DEPARTMENT OF

SOCIAL AND HEALTH SERVICES

(Aging and Long-Term Support Administration)

The purpose of this chapter is to describe the:

(1) Qualifications of an individual provider, as defined in WAC 388-106-0010;

(2) Qualifications of a long-term care worker employed by a home care agency, as defined in WAC 388-106-0010 and chapter 246-335 WAC;

(3) Conditions under which the department or the area agency on aging (AAA) will pay for the services of an individual provider or a home care agency long-term care worker;

(4) Training requirements for an individual provider and home care agency long-term care worker;

(5) Client's options for obtaining a long-term care worker. A client, as described in WAC 388-71-0836, eligible to receive long-term care services, or his/her legal representative acting on the client's behalf, may choose to receive personal care services in the client's home from an individual provider or a long-term care worker from a home care agency. If the client chooses to receive services from a home care agency, the agency will assign a long-term care worker employed by the agency to provide services to the client. Individual providers and home care agency long-term care workers are "long-term care workers" as defined in RCW 74.39A.009 and are subject to background checks under RCW ((74.39A.055)) 74.39A.056 and ((43.20.710)) 43.20A.710; and

(6) Contracting requirements.

In order to become an individual provider, a person must:

(1) Be eighteen years of age or older;

(2) Provide the social worker/case manager/designee with:

(a) A valid Washington state driver's license or other valid picture identification; and either

(b) A Social Security card; or

(c) Proof of authorization to work in the United States.

(3) Complete the required DSHS form authorizing a background check;

(4) Disclose any ((disqualifying)) criminal convictions and pending charges, and also disclose civil adjudication proceedings and negative actions as those terms are defined in WAC 388-71-0512;

(5) Effective January 8, 2012, be screened through Washington state's name and date of birth background check. Preliminary results may require a thumb print for identification purposes.

(6) Effective January 8, 2012, be screened through the Washington state and national fingerprint-based background check, as required by RCW 74.39A.056.

(7) Results of background checks are provided to the department and the employer or potential employer unless otherwise prohibited by law or regulation for the purpose of determining whether the person:

(a) Is disqualified based on a disqualifying criminal conviction((,)) or a pending charge for a disqualifying crime as listed in WAC 388-113-0020, civil adjudication proceeding, or negative action as defined in WAC 388-71-0512 and 388-71-0540; or

(b) Should or should not be employed as an individual provider based on his or her character, competence, and/or suitability.

(8) ((Disqualifying crimes, civil adjudication proceedings, and negative actions are listed in WAC 388-71-0540 (4), (5) and (6).

(9))) For those providers listed in RCW 43.43.837(1), a second Washington state and national fingerprint-based background check is required if they have lived out of the state of Washington since the first national fingerprint-based background check was completed.

(((10))) (9) The department may require an individual provider to have a Washington state name and date of birth background check or a Washington state and national fingerprint-based background check, or both, at any time.

(((11))) (10) Sign a home and community-based service provider contract/agreement to provide personal care services to a person under a medicaid state plan or federal waiver such as COPES or other waiver programs.

In order to be a long-term care worker employed by a home care agency, a person must:

(1) Complete the required DSHS form authorizing a background check.

(2) Disclose any disqualifying criminal convictions and pending charges as listed in WAC 388-113-0020, and also disclose civil adjudication proceedings and negative actions as those terms are defined in WAC 388-71-0512.

(3) Effective January 8, 2012, be screened through Washington state's name and date of birth background check. Preliminary results may require a thumb print for identification purposes.

(4) Effective January 8, 2012, be screened through the Washington state and national fingerprint-based background check, as required by RCW 74.39A.056.

(5) Results of background checks are provided to the department and the employer or potential employer for the purpose of determining whether the person:

(a) Is disqualified based on a disqualifying criminal conviction((,)) or a pending charge for a disqualifying crime as listed in WAC 388-113-0020, civil adjudication proceeding, or negative action as defined in WAC 388-71-0512 and listed in WAC 388-71-0540; or

(b) Should or should not be employed based on his or her character, competence, and/or suitability.

(6) ((Disqualifying crimes, civil adjudication proceeding, and negative actions are listed in WAC 388-71-0540 (4), (5) and (6).

(7))) For those providers listed in RCW 43.43.837(1), a second national fingerprint-based background check is required if they have lived out of the state of Washington since the first national fingerprint-based background check was completed.

(((8))) (7) The department may require a long-term care worker to have a Washington state name and date of birth background check or a Washington state and national fingerprint-based background check, or both, at any time.

The department, AAA, or department designee will deny payment for the services of an individual provider or home care agency provider:

(1) When the services are provided by an employee of the home care agency who is related by blood, marriage, adoption, or registered domestic partnership to the client;

(2) When he or she is the client's spouse, except in the case of an individual provider for a chore services client. Note: For chore spousal providers, the department pays a rate not to exceed the amount of a one-person standard for a continuing general assistance grant, per WAC 388-478-0020;

(3) When he or she is the natural/step/adoptive parent of a minor client aged seventeen or younger receiving services under medicaid personal care;

(4) When he or she is a foster parent providing personal care to a child residing in their licensed foster home;

(5) When he or she has had any of the following:

(a) A history of noncompliance with federal or state laws or regulations in the provision of care or services to children or vulnerable adults;

(b) ((A conviction or pending charge for a crime in federal court or in any other state, when the department determines that the crime is equivalent to a crime under subsections (c), (d), (e), (f), or (g) below;

(h))) When he or she has a conviction or pending charge for a disqualifying crime listed in WAC 388-113-0020 (1), (2) or equivalent conviction or pending charge as described in WAC 388-113-0020(3).

(c) Been found to have abused, neglected, financially exploited, or abandoned a minor or vulnerable adult by court of law or a disciplining authority, including the department of health. Examples of legal proceedings in which such findings could be made include juvenile court proceedings under chapter 13.34 RCW, domestic relations proceeding under Title 26 RCW ((and vulnerable adult protection proceedings under chapter 74.34 RCW)), or proceedings involving a court ordered permanent restraining order or order of protection, either active or expired, against the individual that was based upon abuse, neglect, financial exploitation or mistreatment of a minor or vulnerable adult;

(((i))) (d) A finding of abuse or neglect of a child under RCW 24.44.020 and chapter 388-15 WAC that is:

(i) Listed on the department's background check central unit (BCCU) report; or

(ii) Disclosed by the individual, except for findings made before December, 1998. Findings made before December 1998 require a character, competence, and suitability determination.

(((j))) (e) A finding of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult that is:

(i) Listed on any registry, including the department's registry;

(ii) Listed on the department's background check central unit (BCCU) report; or

(iii) Disclosed by the individual, except for adult protective services findings made before October 2003. Findings made before October 2003 require a character, competence, and suitability determination.

(6) Who has registered sex offender status;

(7) Who has had a license, certification, medicaid or medicare provider agreement, or a contract for the care of children or vulnerable adults denied, suspended, revoked, not renewed, or terminated, for noncompliance with state and/or federal regulations;

(((7))) (8) Who obtained or attempted to obtain a license, certification or contract by fraudulent means or misrepresentation;

(((8))) (9) Who knowingly, or with reason to know, made a false statement of material fact on his or her application for a license, certification, contract or any data attached to the application, or in any matter involving the department;

(((9))) (10) Who willfully prevented or interfered with or failed to cooperate with any inspection, investigation, or monitoring visit made by the department, including refusal to permit authorized department representatives to interview clients or have access to their records;

(((10))) (11) When the client's assessment or reassessment does not identify an unmet need;

(((11))) (12) Who is terminated by the client (in the case of an individual provider) or by the home care agency (in the case of an agency provider);

(((12))) (13) Who does not successfully complete applicable training requirements, within the timeframes described in WAC 388-71-0875, 388-71-0880, 388-71-0890 and 388-71-0991. If an individual provider or long-term care worker employed by a home care agency does not complete required training within the required timeframe, and:

(a) If the worker is not required to be a certified home care aide, then the long-term care worker may not provide care until the training is completed; or

(b) If the worker is required to be a certified home care aide, then the long-term care worker may not provide care until the certification has been granted.

(((13))) (14) Who does not successfully complete the certification or recertification requirements as described under WAC 388-71-0975; or

(((14))) (15) Who has had a home care aide certification denied, suspended, or revoked. If the individual is otherwise qualified, payment for services may resume when his or her certification has been reissued.

In addition, the department, AAA, or department designee may deny payment to or terminate the contract of an individual provider as provided under WAC 388-71-0543, 388-71-0546, and 388-71-0551.

Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

The department, AAA, or department designee may reject your request to have a family member or other person serve as your individual provider if the case manager has a reasonable, good faith belief that the person is, or will be, unable to appropriately meet your needs. Examples of circumstances indicating an inability to meet your needs include, but are not limited to:

(1) Evidence of misuse of alcohol, controlled substances, or legend drugs;

(2) A reported history of domestic violence committed by the individual provider, no-contact orders entered against the individual provider, or criminal conduct committed by the individual provider (whether or not the conduct is automatically disqualifying under WAC 388-71-0540 or under chapter 388-113 WAC);

(3) A report from any knowledgeable person that the individual provider lacks the ability or willingness to provide adequate care;

(4) The individual provider has other employment or responsibilities that prevent or interfere with the provision of required services; or

(5) Excessive commuting distance that would make it impractical for the individual provider to provide services as they are needed and outlined in your service plan.

The department, AAA, or department designee may terminate an individual provider's contract to provide personal care services under this chapter or chapters 388-106 and 388-112 WAC if the provider's inadequate performance or inability to deliver quality care is jeopardizing the client's health, safety, or well-being. Examples include, but are not limited to:

(1) The provider's home care aide certification has been revoked;

(2) The provider's inadequate performance or inability to deliver quality care is jeopardizing the client's health, safety, or well-being;

(3) The department has determined that the provider lacks the character, competence or suitability necessary to protect the client's health, safety or well-being; and

(4) The provider has a disqualifying criminal conviction or a pending charge for a disqualifying crime under chapter 388-113 WAC or equivalent conviction or pending charge;

(6) The department, AAA or department designee may also terminate the individual provider's contract in accordance with the terms of the contract.

The purpose of this chapter is to describe the:

(1) Criminal convictions, pending charges, and negative actions that automatically disqualify an individual from having unsupervised access to vulnerable adults or minors who are receiving services under:

(a) Chapter 388-71 WAC: Home and community services and programs, including individual providers and employees of home care agencies;

(b) Chapter 388-101 WAC: Certified community residential services and supports;

(c) Chapter 388-76 WAC: Licensed adult family homes;

(d) Chapter 388-78A WAC: Licensed assisted living facilities;

(e) Chapter 388-97 WAC: Licensed nursing homes;

(f) Chapter 388-825 WAC: Developmental disabilities administration programs; and

(g) Chapter 388-107 WAC: Licensed enhanced services facilities.

(2) Exceptions to automatic disqualifications that may apply to certain criminal convictions and pending charges.

"Department" means the Washington state department of social and health services.

(a) Controlled substance as defined in RCW 69.50.101;

(b) Legend drug, as defined in RCW 69.41.010;

(c) Precursor drug under Chapter 69.43 RCW; or

(d) Imitation controlled substance, as defined in RCW 69.52.020.

"Minor" means any person under the age of eighteen.

"Pending Charge" means a criminal charge for a disqualifying crime has been filed in a court of law for which the department has not received documentation showing the disposition of the charge.

"Unsupervised" means not in the presence of:

(a) Another employee or volunteer from the same business or organization as the applicant; or

(b) Any relative or guardian of any of the minors or vulnerable adults to which the applicant has access during the course of his or her employment or involvement with the business or organization.

"Vulnerable Adult" is defined in RCW 74.34.020(17).

(1) Individuals who must satisfy background checks requirements under chapters 388-71, 388-101, 388-76, 388-78A, 388-97, 388-825, and 388-107 of the Washington Administrative Code (WAC) may not work in a position that may involve unsupervised access to minors or vulnerable adults if he or she has been convicted of or has a pending charge for one of the following crimes:

(a) Abandonment of a child;

(b) Abandonment of a dependent person;

(c) Abuse or neglect of a child;

(d) Arson 1;

(e) Assault 1;

(f) Assault 2;

(g) Assault 3;

(h) Assault 4/simple assault (less than 3 years);

(i) Assault of a child;

(j) Burglary 1;

(k) Child buying or selling;

(l) Child molestation;

(m) Coercion (less than 5 years);

(n) Commercial sexual abuse of a minor/patronizing a juvenile prostitute;

(o) Communication with a minor for immoral purposes;

(p) Controlled substance homicide;

(q) Criminal mistreatment;

(r) Custodial assault;

(s) Custodial interference;

(t) Custodial sexual misconduct;

(u) Dealing in depictions of minor engaged in sexual explicit conduct;

(v) Domestic violence (felonies only);

(w) Drive-by shooting;

(x) Drug crimes, if they involve one or more of the following:

(i) Manufacture of a drug;

(ii) Delivery of a drug; and

(iii) Possession of a drug with the intent to manufacture or deliver.

(y) Endangerment with a controlled substance;

(z) Extortion;

(aa) Forgery (less than 5 years);

(bb) Homicide by abuse, watercraft, vehicular homicide (negligent homicide);

(cc) Identity theft (less than 5 years);

(dd) Incendiary devices (possess, manufacture, dispose);

(ee) Incest;

(ff) Indecent exposure/public indecency (Felony);

(gg) Indecent liberties;

(hh) Kidnapping;

(ii) Luring;

(jj) Malicious explosion 1;

(kk) Malicious explosion 2;

(ll) Malicious harassment;

(mm) Malicious placement of an explosive 1;

(nn) Malicious placement of an explosive 2 (less than 5 years);

(oo) Malicious placement of imitation device 1 (less than 5 years);

(pp) Manslaughter;

(qq) Murder/aggravated murder;

(rr) Possess depictions minor engaged in sexual conduct;

(ss) Promoting pornography;

(tt) Promoting prostitution 1;

(uu) Promoting suicide attempt (less than 5 years);

(vv) Prostitution (less than 3 years);

(ww) Rape;

(xx) Rape of child;

(yy) Residential Burglary;

(zz) Robbery;

(aaa) Selling or distributing erotic material to a minor;

(bbb) Sending or bringing into the state depictions of a minor engaged in sexually explicit conduct;

(ccc) Sexual exploitation of minors;

(ddd) Sexual misconduct with a minor;

(eee) Sexually violating human remains;

(fff) Stalking (less than 5 years);

(ggg) Theft 1;

(hhh) Theft 2 (less than 5 years);

(iii) Theft 3 (less than 3 years);

(jjj) Unlawful imprisonment

(kkk) Unlawful use of building for drug purposes (less than 5 years);

(lll) Use of machine gun in a felony;

(mmm) Vehicular assault;

(nnn) Violation of temporary restraining order or preliminary injunction involving sexual or physical abuse to a child;

(ooo) Violation of a temporary or permanent vulnerable adult protection order (VAPO) that was based upon abandonment, abuse, financial exploitation, or neglect; and

(ppp) Voyeurism.

(2) If "(less than 5 years)" or "(less than 3 years)" appears after a crime listed in subsection (1) above, the individual is not automatically disqualified if the required number of years has passed since the date of the conviction. For example, if three or more years have passed since an individual was convicted of Theft in the 3rd degree that conviction would not be automatically disqualifying. If the required number of years has passed, the employer must conduct an overall assessment of the person's character, competence, and suitability before allowing unsupervised access to vulnerable adults and minors.

(3) When the department determines that a conviction or pending charge in federal court or in any other court, including state court is equivalent to a Washington state crime that is disqualifying under this section, the equivalent conviction or pending charge is also disqualifying.

In addition to disqualifying convictions and pending charges for disqualifying crimes, individuals are disqualified from working in positions involving unsupervised access to minors or vulnerable adults under chapters 388-71, 388-101, 388-76, 388-78A, 388-97, 388-825 and 388-107 WAC if certain findings have been made or certain actions have been taken against them. These disqualifying findings and actions are referred to as "negative actions" and they are listed in the following program rules:

(1) Home and community services and programs, including individual providers and employees of home care agencies: chapter 388-71 WAC;

(2) Certified community residential services and supports: chapter 388-101 WAC;

(3) Adult family homes: chapter 388-76 WAC;

(4) Assisted living facilities: chapter 388-78A WAC;

(5) Nursing homes: chapter 388-97 WAC;

(6) Developmental disabilities administration programs: chapter 388-825 WAC; and

(7) Enhanced services facilities: chapter 388-107 WAC.

(1) Under the conditions described in this section, an individual is not automatically disqualified from having unsupervised access to minors and vulnerable adults if he or she:

(a) Has worked continuously for the same employer for whom he or she was working on December 31, 2013; and

(b) Does not have a conviction or pending charge that was automatically disqualifying under rules that were in effect on December 31, 2013; and

(c) Works for a program or facility that operates under chapters 388-71 WAC (individual providers and home care agencies), 388-76 WAC (adult family home), 388-78A WAC (assisted living facility) or 388-97 WAC (nursing homes) and was convicted of, or has a pending charge for:

(i) Residential burglary;

(ii) Unlawful use of building for drug purposes (5 or more years);

(iii) Vehicular assault; or

(d) Works for a program or facility that operates under chapter 388-825 WAC (developmental disabilities administration programs) or supported living and was convicted of, or has a pending charge for:

(i) Assault 3;

(ii) Manufacture of a controlled substance;

(iii) Delivery of a controlled substance; or

(iv) Possession of a controlled substance with the intent to manufacture or deliver.

(2) In addition to the requirements under subsection (1), in order for an individual to be eligible for an exception under this section, the following conditions must also be satisfied:

(a) The conviction date for the crimes listed in (1)(c) and (d) must be before January 1, 2014;

(b) The individual has to continue to work for the same employer; and

(c) The employer or hiring entity must:

(i) Review the individual's character, competence and suitability to have unsupervised access to minors or to vulnerable adults, and;

(ii) Have documentation on file demonstrating the results of the character, competence and suitability review; and

(iii) Have documentation on file demonstrating that the individual meets all of the conditions in this section (2), including a copy of a background check result letter dated prior to December 31, 2013, indicating the individual was not disqualified from having unsupervised access to minors or vulnerable adults.