The Department of Social and Health Services (Department) 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 long-term care worker, contracted provider, or licensee who has a criminal record that contains certain crimes from having unsupervised access to, working with, or providing care to vulnerable adults or children. The long-term care worker, contracted provider, or licensee 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 long-term care worker, contracted provider, or licensee, 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 long-term care worker, contracted provider, or licensee to be employed in a position caring for, or having unsupervised access to, vulnerable adults or children. The Department and the employer are immune from law suits based upon their exercise of discretion or refusal to exercise discretion.
The exemption from automatic disqualification does not apply to background checks performed by the Department on behalf of the Department of Children, Youth, and Families. The exemption from automatic disqualification does not apply to Department employees or applicants, except for positions in the state-operated community residential program. 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, 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.
The substitute bill specifies that the automatic disqualification exemption applies to long-term care workers, contracted providers, and licensees and that it applies when they would have access to children, as well as vulnerable adults. The selling of drug paraphernalia is removed from the list of crimes exempted from automatic disqualification. Background checks performed for the Department of Children, Youth, and Families and Department of Social and Health Services (Department) employees, other than positions in the state-operated community residential program, are exempted from the automatic disqualification exemption. The exclusion for charges related to abuse, neglect, personal or financial exploitation, or abandonment of a minor or vulnerable adult is eliminated from the automatic disqualification exemption.
The substitute bill adds a representative of an association representing Medicaid home care agencies to the Informed Consent Work Group.
The substitute bill removes the prohibition on the introduction of crimes committed by a person with a certificate of restoration of opportunity (CROP) or who had an automatic disqualification exemption as evidence of negligence or intentionally tortious conduct in a law suit involving the Department or an employer contracted with the Department.
The substitute bill adds references to related statutes to account for the new automatic disqualification exemptions and the CROP provisions. A severability clause is added to the bill in the event that part of the bill is found to be in conflict with federal law.
(In support) Many people in Washington have a criminal record which makes it very difficult to enter the health care workforce. Many people with criminal involvement can change with treatment and recovery. The rigidity of background check requirements makes it difficult for people to care for family members. This bill is a great step to help many families in need of a caregiver to have a larger workforce eligible to meet demands. This bill will ensure that family members who would like to quit their jobs to care for a loved one can be paid for that. This bill will give individuals who have turned their lives around an opportunity for a meaningful career with purpose. This is an opportunity to bring caregivers into a place where there is accountability, rather than have a person with a conviction provide unsupervised care with no accountability or acknowledgement of rehabilitation. There are many entities that will serve to keep health care safe and productive and this bill will not impact safety or productivity. Paying a caregiver alleviates stress for both the caregiver and the person being cared for.
The research is clear that recidivism decreases with gainful employment and matriculation through school programs. Recidivism risk decreases across time as people stay offense-free in the community. States that have reformed their occupational license laws have seen a decrease in recidivism. Increasing the rate at which individuals are cleared to work can both increase employment and decrease crime.
This bill will help diversify the health workforce. This will help some communities that have been impacted by incarceration to enter into good health care careers. Persons of color are more likely to be unpaid caregivers because they have higher rates of criminal records due to systematic and institutional racism. This bill addresses many policies including equality of employment opportunities, equality of consumer choice, home care workforce shortages, and economic stimulus to the most impaired communities.
(Opposed) There is concern about who would hire persons with disabilities.
(Other) The laws needs to center both on caregivers and those who rely on them. There need to be as many safeguards in place as possible to protect the most vulnerable individuals. The bill should target the scope of provider types to the crimes that would become time-limited to make the application of the bill consistent across all employees in a long-term care setting to facilitate implementation of the policy. Vulnerable children should be added to the bill. The bill should have a severability clause in case there is any conflict in the bill related to federal requirements. The implementation time should be shortened and the bill should go into effect once the implementation has happened and there is an established informed consent process. The work group representatives from organizations representing seniors and persons with physical or developmental disabilities should either be people who use caregiver services or the work group should be expanded to include people who use caregiver services. This bill needs more safeguards to ensure that the most vulnerable individuals are free from abuse and neglect. Individuals should know who is working with them, including the details of any employee's past legal history. Individuals should always have the right to refuse employment to any candidate applying to work with them. There should be monitoring of these unique placements and they should be observed regularly for the duration of their employment.