WSR 00-17-188

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Children's Administration)

[ Filed August 23, 2000, 11:38 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-01-164 and 99-17-054.

Title of Rule: Chapter 388-15 WAC, Child protective services.

Purpose: To rewrite current rules in a clear writing format an to comply with Executive Order 97-02 and repeal outdated rules.

Statutory Authority for Adoption: RCW 74.13.031.

Statute Being Implemented: Chapters 26.44 and 74.13 RCW.

Summary: Rewrite rules in clear format, to update requirements, to include client right of review, and repeal outdated rules.

Reasons Supporting Proposal: The rules are updated to reflect current federal and state law and regulation and comply with Executive Order 97-02.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Ken Patis, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7990.

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 rules recodify existing rules in new sections, restate the rule in clear-writing format and update existing rules to reflect current state and federal law and regulation. The adopted rules will provide clear, concise answers to persons seeking information regarding child protective services.

Proposal Changes the Following Existing Rules: New rules outline the child protective services (CPS) notification process for alleged perpetrators of child abuse or neglect investigative findings. New rules will also outline the procedures, review process, and administrative hearing process regarding the appeal of substantiated CPS investigative findings of child abuse or neglect.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Children's Administration has analyzed the proposed WAC changes and concludes that no new costs will be imposed on the small businesses impacted by these WACs. Preparation of a small business economic impact statement is not required.

RCW 34.05.328 does not apply to this rule adoption. The proposal clarifies language of existing rules without changing effect.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on October 24, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kelly Cooper DSHS Rules Coordinator, by October 17, 2000, phone (360) 664-6094, TTY (360) 664-6178, e-mail 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 24, 2000.

Date of Intended Adoption: Not sooner than October 25, 2000.

August 23, 2000

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

2726.3
Chapter 388-15 WAC

((SOCIAL)) CHILD PROTECTIVE SERVICES ((FOR FAMILIES, CHILDREN AND ADULTS))

PART A -- PROGRAM DESCRIPTION
NEW SECTION
WAC 388-15-001
What is the child protective services program?

(1) Child protective services (CPS) means those services provided by the department of social and health services to protect children from child abuse and neglect (see RCW 26.44.020 (12) and (16)).

(2) CPS may include the following:

(a) Investigation of reports of alleged child abuse or neglect.

(b) Assessment of risk of abuse or neglect to children.

(c) Provision of and/or referral to services to remedy conditions that endanger the health, safety, and welfare of children.

(d) Referral to law enforcement when there are allegations that a crime against a child (RCW 26.44.030(4) and 74.13.031(3)) might have been committed.

(e) Out of home placement and petitions to courts when necessary to ensure the safety of children.

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NEW SECTION
WAC 388-15-005
What definitions apply to these rules?

The following definitions apply to this chapter.

"Abuse or neglect" means the injury, sexual abuse, sexual exploitation, negligent treatment, or maltreatment of a child as defined in RCW 26.44.020 and this chapter.

"Administrative hearing" means a hearing held before an administrative law judge and conducted according to chapter 34.05 RCW and chapter 388-02 WAC.

"Administrative law judge (ALJ)" is an attorney and an impartial decision-maker who presides at an administrative hearing. The office of administrative hearings, which is a state agency, employs the ALJs.

"Alleged perpetrator" means the person identified in a CPS referral as being responsible for the alleged child abuse or neglect.

"Alternate response system" means a contracted provider in a local community that responds to accepted CPS referrals that are rated low or moderately low risk at the time of intake.

"Appellant" means a person who requests an administrative hearing to appeal a CPS finding.

"Child protection team (CPT)" means a multi-disciplinary group of persons with at least four persons from professions that provide services to abused or neglected children and/or parents of such children. The CPT provides confidential case staffing and consultation to children's administration.

"Child protective services (CPS)" means the section of the children's administration responsible for responding to allegations of child abuse or neglect.

"Children's administration (CA)" means the cluster of programs within DSHS that is responsible for the provision of child protective, child welfare, foster care licensing, child care licensing, and other services to children and their families.

"Department" or "DSHS" means the Washington state department of social and health services.

"Division of children and family services (DCFS)" means the division of children's administration that provides child protective, child welfare, and support services to children and their families.

"Division of licensed resources (DLR)" means the division of children's administration responsible for licensing child care, group care, and foster care facilities, and responding to allegations of abuse or neglect in such facilities.

"Finding" means the final decision made by a CPS social worker after an investigation regarding alleged child abuse or neglect.

"Founded" means the decision following an investigation by CPS that child abuse or neglect did occur. The decision is made on a more likely than not basis.

"Inconclusive" means based on the information available to CPS, a decision cannot be made that more likely than not, child abuse or neglect did or did not occur.

"Mandated reporter" means a person required to report alleged child abuse or neglect as defined in RCW 26.44.030.

"Preponderance of evidence" means the evidence presented in a hearing indicates more likely than not child abuse or neglect did occur.

"Unfounded" means the decision following an investigation by CPS that child abuse or neglect did not occur. This decision is made on a more likely than not basis.

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NEW SECTION
WAC 388-15-009
What is child abuse or neglect?

Child abuse or neglect means the injury, sexual abuse, sexual exploitation, abandonment, negligent treatment, or maltreatment of a child under circumstances indicating that the child's health, welfare, and safety is harmed.

The physical discipline of a child is not considered abuse when it is reasonable and moderate and is inflicted by a parent, or guardian for purposes of restraining or correcting the child.

(1) Physical abuse means the infliction of physical injury on a child such as:

(a) Throwing, kicking, burning, or cutting a child;

(b) Striking a child with a closed fist;

(c) Shaking a child under age three;

(d) Interfering with a child's breathing;

(e) Threatening a child with a deadly weapon;

(f) Doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks.

(2) Sexual abuse means:

Committing or allowing to be committed any sexual offense against a child as defined in the criminal code or intentionally touching, either directly or through the clothing, the genitals, anus, or breasts of a child for other than hygiene or child care purposes.

(3) Sexual exploitation means:

(a) Allowing, permitting, or encouraging a child to engage in prostitution; or

(b) Allowing, permitting, encouraging, or engaging in the obscene or pornographic photographing, filming, or depicting of a child.

(4) Negligent treatment or maltreatment means:

An act or omission that constitutes a clear and present danger to the child's health, welfare, and safety. These acts or omissions may include but are not limited to:

(a) Failure to provide adequate food, shelter, clothing, supervision, or health care. Poverty and/or homelessness in and of themselves do not constitute negligent treatment or maltreatment.

(b) Actions or omissions or engaging in a pattern of behavior that results in injury to or creates a substantial risk to the physical, emotional, and/or cognitive development of a child.

(5) Abandonment means:

A statement or conduct by a child's parent, guardian, or custodian of an intent to forego, for an extended period, parental rights or parental responsibilities despite an ability to exercise those parental rights and responsibilities.

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NEW SECTION
WAC 388-15-013
Who may receive child protective services?

Children and families may receive CPS when there is an allegation that a child has been abused or neglected:

(1) By a parent, legal custodian, or caretaker of the child; or

(2) In a DSHS licensed, certified, or state-operated facility; or

(3) By persons or agencies subject to licensing under chapter 74.15 RCW, including individuals employed by or volunteers of such facilities.

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NEW SECTION
WAC 388-15-017
What is the responsibility of CPS regarding reports of abuse or neglect?

(1) CPS must record a report from any source alleging child abuse or neglect.

(2) CPS must determine whether alleged incidents or conditions meet the definitions of child abuse or neglect in this chapter or in RCW 26.44.

(3) CPS must conduct an investigation or assessment of all reports of alleged child abuse or neglect that meet the definitions of child abuse or neglect contained in this chapter or in RCW 26.44.

(4) CPS must investigate anonymous reports only as provided in RCW 26.44.030(15).

(5) CPS must maintain a record of reports received that are not investigated because they do not meet the definitions of child abuse or neglect as defined in RCW or this chapter.

(6) CPS must report to law enforcement per RCW 26.44.030(4) and 74.13.031.

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NEW SECTION
WAC 388-15-021
How does CPS respond to reports of alleged child abuse or neglect?

(1) CPS must assess all reports that meet the definition of child abuse or neglect using a risk assessment process to determine level of risk and response time.

(2) CPS must begin an investigation within twenty-four hours of receipt of a report alleging child abuse or neglect in which a child is alleged to be at risk of imminent harm. The CA intake worker based upon information contained in the report and any collateral contacts makes the assessment of risk of imminent harm.

(3) CPS must provide an in-person response to alleged victims and perpetrators of child abuse and neglect in referrals assessed at moderate to high risk.

(4) CPS may refer reports assessed at low to moderately low risk to an alternative response system.

(5) CPS may interview a child without prior parental notification or consent and outside the presence of the parent (see RCW 26.44.030).

(6) Unless the child objects, CPS must make reasonable efforts to have a third party present at the interview so long as the third party does not jeopardize the investigation (see RCW 26.44.030).

(7) CPS may photograph the alleged child victim to document the physical condition of the child (see RCW 26.44.050).

(8) CPS must establish in procedure, timelines for the completion of investigations and standards for written findings.

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NEW SECTION
WAC 388-15-025
What information may CPS share with mandated reporters?

(1) CPS may conduct ongoing case planning and consultation with those persons or agencies required to report alleged child abuse or neglect under RCW 26.44.030 and with consultants designated by CPS if the client information exchanged is pertinent to cases currently receiving child protective services.

(2) When CPS receives a report of alleged child abuse or neglect and requests information, mandated reporters, as identified in RCW 26.44.030, and their employees must provide upon request by CPS, all relevant records in their possession related to the child (see RCW 26.44.030).

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NEW SECTION
WAC 388-15-029
When will CPS involve local community resources?

(1) CPS may use local community resources to respond to reports of abuse or neglect when the department's assessment of risk determines that a community response is in the best interest of the child and family.

(2) CPS may involve local community resources in the planning and provision of services to help remedy conditions that contribute to the abuse or neglect of children.

(3) CPS must have community based child protective teams (CPT) available for staffing and consultation regarding cases of child abuse or neglect. CPS must present cases for staffing with the CPT in accordance with executive order 95-04 and department procedures.

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NEW SECTION
WAC 388-15-033
Under what circumstances may CPS place a child in out-of-home care?

(1) When CPS determines that a child is at risk of serious harm in the care of the parent or legal custodian, CPS may seek an out-of-home placement for the child. Before placing a child in out-of-home care one of the following must be in place:

(a) A court order directing that the child be placed in out-of-home care; or

(b) A law enforcement officer placing the child in protective custody; or

(c)A physician or hospital administrator detaining a child and CPS assuming custody until a court hearing is held; or

(d) A voluntary placement agreement signed by the child's parent or legal custodian.

(2) CPS must attempt to place the child with a relative willing and available to care for the child, unless there is reasonable cause to believe that the health, safety or welfare of the child would be jeopardized or that efforts to reunite the parent and child will be hindered (see RCW 13.34.060). The department must conduct background checks and home studies. If a relative appears suitable and competent to provide adequate care, the background check of a relative may be completed as soon as possible after the child is placed (see RCW 74.15.030).

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NEW SECTION
WAC 388-15-037
When will CPS involve the juvenile court?

CPS may file a dependency petition with the juvenile court when CPS determines that court intervention is necessary for protection of the child.

(1) CPS must file a dependency petition with the juvenile court when a child is to remain in out of home placement beyond seventy-two hours (excluding weekends and holidays) unless the child's parent or legal custodian signs a voluntary placement agreement.

(2) CPS must notify both parents and any legal custodian(s) that a dependency petition has been filed. The notice must inform these parties of the date, time, and location of the initial shelter care hearing and of the parent(s) and any legal custodian's legal rights.

(3) Whenever CPS assumes custody of a child from law enforcement, a physician, or a hospital administrator and places the child in out of home care, a court hearing must be held within seventy-two hours from the time CPS assumes custody of the child, excluding Saturdays, Sundays and holidays.

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NEW SECTION
WAC 388-15-041
What are the department's responsibilities regarding notification of the parent or legal custodian in child protective services cases?

CPS must notify the parent, guardian, or caretaker of a child at the earliest possible point that will not jeopardize the investigation or the safety or protection of the child when:

(1) CPS is investigating a report alleging an act or acts of child abuse or neglect, and:

(a) The child is alleged to be the victim; and/or

(b) CPS interviews a child in relation to an alleged act of child abuse or neglect.

(2) CPS takes a child into custody pursuant to a court order issued under RCW 13.34.050.

(3) CPS receives custody of a child from law enforcement pursuant to RCW 26.44.050.

(4) CPS files a dependency petition.

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NEW SECTION
WAC 388-15-045
When must the department provide notification to the parent without physical custody regarding the parent's child?

CPS must notify the parent without physical custody when:

(1) A child is taken into custody pursuant to RCW 26.44.050 or 13.34.050 and placed into the department's custody; and

(2) When CPS files a dependency petition.

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NEW SECTION
WAC 388-15-049
When must the department notify the alleged perpetrator of allegations of child abuse or neglect?

CPS must notify the alleged perpetrator of the allegations of child abuse or neglect at the earliest point in the investigation that will not jeopardize the safety and protection of the child or the investigation process.

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NEW SECTION
WAC 388-15-053
What steps must the department take to provide an opportunity for the parent(s) or legal custodian(s) to review case information?

To provide an opportunity for the parent(s) or legal custodian(s) to review case information, CPS must:

(1) Notify the person or persons legally responsible for the child of the address of the office where the case record information will be on file; and

(2) Give the person or persons legally responsible for the child the opportunity to read or obtain relevant parts of the case record, provided the person or persons have requested access to the information and the law does not otherwise prohibit such access.

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NEW SECTION
WAC 388-15-057
What limitations does the department have on the disclosure of case information?

The department must not disclose case record information except as permitted under provisions of chapter 388-01 WAC and applicable statutes.

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PART B -- NOTIFICATION AND APPEAL OF FINDINGS
NEW SECTION
WAC 388-15-061
What is the purpose of these rules?

The purpose of these rules is to describe:

(1) The procedures for notifying the alleged perpetrator of any findings made by a CPS social worker in an investigation of suspected child abuse or neglect; and

(2) The process for challenging a founded CPS finding of child abuse or neglect (see RCW 26.44.100 and 26.44.125).

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NEW SECTION
WAC 388-15-065
Does CPS have to notify the alleged perpetrator of the results of CPS investigation?

CPS must make a reasonable and good faith effort to notify the alleged perpetrator in writing of any finding made by CPS in any investigation of suspected child abuse and/or neglect.

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NEW SECTION
WAC 388-15-069
How does CPS notify the alleged perpetrator of the finding?

(1) CPS notifies the alleged perpetrator of the finding by sending the CPS finding notice via certified mail, return receipt requested, to the last known address. CPS must make a reasonable, good faith effort to determine the last known address or location of the alleged perpetrator.

(2) In cases where certified mailing may not be either possible or advisable, the CPS social worker may personally deliver the CPS finding notice to the alleged perpetrator.

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NEW SECTION
WAC 388-15-073
What information must be in the CPS finding notice?

The CPS finding notice must inform the alleged perpetrator of the following:

(1) The alleged perpetrator may submit to CPS a written response regarding the CPS finding. If a response is submitted, CPS must file this response in the department's records.

(2) Information in the department's records may be considered in later investigations or proceedings relating to child protection or child custody.

(3) Founded CPS findings may be considered in determining:

(a) If an alleged perpetrator is qualified to be licensed to care for children or vulnerable adults;

(b) If an alleged perpetrator is qualified to be employed by a child care agency;

(c) If an alleged perpetrator may be authorized or funded by the department to provide care or services to children or vulnerable adults.

(4) The alleged perpetrator's right to challenge a founded CPS finding.

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NEW SECTION
WAC 388-15-077
What happens to unfounded CPS findings?

(1) According to RCW 74.15.130 (2)(b), no unfounded CPS finding of child abuse or neglect may be used to deny employment in a child care facility or to deny a license to care for children.

(2) According to RCW 26.44.020(19) no unfounded allegation of child abuse or neglect may be disclosed to a child placing agency, private adoption agency, or any other provider licensed under chapter 74.15 RCW.

(3) According to RCW 26.44.031, at the end of six years from the date of the report, the department must remove the unfounded finding from the department's records unless an additional child abuse and/or neglect report has been received regarding the same perpetrator or same family during those six years.

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NEW SECTION
WAC 388-15-081
Can an alleged perpetrator challenge a CPS finding of child abuse or neglect?

A person named as an alleged perpetrator in a founded CPS report made on or after October 1, 1998, may challenge that finding.

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NEW SECTION
WAC 388-15-085
How does an alleged perpetrator challenge a founded CPS finding?

(1) In order to challenge a founded CPS finding, the alleged perpetrator must make a written request for CPS to review the founded CPS finding of child abuse or neglect. The CPS finding notice must provide the information regarding all steps necessary to request a review.

(2) The request must be provided to the same CPS office that sent the CPS finding notice within twenty calendar days from the date the alleged perpetrator receives the CPS finding notice.

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NEW SECTION
WAC 388-15-089
What happens if the alleged perpetrator does not request CPS to review the founded CPS finding within twenty days?

(1) If the alleged perpetrator does not submit a written request within twenty days for CPS to review the founded CPS finding, no further review or challenge of the finding may occur.

(2) If an alleged perpetrator is unavailable to receive notice of the CPS finding when CPS sends the notice by certified mail to the alleged perpetrator's last known address, the alleged perpetrator shall not have further opportunity to request a review of the finding beyond thirty days from the time the notice is sent.

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NEW SECTION
WAC 388-15-093
What happens after the alleged perpetrator requests CPS to review the founded CPS finding of child abuse or neglect?

(1) CPS management level staff or their designees who were not involved in the decision making process will review the founded CPS finding of child abuse or neglect. The management staff will consider the following information:

(a) CPS records;

(b) CPS summary reports; and

(c) Any written information the alleged perpetrator may have submitted regarding the founded CPS finding of abuse and/or neglect.

(2) Management staff may also meet with the CPS social worker and/or CPS supervisor to discuss the investigation/finding. After review of all this information, management staff decides if the founded CPS finding is correct or if it should be changed.

(3) Management staff must complete their review of the founded CPS finding within sixty calendar days from the date CPS received the written request for review.

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NEW SECTION
WAC 388-15-097
How does CPS notify the alleged perpetrator of the results of the CPS management review?

CPS will notify the alleged perpetrator in writing of the results of the CPS management review. CPS will send this notice to the last known address of the alleged perpetrator by certified mail, return receipt requested.

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NEW SECTION
WAC 388-15-101
What happens if CPS management staff changes the founded CPS finding?

If CPS management staff changes the founded CPS finding, CPS notifies the alleged perpetrator that the department has changed the finding to either inconclusive or unfounded. CPS management staff or their designee must correct the department's records to show the changed finding.

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NEW SECTION
WAC 388-15-105
What happens if CPS management staff does not change the founded CPS finding?

(1) If CPS management staff does not change the founded CPS finding, the alleged perpetrator has the right to further challenge that finding by requesting an administrative hearing.

(2) The request for a hearing must be in writing and sent to the following address:

Office of Administrative Hearings

P.O. Box 2465

Olympia, WA 98504

(3) The office of administrative hearings must receive the written request for a hearing within thirty days from the date that the person requesting the hearing receives the CPS management review decision. The notice of the CPS management review decision will also contain information regarding how to request a hearing.

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NEW SECTION
WAC 388-15-109
What laws and rules will control the administrative hearings held regarding the founded CPS findings?

Chapter 34.05 RCW, RCW 26.44.100 and 26.44.125, chapter 388-02 WAC, and the provisions of this chapter govern any administrative hearing regarding a founded CPS finding. In the event of a conflict between the provisions of this chapter and chapter 388-02 WAC, the provisions of this chapter must prevail.

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NEW SECTION
WAC 388-15-113
What effect does a petition for dependency have on an administrative hearing?

(1) If a dependency petition, based on chapter 13.34 RCW, regarding the alleged abuse or neglect has been filed, the administrative hearing must be stayed (postponed) until the superior court has entered an order and findings regarding the dependency petition.

(2) The ALJ must consider any superior court dependency findings and order relating to the alleged abuse or neglect.

(3) If the superior court has entered findings that the alleged perpetrator was the person responsible for the alleged child abuse or neglect, the ALJ must uphold the CPS finding. The ALJ must reiterate the court ruling and incorporate that ruling in the decision issued by the ALJ.

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NEW SECTION
WAC 388-15-117
What factors must the ALJ consider in order for the alleged abused and/or neglected child to testify at the administrative hearing?

(1) The ALJ must give special consideration to any request by a party for the alleged abused or neglected child to testify in order to protect the physical and emotional well being of the child. For the protection of the child, the ALJ must determine:

(a) If compelling reasons exist to have the child testify. If compelling reasons do exist, the ALJ must consider alternative methods to in-person testimony by the child. Such methods may include, but are not limited to, having the child testify by telephone or videotape; or

(b) If the rights of a party (either the appellant or DSHS) would be prejudiced by not having the child testify in person. If a party's rights would be prejudiced, the ALJ must consider other methods to hear the child's testimony without having the child directly confront the alleged perpetrator.

(2) If the child does testify at the hearing, the ALJ must include a written finding in the administrative hearing decision regarding the compelling reasons for the child's testimony and what alternative methods to in-person testimony the ALJ considered.

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NEW SECTION
WAC 388-15-121
Are there issues that the ALJ may not consider during your administrative hearing regarding a founded CPS finding?

In any administrative hearing regarding a founded CPS finding, an ALJ may not consider the following:

(1) Decisions regarding the placement of the alleged abused or neglected child;

(2) Risk assessments in making placement decisions regarding the alleged abused and/or neglected child; or

(3) Service plans for the alleged perpetrator and/or alleged abused or neglected child.

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NEW SECTION
WAC 388-15-125
Are the administrative hearings open to the public?

Based on RCW 26.44.125, any administrative hearing regarding founded CPS findings is confidential and must not be open to the public.

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NEW SECTION
WAC 388-15-129
How does the ALJ make a decision regarding the founded CPS finding?

(1) The ALJ must determine if a preponderance of all the relevant information supports the determination by CPS that the alleged perpetrator is the person responsible for the alleged child abuse or neglect.

(2) If the ALJ determines that a preponderance of all the relevant information supports the founded CPS finding, the ALJ must uphold the finding.

(3) If the ALJ determines that the founded CPS finding is not supported by a preponderance of all the relevant information, the ALJ must remand the matter to the department for a change of the finding consistent with the ruling of the ALJ.

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NEW SECTION
WAC 388-15-133
How will the appellant be notified of the ALJ's decision?

After the administrative hearing, the ALJ will send a written decision to the appellant and the department.

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NEW SECTION
WAC 388-15-135
What if the appellant disagrees with the decision?

If the appellant disagrees with the ALJ's decision, the appellant may challenge this decision according to the procedures contained in chapter 34.05 RCW and chapter 388-02 WAC.

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NEW SECTION
WAC 388-15-141
What happens if the ALJ does not uphold the founded CPS finding?

If the ALJ does not uphold the founded CPS finding, the department may challenge the ALJ's decision as provided in chapter 34.05 RCW and chapter 388-02 WAC. If the department does challenge the ALJ's decision, the department will not change the finding in the department's records and the finding will remain in effect pending the final decision from the department's challenge. If the department does not challenge the ALJ's decision, the department will correct the finding in the department's records.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 388-15-130 Child protective services -- Authority.
WAC 388-15-131 Child protective services -- Special requirements for Indian children.
WAC 388-15-132 Child protective services -- Acceptance of reports -- Eligibility for services and limits to authority.
WAC 388-15-134 Child protective services -- Notification.

Washington State Code Reviser's Office