(1) Where the department is required to screen a long-term care worker, contracted provider, or licensee through a background check to determine whether the person has a history that would disqualify the person from having unsupervised access to, working with, or providing supervision, care, or treatment to vulnerable adults or children, the department may not automatically disqualify a person on the basis of a criminal record that includes a conviction of any of the following crimes once the specified amount of time has passed for the particular crime:

(a) Selling cannabis to a person under RCW 69.50.401 after three years or more have passed between the most recent conviction and the date the background check is processed;

(b) Theft in the first degree under RCW 9A.56.030 after 10 years or more have passed between the most recent conviction and the date the background check is processed;

(c) Robbery in the second degree under RCW 9A.56.210 after five years or more have passed between the most recent conviction and the date the background check is processed;

(d) Extortion in the second degree under RCW 9A.56.130 after five years or more have passed between the most recent conviction and the date the background check is processed;

(e) Assault in the second degree under RCW 9A.36.021 after five years or more have passed between the most recent conviction and the date the background check is processed; and

(f) Assault in the third degree under RCW 9A.36.031 after five years or more have passed between the most recent conviction and the date the background check is processed.

(2) The provisions of subsection (1) of this section do not apply where the department is performing background checks for the department of children, youth, and families.

(3) The provisions of subsection (1) of this section do not apply to department employees or applicants for department positions except for positions in the state-operated community residential program.

(4) Notwithstanding subsection (1) of this section, a long-term care worker, contracted provider, or licensee may not provide, or be paid to provide, care to children or vulnerable adults under the medicare or medicaid programs if the worker is excluded from participating in those programs by federal law.

(5) The department or an authorized entity, when conducting a character, competence, and suitability review for the purpose of hiring, licensing, certifying, contracting with, permitting, or continuing to permit a person to be employed in any position caring for or having unsupervised access to vulnerable adults or children, may, in its sole discretion, determine whether to consider any of the convictions identified in subsection (1) of this section. If the department or a consumer directed employer as defined in RCW 74.39A.009 determines that an individual with any of the convictions identified in subsection (1) of this section is qualified to provide services to a department client as an individual provider as defined in RCW 74.39A.240, the department or the consumer directed employer must provide the client, and their guardian if any, with the results of the state background check for their determination of character, suitability, and competence of the individual before the individual begins providing services. The department or an authorized entity, when conducting a character, competence, and suitability review for the purpose of hiring, licensing, certifying, contracting with, permitting, or continuing to permit a person to be employed in any position caring for or having unsupervised access to vulnerable adults or children, has a rebuttable presumption that its exercise of discretion under this section or the refusal to exercise such discretion was appropriate. This subsection does not create a duty for the department to conduct a character, competence, and suitability review.

(6)(a) An employer or an authorized entity shall not conduct a character, competence, and suitability review for individual providers and home care agency providers, based on a name and date of birth or fingerprint-based background check result, when:

(i) The employer or authorized entity has already conducted a character, competence, and suitability review for the individual provider or home care agency provider for a previously reviewed nonautomatically disqualifying conviction, pending charge, or negative action found during a previous background check, for which the employer or authorized entity has previously conducted a character, competence, and suitability review; or

(ii) It is known to the employer or authorized entity that more than 10 years have passed since the last nonautomatically disqualifying conviction or negative action against the individual provider or home care agency provider.

(b) The department shall develop rules to establish standards for conducting character, competence, and suitability reviews under this subsection (6), including parameters to prioritize the safety of vulnerable adults and minors, clients' rights regarding individual and home care agency providers' background check results and character, competence, and suitability reviews, and an equitable review process for individual providers and home care agency providers.

(7)(a) Individual providers and home care agency providers subject to and awaiting a character, competence, and suitability review may work for up to 30 days before the character, competence, and suitability review is completed, provided that their background check did not include any automatically disqualifying conviction, crime, negative action, or pending charge, and the employer has not completed the character, competence, and suitability review and determined the home care agency provider or individual provider unable to work.

(b)(i) Prior to the provision of any care services by an individual provider or home care agency provider during the 30-day temporary practice period established in (a) of this subsection, the parent or guardian of the minor, the vulnerable adult, or the guardian of the vulnerable adult must be:

(A) Notified in writing that the character, competence, and suitability review for the individual provider or home care agency provider has not been completed; and

(B) Provided with an opportunity to decline the receipt of care services from the individual provider or home care agency provider and an explanation of the procedure for declining the receipt of care.

(ii) The notice requirement of this subsection does not apply to any home care agency provider that has been employed by the same employer since the previous name and date of birth background check or fingerprint-based background check was conducted.

(8) For the purposes of the [this] section:

(a) "Authorized entity" means a service provider, licensee, contractor, or other public or private agency that:

(i) Is required to conduct background checks; and

(ii) Is authorized to conduct background checks through the department's background check central unit.

(b) "Character, competence, and suitability review" means a review process that the employer or an authorized entity uses to decide whether a person has the character, competence, and suitability to work in a position that may have unsupervised access to minors or vulnerable adults.

(c) "Contracted provider" means a provider, and its employees, contracted with the department or an area agency on aging to provide services to department clients under programs under chapter 74.09, 74.39, 74.39A, or 71A.12 RCW. "Contracted provider" includes area agencies on aging and their subcontractors who provide case management.

(d) "Fingerprint-based background check" means a search of in-state criminal history records through the Washington state patrol and national criminal history records through the federal bureau of investigation.

(e) "Home care agency provider" means a long-term care worker paid by a home care agency, as described in RCW 43.20A.710(1)(b).

(f) "Individual provider" has the same meaning as in RCW 74.39A.240.

(g) "Licensee" means a nonstate facility or setting that is licensed or certified, or has applied to be licensed or certified, by the department and includes the licensee and its employees.

(h) "Managing employer" has the same meaning as in RCW 74.39A.009.

(i) "Name and date of birth background check" means a search of Washington state criminal history and negative action records using the applicant's name and date of birth conducted by the department's background check central unit.

(j) "Nonautomatically disqualifying" means, when used in reference to a conviction, pending charge, or negative action, that the conviction, pending charge, or negative action is one other than a permanently disqualifying conviction, permanently disqualifying negative action, or a time-limited permanently disqualifying conviction or negative action after the defined amount of time has passed, as described in RCW 43.43.842 and 43.20A.710(5), and related department rules.

Explanatory statement—2023 c 470: See note following RCW 10.99.030.

Rules—2021 c 219: "The department of social and health services and the department of health may adopt rules to implement this act." [ 2021 c 219 s 8.]

Conflict with federal requirements—2021 c 219: "If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state." [ 2021 c 219 s 9.]