WSR 02-14-066

PERMANENT RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Economic Services Administration)

[ Filed June 27, 2002, 3:22 p.m. , effective July 1, 2002 ]

Date of Adoption: June 26, 2002.

Purpose: New WAC 388-290-0143 is being adopted to expand the scope of individuals required to have a background check for the working connections child care program. The addition of new WAC 388-290-0167 and the amendment of WAC 388-290-0145, 388-290-0150, 388-290-0155, 388-290-0160, and 388-290-0165 will clarify the process for background checks.

Citation of Existing Rules Affected by this Order: Amending WAC 388-290-0145, 388-290-0150, 388-290-0155, 388-290-0160, and 388-290-0165.

Statutory Authority for Adoption: RCW 74.04.050, 74.13.085.

Adopted under notice filed as WSR 02-09-064 on April 15, 2002.

Changes Other than Editing from Proposed to Adopted Version: WAC 388-290-0150 (1)(a) and (3)(b), removed reference to "registries"; WAC 388-290-0150 (3)(d), added Department of Corrections and the courts; WAC 388-290-0155(1), WAC references are now WAC 388-06-0170 and 388-06-0180; WAC 388-290-0155 (2)(d), added "dismiss"; and WAC 388-290-0160 (1)(e) and 388-290-0165 (2)(e), changed individuals with developmental disabilities to "vulnerable adults."

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 5, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 2, Amended 5, Repealed 0.

Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: Immediate implementation of these rules is necessary to prevent imminent peril to the public health, safety and welfare. Children served by in-home/relative caregivers under the working connections child care program are typically in unsupervised settings. The adoption of these rules by July 1, 2002, will require additional persons having unsupervised access to these children to have a background check completed immediately, resulting in greater safeguards for children in these child care settings.
Effective Date of Rule: July 1, 2002.

June 26, 2002

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

3070.4
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.]


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 information; and

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

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

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

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

(c) Other states and federally recognized Indian tribes;

(((3))) (d) The department of corrections and the courts;

(e) 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.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
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 388-290-0165 and:

(1) Determine if the in-home/relative provider's criminal)) 388-06-0170 and 388-06-0180.

(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, dismiss, 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 not automatically disqualifying 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 vulnerable adults 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 vulnerable adults 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