Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: Chapter 388-290 WAC, new and amended rules about establishing criminal background inquiries for in-home/relative providers for working connections child care.

Proposed New Rules: WAC 388-290-854 When will the department not pay toward the cost of in-home/relative child care?, 388-290-858 Why do we review your in-home/relative provider's criminal background information?, 388-290-862 When is a criminal background check required?, 388-290-866 Where does the department get the criminal background information on the in-home/relative provider?, 388-290-870 What does the department do with the criminal background information on the in-home/relative provider?, 388-290-874 Will I be notified of the result of the criminal background information on my in-home/relative provider?, 388-290-878 Can I still use my chosen in-home/relative provider to care for my children if the in-home/relative provider has ben convicted of a disqualifying crime?, 388-290-882 What convictions permanently disqualify my in-home/relative provider from being authorized by WCCC?, 388-290-886 Are there some crimes that require a set amount of time to pass before my in-home/relative provider may be authorized for WCCC?, and 388-290-888 When can I ask the department to review the decision to deny authorization of my provider?

Amended Sections: WAC 388-290-850 What child care providers can the department pay under the WCCC program?, 388-290-905 What responsibilities does the department have under the WCCC program?, 388-290-910 What responsibilities do I have under the WCCC program?, 388-290-925 When don't advance and adequate notice rules apply?, 388-290-940 Do I have the right to request a hearing?, and 388-290-945 Can I receive WCCC pending the outcome of a hearing?

Purpose: The purpose of this rule is to provide increased safety and welfare for children in child care settings where the department pays toward the costs of child care for in-home/relative provider. The provider must not have a conviction record that would place the child or the family at a potential risk of harm.

Statutory Authority for Adoption: RCW 43.43.830, 43.43.832, and 74.15.020.

Statute Being Implemented: RCW 43.43.830, 43.43.832, and 74.15.020.

Summary: The purpose of this rule is to provide increased safety and welfare for children in child care setting where the department pays toward the cost of child care for in-home/relative providers. The provider must not have a conviction record that would place the child or the family at a potential risk of harm.

Reasons Supporting Proposal: The department must increase the protection of children currently in the care of individuals who have conviction history which may increase the likelihood of harm to the child or the household.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jenny Baxter, WorkFirst Division, (360) 413-3244.

Name of Proponent: Department of Social and Health Services, WorkFirst Division, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The purpose of this rule is to provide increased safety and welfare for children in child care settings where the department pays toward the cost of child care for in-home/relative provider. The provider must not have a conviction record that would place the child or the family at a potential risk of harm.

Proposal Changes the Following Existing Rules: This proposed rule change amends existing rules listed above to incorporate changes around the criminal background checks.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This change does not meet the requirements for a small business economic impact statement.

RCW 34.05.328 does not apply to this rule adoption. RCW 34.05.328 does not apply to DSHS rules that relates only to client medical or financial eligibility.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on July 25, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact DSHS Rules Coordinator by July 14, 2000, phone (360) 664-6094, TTY (360) 664-6178, e-mail myercme@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Kelly Cooper, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by July 25, 2000.

Date of Intended Adoption: July 26, 2000.

July 16, 2000

Edith M. Rice, Chief

Office of Legal Affairs

To receive payment under the WCCC program, your child care provider must fall into one of the following categories:

(1) Licensed as required by chapter 74.15 RCW and chapters 388-73, 388-155 (Minimum licensing requirements for family child day care homes), or 388-150 WAC (Minimum licensing requirements for child day care centers).

(2) Exempt from licensing but certified by the department, including:

(a) Tribal child care facilities meeting the requirements of tribal law;

(b) Child care facilities on a military installation;

(c) Child care facilities operated on public school property by a school district.

(3) Exempt from licensing and certification, but the in-home/relative provider must:

(a) Be a U.S. citizen or legally residing in the country;

(b) Be one of the following adult relatives providing care in either the child's or relative's home:

(i) An adult sibling living outside the child's home; or

(ii) A grandparent, aunt, uncle, first cousin, or great-grandparent, great-aunt, or great-uncle; and

(iii) Not the child's biological, adoptive, or step-parent; or

(iv) An extended tribal family member under chapter 74.15 RCW.

(c) Be an adult friend or neighbor providing care in the child's own home; ((and))

(d) Meet the in-home relative provider requirements in ((chapter 388-15 WAC. We can refuse to pay toward the cost of in-home/relative care if we have evidence your in-home/relative provider does not meet these requirements)) WAC 388-165-235;

(e) Complete and submit a criminal background inquiry form prescribed by the department; and

(f) Not be disqualified based on information in WAC 388-290-854 (3) or (4).

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99.      99-14-023, § 388-290-850, filed 6/28/99, effective 7/1/99.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
NEW SECTION
WAC 388-290-854
When will the department not pay toward the cost of in-home/relative child care?

The department will not pay toward the cost of in-home/relative care if:

(1) Your in-home/relative provider does not meet the requirements in WAC 388-290-850;

(2) You fail to submit a completed criminal background inquiry form;

(3) The department determines your in-home/relative provider is not of sufficient physical, emotional or mental health to meet the needs of the child in care, or the household may be at risk of harm by this provider, as indicated by information other than conviction information; or

(4) Your in-home/relative provider has been convicted of, or has charges pending for crimes listed in WAC 388-390-882 or 388-290-886.

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The department reviews the provider's criminal background information because the department:

(1) Wants you to have this information to help you to make informed, safe, and responsible decisions about your child(ren)'s care provider; and

(2) Does not pay toward the cost of child care provided by individuals convicted of crimes listed in WAC 388-290-882 and 388-290-886.

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The department requires the criminal background check for each in-home/relative provider:

(1) When you request payment for services by a new in-home/relative provider;

(2) Every two years for existing in-home/relative providers; or

(3) When the department has reason to do a criminal background check more frequently.

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The department gets criminal background information from available sources such as:

(1) The Washington State Patrol under chapter 10.97 RCW;

(2) Other states and Federally Recognized Indian Tribes; and

(3) Disclosure by the in-home/relative provider.

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(1) The department compares the criminal background information including pending charges with convictions listed in WAC 388-290-882 and 388-290-886.

(a) A pending charge for a crime is given the same weight as a conviction.

(b) If the conviction has been renamed it is given the same weight as the previous named conviction. For example, larceny is now theft.

(c) Convictions whose titles are preceded with the word "attempted" are given the same weight as those titles without the word "attempted."

(d) Convictions that are considered the same as those listed in WAC 388-290-882 and 388-290-886 are given the same weight as those titles.

(2) The department:

(a) Determines if the in-home/relative provider's criminal background contains information that will not allow the authorization of payment towards the cost of WCCC;

(b) Notifies the parent of the criminal background information;

(c) Denies or stops payment toward the cost of care by this in-home/relative provider, when the criminal background information disqualifies the in-home/relative provider; and

(d) Assists parents in finding other child care arrangements.

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You will receive notice telling you whether or not the department is able to authorize payment toward the cost of care.

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The department will not pay toward the cost of care if we disqualify an in-home/relative provider. It is your choice whether you use the in-home/relative provider to care your child(ren).

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The following crimes permanently disqualify your in-home/relative provider from authorization toward the cost of child care:

(1) Aggravated murder;

(2) Arson in the first degree;

(3) Assault in the first, second or third degree;

(4) Assault of a child in the first, second or third degree;

(5) Burglary in the first degree;

(6) Child abandonment;

(7) Child abuse or neglect (RCW 26.44.020);

(8) Child buying or selling;

(9) Child molestation in the first, second or third degree;

(10) Communication with a minor for immoral purposes;

(11) Criminal abandonment;

(12) Criminal mistreatment in the first or second degree;

(13) Custodial assault;

(14) Custodial interference in the first and second degree;

(15) Custodial sexual misconduct in the first and second degree;

(16) Delivery of a controlled substance;

(17) Drive-by shooting;

(18) Extortion in the first or second degree;

(19) Felony indecent exposure;

(20) Incest;

(21) Indecent liberties;

(22) Homicide by watercraft;

(23) Kidnapping in the first and second degree;

(24) Leading organized crime;

(25) Luring;

(26) Malicious explosion first, second and third degree;

(27) Malicious harassment;

(28) Malicious placement of an imitation device first degree;

(29) Manslaughter in the first and second degree;

(30) Manufacture of a controlled substance;

(31) Murder in the first and second degree;

(32) Patronizing a juvenile prostitute;

(33) Possession with the intent to deliver a controlled substance;

(34) Possession with the intent to manufacture a controlled substance;

(35) Promoting a suicide attempt;

(36) Promoting pornography;

(37) Promoting prostitution in the first degree;

(38) Public indecency (if toward a child less than fourteen);

(39) Rape in the first, second and third degree (including the rape of a child);

(40) Reckless Endangerment;

(41) Robbery in the first and second degree;

(42) Selling or distributing erotic materials to a minor;

(43) Sexual exploitation of a minor;

(44) Sexual misconduct with a minor in the first or second degree;

(45) Sexually violating human remains;

(46) Stalking;

(47) Theft in the first degree;

(48) Unlawful imprisonment;

(49) Unlawful use of building for drug purposes;

(50) Vehicular assault;

(51) Vehicular homicide;

(52) Violation of a child abuse restraining order-felony; or

(53) Any person whose name appears on the Washington State Registered Sex Offender and Kidnapping Offender List.

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A set amount of time must pass between the date of conviction and the date of the criminal background information form for specific convictions. The department will only authorize payment toward the cost of care by an in-home/relative provider if the following time periods have passed:

(1) Three years or more for:

(a) Assault in the fourth degree;

(b) Prostitution; or

(c) Theft in the third degree.

(2) Five years or more for:

(a) Forgery;

(b) Prostitution related crimes such as patronizing a prostitute; or

(c) Theft in the second degree.

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(1) You may request the department review our decision to deny payment toward the cost of care by your in-home/relative provider when:

(a) The conviction is listed in WAC 388-290-886;

(b) The required amount of time has not elapsed between the conviction date and the date of application for child care by this provider; and

(c) We receive your request for review in writing or by contacting DSHS within thirty days of our decision.

(2) The review is separate from a hearing and provided by Administrative staff within the department.

(3) You will be requested to:

(a) Provide additional information; and

(b) Complete the request for review form.

(4) The department will notify you in writing of our decision within thirty days after receiving the information.

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We will:

(1) Inform you of your rights and responsibilities under the WCCC program;

(2) Inform you ((which)) of the types of child care providers we can pay;

(3) Permit you to choose your ((own child care)) in-home/relative provider((,)) as long as ((we can pay the)) that provider ((under)) meets the requirements in WAC 388-290-850.

(4) Review and act upon information described in WAC 388-290-854 and 388-290-866 regarding your in-home/relative provider;

(((4))) (5) Inform you of the community resources that can help you select child care, if needed;

(((5))) (6) Only authorize payment when no adult in your family is able and available to care for your children;

(((6))) (7) Only authorize payment to child care providers who allow you to see your children whenever they are in care;

(((7))) (8) Respond to you within ten days if you report a change of circumstance;

(((8))) (9) Provide prompt child care payments to your licensed or certified provider; and

(((9))) (10) Notify you whenever we establish or change your WCCC copayment.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99.      99-14-023, § 388-290-905, filed 6/28/99, effective 7/1/99.]

((You will)) Your responsibility is to:

(1) ((Be responsible to choose your)) Choose a provider meeting requirements of WAC 388-290-850 and make your own child care arrangements;

(2) Notify the department of any change in providers within five days;

(3) Pay your in-home/relative provider ((after we send you a check)) the entire amount the department sends you for in-home/relative care;

(4) Pay, or make arrangements to pay, your WCCC copayment directly to your child care provider;

(5) Supply the department with necessary information to allow us to correctly determine your eligibility and make proper child care payment to your provider;

(6) Notify your provider within ten days when we change your child care authorization;

(7) Provide notice to the department within ten days of any change in:

(a) Family size ((or));

(b) Income level; ((and)) or

(c) The amount of child care needed.

(8) Assure your in-home/relative provider provides a valid social security number to the department, if you choose an in-home/relative provider; and

(9) Report to your child care authorizing worker, within twenty-four hours, any pending charges or conviction information you learn about your in-home/relative provider.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99.      99-14-023, § 388-290-910, filed 6/28/99, effective 7/1/99.]

Advance and adequate notice requirements don't apply in the following circumstances:

(1) You tell the department you no longer want WCCC;

(2) Your whereabouts are unknown to the department;

(3) You are receiving duplicate child care benefits; ((or))

(4) Your normal WCCC authorization period is scheduled to end; or

(5) If the department determines your in-home/relative provider may not be of sufficient physical, emotional or mental health to meet the needs of the child(ren) in care the household may be at risk of harm by this provider as indicated by information other than criminal background.

(6) Your in-home/relative provider has been convicted of, or has charges pending for crimes listed in WAC 388-290-882 or 388-290-886.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99.      99-14-023, § 388-290-925, filed 6/28/99, effective 7/1/99.]

(1) WCCC consumers ((and child care providers)) can request ((fair)) hearings under chapter ((388-08)) 388-02 WAC on any action affecting WCCC benefits except for mass changes resulting from a change in policy or law.

(2) Child care providers can request hearings under chapter 388-02 WAC only for WCCC overpayments.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99.      99-14-023, § 388-290-940, filed 6/28/99, effective 7/1/99.]

(1) If you are a WCCC consumer, you can ((get)) receive WCCC pending the outcome of a ((fair)) hearing if you request the ((fair)) hearing:

(a) On or before the effective date of an action; or

(b) No more ((that)) than ten days after the department sends you a notice of adverse action.

"Adverse action" means an action to reduce or terminate your WCCC, or to set up a protective payee to receive your WCCC warrant for you.

(2) If you lose ((the fair)) a hearing, any WCCC you use between the date of the adverse action and the date of the ((fair)) hearing or ((fair)) hearing decision is an overpayment to you, the consumer.

(3) If we obtain information that your provider may not be authorized to care for children under WAC 388-290-850 and you request a hearing on this decision, you are not eligible for WCCC payments toward the cost of care by this provider pending the outcome of the hearing. If you are eligible for WCCC, you may receive child care benefits towards another eligible provider, pending the outcome of the hearing.

[Statutory Authority: RCW 74.04.050, 74.13.0903, Public Law 104-193, Sections 407 and 605 and 45 C.F.R. Parts 98 and 99.      99-14-023, § 388-290-945, filed 6/28/99, effective 7/1/99.]

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