Disqualifying Crimes. The Department of Social and Health Services (DSHS) 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 DSHS 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 they have 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.
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. Criminal justice agencies and the Washington State Bar Association may disqualify a person who holds a CROP based solely on criminal history. DSHS, the Department of Children, Youth, and Families, and the Department of Health 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.
Disqualifying Crimes. DSHS 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 DSHS may not automatically disqualify a long-term care worker, contracted provider, or licensee, DSHS or an employer under contract with DSHS 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. DSHS and the employer are immune from law suits based upon their exercise of discretion or refusal to exercise discretion and their exercise of discretion or refusal to exercise discretion does not constitute negligence. The exemption from automatic disqualification does not apply to background checks performed by DSHS on behalf of the Department of Children, Youth, and Families. The exemption from automatic disqualification does not apply to DSHS employees or applicants, except for positions in the state-operated community residential program. 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 ChoiceWork Group. DSHS must facilitate a work group to identify an informed choice 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. DSHS must appoint the members of the work group, which include:
At least one of the work group's meetings must be devoted to reviewing and analyzing racial disparities, including disparities in charges and disqualifications in providing paid home care services. The work group must submit its recommendations to the legislature by December 1, 2022.
Certificate of Restoration of Opportunity. The exclusions that apply to certain applicants with a CROP are eliminated with respect to assisted living facility employees, long-term care workers, and vulnerable adult care providers who are home care aides. A contracted provider or licensee is excluded from the CROP. 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, DSHS may use its discretion to:
Prior to making the decision, DSHS must review relevant factors, including the nature and seriousness of the offense, the time passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or the license being sought.
DSHS and the employer are immune from law suits based upon their exercise of discretion or refusal to exercise discretion and their exercise of discretion or refusal to exercise discretion does not constitute negligence.
The committee recommended a different version of the bill than what was heard. PRO: This bill is the product of a collaborative process with DSHS, worker, employers, families, researchers and formerly incarcerated individuals. There is a very long list of crimes that automatically disqualify an individual from becoming an in-home care provider. This bill takes a modest approach by removing few of those crimes that are vacatable offenses and permitted through CROP from the list. DSHS can still do a review and determine if the applicant is eligible. This bill help address the workforce shortage, further racial equality and reduce recidivism by giving individuals an opportunity to be employed. Research shows this will not compromise public safety. This bill honors the individual's decision about who they want to be their caregiver. This bill addresses structural inequities. There are inequalities in the criminal justice system and no pathway for people with certain criminal histories to enter the long-term care work force. Many individuals are already doing this work but without the benefits of pay, training or access to personal protection equipment. Criminal background does not show an accurate portrayal of a person's character or ability to provide care. People with criminal records can provide high quality of care. There will be amendments to the composition of the work group to include more people with disabilities.
CON: This bill is too rushed and was not done in plain language so that the people who it will impact the most can understand. The bill should be amended to include people that will be served by the caregivers on the work group. Additionally, people that will be served by caregivers should be given plain language to learn about the issue and provided with the background checks so informed consent is actually informed.
OTHER: The bill should be amended to focus on family providers and the work group should include service recipients. We are concerned about theft, extortion and assault being included in the list of crimes that are not subject to automatic disqualification due to the intimate nature of this type of work. We appreciate the pathway for employment. The liability language does not provide necessary safeguards. It gives DSHS the sole discretion to make decisions about who is able to become a caregiver and immunity from civil suits. We propose alternative language of rebuttable presumption which could provide DSHS the benefit of the doubt encouraging decision-makers to make careful choices. However, DSHS does not agree with our interpretation of the liability language and has rejected our suggestion as a feasible alternative. We support the bill's policy but are still working through some amendments. The existing liability language is an important of the bill and we believe it provides limited liability only pertaining to sections 1 and 3 of the bill.