WSR 22-05-045
EMERGENCY RULES
DEPARTMENT OF
CHILDREN, YOUTH, AND FAMILIES
[Filed February 8, 2022, 4:05 p.m., effective February 8, 2022, 4:05 p.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: Amend chapter 110-06 WAC to allow individuals to work supervised in the department of children, youth, and families (DCYF)-licensed early learning programs after submitting to the department their background check applications, allow license-exempt family, friend, and neighbor providers to be authorized for unsupervised access to children following name-based background checks while fingerprint-based background checks are pending, include an interstate background check for individuals who have lived outside of Washington state in the five years immediately preceding their application, and remove certain crimes that disqualify a subject individual from authorization.
Citation of Rules Affected by this Order: Amending WAC 110-06-0040, 110-06-0046, and 110-06-120.
Statutory Authority for Adoption: RCW 43.216.065.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: Proclamation of the Governor 20-05 declared a State of Emergency in all counties in the state of Washington as a result of the outbreak of COVID-19. As of March 11, 2020, the World Health Organization has classified COVID-19 as a pandemic. Proclamation of the Governor 20-31 amends Proclamation 20-05 and waives and suspends fingerprint-based background checks before a person may be approved to have unsupervised access to children during the COVID-19 pandemic due to the potential risk of exposure to COVID-19 resulting from face-to-face contact in submitting fingerprints, limited access to fingerprinting as entities that receive and process fingerprints limit or suspend operations in order to limit exposure to COVID-19, and the unavailability of law enforcement agencies to process fingerprints during the pandemic. The ability to issue background check clearance authorizations before completing fingerprint-based background checks better enables DCYF to ensure the availability of stable and quality child care during the COVID-19 pandemic. The amendment to WAC 110-06-120 removes crimes that account for 33 percent of family, friends, and neighbors being disqualified from participation in working connections child care. The amendment is in accord [accordance] with the federal disqualifying crimes list, significantly increases the number of individuals who may provide care, and will not pose a safety risk for children in care.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 3, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: February 8, 2022.
Brenda Villarreal
Rules Coordinator
AMENDATORY SECTION(Amending WSR 19-21-064, filed 10/11/19, effective 11/11/19)
WAC 110-06-0040Background clearance requirements.
This section applies to all subject individuals ((other than)), except for in-home/relative providers.
(1) Subject individuals ((associated with early learning services applying for a first-time background check)) must complete the DCYF background check application process ((including))on or before the dates described in WAC 110-06-0041, 110-06-0045, and at least once every three years thereafter. The background check process includes, but not limited to:
(a) ((Submitting))Filing a completed background check application with the DCYF background check unit;
(b) Completing the required fingerprint process; ((and))
(c) Completing the required interstate background check process for each state the subject individual has lived outside of Washington state in the five years preceding the background check application; and
(d) Paying all required fees as provided in WAC 110-06-0044.
(2) All subject individuals ((qualified by the department to have unsupervised access to children in care)) who are ((renewing their applications))seeking renewals of their DCYF authorizations must:
(a) Submit ((the))a new background check application ((through))to DCYF;
(b) Submit payment of all required fees ((as provided))described in WAC 110-06-0044; ((and))
(c) Complete the required fingerprint process if the subject individual lives or has lived outside of Washington state since the previous background check was completed, or has not previously completed the fingerprint process required by this section; and
(d) Complete the required interstate background check process for each state the subject individual has lived outside of Washington state in the five years preceding the background check application.
(3) Each subject individual ((completing the DCYF))who submits a background check ((process))application and is seeking a background check authorization, or reauthorization, must disclose whether they have:
(a) Been convicted of any crime;
(b) Any pending criminal charges; and
(c) Been or are the subject to any negative action((, as defined by WAC 110-06-0020.))
(4) Subject individuals must not have unsupervised access to children in care unless they have obtained DCYF authorization under this chapter.
(5) Applicants may be approved to work supervised after submitting their background check application.
(6)((A))Subject individuals who ((has))have been disqualified by DCYF must not be present on the premises when early learning services are provided to children.
AMENDATORY SECTION(Amending WSR 19-01-111, filed 12/18/18, effective 1/18/19)
WAC 110-06-0046Requirements for license-exempt in-home/relative providers.
(1) This section applies to license-exempt in-home providers. The background check process must be completed for:
(a) All license-exempt in-home/relative providers who apply to care for a ((WCCC)) consumer's child who is eligible to receive WCCC benefits; ((and))
(b) Any individual sixteen years of age or older who is residing with a license-exempt in-home/relative provider ((when))if the provider cares for the child eligible to receive WCCC benefits in the provider's ((own)) home, and the home is not where the child ((does not reside.
(2) Additional background checks must be completed for individuals listed in subsection (1)(a) and (b) of this section when an individual sixteen years of age or older is newly residing))resides; and
(c) Any individual sixteen years of age or older who begins to reside with a license-exempt in-home/relative provider ((when the provider))after the date the provider begins to care((s)) for the child eligible to receive WCCC benefits in the provider's ((own)) home, and the home is not where the child ((does not)) resides.
(((3) The background check process for license-exempt in-home/relative providers requires:))(2) A subject individual who is seeking a background check authorization must complete the background check application process by:
(a) Submitting a completed background check application; ((and))
(b) Completing the required fingerprint process; and
(c) Completing the required interstate background check process for each state the subject individual has lived outside of Washington State in the five years preceding the background check application.
(((4)))(3) Each subject individual completing the DCYF background check process must disclose whether they have:
(a) ((Whether he or she has))Been convicted of any crime;
(b) ((Whether he or she has))Any pending criminal charges; and
(c) ((Whether he or she has)) Been or are the subject ((to))of any negative actions((, as defined by WAC 110-06-0020)).
(((5)))(4) A subject individual must not have unsupervised access to children in care ((unless he or she has obtained))before obtaining DCYF background check ((clearance)) authorization under this chapter.
(5) Applicants may be approved to have unsupervised access to children before the fingerprint-based background check is conducted.
(6) A subject individual who has been disqualified by DCYF must not be present on the premises when early learning services are provided to children.
(7) DCYF ((pays for))will pay the cost of the background check process. The fees include:
(a) Fingerprint process fees as defined by the Washington state patrol, Federal Bureau of Investigation, DSHS, and the DCYF fingerprint contractor; and
(b) The DCYF administrative fee.
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 19-01-011 [19-01-111], filed 12/18/18, effective 1/18/19)
WAC 110-06-0120Secretary's list.
(((1) A subject individual's conviction for any crimes listed in column (a) in the table below will permanently disqualify him or her from authorization to care for or have unsupervised access to children receiving early learning services.
(2) A subject individual's conviction for any crime listed in column (b) in the table below will disqualify him or her from authorization to care for or have unsupervised access to children receiving early learning services for a period of five years from the date of conviction.
(a) Crimes that permanently disqualify a subject individual
(b) Crimes that disqualify a subject individual for five years from date of conviction
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
 
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))
 
(1) The crimes and conduct described in this section constitute the secretary's list.
(2) Subject to the requirements described in this chapter, the department must permanently disqualify a subject individual who has a conviction for any of the crimes listed in this subsection.
Citation
Description
Abandonment of a dependent person in the first degree (if the victim is a child)
Abandonment of a dependent person in the second degree (if the victim is a child)
Aggravated murder
Arson in the first degree
Arson in the second degree
Assault in the first degree
Assault in the second degree
Assault in the third degree (if causes bodily harm)
Assault of a child in the first degree
Assault of a child in the second degree
Assault of a child in the third degree
Burglary in the first degree (if child or spouse is assaulted)
Child molestation in the first degree
Child molestation in the second degree
Child molestation in the third degree
Child buying or selling
Commercial sexual abuse of a minor
Communication with minor for immoral purposes (if a felony)
Controlled substances homicide (if the victim is a child)
Criminal mistreatment in the first degree (if the victim is a child)
Criminal mistreatment in the second degree (if the victim is a child)
Custodial assault (if causes bodily harm)
Custodial interference in the first degree (if the victim is a child)
Custodial interference in the second degree (if the victim is a child; and the conviction is the subject individual's second or subsequent conviction of custodial interference in the second degree)
Custodial sexual misconduct in the first degree (if the victim is a child)
Dealing in depictions of minor engaged in sexually explicit conduct in the first degree or second degree
Drive-by shooting (if the victim is a child)
Endangerment with a controlled substance (if the victim is a child)
Extortion in the first degree (if the victim is a child)
Extortion in the second degree (if the victim is a child)
Hate crime offense (if the victim is a child)
Homicide by abuse (if the victim is a child)
Incest in the first degree or second degree (if the victim is a child)
Indecent exposure (if a felony and the victim is a child)
Indecent liberties
Kidnapping in the first degree
Kidnapping in the second degree
Luring (if the victim is a child)
Manslaughter in the first degree (if the victim is a child)
Manslaughter in the second degree (if the victim is a child)
Murder in the first degree
Murder in the second degree
Possession of depictions of minor engaged in sexually explicit conduct in the first degree or second degree
Promoting commercial sexual abuse of a minor
Promoting pornography (if the victim is a child)
Promoting prostitution in the first degree (if the victim is a child)
Promoting travel for commercial sexual abuse of a minor
Rape in the first degree
Rape in the second degree
Rape in the third degree
Rape of a child in the first degree
Rape of a child in the second degree
Rape of a child in the third degree
Robbery in the first degree (if the victim is a child)
Robbery in the second degree (if the victim is a child)
Sending, bringing into state depictions of minor engaged in sexually explicit conduct in the first degree or second degree
Sexual exploitation of a minor
Sexual misconduct with a minor in the first degree
Unlawful imprisonment (if the victim is a child)
Vehicular homicide (if the victim is a child)
(3) Subject to the requirements described in this chapter, the department may disqualify a subject individual who has a conviction for a crime listed in this subsection.
Citation
Description
Abandonment of a dependent person in the first degree (if the victim is not a child)
Abandonment of a dependent person in the second degree (if the victim is not a child)
Abandonment of a dependent person in the third degree
Animal cruelty in the first degree
Animal cruelty in the second degree
Assault in the third degree (if no bodily harm)
Assault in the fourth degree
Burglary in the first degree (if a child or spouse is not assaulted)
Burglary in the second degree
Coercion
Communication with minor for immoral purposes (if a gross misdemeanor)
Controlled substances homicide (if the victim is not a child)
Criminal gang intimidation
Criminal impersonation in the first degree
Criminal mistreatment in the first degree (if the victim is not a child)
Criminal mistreatment in the second degree (if the victim is not a child)
Criminal mistreatment in the third degree
Criminal mistreatment in the fourth degree
Criminal sabotage
Custodial assault (if no bodily harm)
Custodial interference in the first degree (if the victim is not a child)
Custodial interference in the second degree (if the victim is not a child)
Custodial sexual misconduct in the first degree (if the victim is not a child)
Custodial sexual misconduct in the second degree
Cyberstalking
Drive-by shooting (if the victim is not a child)
Driving under the influence of intoxicating liquor, marijuana, or any drug (if the conviction was for a felony or the conviction occurred within three years of the date of the subject individual's request for authorization)
Duty in case of personal injury or death or damage to attended vehicle or other property—Penalties (if a felony)
Endangerment with a controlled substance (if the victim is not a child)
Extortion in the first degree (if the victim is not a child)
Extortion in the second degree (if the victim is not a child)
Failure to register as sex offender or kidnapping offender
Furnishing liquor to minors (only if the subject individual sells, gives, or otherwise supplies liquor to a person under the age of twenty-one years; or permits any person under that age to consume liquor on the subject individual's property or on any property under the subject individual's control)
Harassment
Hate crime offense (if the victim is not a child)
Homicide by abuse (if the victim is not a child)
Homicide by watercraft
Incendiary devices
Incest in the first degree or second degree (if the victim is not a child)
Indecent exposure (if felony and victim is not a child, or if a misdemeanor)
Leading organized crime
Leaving children unattended in standing vehicle with motor running
Leaving children unattended in parked automobile
Luring (if the victim is not a child)
Malicious placement of an explosive in the first, second, or third degree
Malicious placement of an imitation device in the first degree or second degree
Manslaughter in the first degree (if the victim is not a child)
Manslaughter in the second degree (if the victim is not a child)
Negligent driving in the first degree (if the conviction occurred within three years of the date of the subject individual's request for authorization)
Physical control of vehicle under the influence (if felony)
Promoting pornography (if the victim is not a child)
Promoting prostitution in the first degree (if the victim is not a child)
Promoting prostitution in the second degree
Promoting a suicide attempt
Reckless endangerment
Rendering criminal assistance in the first degree
Residential burglary
Robbery in the first degree (if the victim is not a child)
Robbery in the second degree (if the victim is not a child)
Sexual misconduct with a minor in the second degree
Sexually violating human remains
Stalking
Telephone harassment (if felony)
Trafficking in the first degree or second degree
Unlawful harboring of a minor
Unlawful imprisonment (if the victim is not a child)
Unlawful use of a building for drug abuse purposes
Use of machine gun or bump-fire stock in felony
Vehicular assault
Vehicular homicide (if the victim is not a child)
Viewing depictions of minor engaged in sexually explicit conduct in the first or second degree
Violation of sexual assault protection order under chapter 7.90 RCW if a felony under RCW 26.50.110.
Violation of stalking no-contact order or stalking protection order under chapter 7.92 RCW if a felony under RCW 26.50.110.
Violation of human trafficking no-contact order under chapter 9A.40 if a felony under RCW 26.50.110.
Violation of an order restricting contact under RCW 9A.46.080.
Violation of promoting prostitution no-contact order under chapter 9A.88 RCW if a felony under RCW 26.50.110.
Violation of domestic violence no-contact order under chapter 10.99 RCW if a felony under RCW 26.50.110.
Violation of dissolution proceeding restraining order under chapter 26.09 RCW if a felony under RCW 26.50.110.
Violation of paternity proceeding restraining order under chapter 26.26A or 26.26B RCW if a felony under RCW 26.50.110.
Violation of a domestic violence order for protection under chapter 26.50 RCW if a felony under RCW 26.50.110.
Violation of an order for protection of a vulnerable adult under chapter 74.34 RCW if a felony under RCW 26.50.110.
Violation of civil antiharassment protection order
Violation of the Uniform Controlled Substances Act (manufacture, distribute, or possess with intent to distribute)
Chapter 69.50 RCW (Article IV Offenses and penalties)
Except for controlled substance homicide if the child is a victim (RCW 69.50.415), any violation of the Uniform Controlled Substances Act
The unlawful obtaining or attempting to obtain a legend drug, or procure or attempt to procure the administration of a legend drug
Sale or delivery of legend drug without prescription or order
Sale, transfer, or furnishing of any substance listed in RCW 69.43.010 with knowledge or intent the recipient will use the substance to unlawfully manufacture a controlled substance; or the receipt of any substance listed in RCW 69.43.010 with intent to use the substance unlawfully to manufacture a controlled substance.
Voyeurism
Sale or delivery of legend drug without prescription or order
(4) Subject to the requirements described in this chapter, the department may disqualify a subject individual who has a background that includes any negative action that is based on the conduct described in this subsection.
(a) The abuse, neglect, exploitation, or abandonment of a vulnerable, child, or juvenile.
(b) The suspension, termination, revocation, denial, or restriction of a license, professional license, or certification.
(c) The suspension, termination, or revocation of a state or federal contract.
(d) The relinquishment of a license, certification, or contract in lieu of an agency negative action.
(5) Under 42 U.S.C. § 9858F (C)(1)(B) a subject individual must be disqualified and not authorized for employment at a licensed or certified child care facility, if the subject individual knowingly makes a materially false statement in connection with their criminal background check.
(6) Under 42 U.S.C. § 9858F (C)(1)(C) a subject individual must be disqualified and not authorized for employment at a licensed or certified child care facility, if the subject individual is registered, or is required to be registered, on a state sex offender registry or repository or the National Sex Offender Registry established under the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16901 et seq.)