WSR 07-08-095

PROPOSED RULES

DEPARTMENT OF

SOCIAL AND HEALTH SERVICES
(Children's Administration)

[ Filed April 3, 2007, 12:43 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-21-080 and 06-21-081.

Title of Rule and Other Identifying Information: WAC 388-15-009 What is child abuse or neglect? and 388-15-049 When must the department notify the alleged perpetrator of allegations of child abuse or neglect?

Hearing Location(s): Blake Office Park East, Rose Room, 4500 10th Avenue S.E., Lacey, WA 98503 (one block north of the intersection of Pacific Avenue S.E. and Alhadeff Lane. A map or directions are available at http://www1.dshs.wa.gov/msa/rpau/docket.html or by calling (360) 664-6097), on May 8, 2007, at 10:00 a.m.

Date of Intended Adoption: Not earlier than May 9, 2007.

Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504, delivery 4500 10th Avenue S.E., Lacey, WA 98503, e-mail fernaax@dshs.wa.gov, fax (360) 664-6185, by 5:00 p.m. on May 8, 2007.

Assistance for Persons with Disabilities: Contact Stephanie Schiller, DSHS Rules Consultant, by May 4, 2007, TTY (360) 664-6178 or (360) 664-6097 or by e-mail at schilse@dshs.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To meet the requirements from ESSB 5922 (chapter 512, Laws of 2005).

Reasons Supporting Proposal: The new language is essential for children's administration to implement the legislature's intent in ESSB 5922, chapter 512, Laws of 2005. The new language is essential for determining what constitutes child abuse under the stature [statute], and is necessary for the protection of health, safety and welfare of children.

Statutory Authority for Adoption: RCW 74.08.090, 74.04.050.

Statute Being Implemented: Chapter 26.44 RCW, RCW 74.13.031, chapter 512, Laws of 2005.

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

Name of Proponent: Department of social and health services, governmental.

Name of Agency Personnel Responsible for Drafting: Tina Stern, Children's Administration, P.O. Box 45710, Olympia, WA (360) 902-0863; Implementation and Enforcement: Leah Stajduhar, Children's Administration, P.O. Box 45710, Olympia, WA, (360) 902-7539.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rule changes are dictated by statute. An economic analysis was not required under RCW 19.85.025(3), 34.05.328 (5)(b) and (c) as the proposed rule changes are adopted by reference without material change from ESSB 5922, chapter 512, Laws of 2005.

A cost-benefit analysis is not required under RCW 34.05.328. These rule changes are dictated by statute. The rules incorporate ESSB 5922, chapter 512, Laws of 2005 and are not considered significant rule changes under RCW 34.05.328.

March 29, 2007

Jim Schnellman, Chief

Office of Administrative Resources

3800.2
AMENDATORY SECTION(Amending WSR 02-15-098 and 02-17-045, filed 7/16/02 and 8/14/02, effective 2/10/03)

WAC 388-15-009   What is child abuse or neglect?   Child abuse or neglect means the injury, sexual abuse, or sexual exploitation((, negligent treatment, or maltreatment)) of a child by any person under circumstances which indicate that the child's health, welfare, ((and)) or safety is harmed, or the negligent treatment or maltreatment of a child by a person responsible for or providing care to the child. An abused child is a child who has been subjected to child abuse or neglect as defined in this section.

(1) Physical abuse means the nonaccidental infliction of physical injury or physical mistreatment on a child. Physical abuse includes, but is not limited to, such actions as:

(a) Throwing, kicking, burning, or cutting a child;

(b) Striking a child with a closed fist;

(c) Shaking a child under age three;

(d) Interfering with a child's breathing;

(e) Threatening a child with a deadly weapon;

(f) Doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks or which is injurious to the child's health, welfare ((and)) or safety.

(2) Physical discipline of a child, including the reasonable use of corporal punishment, is not considered abuse when it is reasonable and moderate and is inflicted by a parent or guardian for the purposes of restraining or correcting the child. The age, size, and condition of the child, and the location of any inflicted injury shall be considered in determining whether the bodily harm is reasonable or moderate. Other factors may include the developmental level of the child and the nature of the child's misconduct. A parent's belief that it is necessary to punish a child does not justify or permit the use of excessive, immoderate or unreasonable force against the child.

(3) Sexual abuse means committing or allowing to be committed any sexual offense against a child as defined in the criminal code. The intentional touching, either directly or through the clothing, of the sexual or other intimate parts of a child or allowing, permitting, compelling, encouraging, aiding, or otherwise causing a child to engage in touching the sexual or other intimate parts of another for the purpose of gratifying the sexual desire of the person touching the child, the child, or a third party. A parent or guardian of a child, a person authorized by the parent or guardian to provide childcare for the child, or a person providing medically recognized services for the child, may touch a child in the sexual or other intimate parts for the purposes of providing hygiene, child care, and medical treatment or diagnosis.

(4) Sexual exploitation includes, but is not limited to, such actions as allowing, permitting, compelling, encouraging, aiding, or otherwise causing a child to engage in:

(a) Prostitution;

(b) Sexually explicit, obscene or pornographic activity to be photographed, filmed, or electronically reproduced or transmitted; or

(c) Sexually explicit, obscene or pornographic activity as part of a live performance, or for the benefit or sexual gratification of another person.

(5) Negligent treatment or maltreatment means an act or a failure to act, or the cumulative effects of a pattern of conduct, behavior, or inaction, on the part of a child's parent, legal custodian, guardian, or caregiver that shows a serious disregard of the consequences to the child of such magnitude that it creates a clear and present danger to the child's health, welfare, ((and)) or safety. A child does not have to suffer actual damage or physical or emotional harm to be in circumstances which create a clear and present danger to the child's health, welfare, ((and)) or safety. Negligent treatment or maltreatment includes, but is not limited, to:

(a) Failure to provide adequate food, shelter, clothing, supervision, or health care necessary for a child's health, welfare, ((and)) or safety. Poverty and/or homelessness do not constitute negligent treatment or maltreatment in and of themselves;

(b) Actions, failures to act, or omissions that result in injury to or which create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child; or

(c) The cumulative effects of ((consistent)) a pattern of conduct, behavior or inaction ((or behavior)) by a parent or guardian in providing for the physical, emotional and developmental needs of a child's, or the effects of chronic failure on the part of a parent or guardian to perform basic parental functions, obligations, and duties, when the result is to cause injury or create a substantial risk of injury to the physical, emotional, and/or cognitive development of a child.

[Statutory Authority: RCW 74.13.031, 74.04.050, and chapter 26.44 RCW. 02-15-098 and 02-17-045, 388-15-009, filed 7/16/02 and 8/14/02, effective 2/10/03.]


AMENDATORY SECTION(Amending WSR 02-15-098 and 02-17-045, filed 7/16/02 and 8/14/02, effective 2/10/03)

WAC 388-15-049   When must the department notify the ((alleged perpetrator)) parent, guardian or legal custodian of allegations of child abuse or neglect made against them?   ((CPS)) The department must ((attempt to)) notify the ((alleged perpetrator)) parent, guardian or legal custodian of a child of the allegations of child abuse or neglect ((at the earliest point in the investigation that will not jeopardize the safety and protection of the child or the investigation process)) made against that person at the initial point of contact with that person, in a manner consistent with the laws maintaining the confidentiality of the persons making the allegations. Investigations of child abuse and neglect should be conducted in a manner that will not jeopardize the safety or protection of the child or the integrity of the investigation process.

[Statutory Authority: RCW 74.13.031, 74.04.050, and chapter 26.44 RCW. 02-15-098 and 02-17-045, 388-15-049, filed 7/16/02 and 8/14/02, effective 2/10/03.]

Washington State Code Reviser's Office