825-030; originates before the age of eighteen years; is expected to continue indefinitely; and results in a substantial handicap.

"Unsupervised" means not in the presence of:

(1) Another employee or volunteer from the same business or organization as the applicant; or

(2) Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to whom the applicant has access during the course of his or her employment or involvement with the business or organization (RCW 43.43.080(9)).

"Unsupervised access" means that an individual will or may be left alone with a child or vulnerable adult (person with developmental disabilities) at any time for any length of time.

"We" refers to the department, including licensors and social workers.

"WSP" refers to the Washington State Patrol.

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GENERAL REQUIREMENTS
NEW SECTION
WAC 388-146-0030
Why do you do background checks?

The department does background checks to help safeguard the health, safety and well being of children and of persons with developmental disabilities in licensed homes and facilities and in day programs. By doing criminal history background checks, we can reduce the risk to children and persons with developmental disabilities from caregivers who have been convicted of certain crimes. The department's regulations require us to evaluate your background before we issue a license or authorize you to have unsupervised access to children or to persons with developmental disabilities.

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NEW SECTION
WAC 388-146-0040
Who must have background checks?

The department must do background checks on individuals who will have unsupervised access to children or to persons with developmental disabilities in homes, facilities, or operations licensed by the department to provide care as required under chapter 74.15 RCW. The department includes the following people in background checks:

(1) A person licensed or contracted by us to care for children (chapter 74.15 RCW and RCW 43.43.832);

(2) A prospective or current employee for a licensed care provider;

(3) A volunteer with regular or unsupervised access to children who is in a home or facility that offers licensed care to children;

(4) A person who is at least sixteen years old, is residing in a foster home or child care home and is not a foster child;

(5) A relative other than a parent who may be caring for a child or a person with developmental disabilities;

(6) A person who regularly has unsupervised access to a person with developmental disabilities; and

(7) Prospective adoptive parents.

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NEW SECTION
WAC 388-146-0045
Does the background check process apply to new and renewal licenses?

These regulations apply to all applications for licensing and license renewals which are processed by the department after the effective date of this chapter.

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NEW SECTION
WAC 388-146-0050
Who is not affected by this chapter?

This chapter does not apply to:

(1) Schools, hospitals, or other facilities where the primary focus is not custodial; and

(2) Situations where the caregiver is not acting in place of the parent; or

(3) Persons being considered for state employment or volunteer activities with state agencies.

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NEW SECTION
WAC 388-146-0060
What happens if I don't comply with the criminal history background check requirement?

If you or someone on the premises of your home or facility having unsupervised access to children or to persons with developmental disabilities does not complied with our requirement for a background check, the department will deny, suspend or revoke your license, certification, or authorization to care for children or for persons with developmental disabilities.

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PROCESS FOR CRIMINAL HISTORY BACKGROUND CHECKS
NEW SECTION
WAC 388-146-0070
How does the criminal history background check process begin?

For working with children under the responsibility of children's administration:

(1) If you are applying for a license or authorization to care for children, you must submit the "criminal history and background inquiry" form with your license application to a licensor. Note: This form can also be obtained from a DLR or child-placing agency licensor.

(2) If you are seeking a license with a child-placing agency or child care agency you must also submit a release of information form to the child-placing agency licensor or DLR licensor.

(3) If you wish to be employed or volunteer in a licensed child care agency, you must submit a completed "criminal history and background inquiry" form to your employer or the person licensed to provide child care. Your employer or the licensed person must submit this form to DLR.

For working with persons with developmental disabilities:

(4) The criminal history background check begins with you submitting a background check form to:

(a) Your employer; or

(b) A division of developmental disabilities regional office. Note: Your employer or the division's regional office will have this form.

(5) Your employer or regional office submits the completed form to the criminal history unit with the division of developmental disabilities at DSHS.

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NEW SECTION
WAC 388-146-0080
How often do you require a background check?

The department requires a background check every three years, unless we have a reason to do a background check more frequently.

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NEW SECTION
WAC 388-146-0090
May I have access to those under care before my criminal history background check is complete?

(1) If you are a relative of a child or of a person with developmental disabilities, you may not need a background check completed before you have unsupervised access, if you meet the criteria in subsection (2) of this section. However, your background check must be submitted immediately upon placement.

(2) If you are waiting for the Washington state background check results, you may have access to children or to persons with developmental disabilities on a conditional basis, at the discretion of the department, if you meet the following criteria:

(a) You are in the presence of another person who has cleared a background check in the home, facility, or program; or

(b) You are a relative of the child or the person with developmental disabilities.

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NEW SECTION
WAC 388-146-0100
What does the background check cover?

The background check includes, at a minimum, a review of convictions and pending charges.

(1) The department must review the following records:

(a) Criminal convictions and pending charges listed by the Washington state patrol (chapter 43.43 RCW, RCW 9.9A.030 and 9A.44.130);

(b) Child protective service case file information (CAMIS) for founded reports of child abuse or neglect; and

(c) Administrative hearing decisions related to any license that has been revoked, suspended or denied.

(2) The department may also review any civil judgment, determination or disciplinary board final decisions of child abuse or neglect.

(3) We may review law enforcement records of convictions and pending charges in other states or locations if:

(a) You have lived in another state; and

(b) Reports from credible community sources indicate a need to investigate another state's records.

(4) If you have lived in Washington state less than three years immediately prior to your application to have unsupervised access to children or to persons with developmental disabilities, the department will require that you be fingerprinted for a background check through the Washington State Patrol (WSP) and the Federal Bureau of Investigation (FBI).

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NEW SECTION
WAC 388-146-0110
Who pays for the background check?

Children's administration:

(1) Pays for general administrative expenses related to the criminal history background check.

(2) May pay for fingerprinting expenses for those foster care applicants and relatives who require fingerprinting to be done.

(3) Does not pay for fingerprinting for employees or volunteers associated with any other type of home or facility.

Division of developmental disabilities:

(4) Pays for background checks, including the processing expenses for those requiring fingerprinting.

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SIGNIFICANCE OF CRIMINAL HISTORIES
NEW SECTION
WAC 388-146-0120
Will a criminal conviction permanently prohibit me from working with children or persons with developmental disabilities?

(1) There are convictions for certain crimes that will prohibit you from licensing or authorization to have unsupervised access to children or to persons with developmental disabilities. If you have ever been convicted of a serious violent crime or violent crime as defined in RCW 9.94A.030 or a crime against children or other persons as defined in RCW 43.43.830 you will be permanently disqualified from unsupervised access to children and persons with developmental disabilities. The list of crimes includes, but is not limited to:

(a) Aggravated murder;

(b) Arson in the first and second degree;

(c) Assault in the first and second degree;

(d) Assault in the first and second degree for domestic violence;

(e) Assault of a child in the first, second, and third degree;

(f) Assault of a child in the first, second, and third degree for domestic violence;

(g) Burglary in the first degree;

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

(i) Child molestation in the first, second, and third degree;

(j) Child selling and child buying;

(k) Coercion;

(l) Controlled substance homicide;

(m) Communication with a minor for immoral purposes;

(n) Criminal abandonment;

(o) Criminal mistreatment in the first and second degree;

(p) Custodial assault;

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

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

(s) Drive-by shooting;

(t) Extortion in the first degree;

(u) Failure to register or failure to notify of address change, transient status, or name change (if original conviction was a felony sex offense);

(v) Felony violation of a protection order, "no contact" order, or child abuse restraining order;

(w) Homicide by abuse;

(x) Incest in the first and second degree;

(y) Indecent exposure felony;

(z) Indecent liberties;

(aa) Kidnaping in the first and second degree;

(bb) Luring;

(cc) Malicious harassment;

(dd) Manslaughter in the first degree;

(ee) Murder in the first and second degree;

(ff) Patronizing a juvenile prostitute;

(gg) Possession of material or dealing in depictions of a minor engaged in sexually explicit conduct;

(hh) Promoting a suicide attempt;

(ii) Promoting prostitution in the first degree;

(jj) Public indecency, if toward a person under fourteen years of age;

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

(ll) Reckless endangerment;

(mm) Robbery in the first and second degree;

(nn) Selling or distributing erotic material to a minor;

(oo) Sexual exploitation of a minor;

(pp) Sexual misconduct with a minor in the first and second degree;

(qq) Sexual offender failure to register or failure to notify of address change, transient status or name change (if the original conviction was a nonfelony sex offense) when the victim was in the custody or jurisdiction of JRA);

(rr) Sexually violating human remains;

(ss) Unlawful imprisonment;

(tt) Vehicular assault;

(uu) Vehicular homicide, while under influence of drugs, or alcohol, or by the operation of a vehicle in a reckless manner;

(vv) Voyeurism; or

(ww) Any class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony.

(2) Any federal or out-of-state convictions for an offense having the same elements as these Washington state crimes that would disqualify you from having unsupervised access to children or persons with developmental disabilities. If you are convicted of one of these crimes, we will not approve you to have unsupervised access to children or to persons with developmental disabilities in any home or facility. You will not be able to:

(a) Receive a license to provide care for children;

(b) Be employed by a licensed agency or contractor of child care, if you will have unsupervised access to children or to persons with developmental disabilities;

(c) Volunteer in a home or facility that offers care to children or to persons with developmental disabilities; or

(d) Provide any type of care to children or to persons with developmental disabilities, if the care is state funded.

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NEW SECTION
WAC 388-146-0130
Are there other criminal convictions that will prohibit me from working with children or persons with developmental disabilities?

(1) The department must disqualify you from licensing or from having unsupervised access to children or to persons with developmental disabilities if you have been convicted of the following crimes within the last five years:

(a) Assault in the third degree for domestic violence;

(b) Assault in the third or fourth degree;

(c) Assault or reckless endangerment that violates a "no contact" or protection order;

(d) Extortion in the second degree;

(e) Felonies violating the Imitation Controlled Substances Act (for substances that are falsely represented as controlled substances (see chapter 69.52 RCW));

(f) Felonies violating the Legend Drug Act (prescription drugs (see chapter 69-41 RCW));

(g) Felonies violating the Precursor Drug Act (substances used in making controlled substances (see chapter 69.43 RCW));

(h) Felonies violating the Uniform Controlled Substances Act (illegal drugs or substances (see chapter 69.50 RCW));

(i) Promoting pornography;

(j) Promoting prostitution in the second degree;

(k) Prostitution;

(l) Assault in the fourth degree, if the assault involves physical harm to another person; or

(m) Unlawfully manufacturing, delivering or possessing a controlled substance with intent to deliver, or unlawfully using a building for drug purposes.

(2) Any federal or out-of-state convictions for a crime having the same elements as these Washington state crimes will disqualify you from having unsupervised access to children or persons with developmental disabilities.

(3) If your conviction occurred more than five years ago, the department will review your background, use the information to determine your character, suitability and competence to have unsupervised access to children or to persons with developmental disabilities. The department also consider the following factors:

(a) The amount of time that has passed since you were convicted;

(b) The seriousness and circumstances that led to the conviction;

(c) The number and types of other convictions in your background;

(d) The amount of time that has passed since you were convicted;

(e) Your age at the time of conviction;

(f) Documentation indicating you have successfully completed all court-ordered programs and restitution;

(g) Your behavior since the conviction; and

(h) The vulnerability of those that would be under your care.

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NEW SECTION
WAC 388-146-0140
Are there other convictions for crimes that will disqualify me for approval or a license?

(1) The department will use conviction information involving other crimes when the conviction is directly related to providing unsupervised access to children or to persons with developmental disabilities.

(2) If the conviction is not directly related to providing care to children or to persons with developmental disabilities, the department will consider the factors listed in WAC 388-146-0130(3).

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NEW SECTION
WAC 388-146-0150
Will I be disqualified if there are pending criminal charges on my background check?

(1) The department will not license or authorize a person to have unsupervised access to children or to persons with developmental disabilities who has a criminal charge pending for crimes listed in WAC 388-146-0120 or 388-146-0130.

(2) If there are pending charges, the department will contact the court of jurisdiction to determine and clarify the status of the court process related to your pending charges.

(3) You may reapply for a license or approval to have unsupervised access to children or to persons with developmental disabilities upon proof to the department that the charge against you has been dismissed or that you were acquitted.

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NEW SECTION
WAC 388-146-0160
Will you license or authorize me if my conviction has been expunged, or vacated from my record or I have been pardoned for a crime?

If you receive a pardon or a court of law acts to expunge or vacate a conviction on your record, the crime will not be considered the same as a conviction for the purposes of licensing and authorization for unsupervised access to children or to persons with developmental disabilities.

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NEW SECTION
WAC 388-146-0170
If I have gone through rehabilitation, may I receive a license or authorization to provide care to children or to persons with developmentally disabilities?

(1) If you have a conviction for a crime other than one list in WAC 388-146-0120, or 388-146-0130 within the last five years, the department may, at its discretion, accept a certificate of rehabilitation.

(2) A superior court judge must issue the certificate of rehabilitation.

(3) The certificate of rehabilitation must address your fitness to provide a specific type of care considering each of the factors listed in WAC 388-146-0130(3).

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RESULTS OF BACKGROUND CHECKS
NEW SECTION
WAC 388-146-0180
How will I know if I cleared the criminal background check?

(1) If you cleared the background check and are applying for a license, the department will not directly notify you. Instead, the department continues the process for approving your application.

(2) If you have requested approval for unsupervised access to children or to persons with developmental disabilities, the department will notify you, your prospective employer, or your supervisor that you cleared the background check.

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NEW SECTION
WAC 388-146-0190
How will I know if I do not clear the background check?

(1) The department will notify you, and the care provider, the employer, or the DLR regional office if you do not clear the background check. The notice will be in writing and will include the following information:

(a) The specific disqualification related to unsupervised access;

(b) The reason for the disqualification; and

(c) Any laws or regulations that require disqualification.

(2) If the department sends you a notice of disqualification, you will not receive a license or be authorized to have unsupervised access to children or to persons with developmental disabilities.

(3) The employer or prospective employer cannot contest the department's decision on your behalf.

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NEW SECTION
WAC 38-146-0200
What may I do if I disagree with the department's decision to deny me a license or authorization?

(1) If you are seeking employment or a license, you may request an administrative hearing to disagree with the department's decision process to deny authorization for unsupervised access to children or to persons with developmental disabilities. You cannot contest the conviction in the administrative hearing.

(2) Prospective volunteers do not have the right to appeal the department's decision to deny authorization for unsupervised access to children and to persons with developmental disabilities.

(3) The administrative hearing will take place before an impartial administrative law judge.

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Reviser's note: The section above appears as filed by the agency pursuant to RCW 34.08.040; however, the reference to WAC 38-146-0200 is probably intended to be WAC 388-146-0200.
NEW SECTION
WAC 388-146-0210
Is the background check information released to my employer or prospective employer?

(1) The department makes the decision about releasing background information based on whether we have a signed release of information from you.

(2) If you do not sign a specific release of information to disclose the results of your background check, the department will share with employers or approved care providers only that:

(a) You cleared the background check; or

(b) You are disqualified from having unsupervised access to children or to persons with developmental disabilities.

For the release of criminal history information from WSP:

(3) If you sign a specific release of information allowing the department to disclose information about your background check, we can share this information with your prospective employer. You may get this release of information form from your licensor or the employer.

(4) A signed "criminal history and background inquiry" form is not sufficient for disclosing information to your prospective employer.

For the release of child abuse/neglect information from the department files:

(5) If the department has a signed release of information from you and we find you have a history of abusing and/or neglecting children, we will tell a provider or employer only that the results of the background check disqualifies you.

(6) The department will not disclose identifying information about the victim of the abuse and/or neglect.

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NEW SECTION
WAC 388-146-0220
May I receive a copy of my criminal history results from the department?

The department will provide you a copy of your WSP criminal history results if you:

(1) Make the request in writing to the department; and

(2) Offer proof of identity, such as picture identification.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-330-010 Purpose and authority.
WAC 388-330-020 Scope.
WAC 388-330-030 Application of inquiry findings.
WAC 388-330-035 Appeal of disqualification.
WAC 388-330-040 Inquiry form to be submitted -- Time requirements.
WAC 388-330-050 Release of information.
WAC 388-330-060 Sanctions for noncompliance.

Washington State Code Reviser's Office