Date of Adoption: August 17, 2001.

     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 Developmental 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 having unsupervised access to children.

     Citation of Existing Rules Affected by this Order: Repealing WAC 388-330-010, 388-330-020, 388-330-030, 388-330-035, 388-330-040, 388-330-050, and 388-330-060.

     Statutory Authority for Adoption: RCW 74.15.030.

      Adopted under notice filed as WSR 01-10-062 on April 27, 2001.

     Changes Other than Editing from Proposed to Adopted Version: The text of the adopted rule varies from the text of the proposed rule. The changes (other than editing changes) follow and are underlined.

     • WAC 388-06-0020 What definitions apply to WAC 388-06-0100 through WAC 388-06-0260 of this chapter? The following definitions apply to WAC 388-06-0100 through WAC 388-06-0260 of this chapter:

     > The second sentence of the definition of "authorized" or "authorization" is as follows: This includes persons, who are certified, contracted, are allowed to receive payments from department-funded programs, or volunteer.

     > "Unsupervised" means not in the presence of:

     (1) The licensee, another employee or volunteer from the same business or organization as the applicant, who has not been disqualified by the background check.

     • WAC 388-06-0110(4). A person who is at least sixteen years old, is residing in a foster home, relative home, or child care home and is not a foster child.

     • WAC 388-06-0110(6). A person who regularly has unsupervised access to a child or an individual with a development disability.

     • WAC 388-06-0150(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 individuals with a developmental disability, the department requires that you be fingerprinted for a background check with the Washington state patrol (WSP) and the Federal Bureau of Investigation (FBI), as mandated by chapter 74.15 RCW.

     • WAC 388-06-0160(1). Children's administration (CA) pays for the general administrative costs for background checks for foster home applicants, relatives, and CA adoptive home applicants.

     • WAC 388-06-0180(5). Any federal or out-of-state conviction for an offense that under the laws of this state would disqualify you from having unsupervised access to children or individuals with developmental disabilities in any home or facility not less than five years from the date of conviction listed in this section.

     • WAC 388-06-0240 What may I do if I disagree with the department's decision to deny me a license, certification, contract, or authorization based on the results of the background check?

     (1) If you are seeking a license, or employment with a licensed home or facility, you may request an administrative hearing to disagree with the department's decision process to deny authorization for unsupervised access to children or to individuals with a developmental disability (chapter 34.05 RCW).

     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 19, Amended 0, Repealed 7.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 19, Amended 0, Repealed 7.

     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 19, Amended 0, Repealed 7.
     Effective Date of Rule: October 1, 2001.

August 17, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     (2) This chapter also defines when the one hundred twenty-day provisional hire is allowed by DSHS. WAC 388-06-0500 through 388-06-0540 apply to all DSHS administrations.

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     "Authorized" or "authorization" means not disqualified by the department to have unsupervised access to children and individuals with a developmental disability. This includes persons who are certified, contracted, allowed to receive payments from department funded programs, or volunteer.

     "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 licensing of foster homes, group facilities/programs and child-placing agencies, child protective services, child welfare 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.

     "Certification" means:

     (1) Department approval of a person, home, or facility that does not legally need to be licensed, but wishes to have evidence that they met the minimum licensing requirements.

     (2) Department licensing of a of a child-placing agency to certify and supervise foster home and group care programs.

     "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.

     (5) These two terms are used interchangeably in this chapter.

     "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 of social and health services (DSHS).

     "DLR" means the division of licensed resources that is a division within children's administration, the department of social and health services.

     "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, an internship, a contract, certification, 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.

     "Individuals with developmental disability" 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.

     "Spousal abuse" includes any crime of domestic violence as defined in RCW 10.99.020 when committed against a spouse, former spouse, person with whom the perpetrator has a child regardless of whether the parents have been married or lived together at any time, or an adult with whom the perpetrator is presently residing or has resided in the past.

     "Unsupervised" means not in the presence of:

     (1) The licensee, another employee or volunteer from the same business or organization as the applicant who has not been disqualified by the background check.

     (2) Any relative or guardian of the child or developmentally disabled individual or vulnerable adult 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 (individual with developmental disability) 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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     (1) A person licensed, certified, 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 or a person or entity contracting with us;

     (3) A volunteer or intern 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, relatives 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 an individual with a developmental disability;

     (6) A person who regularly has unsupervised access to a child or an individual with a developmental disability;

     (7) A provider who has unsupervised access to a child or individual with a developmental disability in the home of the child or individual with a developmental disability; and

     (8) Prospective adoptive parents as defined in RCW 26.33.020.

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     (a) Criminal convictions and pending charges.

     (b) For children's administration, child protective service case file information (CAMIS) for founded reports of child abuse or neglect; and

     (c) For children's administration, administrative hearing decisions related to any DLR 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) The department 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 individuals with a developmental disability, the department requires that you be fingerprinted for a background check with the Washington state patrol (WSP) and the Federal Bureau of Investigation (FBI), as mandated by chapter 74.15 RCW.

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     (2) Children's administration pays for fingerprinting expenses for those foster home applicants and relatives who require fingerprinting.

     (3) Children's administration does not pay for fingerprinting for employees, contractors, or volunteers associated with any other type of home or facility.

     (4) The division of developmental disabilities pays for background checks for individuals seeking authorization to provide services to their clients.

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     (a) Child abuse and/or neglect;

     (b) Spousal abuse;

     (c) A crime against a child (including child pornography);

     (d) A crime involving violence (including rape, sexual assault, or homicide but not including other physical assault); or

     (e) Any federal or out-of-state conviction for an offense that under the laws of this state would disqualify you from having unsupervised access to children or individuals with developmental disabilities in any home or facility.

     (2) If you are convicted of one of the crimes listed in WAC 388-06-0170 (1)(a) through (e) you will not be able to:

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

     (b) Be approved for adoption of a child;

     (c) Be a contractor;

     (d) Be employed by a licensed agency or contractor, if you will have unsupervised access to children or to individuals with a developmental disability;

     (e) Volunteer or participate as an intern in a home or facility that offers care to children or to individuals with a developmental disability; or

     (f) Provide any type of care to children or to individuals with a developmental disability, if the care is funded by the state.

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     (1) Any physical assault not included in WAC 388-06-0170;

     (2) Any sex offense not included in WAC 388-06-0170;

     (3) Any felony conviction not included in WAC 388-06-0170; or

     (4) Felony violation of the following drug-related crimes:

     (a) The Imitation Controlled Substances Act (for substances that are falsely represented as controlled substances (see chapter 69.52 RCW));

     (b) The Legend Drug Act (prescription drugs, see chapter 69.41 RCW);

     (c) The Precursor Drug Act (substances used in making controlled substances, see chapter 69.43 RCW);

     (d) The Uniform Controlled Substances Act (illegal drugs or substances, see chapter 69.50 RCW);or

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

     (5) Any federal or out-of-state conviction for an offense that under the laws of this state would disqualify you from having unsupervised access to children or individuals with developmental disabilities in your home or facility no less than five years from a conviction listed in this section.

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     (a) If the conviction for any crime listed in WAC 388-06-0180 occurred more than five years ago; or

     (b) If the conviction was for a crime other than those listed in WAC 388-06-0170 or 388-06-0180.

     (2) In both of these situations, DSHS must review your background to determine your character, suitability, and competence to have unsupervised access to children or individuals with a developmental disability. In this review, DSHS must consider the following factors:

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

     (b) The seriousness of the crime 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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     (2) You may reapply for a license, contract, certification, or approval to have unsupervised access to children or to individuals with a developmental disability by providing proof to the department that the charge against you has been dropped or that you were acquitted.

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     (2) If you have requested a contract or approval for unsupervised access to children or to individuals with a developmental disability, the department will notify you, and your prospective employer or your supervisor.

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

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     (2) Prospective volunteers, interns, contractors, or those seeking certification do not have the right to appeal the department's decision to deny authorization for unsupervised access to children and to individuals with a developmental disability.

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

     (4) The administrative hearing will take place before an administrative law judge employed by the office of administrative hearings (chapter 34.05 RCW).

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     (a) You are disqualified; or

     (b) You have not been disqualified by the background check.

     (2) The department will follow laws related to the release of criminal history records (chapter 10.97 and 43.43 RCW) and public disclosure (chapter 42.17 RCW) when releasing any information.

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

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

     (2) A copy of your WSP criminal background check results may also be obtained from the Washington state patrol (chapter 10.97 RCW).

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     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