The Department of Social and Health Services is responsible for investigating the conviction records and pending charges of specified people who may have unsupervised access to children, vulnerable adults, or individuals with mental illness or developmental disabilities, including Department employees or applicants, in-home service providers, and long-term care facilities. Agencies, facilities, and individuals who provide care to vulnerable adults may not allow persons to work in a position that may involve unsupervised access to minors or vulnerable adults if the person has been convicted of or has a pending charge for certain disqualifying crimes. In some cases a person will not be automatically disqualified from employment if a designated number of years have passed since the date of conviction for the disqualifying crime. In those instances, the person may be allowed to work in a position with access to minors and vulnerable adults depending on the results of a character, competence, and suitability review.
Certificate of Restoration of Opportunity.
A certificate of restoration of opportunity (CROP) may be granted to a person by a superior court if the person:
A person is not eligible for a CROP if he or she has ever been convicted of any of the following offenses: a class A felony, an attempt to commit a class A felony, or criminal solicitation of or criminal conspiracy to commit a class A felony; a sex offense; a crime that includes sexual motivation; extortion in the first degree; drive-by shooting; vehicular assault; or luring.
In general, a public entity may not disqualify a person who holds a CROP for a license, certificate, or qualification to engage in the practice of a profession or business solely based on criminal history if the person meets all other statutory or regulatory requirements. The following entities may disqualify a person who holds a CROP based solely on criminal history: criminal justice agencies and the Washington State Bar Association. The following entities may disqualify a person who holds a CROP based solely on criminal history if the profession or license would give the person unsupervised access to vulnerable persons: the Department of Social and Health Services, the Department of Children, Youth, and Families, and the Department of Health.
The Department of Social and Health Services (Department) may not automatically disqualify a person who has a criminal record that contains certain crimes from: (1) having unsupervised access to, working with, or providing care to a vulnerable person; or (2) acting as a long-term care worker or vocational and employment services provider. The person may engage in these activities once a specified amount of time has passed since the most recent conviction for each crime and the date of the background check. The crimes and the specified minimum times are:
While the Department may not automatically disqualify a person, the Department or an employer under contract with the Department has the discretion to consider any of the convictions when conducting a character, competence, and suitability review regarding a person to be employed in a position caring for, or having unsupervised access to, a vulnerable adult. The Department and the employer are immune from law suits based upon their exercise of discretion or refusal to exercise discretion and the crimes may not be introduced as evidence of negligence or intentionally tortious conduct by the Department or the employer.
The exemption from automatic disqualification does not apply to crimes involving the abuse, neglect, personal or financial exploitation, or abandonment of a minor or vulnerable adult. In addition, the exemption does not allow for care to be provided or paid for if it would be prohibited under federal Medicare or Medicaid rules.
Informed Consent Work Group.
The Department must facilitate a work group to identify an informed consent process to allow older adults and people with disabilities to hire an individual with a criminal record that would otherwise disqualify the person from providing paid home care services.
The Department must appoint the members of the work group, which include:
At least one meeting of the work group must be devoted to reviewing and analyzing racial disparities, including disparities in charges and disqualifications in providing paid home care services. By December 1, 2021, the work group must submit its recommendations to the Secretary of the Department, including a proposed informed consent process for clients to hire a family member or friend with a criminal record. The Department may revise the informed consent process, but must implement it by January 1, 2023.
Certificate of Restoration of Opportunity.
The exclusions that apply to certain applicants with a certificate of restoration of opportunity (CROP) are eliminated with respect to assisted living facility employees who are long-term care workers, long-term care workers, and vulnerable adult care providers.
In cases regarding an applicant who has a CROP, as well as a criminal history that would disqualify the applicant from a license or employment, the Department may, in its discretion:
Prior to making the decision, the Department must review relevant factors, including the nature and seriousness of the offense, the time that has passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or the license that is being sought.
The Department and the employer are immune from law suits based upon their exercise of discretion or refusal to exercise discretion and the crimes may not be introduced as evidence of negligence or intentionally tortious conduct by the Department or the employer.