WSR 12-07-044

EMERGENCY RULES

DEPARTMENT OF

EARLY LEARNING

[ Filed March 15, 2012, 10:18 a.m. , effective March 15, 2012, 10:18 a.m. ]


Effective Date of Rule: Immediately.

Purpose: The department of early learning (DEL) is extending adoption of new WAC 170-151-994, 170-295-0065, and 170-296-0172 to implement section 4 of 2SHB 1903 (chapter 295, Laws of 2011), requiring current DEL child care licensees to pay a one-time $45 fee to be used only to fund DEL costs of creating, developing and administering an individual-based/portable background check clearance registry established in the bill. The registry is necessary for DEL to administer a portable background check process as directed by 2SHB 1903 by July 1, 2012. The registry would allow individual child care workers to change licensed child care employers or work in multiple child care facilities without having to undergo a new DEL background check for each employer or facility as required now. This filing replaces and supersedes emergency rules filed as WSR 11-23-085 on November 17, 2011.

Statutory Authority for Adoption: RCW 43.215.060, 43.215.070 (2)(c), and 43.43.832(6); chapter 43.215.

Other Authority: 2SHB 1903 (chapter 295, Laws of 2011); RCW 43.215.200 and 43.215.215.

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; and that in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal year 2009, 2010, 2011, 2012 or 2013, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency.

Reasons for this Finding: Conducting a background check is integral to determining an individual's character and suitability to provide child care, and for protecting the safety and health of children in child care. RCW 43.215.200, 43.215.215 and 43.43.832(6) provide DEL authority to investigate the criminal background history and other relevant information of individuals: Seeking a DEL child care license; wishing to work in child care; or who reside on the premises of a licensed child care center or home.

In adopting 2SHB 1903, the legislature established a new account in the state treasury specifically for the purpose of funding an individual-based/portable background check clearance registry. Section 4 of the bill states:

"Effective July 1, 2011, all agency licensees shall pay the department (DEL) a one-time fee established by the department. When establishing the fee, the department must consider the cost of developing and administering the (individual-based/portable background check clearance) registry, and shall not set a fee which is estimated to generate revenue beyond the estimated costs for the development and administration of the registry. Fee revenues must be deposited in the individual-based/portable background check clearance account created in section 5 of this act, and may be expended only for the costs of developing and administering the individual-based/portable background check clearance registry created in section 1 of this act."

Section 5 of the bill states, in part, "...Expenditures from the account may be made only for development, administration, and implementation of the individual-based/portable background check registry established in section 1 of this act. Only the director of the department of early learning or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures."

The legislature determined that costs of developing, administering and implementing the individual-based/portable background check clearance registry must be funded through user fees. As provided in section 4 of the bill, DEL has estimated that the initial SFY 2012 cost to create, develop, administer and implement the registry and related systems is approximately $326,250. Divided by an estimated 7,250 current child care facilities licensed by DEL as of July 2011, the one-time fee amount would be $45 per licensee - the amount provided in these rules ($326,250/7,250 = $45). See the DEL fiscal note for 2SHB 1903 as enacted filed with the state office of financial management. DEL must generate the one-time fee revenues early in fiscal year 2012 to develop the initial technology, administration, and fund management capacities of the registry.

The registry must be operational by July 1, 2012, when section 2 of 2SHB 1903 directs an estimated 41,500 current licensees, child care staff, and others associated with DEL-licensed child care facilities to renew their DEL background check utilizing the individual-based/portable background check clearance registry. Background check clearances of an estimated 6,500 new licensees, staff and others who enter the child care industry in the state each year will also be entered on the new registry.

DEL plans to develop permanent rules to implement 2SHB 1903, and the department has filed a preproposal statement of inquiry, filing number WSR 11-12-076, to initiate regular rule making, and the department is pursuing permanent rule making.

Filing this rule is consistent with state office of financial management guidance regarding Executive Order 10-06 (extended under Executive Order 11-03) suspending noncritical rule making, but allowing rules to proceed that are: "Required by federal and state law or required to maintain federally delegated or authorized programs..." or "Necessary to manage budget shortfalls, maintain fund solvency, or for revenue generating activities."

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 3, 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 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 3, Amended 0, Repealed 0.

Date Adopted: March 15, 2012.

Elizabeth M. Hyde

Director

OTS-4042.1


NEW SECTION
WAC 170-151-994   School-age child care centers -- Individual-based/portable background check clearance registry -- One-time fee.   (1) As required by section 4, chapter 295, Laws of 2011 (2SHB 1903), beginning July 22, 2011, all agency licensees who are licensed with the department as of July 1, 2011, shall pay a one-time fee of forty-five dollars in addition to any other fees imposed by this chapter.

(2) Fee payments made under this section shall be:

(a) By check, draft, or money order;

(b) Sent by mail; and

(c) Postmarked before September 1, 2011.

(3) Pursuant to RCW 43.215.300, the department may suspend the license of any agency licensee:

(a) Who fails to pay the fee required in subsection (2) of this section until the fee is paid; or

(b) Whose check, draft, or money order is reported as having nonsufficient funds (NSF) or is otherwise dishonored by nonacceptance or nonpayment.

(4) All fees collected under this section shall be deposited in the individual-based/portable background check clearance account created in section 5, chapter 295, Laws of 2011 (2SHB 1903) and may be expended only for the costs of developing and administering the individual-based/portable background check clearance registry created in section 1 of that act.

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OTS-4043.1


NEW SECTION
WAC 170-295-0065   Child care centers -- Individual-based/portable background check clearance registry -- One-time fee.   (1) As required by section 4, chapter 295, Laws of 2011 (2SHB 1903), beginning July 22, 2011, all agency licensees who are licensed with the department as of July 1, 2011, shall pay a one-time fee of forty-five dollars in addition to any other fees imposed by this chapter.

(2) Fee payments made under this section shall be:

(a) By check, draft, or money order;

(b) Sent by mail; and

(c) Postmarked before September 1, 2011.

(3) Pursuant to RCW 43.215.300, the department may suspend the license of any agency licensee:

(a) Who fails to pay the fee required in subsection (2) of this section until the fee is paid; or

(b) Whose check, draft, or money order is reported as having nonsufficient funds (NSF) or is otherwise dishonored by nonacceptance or nonpayment.

(4) All fees collected under this section shall be deposited in the individual-based/portable background check clearance account created in section 5, chapter 295, Laws of 2011 (2SHB 1903) and may be expended only for the costs of developing and administering the individual-based/portable background check clearance registry created in section 1 of that act.

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OTS-4044.1


NEW SECTION
WAC 170-296-0172   Family home child care providers -- Individual-based/portable background check clearance registry -- One-time fee.   (1) As required by section 4, chapter 295, Laws of 2011 (2SHB 1903), beginning July 22, 2011, all agency licensees who are licensed with the department as of July 1, 2011, shall pay a one-time fee of forty-five dollars in addition to any other fees imposed by this chapter.

(2) Fee payments made under this section shall be:

(a) By check, draft, or money order;

(b) Sent by mail; and

(c) Postmarked before September 1, 2011.

(3) Pursuant to RCW 43.215.300, the department may suspend the license of any agency licensee:

(a) Who fails to pay the fee required in subsection (2) of this section until the fee is paid; or

(b) Whose check, draft, or money order is reported as having nonsufficient funds (NSF) or is otherwise dishonored by nonacceptance or nonpayment.

(4) All fees collected under this section shall be deposited in the individual-based/portable background check clearance account created in section 5, chapter 295, Laws of 2011 (2SHB 1903) and may be expended only for the costs of developing and administering the individual-based/portable background check clearance registry created in section 1 of that act.

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Washington State Code Reviser's Office