S-4655

AN ACT Relating to the care, supervision, and treatment of children, developmentally disabled persons, and vulnerable adults; amending RCW 43.43.832 and 74.15.030; adding a new section to chapter 74.15 RCW; creating a new section; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 43.43.832 and 1997 c 392 s 524 are each amended to read as follows:

(1) The legislature finds that businesses and organizations providing services to children, developmentally disabled persons, and vulnerable adults need adequate information to determine which employees or licensees to hire or engage. The legislature further finds that many developmentally disabled individuals and vulnerable adults desire to hire their own employees directly and also need adequate information to determine which employees or licensees to hire or engage. Therefore, the Washington state patrol criminal identification system shall disclose, upon the request of a business or organization as defined in RCW 43.43.830, a developmentally disabled person, or a vulnerable adult as defined in RCW 43.43.830 or his or her guardian, an applicant's record for convictions of offenses against children or other persons, convictions for crimes relating to financial exploitation, but only if the victim was a vulnerable adult, adjudications of child abuse in a civil action, the issuance of a protection order against the respondent under chapter 74.34 RCW, and disciplinary board final decisions and any subsequent criminal charges associated with the conduct that is the subject of the disciplinary board final decision.

(2) The legislature also finds that the state board of education may request of the Washington state patrol criminal identification system information regarding a certificate applicant's record for convictions under subsection (1) of this section.

(3) The legislature also finds that law enforcement agencies, the office of the attorney general, prosecuting authorities, and the department of social and health services may request this same information to aid in the investigation and prosecution of child, developmentally disabled person, and vulnerable adult abuse cases and to protect children and adults from further incidents of abuse.

(4) The legislature further finds that the department of social and health services must consider the information listed in subsection (1) of this section in the following circumstances:

(a) When considering persons for state positions directly responsible for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults;

(b) When licensing agencies or facilities with individuals in positions directly responsible for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults, including but not limited to agencies or facilities licensed under chapter 74.15 or 18.51 RCW;

(c) When contracting with individuals or businesses or organizations, or when authorizing payment, for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults, including but not limited to services contracted for under chapter 18.20, 18.48, 70.127, 70.128, 72.36, or 74.39A RCW or Title 71A RCW.

(5) Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis pending completion of the state background investigation. Whenever a national criminal record check through the federal bureau of investigation is required by state law, a person may be employed or engaged as a volunteer or independent contractor on a conditional basis pending completion of the national check. The Washington personnel resources board shall adopt rules to accomplish the purposes of this subsection as it applies to state employees.

(6)(a) For purposes of facilitating timely access to criminal background information and to reasonably minimize the number of requests made under this section, recognizing that certain health care providers change employment frequently, health care facilities may, upon request from another health care facility, share copies of completed criminal background inquiry information.

(b) Completed criminal background inquiry information may be shared by a willing health care facility only if the following conditions are satisfied: The licensed health care facility sharing the criminal background inquiry information is reasonably known to be the person's most recent employer, no more than twelve months has elapsed from the date the person was last employed at a licensed health care facility to the date of their current employment application, and the criminal background information is no more than two years old.

(c) If criminal background inquiry information is shared, the health care facility employing the subject of the inquiry 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 since the completion date of the most recent criminal background inquiry.

(d) 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, subsequent to the completion date of their most recent criminal background inquiry, shall be prohibited from relying on the applicant's previous employer's criminal background inquiry information. A new criminal background inquiry shall be requested pursuant to RCW 43.43.830 through 43.43.842.

(e) Health care facilities that share criminal background inquiry 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 subsection.

(f) Health care facilities shall transmit and receive the criminal background inquiry information in a manner that reasonably protects the subject's rights to privacy and confidentiality.

(g) For the purposes of this subsection, "health care facility" means a nursing home licensed under chapter 18.51 RCW, a boarding home licensed under chapter 18.20 RCW, or an adult family home licensed under chapter 70.128 RCW.

Sec. 2. RCW 74.15.030 and 1997 c 386 s 33 are each amended to read as follows:

The secretary shall have the power and it shall be the secretary's duty:

(1) In consultation with the children's services advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to designate categories of facilities for which separate or different requirements shall be developed as may be appropriate whether because of variations in the ages, sex and other characteristics of persons served, variations in the purposes and services offered or size or structure of the agencies to be licensed hereunder, or because of any other factor relevant thereto;

(2) In consultation with the children's services advisory committee, adopt and publish minimum requirements for authorizing payment of exempt child care providers;

(3) In consultation with the children's services advisory committee, and with the advice and assistance of persons representative of the various type agencies to be licensed, to adopt and publish minimum requirements for licensing applicable to each of the various categories of agencies to be licensed.

The minimum requirements shall be limited to:

(a) The size and suitability of a facility and the plan of operation for carrying out the purpose for which an applicant seeks a license;

(b) The character, suitability and competence of an agency and other persons associated with an agency directly responsible for the care and treatment of children, expectant mothers or developmentally disabled persons. In consultation with law enforcement personnel, the secretary shall investigate the conviction record or pending charges and ((~~dependency~~)) not founded child abuse or neglect as defined in RCW 26.44.020(19) record information under chapter 43.43 RCW of each agency and its staff seeking licensure or relicensure. In order to determine the character, suitability, and competence of applicants for an agency license, licensees, their employees, ((~~and~~)) other persons who have unsupervised access to children in care, and when authorizing payment for services by a person who has unsupervised access to a child, the department shall:

(i) In consultation with law enforcement personnel, investigate the conviction record or pending charges and not founded child abuse or neglect as defined in RCW 26.44.020(19) record information under chapter 43.43 RCW of any such person;

(ii) Require that any such person who ((~~have~~)) has not resided in the state of Washington during the three-year period before being authorized to care for children shall be fingerprinted. The requirement for fingerprints does not include those individuals or businesses or organizations named in RCW 43.43.832(4)(c). The fingerprints shall be forwarded to the Washington state patrol and federal bureau of investigation for a criminal history records check. To investigate criminal history information, the department may reasonably rely on a criminal history records check of the Washington state patrol criminal identification system and, where a federal bureau of investigation check is required, a federal bureau of investigation check by another governmental agency or the United States military if the check is less than one year old. The fingerprint criminal history records checks will be at the expense of the licensee except that in the case of a foster family home, if this expense would work a hardship on the licensee, the department shall pay the expense. The licensee may not pass this cost on to the employee or prospective employee, unless the employee is determined to be unsuitable due to his or her criminal history record. The secretary shall use the information solely for the purpose of determining eligibility for a license and for determining the character, suitability, and competence of those persons or agencies, excluding parents, not required to be licensed who are authorized to care for children, expectant mothers, and developmentally disabled persons. The department shall share the conviction record, pending charges, and not founded child abuse or neglect as defined in RCW 26.44.020(19) record information with the child placing agency that is responsible for certifying the licensee or applicant. Criminal justice agencies shall provide the secretary such information as they may have and that the secretary may require for such purpose;

(iii) When the additional federal bureau of investigation check is required for a job applicant of an agency licensed under this chapter, complete the state background check, which includes Washington state patrol and department child abuse and neglect records. If the state background check does not disqualify the job applicant and the results of the federal bureau of investigation check have not been received, the department may provide provisional approval to the licensee to hire the applicant as a temporary employee for up to one hundred twenty days, pending the results of the federal bureau of investigation check. If the federal bureau of investigation report does not disqualify the applicant, the department shall notify the employing licensed agency that the applicant may be hired permanently. If the federal bureau of investigation check disqualifies an applicant, the department shall notify the employing licensed agency that the provisional approval to hire the applicant is withdrawn and that the applicant is disqualified; and

(iv) Implement a waiver process for exempt child care providers whose background check would otherwise preclude the department from authorizing payment for the exempt provider's services. Applicants for employment as exempt child care providers may request an administrative hearing regarding a determination of disqualification;

(c) The number of qualified persons required to render the type of care and treatment for which an agency seeks a license;

(d) The safety, cleanliness, and general adequacy of the premises to provide for the comfort, care and well-being of children, expectant mothers or developmentally disabled persons;

(e) The provision of necessary care, including food, clothing, supervision and discipline; physical, mental and social well-being; and educational, recreational and spiritual opportunities for those served;

(f) The financial ability of an agency to comply with minimum requirements established pursuant to this chapter ((~~74.15 RCW~~)) and RCW 74.13.031; and

(g) The maintenance of records pertaining to the admission, progress, health and discharge of persons served;

((~~(3)~~)) (4) To investigate any person, including relatives by blood or marriage except for parents, for character, suitability, and competence in the care and treatment of children, expectant mothers, and developmentally disabled persons prior to authorizing that person to care for children, expectant mothers, and developmentally disabled persons. However, if a child is placed with a relative under RCW 13.34.060 or 13.34.130, and if such relative appears otherwise suitable and competent to provide care and treatment the criminal history background check required by this section need not be completed before placement, but shall be completed as soon as possible after placement;

((~~(4)~~)) (5) On reports of alleged child abuse and neglect, to investigate agencies in accordance with chapter 26.44 RCW, including child day-care centers and family day-care homes, to determine whether the alleged abuse or neglect has occurred, and whether child protective services or referral to a law enforcement agency is appropriate;

((~~(5)~~)) (6) To issue, revoke, or deny licenses to agencies pursuant to this chapter ((~~74.15 RCW~~)) and RCW 74.13.031. Licenses shall specify the category of care which an agency is authorized to render and the ages, sex and number of persons to be served;

((~~(6)~~)) (7) To prescribe the procedures and the form and contents of reports necessary for the administration of this chapter ((~~74.15 RCW~~)) and RCW 74.13.031 and to require regular reports from each licensee;

((~~(7)~~)) (8) To inspect agencies periodically to determine whether or not there is compliance with this chapter ((~~74.15 RCW~~)) and RCW 74.13.031 and the requirements adopted hereunder;

((~~(8)~~)) (9) To review requirements adopted hereunder at least every two years and to adopt appropriate changes after consultation with the child care coordinating committee and other affected groups for child day-care requirements and with the children's services advisory committee for requirements for other agencies; and

((~~(9)~~)) (10) To consult with public and private agencies in order to help them improve their methods and facilities for the care of children, expectant mothers and developmentally disabled persons.

NEW SECTION. Sec. 3. A new section is added to chapter 74.15 RCW to read as follows:

The department of social and health services and its employees, when acting in good faith and operating under the rules adopted under RCW 74.15.030(3)(b)(iv), are immune from criminal or civil liability, when conducting background checks or disqualifying individuals from receiving payment as child care providers.

NEW SECTION. Sec. 4. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2000, in the omnibus appropriations act, this act is null and void.

NEW SECTION. Sec. 5. Sections 1 and 2 of this act take effect August 1, 2000.