WSR 02-09-064

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed April 15, 2002, 3:45 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-04-097.

Title of Rule: Chapter 388-290 WAC, Working connections child care.

Purpose: WAC 388-290-0145, 388-290-0150, 388-290-0155, 388-290-0160 and 388-290-0165 are being revised to clarify the process for background checks and to expand the scope of individuals required to have a check.

Statutory Authority for Adoption: RCW 74.04.050, 74.13.085.

Statute Being Implemented: Chapters 74.04 and 74.13 RCW.

Summary: Clarifies the process of background checks for the working connections child care program to include the reason for doing the background check, information included in the check, what happens after the information is received, and notification of the results. The WAC changes also expand the scope of individuals subject to a background check to include individuals sixteen years of age and older when they reside with a relative provider and care takes place outside of the child's home.

Reasons Supporting Proposal: Clarification of processes and expansion of the individuals subject to a background check makes the WCCC program policies more consistent with other divisions within economic services and with other administrations.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Sheri Bruu-Deleon, Program Manager, 1009 College Street S.E., Lacey, WA 98503, (360) 413-3091.

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: Clarifies the process for background checks and expands the scope of individuals required to have a check. Both staff and consumers will have a clearer idea of the process involved and understand what information will be shared with the consumer. Children will be afforded further protection against individuals with disqualifying backgrounds who have direct access to them.

Proposal Changes the Following Existing Rules: Current rules do not include background checks for individuals sixteen and over who reside with a relative provider when that provider cares for a WCCC child outside of the child's home.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not impact small business.

RCW 34.05.328 does not apply to this rule adoption. These amendments are exempt under RCW 34.05.328 (5)(b)(vii).

Hearing Location: Office Building 2 Auditorium (DSHS Headquarters) (parking on 12th off Jefferson), 1115 Washington, Olympia, WA 98504, on May 21, 2002, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by May 17, 2002, phone (360) 664-6094, TTY (360) 664-6178, e-mail fernaax@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, e-mail fernaax@dshs.wa.gov, by 5:00 p.m., May 21, 2002.

Date of Intended Adoption: No sooner than May 22, 2002.

April 11, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3070.2
NEW SECTION
WAC 388-290-0143   Who must have a background check for the WCCC program and how often is the check done?   (1) A background check must be completed for:

(a) All in-home/relative providers who apply to care for a WCCC consumer's child; and

(b) Any individual sixteen years of age or older who is residing with a provider when care occurs outside of the WCCC child's home.

(2) A new background check must be completed:

(a) At least every two years;

(b) Any time an in-home/relative provider applies to provide care for a WCCC family;

(c) For any individual sixteen years of age or older newly residing with a provider when care occurs outside of the WCCC child's home; or

(d) When we have a valid reason to do a check more frequently.

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AMENDATORY SECTION(Amending WSR 02-01-135, filed 12/19/01, effective 1/19/02)

WAC 388-290-0145   ((When)) Why is ((my provider's criminal)) a background check required and will I be notified of the results?   (1) ((The department requires the criminal)) We require the background check ((for each in-home/relative provider under chapter 74.15 RCW)) to:

(a) ((When you request WCCC payments for a new in-home/relative provider:

(b) Every two years for existing in-home/relative providers; or

(c) When the department has a valid reason to do a criminal background check more frequently.

(2) You will receive notice telling you whether or not the department is able to authorize WCCC payment)) Help safeguard the health, safety, and well-being of children;

(b) Reduce the possible risk of harm from persons having access to WCCC children that have been convicted of certain crimes; and

(c) Help you make informed, safe and responsible decisions about individuals who have access to your children.

(2) As a WCCC consumer, you will be notified:

(a) Whether we can approve the provider for the WCCC program; and

(b) Of the following results from the background check:

(i) No background information is found given current sources of information;

(ii) Background information is found, but the information will not disqualify the individual being checked; or

(iii) Background information is found that disqualifies the individual being checked.

[Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, 388-290-0145, filed 12/19/01, effective 1/19/02.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 02-01-135, filed 12/19/01, effective 1/19/02)

WAC 388-290-0150   ((Where does the WCCC program get the criminal background)) What information ((on the in-home/relative provider)) is included in the background check and where does it come from?   ((The WCCC program gets criminal)) (1) The background information ((from available sources such as:

(1))) will include, at a minimum, criminal convictions and pending charges.

(2) Additional sources may include:

(a) Child/adult protective service case or registry information; and

(b) Civil judgments, determinations, or disciplinary board final decisions of abuse or neglect.

(3) The background information is obtained from sources such as:

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

(((2))) (b) Child/adult protective service case files or registries;

(c) Other states and federally recognized Indian tribes;

(((3))) (d) Law enforcement records of convictions and pending charges in other states or locations if:

(i) The individual being checked has lived in another state; and

(ii) Reports from credible community sources ((that)) indicate a need to investigate another state's records((; and

(4))).

(e) Self-disclosure by the ((in-home/relative provider)) individual being checked.

[Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, 388-290-0150, filed 12/19/01, effective 1/19/02.]


AMENDATORY SECTION(Amending WSR 02-01-135, filed 12/19/01, effective 1/19/02)

WAC 388-290-0155   What happens after ((the WCCC program reviews my in-home/relative provider's criminal)) we receive the background information?   After ((the WCCC program receives the in-home/relative provider's criminal)) we receive the background information we:

(1) Compare the ((criminal)) background information ((including pending charges)) with convictions listed in WAC 388-290-0160 ((or)) and 388-290-0165 ((and:

(1) Determine if the in-home/relative provider's criminal)).

(2) Review the background ((contains)) information ((that will not allow the authorization of payment for part of the cost of WCCC)) using the following rules:

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

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

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

(2)))"; and

(d) The crime will not be considered a conviction for the purposes of WCCC when it has been pardoned or a court of law acts to expunge or vacate the conviction record.

(3) Notify you whether or not ((the department is)) we are able to ((authorize payment for part of the cost of care;

(3)))approve the provider for WCCC.

(4) Allow you to decide character and suitability of the provider given an individual's nondisqualifying background information from the record of arrests and prosecutions (RAP) sheet.

(5) Deny or ((stops)) stop payment ((for part of the cost of care by this in-home/relative provider,)) when the ((criminal)) background information disqualifies the ((in-home/relative provider; and

(4))) individual being checked.

(6) Assist you in finding other child care arrangements.

[Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, 388-290-0155, filed 12/19/01, effective 1/19/02.]


AMENDATORY SECTION(Amending WSR 02-01-135, filed 12/19/01, effective 1/19/02)

WAC 388-290-0160   What convictions permanently disqualify my in-home/relative provider from being authorized by ((the WCCC program)) us?   (1) If your provider or an individual listed in WAC 388-290-0143 (1)(b) has ((been convicted of any crime listed in WAC 388-006-0170)) a background containing the following felony convictions, the provider is permanently disqualified as an in-home/relative child care provider for WCCC:

(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) The disqualifying background of an individual sixteen years of age or over living with the provider may not permanently disqualify the provider if conditions in WAC 388-290-0167 (1)(a) and (b) are met.

[Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, 388-290-0160, filed 12/19/01, effective 1/19/02.]


AMENDATORY SECTION(Amending WSR 02-01-135, filed 12/19/01, effective 1/19/02)

WAC 388-290-0165   ((Are)) Is there other background information or convictions that will disqualify my in-home/relative provider?   (1) ((If)) Your in-home/relative provider ((has been convicted)) can be disqualified if the individual being checked has a background containing information other than conviction information that we determine:

(a) Makes the individual not of suitable character and competence or of sufficient physical or mental health to meet the needs of the child in care; or

(b) Puts the household at risk for harm.

(2) If an individual being checked as a background containing the following crimes within the last five years ((of any crime listed in WAC 388-006-0180)), your provider is disqualified as an in-home/relative child care provider for WCCC((.

(2) If your provider)):

(a) Any physical assault not included in WAC 388-290-0160;

(b) Any sex offense not included in WAC 388-290-0160;

(c) Any felony conviction not included in WAC 388-290-0160;

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

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

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

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

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

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

(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 your home or facility not less than five years from a conviction listed in this section.

(3) If an individual being checked has:

(a) A conviction listed in ((WAC 388-06-0180)) subsection (2)(a) through (e) of this section, and it has been more than five years((, the department will review the provider's background)); or

(b) A conviction other than those listed in WAC 388-290-0160 or subsection (2)(a) through (e) of this section, we will allow you to determine the provider's character, suitability, and competence by reviewing:

(((a))) (i) The amount of time that has passed since the conviction;

(((b))) (ii) The seriousness of the crime that led to the conviction;

(((c))) (iii) The ((provider's)) individual's age at the time of conviction;

(((d))) (iv) The individual's behavior since the conviction;

(v) The number and types of convictions in the ((provider's)) individual's background; and

(((e))) (vi) Documentation indicating ((you have)) the individual has successfully completed all court-ordered programs and restitution.

(((3) If your provider has a conviction other than those listed in WAC 388-06-0170 or 388-006-0180 the department will review the provider as described in (2)(a) through (d) above.

(4) The crime will not be considered a conviction for the purposes of WCCC when it has been pardoned or a court of law acts to expunge or vacate the conviction record)) (4) The disqualifying background of an individual sixteen years of age or over living with the provider may not disqualify the provider if conditions in WAC 388-290-0167 (1)(a) and (b) are met.

[Statutory Authority: RCW 74.04.050 and C.F.R. Parts 98 and 99 (Child Care Development Fund Rules). 02-01-135, 388-290-0165, filed 12/19/01, effective 1/19/02.]


NEW SECTION
WAC 388-290-0167   What happens if my in-home/relative provider, who provides care in their home, is disqualified based solely on the disqualifying background of an individual living with that provider?   (1) If your provider is disqualified based solely on the disqualifying background of an individual living with that provider, we will require that:

(a) Child care occurs in the child's home away from the disqualified individual, if you wish to continue using that provider; and

(b) The parent and provider sign an agreement with us indicating that:

(i) Care will occur in the child's home; and

(ii) There will be no contact between the child and disqualified individual during child care hours.

(2) The parent may choose a licensed provider or submit an application for a different in-home/relative provider.

(3) If we become aware that the parent and provider are not meeting the conditions in subsection (1)(a) and (b) of this section:

(a) We will terminate care without advance and adequate notice;

(b) You will need to find a different provider; and

(c) You may be subject to an overpayment.

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Washington State Code Reviser's Office