WSR 02-10-092

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed April 29, 2002, 3:33 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-06-087.

Title of Rule: Amending WAC 388-150-0090 When can my license application be denied and when can my license be suspended or revoked?, 388-151-0090 When can my license application be denied and when can my license be suspended or revoked?, and 388-155-0090 When can my license application be denied and when can my license be suspended or revoked?

Purpose: These WACs are being amended to correct their citation of the criminal history background check WAC. These rules were also rewritten for clarity.

Statutory Authority for Adoption: RCW 74.15.020, 74.12.340, and 74.15.030.

Statute Being Implemented: RCW 74.15.020, 74.12.340, and 74.15.030.

Summary: Formerly the department had more than one WAC describing the process and criteria for conducting background checks. Chapter 388-330 WAC has been repealed in order to unify the department's policy on background checks. The proposed amendments will refer to the new criminal history background check, chapter 388-06 WAC.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Leslie Edwards-Hill, 1009 College Street S.E., Lacey, WA, (360) 413-3289.

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: These WACs are being amended to correct their citation of the criminal history background check WAC. Formerly the department had more than one WAC describing the process and criteria for conducting background checks. Chapter 388-330 WAC has been repealed in order to unify the department's policy on background checks. The proposed amendments will refer to the new criminal history background check, chapter 388-06 WAC. These rules were also rewritten for clarity.

Proposal Changes the Following Existing Rules: The amended WACs will have the correct reference for criminal history background checks.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules affect small child care businesses, but the proposed amendments only clarify existing requirements and correct obsolete WAC cross-references. The proposed rules will not impose any new requirements on small businesses.

RCW 34.05.328 does not apply to this rule adoption. Rules of the department establishing or altering licensing requirements meet the definition of significant legislative rules. However, the proposed amendments only clarify existing requirements and correct obsolete WAC cross-references without changing the effect of the rules. Therefore, the proposed amendments are exempt per RCW 34.05.328 (5)(b)(iv).

Hearing Location: Office Building 2 Auditorium (DSHS Headquarters) (parking entrance at 12th and Washington), 1115 Washington, Olympia, WA, on June 4, 2002, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by May 31, 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., June 4, 2002.

Date of Intended Adoption: Not earlier than June 5, 2002.

April 26, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3087.3
AMENDATORY SECTION(Amending Order 3974, filed 4/26/96, effective 5/27/96)

WAC 388-150-090   When can my license ((denial, suspension, or revocation.)) application be denied and when can my license be suspended or revoked?   (1) ((Before granting a license and as a condition for continuance of a license, the department shall consider the ability of the applicant and licensee to meet the requirements of this chapter. If more than one person is the applicant or licensee, the department:

(a) Shall consider the persons' qualifications separately and jointly; and

(b) May deny, suspend, revoke, or not renew the license based on the failure of one of the persons to meet the requirements.

(2) The department shall deny, suspend, revoke, or not renew the license of a person who:

(a) Has abused, neglected, or sexually exploited a child as those acts or omissions are defined in RCW 26.44.020 and WAC 388-15-130, is ineligible to provide care because of a criminal history under chapter 388-330 WAC, or allows such a person on the premises;

(b) Commits or was convicted of a felony reasonably related to the competency of the person to meet the requirements of this chapter;

(c) Engages in illegal use of a drug or excessive use of alcohol;

(d) Commits, permits, aids, or abets the commission of an illegal act on the premises;

(e) Commits, permits, aids, or abets the abuse, neglect, exploitation, or cruel or indifferent care to a child in care;

(f) Refuses to permit an authorized representative of the department, state fire marshal, state auditor's office, or department of health to inspect the premises; or

(g) Refuses to permit an authorized representative of the department, the department of health, or state auditor's office access to records related to operation of the center or to interview staff or a child in care.

(3) The department may deny, suspend, revoke, or not renew a license of a person who:

(a) Seeks to obtain or retain a license by fraudulent means or misrepresentation, including, but not limited to:

(i) Making a materially false statement on the application; or

(ii) Omitting material information on the application.

(b) Provides insufficient staff in relation to the number, ages, or characteristics of children in care;

(c) Allows a person unqualified by training, experience, or temperament to care for or be in contact with a child in care;

(d) Violates any condition or limitation on licensure including, but not limited to:

(i) Permitting more children on the premises than the number for which the center is licensed; or

(ii) Permitting on the premises a child of an age different from the ages for which the center is licensed.

(e) Fails to provide adequate supervision to a child in care;

(f) Demonstrates an inability to exercise fiscal responsibility and accountability with respect to operation of the center;

(g) Misappropriates property of a child in care;

(h) Knowingly permits on the premises an employee or volunteer who has made a material misrepresentation on an application for employment or volunteer service;

(i) Refuses or fails to supply necessary, additional department-requested information; or

(j) Fails to comply with any provision of chapter 74.15 RCW or this chapter.

(4) The department shall not issue a license to a person who has had denied, suspended, revoked, or not renewed a license to operate a facility for the care of children or adults, in this state or elsewhere, unless the person demonstrates by clear, cogent, and convincing evidence the person has undertaken sufficient corrective action or rehabilitation to warrant public trust and to operate the center in accordance with the rules of this chapter.

(5) The department's notice of a denial, revocation, suspension, or modification of a license and the applicant's or licensee's right to a hearing is governed under RCW 43.20A.205)) We must deny your license application, or suspend or revoke your license if you do not meet the requirements outlined this chapter.

(2) If more than one person applies for a license or is licensed under this chapter to provide child care at the same facility, we will consider qualifications separately and together. We may deny your license application, or suspend or revoke your license if one person fails to meet the minimum licensing requirements.

(3) We must deny, suspend, or revoke your license if you:

(a) Have been found to have abused, neglected, or sexually exploited a child as defined in chapter 26.44 RCW and WAC 388-15-130;

(b) Have a disqualifying criminal history as listed in chapter 388-06 WAC;

(c) Have had a license denied, suspended, or revoked for the care of adults or children in this state or any other state;

(d) Commit or allow an illegal act on the licensed premises;

(e) Allow a child in your care to be abused, neglected, exploited, or treated with cruelty or indifference;

(f) Use illegal drugs, or use alcohol excessively;

(g) Refuse to permit an authorized representative of the department, state fire marshal, or state auditor's office to inspect the premises; or

(h) Refuse to permit an authorized representative of the department, state fire marshal, or state auditor's office access to records related to the center's operation or to interview staff or a child in care.

(4) We may deny, suspend, or revoke your license if you:

(a) Try to get a license by deceitful means, such as making false statements or leaving out important information on your application;

(b) Do not provide enough staff in relation to the numbers, ages, or characteristics of children in care;

(c) Allow a person who is not qualified by training, experience or temperament to care for or be in contact with a child in care;

(d) Fail to provide adequate supervision to a child in care;

(e) Are not able to exercise fiscal responsibility and accountability while operating the center;

(f) Knowingly allow an employee or volunteer on the premises who has made false statements on an application for employment or volunteer service;

(g) Refuse to supply additional information reasonably requested by the department; or

(h) Fail to comply with the minimum licensing requirements set forth in this chapter or any provision of chapter 74.15 RCW.

[Statutory Authority: RCW 74.15.030. 96-10-043 (Order 3974), 388-150-090, filed 4/26/96, effective 5/27/96. Statutory Authority: RCW 74.12.340. 94-13-201 (Order 3745), 388-150-090, filed 6/22/94, effective 7/23/94. Statutory Authority: RCW 74.15.030. 90-23-078 (Order 3103), 388-150-090, filed 11/20/90, effective 12/21/90.]

3088.3
AMENDATORY SECTION(Amending WSR 01-02-031, filed 12/22/00, effective 1/22/01)

WAC 388-151-090   ((How may the department deny, suspend, or revoke)) When can my license((?)) application be denied and when can my license be suspended or revoked?   (1) ((Before granting a license and as a condition for continuance of a license, the department must consider your ability to meet the requirements of this chapter. If more than one person is the applicant or licensee, the department:

(a) Must consider the applicants' or the licensees' qualifications separately and jointly; and

(b) May deny, suspend, revoke, or not renew the license based on the failure of one of the persons to meet the requirements of chapter 74.15 RCW and this chapter.

(2) The department must deny, suspend, revoke, or not renew the license of a person who:

(a) Has abused, neglected, or sexually exploited a child as those acts or omissions are defined in RCW 26.44.020 and chapter 388-15 WAC;

(b) Is ineligible to provide care because the person has a criminal history as described in chapter 388-330 WAC;

(c) Allows a person meeting the conditions of (a) or (b) of this subsection on the premises;

(d) Commits or was convicted of a felony reasonably related to the competency of the person to meet the requirements of this chapter;

(e) Engages in illegal use of a drug or excessive use of alcohol;

(f) Commits, permits, aids, or abets the commission of an illegal act on the premises;

(g) Commits, permits, aids, or abets the abuse, neglect, exploitation, or cruel or indifferent care of a child in care;

(h) Refuses to permit an authorized representative of the department, state fire marshal's office, or department of health to inspect the premises; or

(i) Refuses to permit an authorized representative of the department or the department of health access to records related to operation of the center or to interview staff or a child in care.

(3) The department may deny, suspend, revoke, or not renew a license of a person who:

(a) Seeks to obtain or retain a license by fraudulent means or misrepresentation including, but not limited to:

(i) Making a materially false statement on the application; or

(ii) Omitting material information on the application.

(b) Provides insufficient staff in relation to the number, ages, or characteristics of children in care;

(c) Allows a person unqualified by training, experience, or temperament to care for or be in contact with a child in care;

(d) Violates any condition or limitation on licensure including, but not limited to:

(i) Permitting more children on the premises than the number for which the department licensed the center; or

(ii) Permitting a child of a different age from the ages for which the department licensed the center to be on the premises.

(e) Fails to provide adequate supervision to a child in care;

(f) Demonstrates an inability to exercise fiscal responsibility and accountability with respect to operation of the center;

(g) Misappropriates property of a child in care;

(h) Knowingly permits an employee or volunteer who has made a material misrepresentation on an application for employment or volunteer service to be on the premises;

(i) Refuses or fails to supply necessary, additional department requested information; or

(j) Fails to comply with any provision of chapter 74.15 RCW or this chapter.

(4) The department must not issue a license to a person who has been denied a license, or has had a license to operate a facility for the care of children or adults suspended, revoked, or not renewed, either in this state or another state. Exception: If the person demonstrates by clear, cogent, and convincing evidence that the person has undertaken sufficient corrective action or rehabilitation to warrant public trust and to operate the center in accordance with the rules of this chapter, the department may issue a license to that person.

(5) RCW 43.20.205 governs the department's notice of a denial, revocation, suspension, or modification of a license and your right to a hearing)) We must deny your license application, or suspend or revoke your license if you do not meet the requirements outlined this chapter.

(2) If more than one person applies for a license or is licensed under this chapter to provide child care at the same facility, we will consider qualifications separately and together. We may deny your license application, or suspend or revoke your license if one person fails to meet the minimum licensing requirements.

(3) We must deny, suspend, or revoke your license if you:

(a) Have been found to have abused, neglected, or sexually exploited a child as defined in chapter 26.44 RCW and WAC 388-15-130;

(b) Have a disqualifying criminal history as listed in chapter 388-06 WAC;

(c) Have had a license denied, suspended, or revoked for the care of adults or children in this state or any other state;

(d) Commit or allow an illegal act on the licensed premises;

(e) Allow a child in your care to be abused, neglected, exploited, or treated with cruelty or indifference;

(f) Use illegal drugs, or use alcohol excessively;

(g) Refuse to permit an authorized representative of the department, state fire marshal, or state auditor's office to inspect the premises; or

(h) Refuse to permit an authorized representative of the department, state fire marshal, or state auditor's office access to records related to the center's operation or to interview staff or a child in care.

(4) We may deny, suspend, or revoke your license if you:

(a) Try to get a license by deceitful means, such as making false statements or leaving out important information on your application;

(b) Do not provide enough staff in relation to the numbers, ages, or characteristics of children in care;

(c) Allow a person who is not qualified by training, experience or temperament to care for or be in contact with a child in care;

(d) Fail to provide adequate supervision to a child in care;

(e) Are not able to exercise fiscal responsibility and accountability while operating the center;

(f) Knowingly allow an employee or volunteer on the premises who has made false statements on an application for employment or volunteer service;

(g) Refuse to supply additional information reasonably requested by the department; or

(h) Fail to comply with the minimum licensing requirements set forth in this chapter or any provision of chapter 74.15 RCW.

[Statutory Authority: RCW 74.15.020. 01-02-031, 388-151-090, filed 12/22/00, effective 1/22/01. Statutory Authority: RCW 74.15.030. 96-10-043 (Order 3974), 388-151-090, filed 4/26/96, effective 5/27/96. Statutory Authority: Chapter 74.15 RCW. 93-02-020 (Order 3493), 388-151-090, filed 12/30/92, effective 1/30/93.]

3089.3
AMENDATORY SECTION(Amending WSR 01-17-084, filed 8/16/01, effective 9/16/01)

WAC 388-155-090   When can my license ((denial, suspension, or revocation.)) application be denied and when can my license be suspended or revoked?   (1) ((Before granting a license and as a condition for continuance of a license, the department must consider the ability of the applicant and licensee to meet the requirements of this chapter. If more than one person is the applicant or licensee, the department:

(a) Must consider the persons' qualifications separately and jointly; and

(b) May deny, suspend, revoke, or not renew the license based on the failure of one of the persons to meet the requirements.

(2) The department must deny, suspend, revoke, or not renew the license of a person who:

(a) Has abused, neglected, or sexually exploited a child as those acts or omissions are defined in RCW 26.44.020 and WAC 388-15-130, is ineligible to provide care because of a criminal history under chapter 388-330 WAC, or allows such a person on the premises;

(b) Commits or was convicted of a felony reasonably related to the competency of the person to meet the requirements of this chapter;

(c) Engages in illegal use of a drug or excessive use of alcohol;

(d) Commits, permits, aids, or abets the commission of an illegal act on the premises;

(e) Commits, permits, aids, or abets the abuse, neglect, exploitation, or cruel or indifferent care to a child in care;

(f) Refuses to permit an authorized representative of the department, state fire marshal, department of health, or state auditor's office to inspect the premises; or

(g) Refuses to permit an authorized representative of the department, the department of health, or the state auditor's office access to records related to operation of the home or to interview an assistant or a child in care.

(3) The department may deny, suspend, revoke, or not renew a license of a person who:

(a) Seeks to obtain or retain a license by fraudulent means or misrepresentation, including, but not limited to:

(i) Making a materially false statement on the application; or

(ii) Omitting material information on the application.

(b) Provides insufficient staff in relation to the number, ages, or characteristics of children in care;

(c) Allows a person unqualified by training, experience, or temperament to care for or be in contact with a child in care;

(d) Violates any condition or limitation on licensure including, but not limited to:

(i) Permitting more children on the premises than the number for which the home is licensed; or

(ii) Permitting on the premises a child of an age different from the ages for which the home is licensed.

(e) Fails to provide adequate supervision to a child in care;

(f) Demonstrates an inability to exercise fiscal responsibility and accountability with respect to operation of the home;

(g) Misappropriates property of a child in care;

(h) Knowingly permits on the premises an employee or volunteer who has made a material misrepresentation on an application for employment or volunteer service;

(i) Refuses or fails to supply necessary, additional department-requested information; or

(j) Fails to comply with any provision of chapter 74.15 RCW or this chapter.

(4) The department must not issue a license to a person who has had denied, suspended, revoked, or not renewed a license to operate a facility for the care of children or adults, in this state or elsewhere, unless the person demonstrates by clear, cogent, and convincing evidence the person has undertaken sufficient corrective action or rehabilitation to warrant public trust and to operate the home in accordance with the rules of this chapter.

(5) The department's notice of a denial, revocation, suspension, or modification of a license and the applicant's or licensee's right to a hearing must be governed under RCW 43.20A.205)) We must deny your license application, or suspend or revoke your license if you do not meet the requirements outlined this chapter.

(2) If more than one person applies for a license or is licensed under this chapter to provide child care at the same facility, we will consider qualifications separately and together. We may deny your license application, or suspend or revoke your license if one person fails to meet the minimum licensing requirements.

(3) We must deny, suspend, or revoke your license if you:

(a) Have been found to have abused, neglected, or sexually exploited a child as defined in chapter 26.44 RCW and WAC 388-15-130;

(b) Have a disqualifying criminal history as listed in chapter 388-06 WAC;

(c) Have had a license denied, suspended, or revoked for the care of adults or children in this state or any other state;

(d) Commit or allow an illegal act on the licensed premises;

(e) Allow a child in your care to be abused, neglected, exploited, or treated with cruelty or indifference;

(f) Use illegal drugs, or use alcohol excessively;

(g) Refuse to permit an authorized representative of the department, state fire marshal, or state auditor's office to inspect the premises; or

(h) Refuse to permit an authorized representative of the department, state fire marshal, or state auditor's office access to records related to the center's operation or to interview staff or a child in care.

(4) We may deny, suspend, or revoke your license if you:

(a) Try to get a license by deceitful means, such as making false statements or leaving out important information on your application;

(b) Do not provide enough staff in relation to the numbers, ages, or characteristics of children in care;

(c) Allow a person who is not qualified by training, experience or temperament to care for or be in contact with a child in care;

(d) Fail to provide adequate supervision to a child in care;

(e) Are not able to exercise fiscal responsibility and accountability while operating the center;

(f) Knowingly allow an employee or volunteer on the premises who has made false statements on an application for employment or volunteer service;

(g) Refuse to supply additional information reasonably requested by the department; or

(h) Fail to comply with the minimum licensing requirements set forth in this chapter or any provision of chapter 74.15 RCW.

[Statutory Authority: RCW 74.15.030. 01-17-084, 388-155-090, filed 8/16/01, effective 9/16/01; 96-10-043 (Order 3974), 388-155-090, filed 4/26/96, effective 5/27/96. Statutory Authority: RCW 74.12.340. 94-13-201 (Order 3745), 388-155-090, filed 6/22/94, effective 7/23/94. Statutory Authority: RCW 74.15.030. 91-04-048 (Order 3136), 388-155-090, filed 2/1/91, effective 3/4/91.]

Washington State Code Reviser's Office