WSR 17-22-003

EMERGENCY RULES

SUPERINTENDENT OF

PUBLIC INSTRUCTION

[Filed October 18, 2017, 1:07 p.m., effective October 18, 2017, 1:07 p.m.]

Effective Date of Rule: Immediately upon filing.

Purpose: SSB 5605 (2017) made several changes to state laws governing the office of superintendent of public instruction's (OSPI) authority to perform criminal background checks for individuals who work in schools. Those changes become effective on October 19, 2017. The purpose of this emergency rule is to align OSPI's rules for accessing fingerprint criminal background records to the new statutory requirements.

Citation of Rules Affected by this Order: New WAC 392-300-022 and 392-300-024; and amending WAC 392-300-001, 392-300-005, 392-300-010, 392-300-015, 392-300-020, 392-300-025, 392-300-030, 392-300-035, 392-300-040, 392-300-045, 392-300-050, 392-300-055, 392-300-060, and 392-300-070.

Statutory Authority for Adoption: RCW 28A.400.305.

Other Authority: SSB 5605 (2017).

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: Section 1 of SSB 5605 amended RCW 28A.400.303 (record checks for employees) and gave school districts and other educational agencies the authority to fingerprint any prospective volunteer who will have regularly scheduled unsupervised access to children under eighteen years of age or developmentally disabled, during the course of his or her involvement with the school or organization under certain circumstances. Section 1 also described OSPI's authority to impose fees for background checks. Immediate adoption of these rule amendments is necessary for OSPI to provide criminal background checks to school districts when SSB 5605 becomes effective, so as to preserve the safety and welfare of children and developmentally disabled adults in schools.

A preproposal statement of inquiry related to permanently revising these rules was filed on October 18, 2017.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 2, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 13, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: October 18, 2017.

Chris P. S. Reykdal

State Superintendent

of Public Instruction

AMENDATORY SECTION (Amending WSR 96-17-045, filed 8/19/96, effective 9/19/96)

WAC 392-300-010 Definition—Record check database.

As used in this chapter, "record check database" means the electronic database or printed copy equivalent maintained by the superintendent of public instruction or designee that contains:

(1) The names and other identifiable information of individuals checked under RCW 28A.195.080, 28A.400.303 and 28A.410.090; and

(2) Whether there is any record of arrest and prosecution for the individual.

AMENDATORY SECTION (Amending WSR 07-19-012, filed 9/7/07, effective 10/8/07)

WAC 392-300-015 Definition—District employee.

As used in this chapter, "district employee" shall mean any individual currently employed by or being considered for employment by a school district, a school district contractor, ((the state school for the deaf)) the Washington state center for childhood deafness and hearing loss, the state school for the blind, an educational service district, educational service district contractor, charter school established under chapter 28A.710 RCW, school that is subject of a state tribal education compact under chapter 28A.715 RCW, or a Bureau of Indian Affairs funded school.

NEW SECTION

WAC 392-300-022 Definition—Volunteer.

As used in this chapter, "volunteer" means an individual not employed by a school district, educational service district, the Washington state center for childhood deafness and hearing loss, the state school for the blind, charter schools established under chapter 28A.710 RCW, school that is subject of state tribal education compact under chapter 28A.715 RCW, Bureau of Indian Affairs funded school, approved private schools, and their contractors who will have regularly scheduled unsupervised access to children under eighteen years of age or developmentally disabled persons, during the course of his or her involvement with the school or organization under circumstances where access will or may involve the following:

(1) Groups of five or fewer children under twelve years of age;

(2) Groups of three or fewer children between twelve and eighteen years of age; or

(3) Developmentally disabled persons.

NEW SECTION

WAC 392-300-024 Fees for record checks.

The cost of record checks must include: The fee established by the Washington state patrol and the Federal Bureau of Investigation for the criminal history background checks; a fee paid to the superintendent of public instruction for the cost of processing the criminal history background checks.

AMENDATORY SECTION (Amending WSR 10-17-059, filed 8/12/10, effective 9/12/10)

WAC 392-300-025 Access to record check information by district employee ((or)), applicant, or volunteer.

All district employees ((and)), applicants, and volunteers shall have access to record check information about them maintained by the superintendent of public instruction or designee. Any additional information collected by the superintendent of public instruction or designee as a result of the investigation of any data shall be available for inspection and copying by the district employee ((or)), applicant, or volunteer to whom it pertains during normal office hours in the office where the information is located. ((Information that is gathered as part of an ongoing investigation, shall not be released to the district employee or applicant until the investigation is completed.))

AMENDATORY SECTION (Amending WSR 10-17-059, filed 8/12/10, effective 9/12/10)

WAC 392-300-035 Requests for record check information.

In accordance with the requirements of RCW 42.56.100 that agencies prevent unreasonable invasions of privacy, protect public records from damage or disorganization, and prevent excessive interference with essential functions of the agency, record check information is obtainable by district employees ((or)), applicants, or volunteers to whom it pertains when they comply with the following procedures:

The request shall be made in writing. The district employee ((or)), applicant, or volunteer shall complete, sign and return the request for Background Check Results form located at http://www.k12.wa.us/profpractices/fingerprint. The written request shall be presented to the fingerprint ((records office)) background check unit of the superintendent of public instruction during customary office hours or may be mailed or faxed to the office. The request shall include the following information:

(1) The name of the person requesting the record;

(2) The ((time of day and the)) calendar date on which the request was made;

(3) The nature of the request;

(4) Height, weight and date of birth of individual fingerprinted; and

(5) Social Security number of individual fingerprinted (optional).

AMENDATORY SECTION (Amending WSR 96-17-045, filed 8/19/96, effective 9/19/96)

WAC 392-300-045 Protection of record check information.

Members of the public and agency personnel not processing record check information shall not be permitted access to any criminal record information.

(1) Record check information and a facility for their inspection will be provided by the fingerprint ((record office)) background check unit. Such records shall not be removed from the place designated. Records may be copied pursuant to the provisions of WAC 392-300-040.

(2) All record check information shall be maintained in a secure and private environment in order to protect the confidentiality of all district employees ((or)), applicants, and volunteers.

(3) All employees of the superintendent of public instruction who have access to criminal record information shall undergo record checks by the Washington state patrol and the Federal Bureau of Investigation.

AMENDATORY SECTION (Amending WSR 10-22-054, filed 10/28/10, effective 11/28/10)

WAC 392-300-050 Access to record check database.

School districts, ((the state school for the deaf)) the Washington state center for childhood deafness and hearing loss, the state school for the blind, educational service districts, state tribal education compact schools, Bureau of Indian Affairs funded schools, approved charter schools, authorized employees of approved private schools, colleges and universities shall establish written policies or procedures to determine which employees are authorized to access the database. Access to the superintendent of public instruction's record check database shall be limited to:

(1) Employees of the superintendent of public instruction processing record check information including employees within the fingerprint ((records section)) background check unit, the office of professional practices, the legal services section, the certification section or their equivalents in case of future agency reorganization.

(2) Authorized employees of school districts.

(3) Authorized employees of educational service districts.

(4) Authorized employees of college or universities with ((state board of education)) professional education standards board approved certification programs.

(5) Authorized employees of the ((state school for the deaf)) Washington state center for childhood deafness and hearing loss.

(6) Authorized employees of the state school for the blind.

(7) Authorized employees of Bureau of Indian Affairs funded schools.

(8) Authorized employees of state tribal education compact schools.

(9) Authorized employees of approved private schools.

(((9))) (10) Authorized employees of approved charter schools.

(11) Other authorized individuals as determined by the superintendent of public instruction or designee.

Access to the database will be controlled by a confidential password issued by the superintendent of public instruction.

AMENDATORY SECTION (Amending WSR 07-19-012, filed 9/7/07, effective 10/8/07)

WAC 392-300-055 Prohibition of redissemination of fingerprint record information by educational service districts, ((the state school for the deaf)) the Washington state center for childhood deafness and hearing loss, the state school for the blind, school districts, Bureau of Indian Affairs funded schools, state tribal education compact schools, approved private schools, and approved charter schools.

Fingerprint record information is highly confidential and shall not be redisseminated to any organization or individual by any educational service district, ((state school for the deaf)) the Washington center for childhood deafness and hearing loss, state school for the blind, school district, ((or)) Bureau of Indian Affairs funded school, state tribal education compact schools, approved private schools, or approved charter schools.

AMENDATORY SECTION (Amending WSR 07-19-012, filed 9/7/07, effective 10/8/07)

WAC 392-300-060 Protection of fingerprint record information by educational service districts, ((state school for the deaf)) the Washington center for childhood deafness and hearing loss, state school for the blind, school districts, ((and)) Bureau of Indian Affairs funded schools, state tribal education compact schools, approved private schools, and approved charter schools.

Educational service districts, ((state school for the deaf)) the Washington state center for childhood deafness and hearing loss, state school for the blind, school districts, ((and)) Bureau of Indian Affairs funded schools, state tribal education compact schools, approved private schools, and approved charter schools shall have policies and procedures to:

(1) Protect the confidentiality of fingerprint record information, including the secure location of ((RAP sheets)) criminal history record information (CHRI);

(2) Limit access to authorized personnel processing or requiring fingerprint record information to make employment decisions; and

(3) Prevent the unlawful redissemination of fingerprint record information.

Noncompliance with these provisions may allow for the recovery of civil damages under applicable federal and state statutes.

AMENDATORY SECTION (Amending WSR 10-22-054, filed 10/28/10, effective 11/28/10)

WAC 392-300-070 Private school fingerprint process.

Fingerprinting of subject individuals employed by private schools.

(1) Definitions of private school terms.

(a) "Subject individual" means: Any person, certified or classified employed by a private school or volunteer in a position having regularly scheduled, unsupervised access to children;

(b) "Regularly scheduled, unsupervised access to children" means contact with students that provides the person opportunity and probability for personal communication or touch when not under direct supervision;

(c) "Fee" means the total charges assessed to process fingerprint cards through the Washington state patrol and Federal Bureau of Investigation records check;

(d) "Information to be required" means all information requested by the office of the superintendent of public instruction;

(e) "Conviction((s of crimes)) information" means, notwithstanding any other statutes or Washington administrative rule, ((conviction of a crime listed in WAC 180-86-013, or being under indictment for any of the crimes listed in WAC 180-86-013)) criminal history record information relating to an incident which has led to a conviction or other disposition adverse to the subject;

(f) "Private school" means a school that is approved with the Washington state board of education under chapter 180-90 WAC.

(2) The office of the superintendent of public instruction shall request criminal information from the Washington state patrol and the Federal Bureau of Investigation in the manner prescribed by law. A fee shall be charged for such services.

(3) Upon the private school's submission of the completed fingerprint cards and information form, the office of the superintendent of public instruction shall review the criminal records of subject individual.

(4) OSPI will send conviction information to administrators of approved private schools as allowed under RCW 10.97.050.

(5) The office of the superintendent of public instruction shall assure the destruction of all fingerprint cards, facsimiles or other materials from which fingerprints can be reproduced used by Washington state patrol or Federal Bureau of Investigation.

(6) Only cards and forms approved by the office of the superintendent of public instruction will be accepted. The office of the superintendent of public instruction will hold fingerprint cards on file and notify the private school and/or subject individual when there is no fee, an incorrect fee, when necessary information is missing from the fingerprint cards, or the information form was not received.

(7) The office of the superintendent of public instruction will return to the private school any fingerprint cards that the Washington state patrol or Federal Bureau of Investigation rejects for poor quality prints. The private school will be responsible for having the subject individual submit additional prints as required.

(8) The superintendent's office shall maintain a record of all properly submitted fingerprint cards in the current records database for a period of at least two years. The record shall include at least the following:

(a) Card sequence number;

(b) Name of private school submitting the cards;

(d) Date letter regarding incomplete card was sent to the subject individual with a copy to the private school (only if applicable);

(e) ((Date Washington state patrol received fingerprint cards;

(f))) Date private school was notified of Washington state patrol criminal history record or ((clearance)) lack of record;

(((g))) (f) Date private school was notified of Federal Bureau of Investigation record or lack of record.

((This WAC will remain in effect through June 30, 2011.))