Original Notice.

     Preproposal statement of inquiry was filed as WSR 10-04-113.

     Title of Rule and Other Identifying Information: The department intends to amend WAC 388-76-10000 Definitions, 388-76-10160 Criminal history background check -- Required, 388-76-10165 Criminal history background check -- Valid for two years, 388-76-10170 Criminal history background check -- Information -- Confidentiality -- Use restricted, 388-76-10174 Background checks -- Disclosure of information -- Sharing of criminal background information by health care facilities, 388-76-10175 Employment -- Conditional -- Pending results, 388-76-10180 Employment and other unsupervised access decisions, 388-76-10130 Qualifications -- Provider, entity representative and resident manager, and 388-76-10135 Qualifications -- Caregiver.

     The department intends to repeal WAC 388-76-10155 Unsupervised access to vulnerable adults -- Prohibited and 388-76-10173 Disclosure of employee information -- Employer immunity -- Rebuttable presumption.

     The department intends to add new sections WAC 388-76-10161 Background check -- Washington state -- Who is required to have, 388-76-10162 Background check -- National fingerprint checks -- Who is required to have, 388-76-10163 Background check -- Process, 388-76-10164 Background check -- Results, and 388-76-10146 Qualifications -- Training and home care aide certification.

     Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html or by calling (360) 664-6094), on June 22, 2010, at 10:00 a.m.

     Date of Intended Adoption: Not earlier than June 23, 2010.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on June 22, 2010.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by June 8, 2010, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at johnsjl4@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is amending these rules and adding new sections to implement chapters 74.39A and 18.88B RCW as codified from Initiative Measure No. 1029 and E2SHB 2284, chapter 361, Laws of 2007.

     Highlights of proposed changes:

     •     Editorial and housekeeping changes in the following sections: Definitions, background checks, employment, and qualifications.

     •     To be consistent with chapter 361, Laws of 2007, E2SHB 2284.

     •     Clarifies what is included in a Washington state background check.

     •     Clarifies when a national fingerprint-based background check is required.

     •     Clarifies the background check process.

     •     Clarifies what the adult family home must do after receiving background check results.

     •     Clarifies rules around sharing of background check results.

     •     Clarifies rules for conditional employment.

     •     Clarifies who must be certified as a home care aide.

     Reasons Supporting Proposal: To have the rules comply with the statutes referenced above.

     Statutory Authority for Adoption: RCW 70.128.040.

     Statute Being Implemented: Chapter 70.128 RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of social and health services, governmental.

     Name of Agency Personnel Responsible for Drafting: Mike Tornquist, P.O. Box 45600, Olympia, WA 98513, (360) 725-3204; Implementation and Enforcement: Lori Melchiori, P.O. Box 45600, Olympia, WA 98513, (360) 725-2404.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

     SUMMARY OF PROPOSED RULES: The department of social and health services' residential care services (RCS) is proposing amendments to chapter 388-76 WAC, Adult family homes.

     The purpose of this proposed rule making is to implement Initiative Measure No. 1029 and E2SHB 2284, chapter 361, Laws of 2007, as codified in chapters 74.39A and 18.88B RCW.

     Highlights of proposed changes:

     •     Revisions to be consistent with the terminology and training requirements in proposed chapter 388-112 WAC, which is required by chapters 74.39A and 18.88B RCW.

     •     Revisions to implement the fingerprint-based background check requirements in accordance with RCW 74.39A.055, which will be effective January 1, 2012.

     •     Clarify the definitions and criminal history background check sections.

     SMALL BUSINESS ECONOMIC IMPACT STATEMENT: Chapter 19.85 RCW, the Regulatory Fairness Act, requires that the economic impact of proposed regulations be analyzed in relation to small businesses. This statute outlines information that must be included in a SBEIS. Under RCW 19.85.025(3), preparation of a SBEIS is not required when proposed rule adopts or incorporates by reference without material change Washington state statutes and for rules with content dictated by statute. A SBEIS is required when there is a disproportionate impact on small businesses.

     RCW 19.85.020 defines a "small business" as "any business entity, including a sole proprietorship, corporation, partnership, or other legal entity, that is owned and operated independently from all other businesses, and that has fifty or fewer employees."

     Since RCS is adopting these proposed rules in order to be consistent with state law (RCW 74.39A.055, and chapters 74.39A and 18.88B RCW), a SBEIS is not required under RCW 34.05.310(4). The RCS rules are also being adopted in order to be consistent with proposed amendments to chapters 388-71 and 388-112 WAC, which are being adopted by DSHS's home and community services division (HCS). RCS has reviewed and taken into consideration the SBEIS and cost-benefit analysis (CBA) submitted by HCS for its proposed amendments. The RCS rules require adult family homes to comply with the training requirements in chapter 388-112 WAC.

     RCS has analyzed its proposed rules and has concluded that the content of the proposed rules is required by the state law. The long-term care worker training requirements are required by RCW 74.39A.073 and chapter 388-112 WAC. RCS is amending its rules to be consistent with the terminology and training requirements in chapter 388-112 WAC. Although some providers may decide to bear any increased training costs, the rules do not require the provider to do so. The proposed rules require fingerprint-based background checks in accordance with RCW 74.39A.055, which prohibits the department from passing the costs of these checks to the workers or their employers.

     RCS has provided stakeholders several opportunities to give input on costs for the proposed rules. Stakeholders were asked at a meeting, sent e-mails requesting this information and drafts were posted on the internet. To date, RCS has not received comments about costs for these proposed rules.

     In response to its request for input from stakeholders, the department has received general comments about the current background check rules. Providers are concerned that the current processing time for the background checks is increasing costs, because newly hired staff must not have unsupervised access to residents until their background check results have been received. RCS received one comment from a provider who was concerned that processing time will increase when the fingerprint background check requirement goes into effect. The proposed rules on fingerprint background checks will not go into effect until January 1, 2012. It is impossible to definitively determine how long it will take the department to process background checks. The department has proposed solutions that are expected to be implemented before the effective date of the fingerprint background check rules.

     RCS has not received any information indicating that the proposed rules will result in any job losses or gains for adult family homes. However, RCS has reviewed comments received by HCS and is aware that HCS has concluded that the proposed rule amendments disproportionately impact small businesses more than larger businesses. Further, RCS understands that HCS has plans to mitigate those costs.

     EVALUATION OF PROBABLE COSTS AND PROBABLE BENEFITS: RCS has determined that some of the proposed rules are "significant legislative rules" as defined by legislature. However, under RCW 34.05.328 (5)(b), an evaluation of the costs and benefits of adoption of the rule pursuant to RCW 34.05.328 is not required because the content of the rules is explicitly and specifically dictated by statute. RCS provides the following probable costs and probable benefits as background information.

     COSTS:

     •     DSHS shared the draft language and draft small business economic statement and CBA with interested parties and stakeholder group.

     •     In addition, the draft language and draft small business economic statement and CBA was posted on the aging and disability services administration internet web site for anyone in the public to review and comment.

     •     DSHS' process is to use the input from internal and external stakeholders to determine cost impacts for the drafting of the rule.

     •     To date, no comments have been received about costs for these proposed rules. The department has received general comments about the current length of time it is taking to process background checks and that this was costing them money to provide direct supervision to newly hired staff.

     •     The statute states that the cost of the fingerprint checks will not be passed on to the individuals or the adult family home. The long-term care worker training requirements are required by RCW 74.39A.073 and chapter 388-112 WAC. We are amending our rules to be consistent with the terminology and training requirements in chapter 388-112 WAC.

     •     The training cost could be borne by either the provider or the staff person. The rules do not require the cost to be borne by the provider.

     COST SAVINGS: Although the proposed rules may not save providers money, they do have other anticipated benefits.

     OTHER BENEFITS: The proposed rules result in several benefits which include:

     •     The amendments are consistent with current laws;

     •     Adult family home providers will have more information to assist them in making hiring decisions; and

     •     Residents will ultimately benefit from a more trained workforce and potentially protected from staff with criminal histories.

     CONCLUSION: If a CBA had been required, RCS would conclude that the benefits of the proposed amendments exceed the probable cost.

     These rules are required to implement state laws and regulations related to adult family homes. RCS has complied with the appropriate sections of the Administrative Procedure Act and is prepared to proceed with the rule filing.

     Please contact Mike Tornquist by e-mail at tornqmj@dshs.wa.gov or by phone at (360) 725-3204 if you have questions.

     A copy of the statement may be obtained by contacting Mike Tornquist, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-3204, fax (360) 438-7903, e-mail tornqmj@dshs.wa.gov.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Mike Tornquist, P.O. Box 45600, Olympia, WA 98504-5600, phone (360) 725-3204, fax (360) 438-7903, e-mail tornqmj@dshs.wa.gov.

April 28, 2010

Katherine I. Vasquez

Rules Coordinator

     "Abuse" means the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult:

     (1) In instances of abuse of a vulnerable adult who is unable to express or demonstrate physical harm, pain, or mental anguish, the abuse is presumed to cause physical harm, pain or mental anguish; and

     (2) Abuse includes sexual abuse, mental abuse, physical abuse, and exploitation of a vulnerable adult, which have the following meanings:

     (a) "Sexual abuse" means any form of nonconsensual sexual contact, including but not limited to unwanted or inappropriate touching, rape, sodomy, sexual coercion, sexually explicit photographing, and sexual harassment. Sexual abuse includes any sexual contact between a staff person, who is not also a resident or client, of a facility or a staff person of a program authorized under chapter 71A.12 RCW, and a vulnerable adult living in that facility or receiving service from a program authorized under chapter 71A.12 RCW, whether or not consensual.

     (b) "Physical abuse" means a willful action of inflicting bodily injury or physical mistreatment. Physical abuse includes, but is not limited to, striking with or without an object, slapping, pinching, choking, kicking, shoving, prodding, or chemical or physical restraints unless the restraints are consistent with licensing requirements, and includes restraints that are otherwise being used inappropriately.

     (c) "Mental abuse" means any willful action or inaction of mental or verbal abuse. Mental abuse includes, but is not limited to, coercion, harassment, inappropriately isolating a vulnerable adult from family, friends, or regular activity, and verbal assault that includes ridiculing, intimidating, yelling, or swearing.

     (d) "Exploitation" means an act of forcing, compelling, or exerting undue influence over a vulnerable adult causing the vulnerable adult to act in a way that is inconsistent with relevant past behavior, or causing the vulnerable adult to perform services for the benefit of another.

     "Adult family home" means:

     (1) A residential home in which a person or an entity is licensed to provide personal care, special care, room, and board to more than one but not more than six adults who are not related by blood or marriage to a licensed operator, resident manager, or caregiver, who resides in the home.

     (2) As used in this chapter, the term "entity" includes corporations, partnerships and limited liability companies, and the term "adult family home" includes the person or entity that is licensed to operate an adult family home.

     "Affiliated with an applicant" means any person listed on the application as a partner, officer, director, resident manager, or majority owner of the applying entity, or is the spouse or domestic partner of the applicant.

     "Applicant" means an individual, partnership, corporation, or other entity seeking a license to operate an adult family home.

     "Capacity" means the maximum number of persons in need of personal or special care who are permitted to reside in an adult family home at a given time. The capacity includes:

     (1) The number of related children or adults in the home who receive personal or special care and services; plus

     (2) The number of residents the adult family home may admit and retain - the resident capacity. The capacity number listed on the license is the "resident capacity."

     "Caregiver" ((for purposes other than training,)) means any person eighteen years of age or older responsible for providing direct personal or special care to a resident and who is not the provider, entity representative, a student or volunteer.

     "Dementia" is defined as a condition documented through the assessment process required by WAC 388-76-10335.

     "Department" means the Washington state department of social and health services.

     "Department case manager" means the department authorized staff person or designee assigned to negotiate, monitor, and facilitate a care and services plan for residents receiving services paid for by the department.

     "Developmental disability" means:

     (1) A person who meets the eligibility criteria defined by the division of developmental disabilities under WAC 388-823-0040; or

     (2) A person with a severe, chronic disability which is attributable to cerebral palsy or epilepsy, or any other condition, other than mental illness, found to be closely related to mental retardation which results in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation, and requires treatment or services similar to those required for these persons (i.e., autism); and

     (a) The condition was manifested before the person reached age eighteen;

     (b) The condition is likely to continue indefinitely; and

     (c) The condition results in substantial functional limitations in three or more of the following areas of major life activities:

     (i) Self-care;

     (ii) Understanding and use of language;

     (iii) Learning;

     (iv) Mobility;

     (v) Self-direction; and

     (vi) Capacity for independent living.

     "Direct supervision" means oversight by a person who has demonstrated competency in the basic training and specialty training if required, or who has been exempted from the basic training requirements and is:

     (1) On the premises; and

     (2) Quickly and easily available to the caregiver.

     "Domestic partners" means two adults who meet the requirements for a valid state registered domestic partnership as established by RCW 26.60.030 and who have been issued a certificate of state registered domestic partnership.

     "Financial exploitation" means the illegal or improper use of the property, income, resources, or trust funds of the vulnerable adult by any person for any person's profit or advantage other than for the vulnerable adult's profit or advantage.

     "Entity representative" means the individual designated by a provider who is or will be responsible for the daily operation of the adult family home and who meets the requirements of this chapter and chapter 388-112 WAC.

     "Home" means adult family home.

     "Indirect supervision" means oversight by a person who:

     (1) Has demonstrated competency in the basic training and specialty training if required; or

     (2) Has been exempted from the basic training requirements; and

     (3) Is quickly and easily available to the care giver, but not necessarily on-site.

     "Inspection" means a review by department personnel to determine the adult family home's compliance with this chapter and chapters 70.128, 70.129, 74.34 RCW, and other applicable rules and regulations. The department's review may include an on-site visit.

     "Management agreement" means a written, executed agreement between the adult family home and another individual or entity regarding the provision of certain services on behalf of the adult family home.

     "Mandated reporter" means an employee of the department, law enforcement, officer, social worker, professional school personnel, individual provider, an employee of a facility, an employee of a social service, welfare, mental health, adult day health, adult day care, or hospice agency, county coroner or medical examiner, Christian Science practitioner, or health care provider subject to chapter 18.130 RCW. For the purpose of the definition of a mandated reporter, "Facility" means a residence licensed or required to be licensed under chapter 18.20 RCW (boarding homes), chapter 18.51 RCW (nursing homes), chapter 70.128 RCW (adult family homes), chapter 72.36 RCW (soldiers' homes), chapter 71A.20 RCW (residential habilitation centers), or any other facility licensed by the department.

     "Medical device" as used in this chapter, means any piece of medical equipment used to treat a resident's assessed need.

     (1) A medical device is not always a restraint and should not be used as a restraint;

     (2) Some medical devices have considerable safety risks associated with use; and

     (3) Examples of medical devices with known safety risks when used are transfer poles, Posey or lap belts, and side rails.

     "Medication administration" means giving resident medications by a person legally authorized to do so, such as a physician, pharmacist or nurse.

     "Medication organizer" is a container with separate compartments for storing oral medications organized in daily doses.

     "Mental illness" is defined as an Axis I or II diagnosed mental illness as outlined in volume IV of the Diagnostic and Statistical Manual of Mental Disorders (a copy is available for review through the aging and disability services administration).

     "Multiple facility provider" means a provider who is licensed to operate more than one adult family home.

     "Neglect" means:

     (1) A pattern of conduct or inaction by a person or entity with a duty of care that fails to provide the goods and services that maintain physical or mental health of a vulnerable adult, or that fails to avoid or prevent physical or mental harm or pain to a vulnerable adult; or

     (2) An act or omission that demonstrates a serious disregard of consequences of such a magnitude as to constitute a clear and present danger to the vulnerable adult's health, welfare, or safety, including but not limited to conduct prohibited under RCW ((9A.41.100)) 9A.42.100.

     "Nurse delegation" means a registered nurse transfers the performance of selected nursing tasks to competent nursing assistants in selected situations. The registered nurse delegating the task retains the responsibility and accountability for the nursing care of the resident.

     "Over-the-counter medication" is any medication that can be purchased without a prescriptive order, including but not limited to vitamin, mineral, or herbal preparations.

     "Personal care services" means both physical assistance and/or prompting and supervising the performance of direct personal care tasks as determined by the resident's needs and does not include assistance with tasks performed by a licensed health professional.

     "Physical restraint" means a manual method, obstacle, or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that restricts freedom of movement or access to his or her body, is used for discipline or convenience, and is not required to treat the resident's medical symptoms.

     "Practitioner" includes a physician, osteopathic physician, podiatric physician, pharmacist, licensed practical nurse, registered nurse, advanced registered nurse practitioner, dentist, and physician assistant licensed in the state of Washington.

     "Prescribed medication" refers to any medication (legend drug, controlled substance, and over-the-counter) that is prescribed by an authorized practitioner.

     "Provider" means:

     (1) Any person who is licensed to operate an adult family home and meets the requirements of this chapter ((and chapter 388-112 WAC)); or

     (2) Any corporation, partnership, or limited liability company that is licensed under this chapter to operate an adult family home and meets the requirements of this chapter.

     "Resident" means any adult unrelated to the provider who lives in the adult family home and who is in need of care. Except as specified elsewhere in this chapter, for decision-making purposes, the term "resident" includes the resident's surrogate decision maker acting under state law.

     "Resident manager" means a person employed or designated by the provider to manage the adult family home and who meets the requirements of this chapter ((and chapter 388-112 WAC)).    

     "Significant change" means:

     (1) A lasting change, decline or improvement in the resident's baseline physical, mental or psychosocial status;

     (2) The change is significant enough so the current assessment and/or negotiated care plan do not reflect the resident's current status; and

     (3) A new assessment may be needed when the resident's condition does not return to baseline within a two week period of time.

     "Special care" means care beyond personal care services as defined in this section.

     "Staff" means any person who:

     (1) Is employed or used by an adult family home, directly or by contract, to provide care and services to any resident.

     (2) Staff must meet all of the requirements in this chapter and chapter 388-112 WAC.

     "Unsupervised" means not in the presence of:

     (1) Another employee or volunteer from the same business or organization; or

     (2) Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to which the employee, student or volunteer has access during the course of his or her employment or involvement with the business or organization.

     "Usable floor space" means resident bedroom floor space exclusive of:

     (1) Toilet rooms;

     (2) Closets;

     (3) Lockers;

     (4) Wardrobes;

     (5) Vestibules, and

     (6) The space required for the door to swing if the bedroom door opens into the resident bedroom.

     "Water hazard" means any body of water over twenty-four inches in depth that can be accessed by a resident, and includes but not limited to:

     (1) In-ground, above-ground, and on-ground pools;

     (2) Hot tubs, spas;

     (3) Fixed-in-place wading pools;

     (4) Decorative water features;

     (5) Ponds; or

     (6) Natural bodies of water such as streams, lakes, rivers, and oceans.

     "Willful" means the deliberate or nonaccidental action or inaction by an alleged perpetrator that he/she knew or reasonably should have known could cause a negative outcome, including harm, injury, pain or anguish.

     "Vulnerable adult" includes a person:

     (1) Sixty years of age or older who has the functional, mental, or physical inability to care for himself or herself;

     (2) Found incapacitated under chapter 11.88 RCW;

     (3) Who has a developmental disability as defined under RCW 71A.10.020;

     (4) Admitted to any facility;

     (5) Receiving services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW;

     (6) Receiving services from an individual provider; or

     (7) With a functional disability who lives in his or her own home, who is directing and supervising a paid personal aide to perform a health care task as authorized by RCW 74.39.050.

[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10000, filed 1/15/10, effective 2/15/10; 09-03-029, § 388-76-10000, filed 1/12/09, effective 2/12/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10000, filed 10/16/07, effective 1/1/08.]

     (1) Be twenty-one years of age or older;

     (2) Have a United States high school diploma or general education development certificate, or any English translated government document of the following:

     (a) Successful completion of government approved public or private school education in a foreign country that includes an annual average of one thousand hours of instruction a year for twelve years, or no less than twelve thousand hours of instruction;

     (b) Graduation from a foreign college, foreign university, or United States community college with a two-year diploma, such as an Associate's degree;

     (c) Admission to, or completion of course work at a foreign or United States college or university for which credit was awarded;

     (d) Graduation from a foreign or United States college or university, including award of a Bachelor's degree;

     (e) Admission to, or completion of postgraduate course work at, a United States college or university for which credits were awarded, including award of a Master's degree; or

     (f) Successful passage of the United States board examination for registered nursing, or any professional medical occupation for which college or university education was required.

     (3) ((Meet)) Complete the ((department's)) training requirements ((of)) that were in effect on the date they were hired, including the requirements described in chapter 388-112 WAC;

     (4) Have good moral and responsible character and reputation;

     (5) Be literate in the English language, or meet alternative requirements by assuring that a person is on staff and available at the home who is:

     (a) Able to communicate or make provisions for communicating with the resident in his or her primary language; and

     (b) Capable of understanding and speaking English well enough to be able to respond appropriately to emergency situations and be able to read, understand and implement resident negotiated care plans.

     (6) Be able to carry out the management and administrative requirements of chapters 70.128, 70.129 and 74.34 RCW, this chapter and other applicable laws and regulations;

     (7) Have completed at least three hundred and twenty hours of successful direct care experience obtained after age eighteen to vulnerable adults in a licensed or contracted setting before operating or managing a home;

     (8) Have no criminal convictions listed in RCW 43.43.830 or 43.43.842 or state or federal findings of abandonment, abuse, neglect or financial exploitation;

     (9) Obtain and keep valid cardiopulmonary resuscitation (CPR) and first-aid card or certificate as required in chapter 388-112 WAC; and

     (10) Have tuberculosis screening to establish tuberculosis status per this chapter.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10130, filed 10/16/07, effective 1/1/08.]

     (1) Be eighteen years of age or older;

     (2) Have a clear understanding of the caregiver job responsibilities and knowledge of each resident's negotiated care plan to provide care specific to the needs of each resident;

     (3) Have basic communication skills to:

     (a) Be able to communicate or make provisions to communicate with the resident in his or her primary language;

     (b) Understand and speak English well enough to:

     (i) Respond appropriately to emergency situations; and

     (ii) Read, understand and implement resident negotiated care plans.

     (4) ((Meet)) Complete the ((department's)) training requirements ((of)) that were in effect on the date they were hired including requirements described in chapter 388-112 WAC;

     (5) Have no criminal convictions listed in RCW 43.43.830 or 43.43.842 or state or federal findings of abandonment, abuse, neglect or financial exploitation;

     (6) Have a current valid first-aid and cardiopulmonary resuscitation (CPR) card or certificate as required in chapter 388-112 WAC; and

     (7) Have tuberculosis screening to establish tuberculosis status per this chapter.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10135, filed 10/16/07, effective 1/1/08.]

     (a) Orientation and safety;

     (b) Basic;

     (c) Specialty for dementia, mental illness and/or developmental disabilities when serving residents with any of those special needs as primary diagnosis;

     (d) Cardiopulmonary resuscitation and first aid; and

     (e) Continuing education.

     (2) All persons listed in subsection (1) of this section, must obtain home-care aide certification as required by chapter 246-980 WAC.

     (3) All adult family home applicants on or after January 1, 2011, must meet the long-term care worker training requirements of chapter 388-112 WAC and obtain home-care aide certification as required by chapter 246-980 WAC before licensure.

     (4) Persons exempt from long-term care worker training and certification requirements include but are not limited to adult family home applicants, caregivers, entity representatives, and resident managers who are registered nurses, licensed practical nurses, certified nursing assistants or persons who are in an approved certified nursing assistant program.

[]

     (1) ((Require the person to complete the residential care services background inquiry form which includes)) Washington state background checks including:

     (a) ((A disclosure statement)) Department and department of health findings; and

     (b) ((A statement authorizing the home, the department, and the Washington state patrol to conduct a background inquiry)) Criminal background check information from the Washington state patrol and the Washington state courts.

     (2) ((Verbally inform the person:

     (a) That he or she may ask for a copy of the background inquiry result; and

     (b) Of the inquiry result within ten days of receiving the result)) After January 1, 2012, a national fingerprint-based check in accordance with RCW 74.39A.055.

     (3) ((Send the information to the department and any additional documentation and information as requested by the department to satisfy the requirements of this section; and)) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the adult family home.

     (4) ((Notify the appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record)) In addition to chapter 70.128 RCW, these rules are authorized by RCW 43.20A.710, RCW 43.43.830 through 43.43.842 and RCW 74.39A.050(8).

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10160, filed 10/16/07, effective 1/1/08.]

     (2) The adult family home must ensure the following individuals employed directly or by contract, have Washington state background checks:

     (a) Caregivers, including volunteers and students who may have unsupervised access to residents;

     (b) Entity representatives;

     (c) Resident managers; and

     (d) All household members over the age of eleven who may have unsupervised access to residents.

[]

     (2) The adult family home must ensure that all caregivers, entity representatives and resident managers hired after January 1, 2012 have a background check that includes a national fingerprint-based background check.

[]

     (1) Require the person to complete a DSHS background authorization form; and

     (2) Send the completed form to the department's background check central unit (BCCU), including any additional documentation and information requested by the department.

[]

     (2) If the background check results show that the person has a conviction or finding that is not disqualifying under WAC 388-76-10180, then the adult family home must determine whether the person has the character, suitability and competence to work with vulnerable adults in long-term care.

     (3) The adult family home must:

     (a) Inform the person of the results of the background check;

     (b) Inform the person that they may request a copy of the results of the background check. If requested, a copy of the background check results must be provided within ten days of the request; and

     (c) Notify the department and the appropriate licensing or certification agency of any person resigning or terminated as a result of having a conviction record.

[]

     (1) A new DSHS background authorization form is submitted to the BCCU every two years for individuals listed in WAC 388-76-10161;

     (2) ((The adult family home must have)) There is a valid ((criminal history)) Washington state background check for all ((persons in the home who may have unsupervised access to any resident; and

     (3) The home must submit, receive and keep the results of the check every two years)) individuals listed in WAC 388-76-10161.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10165, filed 10/16/07, effective 1/1/08.]

     (1) ((Establish and implement procedures that ensure:

     (a) All disclosure statements, background inquiry applications, responses, related information, and all copies are)) Kept in a confidential and secure manner;

     (((b) All background inquiry results and disclosure statements are)) (2) Used for employment purposes only;

     (((c) Background inquiry results and disclosure statements are)) (3) Not disclosed to any person except:

     (((i))) (a) The person about whom the home made the disclosure or background ((inquiry)) check;

     (((ii))) (b) Licensed facilities, an employer of an authorized program, or an in-home services agency employer identified in WAC ((388-76-10173)) 388-76-10174;

     (((iii))) (c) Authorized state and federal employees; and

     (((iv))) (d) The Washington state patrol auditor.

     (((2) Keep a record of inquiry results for eighteen months)) (4) Kept for two years after the date an employee either quits or is terminated.

[Statutory Authority: RCW 70.128.040. 09-03-030, § 388-76-10170, filed 1/12/09, effective 2/12/09. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10170, filed 10/16/07, effective 1/1/08.]

     (1) A health care facility may, upon request from another health care facility, share ((copies of)) completed ((criminal)) Washington state background ((inquiry information.

     (2) A health care facility may share completed criminal background inquiry information)) check results only if:

     (a) The health care facility sharing the ((criminal)) background ((inquiry)) check information is reasonably known to be the person's most recent employer;

     (b) No more than twelve months has elapsed ((from)) between the date the person was last employed at a licensed health care facility ((to)) and the date of ((their)) the person's current employment application; and

     (c) The ((criminal)) background ((information)) check is no more than two years old.

     (((3))) (2) If ((criminal)) background ((inquiry)) check information is shared, the health care facility employing the subject of the ((inquiry)) check must require the applicant to sign a disclosure statement indicating that there has been no conviction or finding as described in ((RCW 43.43.842)) WAC 388-76-10180 since the completion date of the most recent ((criminal)) background ((inquiry)) check.

     (((4))) (3) Any health care facility that knows or has reason to believe that an applicant has or may have a disqualifying conviction or finding as described in ((RCW 43.43.842)) WAC 388-76-10180, after the completion date of their most recent ((criminal)) background ((inquiry)) check:

     (a) Cannot rely on the applicant's previous employer's ((criminal)) background ((inquiry)) check information; and

     (b) Must request a new ((criminal)) background ((inquiry pursuant to RCW 43.43.830 through 43.43.842)) check as required by this chapter.

     (((5))) (4) Health care facilities that share ((criminal)) background ((inquiry)) check information shall be immune from any claim of defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of this information in accordance with this section.

     (((6))) (5) Health care facilities must send and receive the ((criminal)) background ((inquiry)) check information in a manner that reasonably protects the subject's rights to privacy and confidentiality.

     (6) In accordance with RCW 74.39A.210, a home that discloses information about a former or current employee to certain types of prospective employers is presumed to act in good faith and is immune from civil and criminal liability for such disclosure or its consequences.

[Statutory Authority: RCW 70.128.040. 09-03-030, § 388-76-10174, filed 1/12/09, effective 2/12/09.]

     (1) ((Asks)) Requests the background check no later than one business day after conditional employment;

     (2) Requires the individual ((if they have)) to sign a disclosure statement and the individual denies having been convicted of a disqualifying crime ((listed under RCW 43.43.830 or 43.43.842 and the individual denies they have a conviction;

     (2) Requests the background inquiry within seventy-two hours of the conditional employment)) or a disqualifying finding under WAC 388-76-10180;

     (3) Does not allow((,)) the ((conditionally hired person,)) individual to have unsupervised access to any resident ((without));

     (4) Ensures direct supervision of the individual as defined in WAC 388-76-10000; and

     (((4))) (5) Ensures the individual is competent and receives the necessary training to perform assigned tasks and meets the staff training requirements ((in)) under chapter 388-112 WAC.

[Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10175, filed 10/16/07, effective 1/1/08.]

     (1) Any of the convictions, history, or findings, described below:

     (a) Has a history of significant noncompliance with federal or state laws or regulations in the provision of care or services to children or vulnerable adults;

     (b) Has been convicted of a crime in federal court or in any other state, and the department determines that the crime is equivalent to a crime under subsections (c), (d), (e), (f), or (g) below;

     (c) Has been convicted of a "crime against children or other persons" as defined in RCW 43.43.830, unless the crime is simple assault, assault in the fourth degree, or prostitution and more than three years has passed since conviction;

     (d) Has been convicted of "crimes relating to financial exploitation" as defined in RCW 43.43.830, unless the crime is theft in third degree and more than three years have passed since conviction, or unless the crime is forgery or theft in the second degree and more than five years has passed since conviction;

     (e) Has been convicted of:

     (i) Violation of the imitation controlled substances act (VICSA);

     (ii) Violation of the uniform controlled substances act (VUCSA);

     (iii) Violation of the uniform legend drug act (VULDA); or

     (iv) Violation of the uniform precursor drug act (VUPDA).

     (f) Has been convicted of sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;

     (g) Has been convicted of criminal mistreatment;

     (h) Has been found to have abused, neglected, financially exploited, or abandoned a minor or vulnerable adult by court of law or a disciplining authority, including the department of health. Examples of legal proceedings in which such findings could be made include juvenile court proceedings under chapter 13.34 RCW, domestic relations proceeding under title 26, RCW, and vulnerable adult protection proceedings under chapter 74.34 RCW;

     (i) Has a finding of abuse or neglect of a child that is:

     (i) Listed on the department's background check central unit (BCCU) report; or

     (ii) Disclosed by the individual, except for findings made before December, 1998.

     (j) Has a finding of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult that is:

     (i) Listed on any registry, including the department's registry;

     (ii) Listed on the department's background check central unit (BCCU) report; or

     (iii) Disclosed by the individual, except for adult protective services findings made before October, 2003.

     (2) Nothing in this section should be interpreted as requiring the employment of any person against the better judgment of the adult family home.

[Statutory Authority: RCW 70.128.040. 10-03-064, § 388-76-10180, filed 1/15/10, effective 2/15/10. Statutory Authority: RCW 70.128.040 and chapters 70.128 and 74.34 RCW. 07-21-080, § 388-76-10180, filed 10/16/07, effective 1/1/08.]

     The following sections of the Washington Administrative Code are repealed:

WAC 388-76-10155	Unsupervised access to vulnerable adults -- Prohibited.
WAC 388-76-10173	Disclosure of employee information -- Employer immunity -- Rebuttable presumption.

© Washington State Code Reviser's Office