Original Notice.

Preproposal statement of inquiry was filed as WSR 98-08-084.

Title of Rule: Chapter 388-06 WAC, Background checks.

Purpose: Clarify the language of the background check requirements for homes and facilities licensed by Children's Administration (CA), for providers with unsupervised access to clients. This includes care providers to clients of the Division of Developmental Disabilities. The changes incorporate federal legislation, the Adoption and Safe Families Act of 1997 (42 U.S.C. 671(a)), that designated the types of criminal convictions which would preclude an individual from ever having unsupervised access to children.

The Division of Developmental Disabilities will follow the changes in this chapter for their adult clients as well as children.

Statutory Authority for Adoption: RCW 74.15.030.

Statute Being Implemented: RCW 74.15.030.

Summary: The clear language and format change will lead to overall clarification of the chapter. The addition of the federal law changes brings the chapter current with the practice of the Division of Licensed Resources, Children's Administration (DSHS).

The addition of the FBI fingerprinting requirement for persons who are new to the state within three years. This places state statute and agency policy into WAC for consistent practice for CA licensees needing to meet this requirement. The chapter adds the process for completing the background check with both Children's Administration and the Division of Developmental Disabilities making available to those regulated by the WAC the information needed on how to comply with the rule.

Reasons Supporting Proposal: Overall clarity, efficiency and effectiveness of the background check for those having unsupervised access to children and individuals with developmental disability. Additionally, the WAC changes support the licensors of the Division of Licensed Resources with clear language about the process of completing background checks on prospective licensees and other providers.

Name of Agency Personnel Responsible for Drafting and Implementation: Jean L. Croisant, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7992; and Enforcement: Division of Licensed Resources, Children's Administration, Department of Social and Health Services, (360) 902-7992.

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: The purpose of rewriting the chapter in clear question and answer style is to improve understanding of the rules and for consistency of interpretation. This chapter regulates the review of the criminal history and child abuse/neglect history of potential caregivers to children and developmental disabled adults.

The addition of the federal law changes (of specific categories of criminal convictions) brings the chapter current with the policy and practice of the Division of Licensed Resources, Children's Administration (DSHS). The addition of the FBI fingerprinting requirement for persons who are new to the state within the last three years places in WAC a state statute and agency policy that has been in effect since 1995. The chapter adds the process for completing the background check with both Children's Administration and the Division of Developmental Disabilities.

The process of screening caretakers, for children in licensed homes and facilities as well as for developmentally disabled adults, is clearly a very important health and safety issue. It is important to have the rules clear and easy to understand for consistent interpretation and implementation.

Proposal Changes the Following Existing Rules: WAC 388-06-0170, list the criminal convictions that permanently disqualify an individual from having unsupervised access to children and to individuals with developmental disability. This change in these crimes now clearly defines these as permanent disqualifiers.

WAC 388-06-0180, lists the crimes that would disqualify an individual for at least five years.

WAC 388-06-0190, outlines the criteria for seeking a license or authorization for unsupervised access to children and to individuals with developmental disability.

All of the changes have been clarified during the review of the chapter.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The substantive changes in the background check chapter were made to align the WAC with state law and federal law changes with the addition of several crimes to the list of disqualifying convictions. There will be no new costs to businesses.

RCW 34.05.328 applies to this rule adoption. The proposed rule changes for chapter 388-06 WAC, Background checks, are "significant legislative rules" as defined in RCW 34.05.328 and therefore require a cost benefit analysis (CBA). A copy of the CBA may be requested by contacting Jean L. Croisant, Division of Program and Policy Development, Children's Administration, P.O. Box 45710, Olympia, WA 98504-5710, (360) 902-7992, or loje300@dshs.wa.gov.

Hearing Location: Blake Office Building East, 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on June 26, 2001, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Kelly Cooper, DSHS Rules Coordinator, by June 21, 2001, phone (360) 664-6094, TTY (360) 664-6178.

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 26, 2001.

Date of Intended Adoption: No sooner than June 27, 2001.

April 24, 2001

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

(2) This chapter also defines when the one hundred twenty-day provisional hire is allowed by DSHS. WAC 388-06-0500 through 388-06-0540 apply to all DSHS administrations.

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"Authorized" or "authorization" means not disqualified by the department to have unsupervised access to children and individuals with a developmental disability. This includes persons who are certified, contracted, or allowed to receive payments from department funded programs.

"CA" means children's administration, department of social and health services. Children's administration is the cluster of programs within DSHS responsible for the provision of licensing of foster homes, group facilities/programs and child-placing agencies, child protective services, child welfare services, and other services to children and their families.

"CAMIS" means case and management information system. This data system is used by children's administration.

"Certification" means:

(1) Department approval of a person, home, or facility that does not legally need to be licensed, but wishes to have evidence that they met the minimum licensing requirements.

(2) Department licensing of a of a child-placing agency to certify and supervise foster home and group care programs.

"Children" or "youth" means individuals who are under parental or department care including:

(1) Individuals under eighteen years old; or

(2) Foster children up to twenty-one years of age and enrolled in high school or a vocational school program; or

(3) Developmentally disabled individuals up to twenty-one years of age for whom there are no issues of child abuse and neglect; or

(4) JRA youth up to twenty-one years of age and who are under the jurisdiction of JRA or a youthful offender under the jurisdiction of the department of corrections who is placed in a JRA facility.

(5) These two terms are used interchangeably in this chapter.

"DCFS" means division of children and family services and is a division within children's administration that provides child welfare, child protective services, and support services to children in need of protection and their families.

"DDD" means the division of developmental disabilities, department of social and health services (DSHS).

"DLR" means the division of licensed resources that is a division within children's administration, the department of social and health services.

"Department" means the department of social and health services (DSHS).

"I" and "you" refers to anyone who has unsupervised access to children or to persons with developmental disabilities in a home, facility, or program. This includes, but is not limited to, persons seeking employment, a volunteer opportunity, an internship, a contract, certification, or a license for a home

or facility.

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

"Licensor" means an employee of DLR or of a child placing agency licensed or certified under chapter 74.15 RCW to approve and monitor licenses for homes or facilities that offer care to children. Licenses require that the homes and facilities meet the department's health and safety standards.

"Individuals with developmental disability" means individuals who meet eligibility requirements in Title 71A RCW, WAC 388-825-030, for services. A developmental disability is any of the following: Mental retardation, cerebral palsy, epilepsy, autism, or another neurological condition described in WAC 388-825-030; originates before the age of eighteen years; is expected to continue indefinitely; and results in a substantial handicap.

"Spousal abuse" includes any crime of domestic violence as defined in RCW 10.99.020 when committed against a spouse, former spouse, person with whom the perpetrator has a child regardless of whether the parents have been married or lived together at any time, or an adult with whom the perpetrator is presently residing or has resided in the past.

"Unsupervised" means not in the presence of:

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

(2) Any relative or guardian of the child or developmentally disabled individual or vulnerable adult to whom the applicant has access during the course of his or her employment or involvement with the business or organization (RCW 43.43.080(9)).

"Unsupervised access" means that an individual will or may be left alone with a child or vulnerable adult (individual with developmental disability) at any time for any length of time.

"We" refers to the department, including licensors and social workers.

"WSP" refers to the Washington State Patrol.

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(1) A person licensed, certified, or contracted by us to care for children (chapter 74.15 RCW and RCW 43.43.832);

(2) A prospective or current employee for a licensed care provider or a person or entity contracting with us;

(3) A volunteer or intern with regular or unsupervised access to children who is in a home or facility that offers licensed care to children;

(4) A person who is at least sixteen years old, is residing in a foster home or child care home and is not a foster child;

(5) A relative other than a parent who may be caring for a child or an individual with a developmental disability;

(6) A person who regularly has unsupervised access to an individual with a developmental disability;

(7) A provider who has unsupervised access to a child or individual with a developmental disability in the home of the child or individual with a developmental disability; and

(8) Prospective adoptive parents as defined in RCW 26.33.020.

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(a) Criminal convictions and pending charges.

(b) For children's administration, child protective service case file information (CAMIS) for founded reports of child abuse or neglect; and

(c) For children's administration, administrative hearing decisions related to any DLR license that has been revoked, suspended or denied.

(2) The department may also review any civil judgment, determination or disciplinary board final decisions of child abuse or neglect.

(3) The department may review law enforcement records of convictions and pending charges in other states or locations if:

(a) You have lived in another state; and

(b) Reports from credible community sources indicate a need to investigate another state's records.

(4) If you have lived in Washington state less than three years immediately prior to your application to have unsupervised access to children or to individuals with a developmental disability, the department requires that you be fingerprinted for a background check.

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(2) Children's administration does not pay for fingerprinting for employees, contractors, or volunteers associated with any other type of home or facility.

(3) The division of developmental disabilities pays for background checks for individuals seeking authorization to provide services to their clients.

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(a) Child abuse and/or neglect;

(b) Spousal abuse;

(c) A crime against a child (including child pornography);

(d) A crime involving violence (including rape, sexual assault, or homicide but not including other physical assault); or

(e) Any federal or out-of-state conviction for an offense that under the laws of this state would disqualify you from having unsupervised access to children or individuals with a developmental disabilities in any home or facility.

(2) If you are convicted of one of the crimes listed in WAC 388-06-0170 (1)(a) through (e) you will not be able to:

(a) Receive a license to provide care to children;

(b) Be approved for adoption of a child;

(c) Be a contractor;

(d) Be employed by a licensed agency or contractor, if you will have unsupervised access to children or to individuals with a developmental disability;

(e) Volunteer or participate as an intern in a home or facility that offers care to children or to individuals with a developmental disability; or

(f) Provide any type of care to children or to individuals with a developmental disability, if the care is funded by the state.

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(a) Any physical assault not included in WAC 388-06-0170;

(b) Any sex offense not included in WAC 388-06-0170;

(c) Any felony conviction not included in WAC 388-06-0170; or

(d) Felony violation of the following drug-related crimes:

(i) The Imitation Controlled Substances Act (for substances that are falsely represented as controlled substances (see chapter 69.52 RCW));

(ii) The Legend Drug Act (prescription drugs, see chapter 69.41 RCW);

(iii) The Precursor Drug Act (substances used in making controlled substances, see chapter 69.43 RCW);

(iv) The Uniform Controlled Substances Act (illegal drugs or substances, see chapter 69.50 RCW);or

(v) Unlawfully manufacturing, delivering or possessing a controlled substance with intent to deliver, or unlawfully using a building for drug purposes.

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(a) If the conviction for any crime listed in WAC 388-06-0180 occurred more than five years ago; or

(b) If the conviction was for a crime other than those listed in WAC 388-06-0170 or 388-06-0180.

(2) In both of these situations, DSHS must review your background to determine your character, suitability, and competence to have unsupervised access to children or individuals with a developmental disability. In this review, DSHS must consider the following factors:

(a) The amount of time that has passed since you were convicted;

(b) The seriousness of the crime that led to the conviction;

(c) The number and types of other convictions in your background;

(d) The amount of time that has passed since you were convicted;

(e) Your age at the time of conviction;

(f) Documentation indicating you have successfully completed all court-ordered programs and restitution;

(g) Your behavior since the conviction; and

(h) The vulnerability of those that would be under your care.

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(2) You may reapply for a license, contract, certification, or approval to have unsupervised access to children or to individuals with a developmental disability by providing proof to the department that the charge against you has been dropped or that you were acquitted.

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(2) If you have requested a contract or approval for unsupervised access to children or to individuals with a developmental disability, the department will notify you, your prospective employer, or your supervisor.

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(2) If the department sends you a notice of disqualification, you will not receive a license, contract, certification, or be authorized to have unsupervised access to children or to individuals with a developmental disability.

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(2) Prospective volunteers, interns, contractors, or those seeking certification do not have the right to appeal the department's decision to deny authorization for unsupervised access to children and to individuals with a developmental disability.

(3) The employer or prospective employer cannot contest the department's decision on your behalf.

(4) The administrative hearing will take place before an administrative law judge employed by the office of administrative hearings (chapter 34.05 RCW).

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(a) You are disqualified; or

(b) You have not been disqualified by the background check.

(2) The department will follow laws related to the release of criminal history records (chapter 10.97 and 43.43 RCW) and public disclosure (chapter 42.17 RCW) when releasing any information.

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(a) Make the request in writing to the department; and

(b) Offer proof of identity, such as picture identification.

(2) A copy of your WSP criminal background check results may also be obtained from the Washington State Patrol (chapter 10.97 RCW).

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     The following sections of the Washington Administrative Code are repealed:

WAC 388-330-010	Purpose and authority.
WAC 388-330-020	Scope.
WAC 388-330-030	Application of inquiry findings.
WAC 388-330-035	Appeal of disqualification.
WAC 388-330-040	Inquiry form to be submitted -- Time requirements.
WAC 388-330-050	Release of information.
WAC 388-330-060	Sanctions for noncompliance.

Washington State Code Reviser's Office