Effective Date of Rule: Immediately.

     Purpose: To meet the requirements of ESSB 5922 (chapter 512, Laws of 2005), the department is amending WAC 388-15-009 What is child abuse or neglect? and 388-15-049 When must the department notify the alleged perpetrator of allegations of child abuse or neglect?

     Citation of Existing Rules Affected by this Order: Amending WAC 388-15-009 and 388-15-049.

     Statutory Authority for Adoption: RCW 74.13.031, 74.04.050, and chapter 26.44 RCW.

     Other Authority: ESSB 5922 (chapter 512, Laws of 2005).

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: The new language is essential for children's administration to implement the legislature's intent in ESSB 5922 by its January 1, 2007, effective date. The new language is essential for determining what constitutes child abuse under the statute, and is necessary for the protection of health, safety and welfare of children. There is not time to complete the regular rule-making steps in chapter 34.05 RCW to adopt this new language by January 1 and still have adequate and effective public participation in the rule-making process. The department has initiated the regular rule-making process by publishing preproposal statements of inquiry as WSR 06-21-080 and 06-21-081. The department has also filed a proposed rule notice (CR-102) as WSR 07-08-095 and is holding a public hearing on May 8, 2007.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 2, Repealed 0.

     Date Adopted: April 20, 2007.

Stephanie E. Schiller

Rules Coordinator

     (1) Physical abuse means the nonaccidental infliction of physical injury or physical mistreatment on a child. Physical abuse includes, but is not limited to, such actions 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 or which is injurious to the child's health, welfare ((and)) or safety.

     (2) Physical discipline of a child, including the reasonable use of corporal punishment, is not considered abuse when it is reasonable and moderate and is inflicted by a parent or guardian for the purposes of restraining or correcting the child. The age, size, and condition of the child, and the location of any inflicted injury shall be considered in determining whether the bodily harm is reasonable or moderate. Other factors may include the developmental level of the child and the nature of the child's misconduct. A parent's belief that it is necessary to punish a child does not justify or permit the use of excessive, immoderate or unreasonable force against the child.

     (3) Sexual abuse means committing or allowing to be committed any sexual offense against a child as defined in the criminal code. The intentional touching, either directly or through the clothing, of the sexual or other intimate parts of a child or allowing, permitting, compelling, encouraging, aiding, or otherwise causing a child to engage in touching the sexual or other intimate parts of another for the purpose of gratifying the sexual desire of the person touching the child, the child, or a third party. A parent or guardian of a child, a person authorized by the parent or guardian to provide childcare for the child, or a person providing medically recognized services for the child, may touch a child in the sexual or other intimate parts for the purposes of providing hygiene, child care, and medical treatment or diagnosis.

     (4) Sexual exploitation includes, but is not limited to, such actions as allowing, permitting, compelling, encouraging, aiding, or otherwise causing a child to engage in:

     (a) Prostitution;

     (b) Sexually explicit, obscene or pornographic activity to be photographed, filmed, or electronically reproduced or transmitted; or

     (c) Sexually explicit, obscene or pornographic activity as part of a live performance, or for the benefit or sexual gratification of another person.

     (5) Negligent treatment or maltreatment means an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, on the part of a child's parent, legal custodian, guardian, or caregiver that shows a serious disregard of the consequences to the child of such magnitude that it creates a clear and present danger to the child's health, welfare, ((and)) or safety. A child does not have to suffer actual damage or physical or emotional harm to be in circumstances which create a clear and present danger to the child's health, welfare, ((and)) or safety. Negligent treatment or maltreatment includes, but is not limited, to:

     (a) Failure to provide adequate food, shelter, clothing, supervision, or health care necessary for a child's health, welfare, ((and)) or safety. Poverty and/or homelessness do not constitute negligent treatment or maltreatment in and of themselves;

     (b) Actions, failures to act, or omissions that result in injury to or which create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child; or

     (c) The cumulative effects of ((consistent)) a pattern of conduct, behavior or inaction ((or behavior)) by a parent or guardian in providing for the physical, emotional and developmental needs of a child's, or the effects of chronic failure on the part of a parent or guardian to perform basic parental functions, obligations, and duties, when the result is to cause injury or create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child.

[Statutory Authority: RCW 74.13.031, 74.04.050, and chapter 26.44 RCW. 02-15-098 and 02-17-045, § 388-15-009, filed 7/16/02 and 8/14/02, effective 2/10/03.]

[Statutory Authority: RCW 74.13.031, 74.04.050, and chapter 26.44 RCW. 02-15-098 and 02-17-045, § 388-15-049, filed 7/16/02 and 8/14/02, effective 2/10/03.]

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