Washington caregiver background checks: DSHS first, then the State Patrol every two years

Two sets of rules, one process

DOH’s licensing rule requires policies on "Criminal history background checks and disclosure statements for personnel, contractors, volunteers, students, and any other individual associated with the licensee having direct contact with children under sixteen years of age, people with developmental disabilities or vulnerable persons according to RCW 43.43.830 through 43.43.842", and adds that the checks are processed through the Washington State Patrol (WSP), the disclosure statements are approved by DOH, and both are renewed within two years of the previous check (WAC 246-335-425(6)(a)-(c)).

The long-term care law says "All long-term care workers shall be screened through state and federal background checks in a uniform and timely manner to verify that they do not have a history that would disqualify them from working with vulnerable persons." For workers hired on or after January 7, 2012, that includes an FBI fingerprint check, and DSHS may not pass its cost on to the workers or their employers (RCW 74.39A.056(1)).

DOH’s guidance joins the two. Home care agencies run the first check at hire through DSHS’s Background Check Central Unit (BCCU) and the two-year rechecks through WSP, and "processing background checks through the BCCU satisfies the requirement in WAC 246-335-425(6)." (DOH, Updated Rules). DOH adds that BCCU is required to provide only the initial checks for long-term care workers and certified home care aides at no charge to the agency (DOH, Updated Rules), and DSHS says it pays for background checks for all long-term care workers (DSHS, Background Checks). An agency with a DSHS contract runs every check, first and later, through BCCU under its contract (DOH, Updated Rules). This page is about agencies without one, which includes every newly licensed agency: DOH’s instructions say "Contracts are not available to newly licensed home care agencies." (DOH 505-053).

Character, competence and suitability decisions

DOH’s rule requires policies that describe a "Character, competence, and suitability determination conducted for personnel, contractors, volunteers, and students whose background check results reveal nondisqualifying convictions, pending charges, or negative actions" (WAC 246-335-425(7)). The factors include, but are not limited to:

• whether there is a reasonable, good faith belief that the person would be unable to meet clients’ care needs;
• how vulnerable the clients in their care are;
• their behavior since the conviction, charge, negative action or other adverse behavior;
• any pattern of offenses or behavior that may put clients at risk;
• how many years have passed;
• whether they disclosed it themselves; and
• other health and safety concerns (WAC 246-335-425(7)(a)-(g)).

DSHS gives two examples: a worker who would drive the client and has multiple DUIs, and a worker with recent theft convictions who would work for a client with dementia (DSHS, CC&S Review). It also says "The decision as to whether the applicant/employee may or may not have unsupervised access to minors or vulnerable adults must be documented as part of the CC&S review." Once the form is completed, DSHS says to keep it under your own program rules: "Please do not submit a copy to BCCU." (DSHS, CC&S Review). And "A CC&S determination can never be used to allow a provider to work when the individual has automatically Disqualifying" convictions, pending charges or negative actions (DSHS, CC&S Review). DSHS’s page links the words "automatically Disqualifying" to its own list, WAC 388-113-0020, not to the statute DOH’s rule names.

Your decision does not bind DOH: although an agency may decide a worker is suitable, "the department has the final authority to deny, revoke, modify, or suspend any professional credential it issues based on application and criminal background check information." (WAC 246-335-425(7)(h)). That includes a home care aide certification.

CareRulebook’s manual (Policy 4.4) has the administrator talk to the person before deciding, weigh each factor in writing, and choose between unsupervised access, access with written conditions (for example, no driving clients) or no unsupervised access, with the alternate administrator deciding when the administrator is not independent. The conditions option and the conversation are the manual’s procedure, not rule text.

The 120-day provisional period

The statute says "A long-term care worker who is not disqualified by the state background check can work and have unsupervised access pending the results of the federal bureau of investigation fingerprint background check as allowed by rules adopted by the department." (RCW 74.39A.056(1)(b)(ii)). For private agencies, DSHS puts it this way:

• "The HCA will review the applicant’s results and determine if the applicant can have unsupervised access to vulnerable adults. If the HCA decides to hire the applicant, he/she can be hired for a 120-day provisional hire period pending fingerprint results." (DSHS, Private Home Care Agencies)
• "The applicant’s fingerprint results MUST be received by the HCA within 120-days of hire- no exceptions. If they are not, the applicant will not be able to work unsupervised past that 120-day deadline." (DSHS, Private Home Care Agencies)

DSHS’s own rule for its programs allows the 120 days when the person is not disqualified by the name and date of birth check and a fingerprint appointment has been scheduled (WAC 388-113-0109). "Unsupervised" means not in the presence of another employee or volunteer of the agency, or of the client’s relative or guardian (RCW 43.43.830(18)).

Rejected prints do not stop the clock. The State Patrol may reject fingerprints more than once, and the FBI may reject them twice before it runs only a national name and date of birth check; DSHS says to book a new appointment right away (DSHS, Private Home Care Agencies). DSHS’s 120 days have no stated exception.

When day one is. DSHS says "within 120-days of hire" and does not define hire on that page. CareRulebook’s manual counts from the caregiver’s start date with the agency, not the "date of hire" used for training deadlines (which can be earlier), and from day 121 has a fully checked worker stay with them, or takes them off client visits, until the result arrives. That is the manual’s reading.

Rechecks every two years, through the State Patrol

The rule says "All criminal history background checks and disclosure statements required under this chapter must be renewed within two years from the date of the previous check" (WAC 246-335-425(6)(c)), so each recheck comes with a new disclosure statement. DOH’s guidance sends the two-year rechecks through WSP (DOH, Updated Rules), and for a State Patrol check "the business or organization shall pay such reasonable fee for the records check as the state patrol may require under RCW 43.43.838." (RCW 43.43.834(3)). DOH’s page links the State Patrol to its online WATCH service.

• Fingerprints are not repeated every two years. A home care agency provider completes a fingerprint check at initial hire, when federal law requires it, or when the employer documents in writing a reasonable, good faith belief that one is needed because of potential new findings. A worker rehired by the same employer who has not lived outside Washington since their last fingerprint check need not repeat it at hire (RCW 74.39A.056(1)(c)).
• DOH can ask for more. DOH may require new checks and disclosure statements for anyone associated with the agency if it has reason to believe an offense listed in RCW 43.43.830 has occurred since the last check (WAC 246-335-340(6)).
• What the surveyor’s tool lists. DOH’s 2018 personnel survey tool has three background items under tag Z0655: the initial WSP check, the subsequent WSP check every two years, and the disclosure statement (DOH 655-014). Its "initial WSP" wording differs from DOH’s guidance that a home care agency’s first check goes through BCCU. Our reading: keep the BCCU result as the initial check, and ask DOH if a surveyor raises it.

The administrator and the supervisor: DOH’s own checks

DOH’s application rule says "For home care agencies, copies are required for the administrator and the supervisor of direct care services": a State Patrol check and a DOH disclosure statement for each, obtained within three months of the application date (WAC 246-335-320(2)(d)). Each renewal includes "Copies of the most current criminal history background checks and disclosure statements for the administrator, director of clinical services, or supervisor of direct care services" (WAC 246-335-325(4)). The application also asks you to name a primary account administrator, who receives DSHS background check results securely (DOH 505-051).

A new administrator or supervisor is one of the changes you tell DOH about within 30 days (WAC 246-335-335(5)). CareRulebook’s manual has the new person’s checks done before they start.

Records

Each personnel file holds "Evidence of initial and subsequent criminal history background checks and disclosure statements according to RCW 43.43.830 through 43.43.842 and this chapter" (WAC 246-335-430(6)). Give the worker a copy of each result within 10 days of receiving it: the statute says so for State Patrol results (RCW 43.43.834(4)) and DSHS’s instructions say so for BCCU results (DSHS, Background Checks). "The business or organization shall use this record only in making the initial employment or engagement decision." (RCW 43.43.834(5))

We found no period for keeping personnel records in chapter 246-335 WAC. CareRulebook’s manual keeps results, disclosure statements and determinations in a confidential background check section of each personnel file that only the administrator and the alternate can open, and keeps each file for three years after the person leaves (Policy 4.8). Both are the manual’s choices, not rule text.