The Department of Social and Health Services (Department) is responsible for investigating the conviction records and pending charges of specified categories of 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:
The Department, a contracted provider, or a licensee has the discretion to consider any of the convictions when conducting a character, competence, and suitability review for the purpose of hiring, licensing, certifying, contracting with, or permitting a person to be employed in a position caring for, or having unsupervised access to, vulnerable adults or children. If the Department or a consumer directed employer determines that an individual with a conviction that is exempt as an automatic disqualifying crime is qualified to provide services as an individual provider, the results of the state background check must be provided to the client and any guardian of the client before the individual begins providing services. When conducting a character, competence, and suitability review, the Department, contracted providers, and licensees have a rebuttable presumption that their exercise of discretion or refusal to exercise discretion was appropriate.
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.
The term "contracted provider" is defined to mean a provider, and its employees, contracted with the Department or an area agency on aging to provide services to Department clients under public health care, long-term care, and developmental disability programs. The term "licensee" is defined as a nonstate facility or setting that is licensed or certified, or has applied to be licensed or certified, by the Department.
Informed Choice Work Group.
The Department must facilitate a work group to identify recommendations on informed choice through a process to allow older adults and people with disabilities to hire a trusted individual with a criminal record that would otherwise disqualify the person from providing paid home care services. The recommendations on an informed choice process must include client safety, client direction, racial equity, cultural competence, economic consequences of unpaid caregiving, categories of eligible workers, any disqualifying crimes, mechanisms for consideration, and workforce development.
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, 2022, the work group must submit its recommendations to the Legislature, including a proposed process for clients to hire a trusted individual with a criminal record.
Certificate of Restoration of Opportunity.
The exclusions that apply to certain license applicants with a certificate of restoration of opportunity (CROP) are eliminated with respect to assisted living facility employees and long-term care workers. The exclusions are also removed for vulnerable adult care providers who are home care aides or contracted providers or licensees.
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.
When hiring, licensing, certifying, contracting with, or permitting a person to be employed to care for or have unsupervised access to vulnerable adults or children, the Department, contracted providers, and licensees may, in their sole discretion, determine whether to consider a CROP. If the Department or a consumer directed employer determines that an individual with a CROP is qualified to provide services as an individual provider, the results of the state background check must be provided to the client and any guardian of the client before the individual begins providing services. The Department, contracted providers, and licensees have a rebuttable presumption that their exercise of discretion or refusal to exercise discretion when hiring, licensing, or contracting with a person with a CROP was appropriate.
July 25, 2021
July 1, 2022 (Section 6)