Original Notice.

Preproposal statement of inquiry was filed as WSR 99-23-032.

Title of Rule: Repealing chapter 275-37 WAC, Juvenile rehabilitation administration -- Rules, practices and procedures; and new chapter 388-700 WAC, Juvenile rehabilitation administration -- Practices and procedures.

Purpose: Chapter 275-37 WAC, Juvenile rehabilitation administration -- Rules, practices and procedures, is being repealed and replaced by chapter 388-700 WAC, Juvenile rehabilitation administration -- Practices and procedures. The proposed rules are a result of DSHS/JRA reviewing and updating rules according to Executive Order 97-02. The rules have been written using a question and answer format. The rules update information on background checks and add new sections relating to sexual misconduct by JRA employees or contractors. The rules on sexual misconduct are being proposed to ensure the safety of juvenile offenders by prohibiting individuals who are employed or contracting with the department from having sexual intercourse or sexual contact with JRA youth. The rule describes the action the DSHS secretary must take when responding to situations of sexual misconduct by JRA employees or contractors. This rule also protects a person employed by the department or a contractor of the department from termination if they are forced against their will to have sexual intercourse or sexual contact with a JRA youth.

Statutory Authority for Adoption: RCW 13.40.570.

Statute Being Implemented: RCW 13.40.570.

Summary: Chapter 275-37 WAC, Juvenile rehabilitation administration -- Rules, practices and procedures, is being repealed and replaced by chapter 388-700 WAC. The proposed rules establish clear requirements for DSHS for responding to situations of sexual misconduct with JRA youth by employees, JRA contractors and employees or subcontractors of JRA contractors.

Name of Agency Personnel Responsible for Drafting: Candy Curl, 14th and Jefferson (OB2), Olympia, (360) 902-0858; Implementation and Enforcement: Jerry Minaker, 14th and Jefferson (OB2), Olympia, (360) 902-8100.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: Background check and reporting requirements are being amended to reflect legislation passed where additional crimes were added to chapter 9A.44 RCW, Sex offenses.

The rule describes what action(s) must be taken by the secretary when responding to situations of sexual misconduct with JRA youth by employees, JRA contractors and employees and subcontractors of JRA contractors.

The anticipated effect of the rule is to increase the safety and health of the youth served by Juvenile Rehabilitation Administration and to clarify expectations of DSHS employees and contractors.

Proposal Changes the Following Existing Rules: Chapter 275-37 WAC, Juvenile rehabilitation administration -- Rules, practices and procedures, is being repealed. The proposed rules update the definition section in the Juvenile rehabilitation administration -- Practices and procedures chapter and the section of the rules relating to background checks for JRA.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules do not have an economic impact on small business.

RCW 34.05.328 applies to this rule adoption. JRA has determined that these are significant rules. A copy of the CBA can be obtained by contacting the person above.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on June 27, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Fred Swenson by June 16, 2000, phone (360) 664-6097, TTY (360) 664-6178, e-mail swensfh@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, by June 27, 2000.

Date of Intended Adoption: No sooner than June 28, 2000.

May 22, 2000

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

The following definitions apply to this chapter:

"Assistant secretary" means the assistant secretary of the juvenile rehabilitation administration.

"Community facility" means a group care facility operated for the care of juveniles committed to the department under RCW 13.40.185. A county detention facility that houses juveniles committed to the department under RCW 13.40.185 pursuant to an interagency agreement with the department is not a community facility.

"Contractor" means a department of social and health services (DSHS)/juvenile rehabilitation administration (JRA) contractor and all employees and all subcontractors of that contractor.

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

"JRA" means the juvenile rehabilitation administration, department of social and health services.

"JRA youth" or "juvenile" means a juvenile offender under the jurisdiction of JRA or a youthful offender under the jurisdiction of the department of corrections who is placed in a JRA facility.

"Limited access" means supervised access to a juvenile(s) that is the result of the person's regularly scheduled activities or work duties.

"Preponderance of the evidence" means a determination by the secretary that the alleged sexual misconduct more likely than not occurred, or an admission of sexual misconduct has been made.

"Program administrator" means institution superintendent, regional administrator, or their designees.

"Reasonable cause" means a reason that would motivate a person of ordinary intelligence under the circumstances to believe that an act of sexual misconduct may have occurred.

"Regular access" means unsupervised access to a juvenile(s), for more than a nominal amount of time, that is the result of the person's regularly scheduled activities or work duties.

"Secretary" means the secretary of the department of social and health services.

"Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.

"Sexual intercourse" has its ordinary meaning and:

(1) Occurs upon any penetration, however slight; and

(2) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes; and

(3) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

"Suspend" means to remove from unsupervised access to any JRA youth.

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JRA must conduct background checks on prospective employees, volunteers, and individual contracted service providers who will have regular access to juveniles. Background checks may be conducted on prospective employees, volunteers, and individual contracted service providers who will have limited access to juveniles.

(1) Procedures must be established in order to investigate and determine suitability of a person in a position who will have regular access or limited access to juveniles.

(2) Employees, volunteers or individual contracted service providers who are authorized for regular access do not require the presence of another person cleared through the designated background check process during the performance of their duties.

(3) The presence of another person cleared through the designated background check process is required for people authorized to have limited access to juveniles.

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Effective September 1, 1998, potential employees, volunteers, and individual contracted service providers must not be hired, engaged, or authorized in a position which allows regular access if the individual has been convicted of:

(1) Any felony sex offense as defined in RCW 9.94A.030 and 9A.44.130;

(2) Any crime specified in chapter 9A.44 RCW when the victim was a juvenile in the custody of or under the jurisdiction of JRA as stated in RCW 13.40.570; or

(3) Any violent offense as defined in RCW 9.94A.030.

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Effective September 1, 1998 employees, volunteers, and individual contracted service providers who are authorized for regular access to a juvenile(s) must report any conviction of a crime identified in WAC 388-700-0015. The report must be made to the person's supervisor within seven days of conviction. Failure to report within seven days constitutes misconduct under Title 50 RCW. Employees, volunteers, and individual contracted service providers who have been convicted of offenses in WAC 388-700-0015 must not have regular access to a juvenile(s).

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JRA must require background checks to be conducted on prospective employees and volunteers of contracting agencies if the person will have regular access to juveniles.

(1) Requirements of WAC 388-700-0010, 388-700-0015, and 388-700-0020 must be met by contracted service providers.

(2) The contracted service provider or designee of an agency contracting with JRA for the provision of a community facility must ensure background check investigations are conducted according to department licensing requirements.

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If there is reasonable cause to believe that sexual intercourse or sexual contact between a JRA employee and a JRA youth has occurred, the secretary must immediately remove the JRA employee from access to JRA youth.

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If the preponderance of the evidence finds that sexual intercourse or sexual contact between a JRA employee and a JRA youth has occurred, the secretary must immediately institute proceedings to terminate the employee.

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The secretary requires the individual contractor, or employee of a contractor, when there is reasonable cause to believe he/she has had sexual intercourse or sexual contact with a JRA youth, to be immediately removed from access to any JRA youth.

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(1) If there is a preponderance of evidence that sexual intercourse or sexual contact between a JRA contractor and a JRA youth occurred, the secretary must inform the contractor that the individual employee is disqualified from employment with a contractor in any position with access to JRA youth.

(2) A contract with a contractor who has had an employee who has been disqualified for employment based on a preponderance of evidence, must not be renewed until the secretary determines that significant progress has been made by the contractor to reduce the likelihood that any of their employees or subcontractors have sexual intercourse or sexual contact with a JRA youth.

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DSHS will not take any action against a person who is employed or contracted by JRA who has sexual intercourse or sexual contact with a JRA youth and it is found to have been against the employed or contracted person's will.

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     The following sections of the Washington Administrative Code are repealed:

WAC 275-37-010	Definitions.
WAC 275-37-020	Rated bed capacity.
WAC 275-37-030	Background checks.

© Washington State Code Reviser's Office