PROPOSED RULES
EARLY LEARNING
Original Notice.
Preproposal statement of inquiry was filed as WSR 11-12-076 and 09-01-184.
Title of Rule and Other Identifying Information: Chapter 170-06 WAC, Background check; amending WAC 170-06-0010 Purpose and scope, 170-06-0020 Definitions, 170-06-0040 Background clearance requirements, 170-06-0050 Department action following completion of background inquiry, 170-06-0060 Additional information the department may consider, 170-06-0070 Disqualification and reconsideration, 170-06-0080 Notification of disqualification, 170-06-0090 Administrative hearing to contest disqualification, 170-06-0100 Request for administrative hearing, 170-06-0110 Limitations on challenges to disqualifications and 170-06-0120 Director's list; new WAC 170-06-0041 Licensee requirements, 170-06-0042 Departmental investigation and redetermination, 170-06-0043 Failure to report conviction and nonconviction information, 170-06-0044 Background check fees, 170-06-0045 Noncriminal background checks for individuals under sixteen years of age and 170-06-0115 Reconsideration of disqualification; and repealing WAC 170-06-0030 Reason for background checks.
Hearing Location(s): Department of Early Learning (DEL), Yakima Office, Ahtanum Room, 111 South 2nd Avenue, Yakima, WA 98902, on Tuesday, April 24, at 5 p.m.; and at the Department of Early Learning Tumwater Office, Point Plaza East, Nisqually Room, 6860 Capitol Boulevard S.E., Tumwater, WA 98501, on Thursday, April 26, at 5 P.m.
Individuals may arrive after the posted start time and still participate in these hearing[s]. However, the presiding officer may close the hearing if there are no public participants in attendance, or after all persons who indicated they wish to testify have done so. The public is encouraged to give input in writing:
The deadline for sending written comments on the proposed rules is midnight on Thursday, April 26, 2012. See the "Submit Written Comments to" section of this notice about how to submit written input on this proposal.
DEL encourages the public to use the department Facebook and DEL blog pages on the internet to post input about DEL programs and initiatives. However, for a written comment to be considered part of the official record for this proposal, the comment must be received at the on-line, e-mail, fax or postal mail locations as described in this notice under "Submit Written Comments to."
Everyone who comments on the proposed rules either in writing as provided in this notice or at a public hearing will receive the department's combined written response, called a concise explanatory statement. This statement is also available to anyone who requests it, by writing to the DEL Rules Coordinator, P.O. Box 40970, Olympia, WA 98504-0970, or by e-mailing Rules@del.wa.gov.
Date of Intended Adoption: Not earlier than April 30, 2012.
Submit Written Comments to: Department of Early Learning, Rules Coordinator, P.O. BOX 40970, Olympia, WA 98506-0970, on-line at https://apps.del.wa.gov/PolicyProposalComment/Detail.aspx, e-mail Rules@del.wa.gov, fax (360) 413-3482, by April 26, 2012.
Assistance for Persons with Disabilities: Contact DEL rules coordinator by April 16, 2012, (360) 725-4421.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: DEL is proposing new, amended and repealed rules establishing procedures for background checks conducted by DEL. DEL conducts background checks to find and evaluate any history of arrests, convictions, negative actions, or other information that raises concern about an individual's character, suitability, or competence to care for or have unsupervised access to children in care. The proposed rules are intended to update the rules for several purposes, including to:
| • | Implement applicable provisions of SSHB [2SHB] 1903 that requires DEL to establish and maintain individual-based or portable background check registry. |
| • | Add requirements for disclosure of conviction and nonconviction information and add a requirement for a noncriminal background check for individuals fourteen to sixteen years of age. The proposed rules also clarify disqualification requirements and reconsideration processes. |
| • | Improve clarity of DEL background check requirements. |
Reasons Supporting Proposal: See above.
Statutory Authority for Adoption: RCW 43.215.200, 43.215.205, 43.215.215 through 43.215.218, 43.43.830, and 43.43.832; chapters 43.215 and 43.43 RCW.
Statute Being Implemented: 2SHB 1903, 2011.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: DEL, governmental.
Name of Agency Personnel Responsible for Drafting: Lynne Shanafelt, Licensing Administrator, State Office, P.O. Box 40970, Olympia, WA 98504, (360) 725-4692; Implementation and Enforcement: DEL licensing offices, statewide.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules are not expected to impose new costs on child care businesses that would be "more than minor" as defined in chapter 19.85 RCW.
A cost-benefit analysis is not required under RCW 34.05.328. DEL is not among the agencies listed as required to comply with RCW 34.05.328.
March 21, 2012
Elizabeth M. Hyde
Director
OTS-4655.1
AMENDATORY SECTION(Amending WSR 08-10-041, filed 4/30/08,
effective 5/31/08)
WAC 170-06-0010
Purpose and scope.
(1) The purpose of
this chapter is to establish rules for background checks
conducted by the department of early learning (DEL or
department). ((The department does background checks on
individuals who are authorized to care for or have
unsupervised access to children in child care agencies or in
facilities that are certified by DEL. Background checks are
conducted to find and evaluate any history of criminal
convictions, pending charges, negative actions, or other
information that raises concerns about an individual's
character, suitability and competence to care for or have
unsupervised access to children in child care.
(2) This chapter applies to all individuals who are applying for a new or renewal license or certification, applying for authorization to care for or have unsupervised access to children in child care and to persons who are licensed, certified by DEL or authorized to care for or have unsupervised access to children in child care.
(3) If any provision of this chapter conflicts with any provision in any chapter containing a substantive rule relating to background checks and qualifications of persons who are authorized to care for or have unsupervised access to children in child care, the provisions in this chapter shall govern.
(4) These rules implement chapters 43.215 and 43.43 RCW, including DEL responsibilities in RCW 43.215.200, 43.215.205, 43.215.215, 43.43.830, and 43.43.832.
(5) Effective date: These rules are initially effective July 3, 2006, and apply prospectively.)) (2) The department conducts background checks on subject individuals who are authorized to care for or have unsupervised access to children in child care agencies or in facilities that are licensed or certified by the department.
(3) The department conducts background checks to reduce the risk of harm to children from subject individuals who have been convicted of certain crimes or who pose a risk to children.
(4) The department's rules and state law require the evaluation of background information to determine the character, suitability, or competence of persons who will care for or have unsupervised access to children in child care.
(5) If any provision of this chapter conflicts with any provision in any chapter containing a substantive rule relating to background checks and qualifications of persons who are authorized to care for or have unsupervised access to children in child care, the provisions in this chapter shall govern.
(6) These rules implement chapters 43.215 and 43.43 RCW, including DEL responsibilities in RCW 43.215.200, 43.215.205, 43.215.215 through 43.215.218, 43.43.830, and 43.43.832.
(7) Effective date: These rules are initially effective July 3, 2006, and apply prospectively. Effective July 1, 2012, these rules are amended to allow for increased and continued portability of background check clearances for subject individuals who are authorized to care for or have unsupervised access to children in child care agencies or in facilities that are licensed or certified by the department.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0010, filed 4/30/08, effective 5/31/08.]
(((1))) "Agency" has the same meaning as "agency" in RCW
((43.215.020)) 43.215.010(2).
(((2))) "Appellant" means only those with the right of
appeal under this chapter.
(((3) "Applicant" means an individual who is seeking a
DEL background check authorization as part of an application
for a child care agency license or DEL certification or who
seeks DEL authorization to care for or have unsupervised
access to children in child care.
(4))) "Authorized" or "authorization" means approval by DEL to care for or have unsupervised access to children in child care or to work in or reside on the premises of a child care agency or certified facility.
(((5))) "Certification" or "certified by DEL" means an
agency that is legally exempt from licensing that has been
certified by DEL as meeting minimum licensing requirements.
(((6))) "Conviction information" means criminal history
record information relating to an incident which has led to a
conviction or other disposition adverse to the subject
individual.
"DEL" or "department" means the department of early learning.
(((7))) "Director's list" means a list of crimes, the
commission of which disqualifies ((an)) a subject individual
from being authorized by DEL to care for or have unsupervised
access to children in child care, WAC 170-06-0120.
(((8))) "Disqualified" means DEL has determined that a
person's background information prevents that person from
being licensed or certified by DEL or from being authorized by
DEL to care for or have unsupervised access to children in
child care.
(((9))) "Negative action" means a court order, court
judgment or an adverse action taken by an agency, in any
state, federal, tribal or foreign jurisdiction, which results
in a finding against the ((applicant)) subject individual
reasonably related to the subject individual's character,
suitability and competence to care for or have unsupervised
access to children in child care. This may include but is not
limited to:
(a) A decision issued by an administrative law judge.
(b) A final determination, decision or finding made by an agency following an investigation.
(c) An adverse agency action, including termination, revocation or denial of a license or certification, or if pending adverse agency action, the voluntary surrender of a license, certification or contract in lieu of the adverse action.
(d) A revocation, denial or restriction placed on any professional license.
(e) A final decision of a disciplinary board.
(((10))) "Nonconviction information" means arrest,
pending charges, founded allegations of child abuse, or
neglect pursuant to chapter 26.44 RCW, or other negative
action adverse to the subject individual.
"Nonexpiring license" or "nonexpiring full license" means a full license that is issued to a licensee following the initial licensing period, as provided in WAC 170-151-087, 170-295-0095, or 170-296A-1450, as appropriate.
"Subject individual":
(1) Means an individual who:
(a) Is seeking a background check authorization or upon whom the department may conduct a background check authorization;
(b) Is sixteen years of age or older;
(c) Is employed by, contracted with, or volunteering for a licensed child care agency or certified facility; and
(d) Will care for or have unsupervised access to children in child care; and
(2) Includes, but is not limited to, the following:
(a) Personnel, including employees and staff;
(b) Contractors, including contracted providers;
(c) Temporary workers;
(d) Assistants;
(e) Volunteers;
(f) Interns;
(g) Each person residing on, or moving into, the premises of a licensed family home child care who is sixteen years of age or older;
(h) All other individuals who are sixteen years of age or older who will care for or have unsupervised access to children in child care;
(i) All owners, operators, lessees, or directors of the agency or facility, or their designees;
(j) Applicants. As used in this definition, "applicant" means an individual who is seeking a DEL background check authorization as part of:
(A) An application for a child care agency license or DEL certification or who seeks DEL authorization to care for or have unsupervised access to children in child care; or
(B) A continuation of a nonexpiring license or renewal of a certificate, or renewal of DEL's authorization to care for or have unsupervised access to children in child care, with respect to an individual who is a currently licensed or certified child care provider; and
(k) Licensees. As used in this definition, "licensee" means the individual, person, organization, or legal entity named on the child care license issued by DEL and responsible for operating the child care facility or agency.
"Unsupervised access" means:
(a) ((An)) A subject individual will or may have the
opportunity to be alone with a child in child care at any time
for any length of time; and
(b) Access that is not within constant visual or auditory range of the licensee, an employee authorized by DEL, nor a relative or guardian of the child in child care.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0020, filed 4/30/08, effective 5/31/08.]
(a) Each individual applicant for a license or certification;
(b) All staff of the licensed child care agency or certified facility, whether they provide child care or not, including but not limited to:
(i) Primary staff persons;
(ii) Assistants;
(iii) Volunteers;
(iv) Interns;
(v) Contracted providers;
(vi) Each person residing on the premises of a licensed facility who is sixteen years of age or older; and
(vii) All individuals who are sixteen years of age or older who will care for or have unsupervised access to children in child care.
(2) Each person identified in this section must complete a DEL background check form, disclosing:
(a) Whether he or she has been convicted of any crime;
(b) All pending criminal charges; and
(c) Negative actions, to which he or she has been subject, as defined by WAC 170-06-0020(9).
(3) An agency, licensee, or certified facility shall require an applicant to submit to the licensee or facility a completed background check form:
(a) By the date of hire of new staff, assistants, volunteers, interns or contracted providers;
(b) By the date a person age sixteen or older moves onto the premises; or
(c) By the date a person who resides on the premises turns sixteen years old.
(4) The licensee or certified facility must submit the background check form to the department within seven days of the staff, assistant, volunteer, intern or contracted provider's first day of employment, date the person moves on the premises or turns sixteen years old, as applicable.
(5) An individual shall not have unsupervised access to children in child care unless he or she has obtained a DEL authorization under this chapter.
(6) Agencies, licensees and facilities shall not permit any individual to care for or have unsupervised access to children in child care, unless the individual has been authorized by DEL to care for or have unsupervised access to children in child care.
(7) An individual who has been disqualified by DEL shall not be present on the premises of a licensed or certified facility.)) (1) Effective July 1, 2012, all new subject individuals applying for a first-time background check must complete the background check application process through DEL to include:
(a) Completion of the required fingerprint process; and
(b) Payment of all required fees as provided in WAC 170-06-0044.
(2) All other subject individuals who have been qualified by the department to have unsupervised access to children in care, prior to July 1, 2012, must submit a new background check application no later than July 1, 2013. The subject person must:
(a) Submit the new background check application through DEL;
(b) Submit payment of all required fees as provided in WAC 170-06-0044;
(c) Complete the required fingerprint process if the subject individual has lived in Washington state for fewer than three consecutive years prior to July 1, 2013;
(d) Complete the required fingerprint process if the subject individual lives or has lived outside of Washington state since the previous background check was completed.
(3) Each subject individual completing the DEL background check process must disclose:
(a) Whether he or she has been convicted of any crime;
(b) Whether he or she has any pending criminal charges; and
(c) Whether there is any negative actions, to which he or she has been subject, as defined by WAC 170-06-0020.
(4) A subject individual must not have unsupervised access to children in care unless he or she has obtained DEL authorization under this chapter.
(5) A subject individual who has been disqualified by DEL must not be present on the premises of a licensed or certified facility.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0040, filed 4/30/08, effective 5/31/08.]
(a) Within seven days of the date of hire;
(b) By the date a subject individual age sixteen or older moves onto the premises; or
(c) By the date a subject individual who lives on the premises turns sixteen years old.
(2) The licensee must keep on-site a copy of each subject individual's background check clearance authorization.
(3) The licensee must update the provider portal in the DEL system to verify the subject individuals associated with their program.
(4) The licensee must verify annually that each subject individual who is required to have a background check has either obtained a department clearance or has applied for a department background check through the DEL system. The verification must be submitted with the licensee's annual license fee and declarations.
[]
(2) Subject to the requirements in RCW 43.215.215, the department may immediately suspend or modify the subject individual's background clearance.
(3) Subject to the requirements in RCW 43.215.300 and 43.215.305, and based on a determination that a subject individual lacks the appropriate character, suitability, or competence to provide child care or early learning services to children, the department may disqualify the subject individual from having any unsupervised access to children in child care agencies or in facilities that are licensed or certified by the department.
[]
(a) Any nonconviction and conviction information for a crime listed in WAC 170-06-0120;
(b) Any other nonconviction and conviction information for a crime that could be reasonably related to the subject individual's suitability to provide care for or have unsupervised access to children in care; or
(c) Any negative action as defined in WAC 170-06-0020.
(2) A subject individual who has been issued a background check clearance authorization pursuant to WAC 170-06-0040 must report nonconviction and conviction information to the department involving a disqualifying crime under WAC 170-06-0120 against that subject individual within twenty-four hours after he or she becomes aware of the event constituting the nonconviction or conviction information.
(3) A subject individual who intentionally or knowingly fails to report to the department as provided in subsection (1) or (2) of this section may have his or her background check clearance suspended. This penalty will be in addition to any other penalty that may be imposed as a result of a violation of this chapter or chapter 170-151, 170-295, or 170-296A WAC.
[]
(a) Fingerprint process fees as defined by the WSP, FBI, and the DEL fingerprint contractor;
(b) The DEL administrative fee of:
(i) The cost of administration of the portable background check clearance based upon electronic submission has been determined to be twelve dollars for any background check application received in the period after June 30, 2012, therefore the fee for an electronic submission is twelve dollars for the described period;
(ii) The cost of administration of the portable background check clearance based upon a manual paper submission has been determined to be twenty-four dollars for any background check received after June 30, 2012, therefore the fee for a manual paper-based submission is twenty-four dollars for the described period.
(2) Fee payments may be:
(a) In the form of a personal check, cashier's check, or money order, which shall be sent by mail; or
(b) By electronic funds transfer (when available). As used in this section, "electronic funds transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account.
(3) The department will not issue a background check clearance authorization to a subject individual:
(a) Who fails to pay the required fees in subsection (1) of this section; or
(b) Whose check, money order, or electronic funds transfer is reported as having nonsufficient funds (NSF) or is otherwise dishonored by nonacceptance or nonpayment.
An additional processing fee of twenty-five dollars will be charged by the department for any check, money order, or electronic funds transfer that is reported as not having sufficient funds.
[]
(a) Fourteen to sixteen years of age, within seven days after the subject individual starts to work in the licensed or certified child care.
(b) Thirteen to sixteen years of age residing in a licensed or certified family home child care.
(c) Thirteen to sixteen years of age, within seven days after moving into the licensed family home child care.
(2) A subject individual identified in subsection (1)(a), (b) or (c) of this section must not have unsupervised access to children in child care.
(3) The licensee must verify annually that each subject individual who is required to have a noncriminal background check has either obtained a department clearance or has applied for a department noncriminal background check. The verification must be submitted with the licensee's annual license fee and declarations.
(4) When conducting a noncriminal background check, the department:
(a) Requires the minor's parent or guardian to sign the noncriminal background check application;
(b) Does not review convictions or pending charges for immediate disqualification for crimes under WAC 170-06-0050(1), unless the conviction was the result of prosecution of the juvenile as an adult; and
(c) Does not immediately disqualify an individual for a conviction under WAC 170-06-0070 (1) and (2), unless the conviction was the result of prosecution of the juvenile as an adult.
[]
(1) Compare the background information with the DEL
director's list, WAC 170-06-0120, to determine whether the
((applicant)) subject individual must be disqualified under
WAC 170-06-0070 (1) and (2). In doing this comparison, the
department will use the following rules:
(a) A pending charge for a crime or a deferred prosecution 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.
(c) Convictions whose titles are preceded with the word "attempted" are given the same weight as those titles without the word "attempted."
(d) The term "conviction" has the same meaning as the
term "conviction record" as defined in RCW 10.97.030 and
((shall)) may include convictions or dispositions for crimes
committed as either an adult or a juvenile. It ((shall)) may
also include convictions or dispositions for offenses for
which the person received a deferred or suspended sentence,
unless the record has been expunged according to law.
(e) Convictions and pending charges from other states or jurisdictions will be treated the same as a crime or pending charge in Washington state. If the elements of the crime from the foreign jurisdiction are not identical or not substantially similar to its Washington equivalent or if the foreign statute is broader than the Washington definition of the particular crime, the defendant's conduct, as evidenced by the indictment or information, will be analyzed to determine whether the conduct would have violated the comparable Washington statute.
(f) The crime will not be considered a conviction for the purposes of the department when the conviction has been the subject of an expungement, pardon, annulment, certification of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, or the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(2) Evaluate any negative action information to determine
whether the ((applicant)) subject individual has any negative
actions requiring disqualification under WAC 170-06-0070(3).
(3) ((If the applicant is not disqualified under WAC 170-06-0070 (1), (2) or (3),)) Evaluate any negative action
information and any other pertinent background information,
including nondisqualifying criminal convictions, to determine
whether disqualification is warranted under WAC 170-06-0070
(4), (5) or (7).
(4) ((Notify the child care agency, licensee, or
certified facility whether or not the department is able to
authorize the applicant to care for or have unsupervised
access to children in child care.
(5))) The department ((will)) may discuss the result of
the criminal history and background check information with the
licensee ((or management staff of a licensed or certified
facility, when applicable)) upon request, except for protected
contents of the FBI record of arrest and prosecution (RAP)
sheet subject to federal regulation.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0050, filed 4/30/08, effective 5/31/08.]
(a) Sexual deviancy evaluations;
(b) Substance abuse evaluations;
(c) Psychiatric evaluations; and
(d) Medical evaluations.
(2) Any evaluation requested under this section must be conducted by an evaluator who is licensed or certified under RCW 18.130.040. The evaluation will be at the expense of the person being evaluated.
(3) The ((applicant)) subject individual must give the
department permission to speak with the evaluator in
subsection (1)(a) through (d) of this section prior to
evaluation, to establish the need for and scope of the
evaluation, and after the evaluation to discuss the results.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0060, filed 4/30/08, effective 5/31/08.]
(1) ((An applicant)) A subject individual who has a
background containing any of the permanent convictions on the
director's list, WAC 170-06-0120(1), ((shall)) will be
permanently disqualified from providing licensed child care,
caring for children or having unsupervised access to children
in child care.
(2) ((An applicant)) A subject individual who has a
background containing any of the nonpermanent convictions on
the director's list, WAC 170-06-0120(2), ((shall)) will be
disqualified from providing licensed child care, caring for
children or having unsupervised access to children in child
care for five years after the conviction date.
(3) ((An applicant shall)) A subject individual will be
disqualified when their background contains a negative action,
as defined in WAC 170-06-0020(((9))) that relates to:
(a) An act, finding, determination, decision, or the commission of abuse or neglect of a child as defined in chapters 26.44 RCW and 388-15 WAC.
(b) An act, finding, determination, decision, or commission of abuse or neglect or financial exploitation of a vulnerable adult as defined in chapter 74.34 RCW.
Background information that may disqualify ((an applicant)) a
subject individual.
(4) ((An applicant)) A subject individual may be
disqualified for other negative action(s), as defined in WAC 170-06-0020(((9))) which reasonably relate to ((the
applicant's)) his or her character, suitability ((and)), or
competence to care for or have unsupervised access to children
in child care.
(5) ((An applicant)) A subject individual may be
disqualified from caring for or having unsupervised access to
children if the individual is the subject of a pending child
protective services (CPS) investigation.
(6) ((An applicant)) A subject individual who has a
"founded" finding for child abuse or neglect will not be
authorized to care for or have unsupervised access to children
during the administrative hearing and appeals process.
(7) The department may also disqualify ((an applicant)) a
subject individual if ((the applicant)) that person has other
nonconviction background information that renders ((the
applicant)) him or her unsuitable to care for or have
unsupervised access to children in child care. Among the
factors the department may consider are:
(a) The ((applicant)) subject individual attempts to
obtain a license, certification, or authorization by deceitful
means, such as making false statements or omitting material
information on an application.
(b) The ((applicant)) subject individual used illegal
drugs or misused or abused prescription drugs or alcohol that
either affected their ability to perform their job duties
while on the premises when children were present or presented
a risk of harm to any child in child care.
(c) The ((applicant)) subject individual attempted,
committed, permitted, or assisted in an illegal act on the
premises. For purposes of this subsection, ((an applicant)) a
subject individual attempted, committed, permitted, or
assisted in an illegal act if he or she knew or reasonably
should have known that the illegal act occurred or would
occur.
(d) The ((applicant)) subject individual lacks sufficient
physical or mental health to meet the needs of children in
child care.
(e) The ((applicant)) subject individual had a license or
certification for the care of children or vulnerable adults
terminated, revoked, suspended or denied.
((Reconsideration of disqualification.
(8) If an applicant who has been disqualified can demonstrate by clear and convincing evidence that he or she has the character, suitability and competence to care for or have unsupervised access to children in child care, the department may consider authorizing the applicant to care for or have unsupervised access to children in child care.))
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0070, filed 4/30/08, effective 5/31/08.]
(2) If the department sends a notice of disqualification,
the ((applicant)) subject individual will not be authorized to
care for or have unsupervised access to children in child
care; to include being on-site where children are in care.
(3) Any decision by the department ((disqualifying an
applicant)) to disqualify a subject individual under this
chapter is effective immediately upon receipt of notice ((by))
from the department to the ((applicant)) subject individual.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0080, filed 4/30/08, effective 5/31/08.]
(2) The ((employer)) licensee or prospective employer
cannot contest the department's decision on behalf of any
other person, including a prospective employee.
(3) The administrative hearing will take place before an administrative law judge employed by the office of administrative hearings, pursuant to chapter 34.05 RCW, and chapter 170-03 WAC.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0090, filed 4/30/08, effective 5/31/08.]
(2) A request for a hearing must meet the requirements of chapter 170-03 WAC.
(3) Any decision by the department ((disqualifying)) to
disqualify a ((person)) subject individual under this chapter
((shall)) will remain in effect pending the outcome of the
administrative hearing or review under chapter 170-03 WAC,
notwithstanding any provision of chapter 170-03 WAC to the
contrary.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0100, filed 4/30/08, effective 5/31/08.]
(2) If the disqualification is based on a finding of
child abuse or neglect, or a finding of abandonment, abuse,
neglect, exploitation, or financial exploitation of a
vulnerable adult as defined in chapter 74.34 RCW, the
((appellant)) subject individual cannot contest the finding
if:
(a) The ((appellant)) subject individual was notified of
the finding by the department of social and health services
(DSHS) and failed to request a hearing to contest the finding;
or
(b) The ((appellant)) subject individual was notified of
the finding by DSHS and requested a hearing to contest the
finding, but the finding was upheld by final administrative
order or superior court order.
(3) If the disqualification is based on a court order
finding the ((applicant's)) subject individual's child to be
dependent as defined in chapter 13.34 RCW, the ((applicant))
subject individual cannot contest the finding of dependency in
the administrative hearing.
(4) If the disqualification is based ((upon)) on a
negative action as defined in WAC 170-06-0020(((9))) the
((appellant)) subject individual cannot contest the underlying
negative action in the administrative hearing if the
((appellant)) subject individual was previously ((afforded))
given the right of review or hearing right and a final
decision or finding has been issued.
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0110, filed 4/30/08, effective 5/31/08.]
(2) The disqualified subject individual must submit with his or her request for reconsideration a current and complete background check form and fingerprint card pursuant to WAC 170-06-0040.
(3) For a disqualification based on WAC 170-06-0070(4), 170-06-0070 (7)(a), (c), or (e), a disqualified subject individual's request for reconsideration will be granted only if the disqualified subject individual establishes by clear and convincing evidence there has been a change of circumstances since the date of the disqualification that demonstrates there is nothing about the subject individual's character, suitability, or competence that would prevent the subject individual from caring for or having unsupervised access to children in child care. For purposes of (3) of this subsection a disqualification based on a "negative action," WAC 170-06-0070(4), 170-06-0070 (7)(c) or (e) does not include a decision, final determination, or finding made by an agency or administrative law judge that relates to:
(a) The commission of abuse or neglect of a child as defined in chapters 26.44 RCW and 388-15 WAC; or
(b) The commission of abuse or neglect of a vulnerable adult as defined in chapter 74.34 RCW.
(4) For a disqualification based on any of the circumstances described in WAC 170-06-0070(3), 170-06-0070 (7)(b) or (d) a disqualified subject individual's request for reconsideration will be granted only if the disqualified subject individual establishes by clear and convincing evidence there has been a change of circumstances since the date of the disqualification that demonstrates there is nothing about the subject individual's character, suitability, or competence that would constitute a danger to a child's welfare if the individual is allowed to care for or have unsupervised access to children in care.
(5) The department will not reconsider qualifying a subject individual that was disqualified under WAC 170-06-0120(1).
(6) The department will not reconsider qualifying a subject individual that was disqualified under WAC 170-06-0120(2) for a period of five years from the date of the disqualifying conviction.
[]
(2) ((An applicant's)) A subject individual's conviction
for any crime listed in column (b) in the table below
((shall)) will disqualify ((the applicant)) him or her from
authorization to care for or have unsupervised access to
children in child care for a period of five years from the
date of conviction.
| (a) Crimes that
permanently disqualify
(( |
(b) Crimes that disqualify
(( |
| Abandonment of a child | Abandonment of a dependent person not against child |
| Arson | Assault 3 not domestic violence |
| Assault 1 | Assault 4/simple assault |
| Assault 2 | Burglary |
| Assault 3 domestic violence | Coercion |
| Assault of a child | Custodial assault |
| Bail jumping | Custodial sexual misconduct |
| Carnal knowledge | Extortion 2 |
| Child buying or selling | Forgery |
| Child molestation | Harassment |
| Commercial sexual abuse of a minor | |
| Communication with a minor for immoral purposes | Identity theft |
| Controlled substance homicide | Leading organized crime |
| Criminal mistreatment | Malicious explosion 3 |
| Custodial interference | Malicious mischief |
| Dealing in depictions of minor engaged in sexually explicit conduct | Malicious placement of an explosive 2 |
| Domestic violence (felonies only) | Malicious placement of an explosive 3 |
| Drive-by shooting | Malicious placement of imitation device 1 |
| Extortion 1 | Patronizing a prostitute |
| Harassment domestic violence | Possess explosive device |
| Homicide by abuse | Promoting pornography |
| Homicide by watercraft | Promoting prostitution 1 |
| Incendiary devices (possess, manufacture, dispose) | Promoting prostitution 2 |
| Incest | Promoting suicide attempt |
| Indecent exposure/public indecency (felonies only) | Prostitution |
| Indecent liberties | Reckless endangerment |
| Kidnapping | Residential burglary |
| Luring | Stalking |
| Malicious explosion 1 | Theft |
| Malicious explosion 2 | Theft-welfare |
| Malicious harassment | Unlawful imprisonment |
| Malicious mischief domestic violence | Unlawful use of a building for drug purposes |
| Malicious placement of an explosive 1 | Violation of the Imitation Controlled Substances Act (manufacture/deliver/intent) |
| Manslaughter | Violation of the Uniform Controlled Substances Act (manufacture/deliver/intent) |
| Murder/aggravated murder | Violation of the Uniform Legend Drug Act (manufacture/deliver/intent) |
| Violation of the Uniform Precursor Drug Act (manufacture/deliver/intent) | |
| Possess depictions minor engaged in sexual conduct | |
| Rape | |
| Rape of child | |
| Robbery | |
| Selling or distributing erotic material to a minor | |
| Sending or bringing into the state depictions of a minor | |
| Sexual exploitation of minors | |
| Sexual misconduct with a minor | |
| Sexually violating human remains | |
| Use of machine gun in felony | |
| Vehicular assault | |
| Vehicular homicide (negligent homicide) | |
| Violation of child abuse restraining order | |
| Violation of civil anti-harassment protection order | |
| Violation of
protection/contact/ restraining order |
|
| Voyeurism |
[Statutory Authority: Chapter 43.215 RCW, RCW 43.43.832, 2006 c 265 and 2007 c 387. 08-10-041, § 170-06-0120, filed 4/30/08, effective 5/31/08.]
The following section of the Washington Administrative Code is repealed:
| WAC 170-06-0030 | Reason for background checks. |