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340:100-3-39. Pre-employment screening for community services workers
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Revised 5-15-09
(a) Legal basis. Section 1025.1 et seq. of Title 56 of the Oklahoma Statutes (56 O.S. § 1025.1 et seq.) requires Oklahoma Department of Human Services (OKDHS) to establish and maintain a registry listing the names of community services workers against whom a final investigative finding of maltreatment involving a service recipient, has been made by OKDHS or an administrative law judge. Providers of community services:
(b) Applicability. The requirements set forth in OAC 340:100‑3‑39 apply to all community services providers who contract with, or are licensed or funded by OKDHS or who contract with Oklahoma Health Care Authority (OHCA) to provide residential or employment services to service recipients through Developmental Disabilities Services Division (DDSD) Home and Community-Based Services (HCBS) Waivers.
(c) Definitions. The following words and terms when used in this Section shall have the following meanings, unless the context clearly indicates otherwise:
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(1) "Community services provider" means a community-based program, corporation, or person who contracts with, or is licensed or funded by OKDHS or who contracts with OHCA to provide residential or employment services to a service recipient through DDSD HCBS Waivers.
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(2) "Community services worker" means any person who:
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(A) contracts with the OHCA to provide specialized foster care, habilitation training specialist services, or homemaker services to persons with developmental disabilities; or
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(B) is not a licensed health professional; and
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(C) employed by or under contract with a community services provider to provide for compensation or as a volunteer:
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(3) "Good cause" means failure of a community services worker to make a timely response for reconsideration of a confirmed finding of maltreatment due to:
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(4) "Health related services" means assistance provided to a service recipient that includes, but is not limited to:
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(A) personal hygiene;
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(B) transferring;
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(C) range of motion;
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(D) supervision or assistance in activities of daily living; or
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(E) basic nursing care, such as:
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(i) taking temperature, pulse, or respiration;
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(ii) positioning;
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(iii) incontinent care; or
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(iv) identification of signs and symptoms of disease; and
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(F) certain tasks that may be performed as basic nursing care by community services workers and require appropriate training provided or approved by OKDHS, written agreement by the service recipient's personal support team, and the primary care physician's acknowledgement and specific order related to the task. Under such circumstances, basic nursing care may include, but need not be limited to:
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(i) nutrition, including meals by gastrostomy tube or jejeunostomy tube;
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(ii) blood glucose monitoring;
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(iii) ostomy bag care;
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(iv) oral suctioning; and
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(v) administration of oral metered dose inhalers and nebulizers.
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(5) "Supportive assistance" means the service rendered that is sufficient to enable the service recipient to meet an adequate level of daily living including, but not limited to:
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(A) training;
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(B) supervision;
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(C) assistance in housekeeping;
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(D) assistance in meal preparation; and
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(E) assistance in personal care and activities of daily living necessary for the health and comfort of the service recipient.
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(6) "Maltreatment" means abuse, verbal abuse, sexual abuse, neglect, financial neglect, exploitation, or sexual exploitation of vulnerable adults as defined in Section 10-103 of Title 43A of the Oklahoma Statutes; or abuse, neglect, sexual abuse, or sexual exploitation of children as defined in Section 7102 of Title 10 of the Oklahoma Statutes. -
(7) "Specialized foster care" means the home and community-based service as defined in the 1915(c) waiver approved by the Centers for Medicare and Medicaid Services.
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(8) "Habilitation training specialist services" means the home and community-based service as defined in the 1915(c) waiver approved by the Centers for Medicare and Medicaid Services.
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(9) "Homemaker services" means the home and community-based service as defined in the 1915(c) waiver approved by the Centers for Medicare and Medicaid Services.
(d) Duties of OKDHS. When the OHCA contracts directly with a specialized foster care provider, habilitation training specialist services provider, or a homemaker services provider to provide services through the DDSD HCBS waivers, OKDHS follows the screening procedures required for community services providers.
(e) Duties of community services providers.
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(1) Provider pre-employment responsibilities. Each community services provider conducts a search of criminal history records and the Registry for each potential employee who is not a licensed health professional and who will provide, for compensation or as a volunteer, on a full-time or part-time basis, health-related services, training, or supportive assistance to a service recipient. This requirement also applies to applicants for supervisory, management, or administrative positions, when the applicant is to provide, on a full-time or part-time basis, supportive assistance, health-related services, or training to a service recipient. The provider:
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(A) uses Form 06PE039E, Employment Application Supplement, to formally advise each applicant of the:
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(i) required search of criminal history records and the Registry;
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(ii) potential consequences of background checks, including the provider's prohibition from hiring any person whose name appears in the Registry or who has a prohibited criminal conviction, per OAC 340:100-3-39(e); -
(iii) requirement that the community services worker's employment must be terminated if his or her name appears in the Registry, even though the applicant's name may not have appeared in the Registry at the time of application or hiring;
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(iv) requirement to report all current and previous employers who provide services to children or to vulnerable adults; and
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(v) fact that giving false information regarding current and previous employers results in termination of employment.
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(B) contacts all previous employers engaged in delivery of services to children or vulnerable adults, defined in 43A O.S. § 10-103, requesting information on investigations or findings of maltreatment; -
(C) when contacted by a potential employer, gives accurate information regarding investigations of maltreatment that were reported to Adult Protective Services (APS), Office of Client Advocacy (OCA), or Child Protective Services (CPS) and are pending or confirmed;
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(D) requests a criminal history records search from Oklahoma State Bureau of Investigation (OSBI) prior to employment of, or offer of employment to, any applicant, except as provided in OAC 340:100-3-39(d)(1).
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(i) The provider must secure the criminal history records search and cannot accept documents provided by the applicant.
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(ii) If the provider uses a contractor to secure the criminal history records search, the contractor attaches the document received from OSBI to any report given to the provider;
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(E) investigates discrepancies in the criminal record information received from OSBI.
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(i) If discrepancies exist between criminal history information and information reported by the applicant, such as convictions not reported by the applicant, the provider secures from the applicant a written explanation of the discrepancy that is then sent to OKDHS if the provider is requesting a waiver per OAC 340:100-3-39(e).
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(ii) If OSBI information reports inconclusive data, such as reporting the case was referred to another law enforcement agency, the provider secures documentary evidence of the outcome;
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(F) may choose to make an offer of temporary employment to an applicant, pending the results of the OSBI criminal history records search.
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(i) The provider submits a request for a criminal history records search to OSBI within 72 hours of the applicant's acceptance of any offer of temporary employment.
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(ii) Temporary employment of any applicant does not extend longer than the time necessary to receive the results of the criminal history records search and registry review, not to exceed 30 calendar days; and
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(G) when the OSBI search reveals that the applicant has been convicted, pled guilty, or pled nolo contendere to misdemeanor assault and battery or a felony, the provider does not hire or contract with the person and immediately cancels any temporary employment arrangement. If a waiver is requested per OAC 340:100-3-39(e), the community services worker is relieved of responsibilities working directly with service recipients until the provider receives a written decision by OKDHS.
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(2) Provider duties during an investigation. Upon receiving notification of an investigation of an allegation of maltreatment involving an employee, the provider chief executive officer or designee:
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(A) ensures protection and the health and safety for any and all persons receiving services from the provider;
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(B) notifies the community services worker, in a face-to-face conference, of the upcoming investigation; and
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(C) explains the rights of the community services worker, using Form 06PE059E, Rights and Responsibilities of Community Services Worker in an investigation of maltreatment, before the community services worker is interviewed by the investigator, including:
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(i) that notice of the outcome of the investigation is mailed to the community services worker's address given on Form 06PE059E; and
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(ii) the community services worker's right to request due process in accordance with procedures given in the notice mailed.
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(3) Provider responsibilities regarding due process procedures. If an employee of a provider is called as a witness in a hearing, the provider:
(f) Waiver of requirement not to hire based on criminal history records search. If the criminal history records search reveals a criminal background the provider believes will not place a service recipient at risk of harm and will not affect the quality of services provided by the applicant, the provider may request a waiver from OKDHS.
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(1) The provider sends a written request for a waiver to the DDSD director. The request includes:
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(2) A waiver is not granted, under any circumstance, for employment of an applicant who has been convicted of, pled guilty, or pled nolo contendere to:
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(3) No waiver is granted for offenses resulting in a conviction, plea of guilty, or plea of nolo contendere to a felony that occurred less than five calendar years from the date of the request.
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(4) Factors considered in the OKDHS decision to grant or deny a waiver include:
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(A) other convictions of the person;
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(B) responsibility evidenced by the person since conviction;
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(C) time lapse since the person's conviction;
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(D) person's age upon conviction;
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(E) nature and underlying circumstances of the person's offense;
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(F) evidence of efforts made by the person toward rehabilitation, including job training or educational programs in which the person participated;
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(G) person's prior employment record; and
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(H) nature and location of the position the person seeks.
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(5) OKDHS:
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(A) may grant a waiver for applicants who will provide services through DDSD HCBS Waivers only upon concurrence by OHCA; and
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(B) assumes no responsibility for the actions of a person employed by a provider subsequent to a waiver. The provider indemnifies and holds OKDHS harmless for any damages or attorney fees resulting from a claim that an employee of the provider subsequently abused, neglected, exploited, or otherwise injured a service recipient.
(g) Rights of community services worker. During investigation of an allegation of maltreatment, any community services worker who is accused of maltreatment is entitled to:
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(1) be advised of the nature of any allegation against such worker;
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(2) be interviewed by the investigator and allowed to give his or her position in relation to the allegation;
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(3) be advised of the substance of the evidence against him or her prior to making a statement to the investigator. The identity of persons reporting alleged maltreatment is not released during the investigation;
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(4) refuse, without penalty, to take a polygraph examination;
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(5) submit or supplement a written statement relating to the allegation;
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(6) seek and receive advice concerning his or her rights and responsibilities in the investigation and review process; and
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(7) receive notice from OKDHS of the outcome of the investigation. The community services worker:
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(A) provides a correct address to receive notice; and
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(B) is responsible to notify CPS, APS, or OCA, as applicable, of any address change.
(h) Responsibilities of community services worker. Any community services worker who is involved, either as a witness or an accused caretaker, in the investigation of alleged maltreatment has the responsibility to:
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(1) prepare a written incident report;
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(2) be available for scheduled interviews;
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(3) respond fully and truthfully to the investigator's questions. A community services worker who believes that his or her answers to official inquiries concerning alleged maltreatment may incriminate the worker in a criminal prosecution may discontinue the interview for that reason;
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(4) refrain from any action that may interfere with the investigation, including any action that may intimidate, threaten, or harass any person who has or may provide information relating to alleged maltreatment; and
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(5) appear at any hearing as requested by OKDHS per OAC 340:100-3-39(h)(6).
(i) Procedures for notice and due process.
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(1) Determination not to place in Registry. At any time during the notice and due process, OKDHS may determine the placement of a community services worker's name in the Registry is not warranted, despite a confirmed finding of maltreatment by APS, CPS, or OCA, as applicable.
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(A) OKDHS may determine that the community services worker's name will not be placed in the Registry when the wrongful conduct:
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(i) does not warrant placement in the Registry using the clear and convincing evidence standard applicable at the administrative hearing;
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(ii) did not result in, or create a substantial risk of, serious physical or emotional injury to a service recipient; or
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(iii) is not the result of intentional, willful, or reckless disregard for the health or safety of a service recipient.
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(B) When a determination is made that a community services worker's name is not to be placed in the Registry, OKDHS sends a notice to the community services worker informing the worker that his or her name will not be placed in the Registry. A copy of the notice is sent to the community services provider who employed the community services worker at the time of the incident that resulted in the confirmed finding.
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(2) Notification of DDSD. OKDHS divisions responsible for investigating allegations of maltreatment, per OAC 340:2-3, OAC 340:5, or OAC 340:75-3, send reports of investigations to the DDSD director or designee. -
(3) Notification to provider. The OKDHS division responsible for the investigation notifies the provider, or appropriate OKDHS representative, when the investigative report reveals systemic administrative issues regarding:
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(4) Notification to community services worker. OKDHS sends written notice of the results of the investigation to the community services worker alleged to have committed maltreatment. The name of the community services worker who has a confirmed finding of maltreatment is added to the Registry when OKDHS has sent proper notice to the last known address of the community services worker, and the notice was returned as unclaimed or undeliverable. The notice:
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(A) is sent within three working days of receipt by OCA of the OKDHS determination to proceed with the Registry process. If the allegation is ruled out, the provider is also notified;
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(B) is sent by certified mail, return receipt requested, if the investigation resulted in a finding of maltreatment;
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(C) contains a summary of the evidence supporting the finding of maltreatment without identifying the complainant;
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(D) specifies that, if the community services worker desires to contest the finding, he or she submits a detailed written statement with a request that OKDHS issue a reconsideration decision reversing the finding;
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(E) advises the community services worker that a reconsideration decision must be requested in writing, postmarked within ten calendar days of receipt of the notice; and
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(F) notifies the community services worker that failure, absent good cause, to request a reconsideration decision within ten calendar days, as evidenced by the date of his or her signature on the U.S. Postal Service return receipt card:
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(5) Reconsideration decision. If the community services worker submits a timely request for a reconsideration decision, or if OKDHS determines good cause for untimely filing, OKDHS issues a reconsideration decision.
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(A) The reconsideration decision:
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(i) affirms the investigative report;
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(ii) modifies the investigative report;
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(iii) reverses the investigative report; or
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(iv) remands the investigative report for further investigation; and
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(v) is issued within ten working days of receipt of the request or, if applicable, the date of any determination of good cause.
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(I) If the decision is to remand for further investigation, the investigation is completed within 15 working days of the decision to remand.
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(II) Upon completion of the supplemental investigation, OKDHS notifies the community services worker within three working days;
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(vi) states the basis for the determination including, but not limited to, any investigative report, OKDHS records, or provider records deemed relevant;
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(vii) specifically evaluates and comments upon the contents of the community services worker's written request; and
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(viii) is mailed to the community services worker by certified mail return receipt requested, postage prepaid.
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(B) When the reconsideration decision affirms or modifies the investigative report, OKDHS:
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(i) if the community services worker is aggrieved by the decision, notifies the community services worker that he or she may request an administrative hearing;
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(ii) states a written request for hearing must be submitted by the community services worker to OKDHS at a specified address and postmarked within ten calendar days of receipt of the reconsideration decision, unless good cause is established. Receipt is deemed to occur on the date the community services worker signs the U.S. Postal Service return receipt card; and
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(iii) states failure to timely request a hearing, absent a finding of good cause by an administrative law judge:
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(I) results in the reconsideration decision becoming final;
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(II) waives any right to either an administrative hearing or judicial review; and
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(III) authorizes entry of the community services worker's name in the Registry, and disclosure to any person requesting the information per OAC 340:100-3-39(j).
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(6) Notice of hearing. When the community services worker submits a timely written request for hearing, or upon the administrative law judge finding of good cause for a request that was not timely, OKDHS sends a notice of hearing by certified mail, return receipt requested, postage prepaid within ten working days of receipt of the request. The notice is dated and states:
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(A) name of administrative law judge;
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(B) time and date of hearing, that must be held no earlier than 15 calendar days and no later than 60 calendar days after the date of mailing of the notice;
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(C) street and city address, and room number where the hearing will be held;
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(D) failure of the community services worker to attend the hearing, absent a finding of good cause by an administrative law judge:
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(i) results in the reconsideration decision becoming final;
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(ii) waives any right to either an administrative hearing or judicial appeal; and
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(iii) authorizes entry of the community services worker's name in the Registry, and disclosure to any person requesting the information per OAC 340:100‑3‑39(j);
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(E) the community services worker may be represented by an attorney;
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(F) requests by the community services worker or his or her attorney for witnesses, records, or both, relevant to the proceeding must be directed to OKDHS. OKDHS sends requests to the relevant provider, per OAC 340:100‑3‑39(d)(3), persons, and appropriate OKDHS divisions;
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(G) a final proposed list of witnesses and summary of anticipated testimony must be submitted to the administrative law judge designated on the notice of hearing at least ten calendar days prior to any hearing;
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(H) any final decision on the specific persons allowed to testify, the scope of direct testimony and cross-examination, and admissibility of exhibits will be within the sound discretion of the administrative law judge, except all OKDHS and provider records pertaining to a finding of confirmed maltreatment are admissible;
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(I) the community services worker or his or her attorney is allowed to cross examine witnesses called by the OKDHS attorney, who is allowed to cross examine any witnesses called by the community services worker or his or her attorney; and
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(J) although the formal rules of evidence and procedure under Oklahoma law are not controlling, the burden of persuasion and initially coming forward with evidence is on OKDHS through its attorney, and the standard of proof is clear and convincing evidence.
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(7) Hearing.
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(A) The hearing is:
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(B) The administrative law judge affirms, modifies, or reverses the reconsideration decision, or determines the name of the community services worker, who has been confirmed as having engaged in maltreatment, must not be added to the Registry when the act or omission that is the basis for the confirmed finding:
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(i) did not result in, or create a substantial risk of, serious physical or emotional injury to a service recipient; or
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(ii) was not the result of intentional, willful, or reckless disregard for the health or safety of a service recipient.
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(C) A written decision by the administrative law judge affirming, modifying, or reversing the reconsideration decision, or determining, per OAC 340:100‑3‑39(h)(7)(B), the community services worker's name is not to be placed in the Registry:
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(i) is issued within 30 calendar days of the hearing;
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(ii) is mailed to the community services worker by certified mail, return receipt requested, no later than the first working day following the date the decision is signed by the administrative law judge;
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(iii) contains findings of fact and conclusions of law;
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(iv) notifies the community services worker that, if he or she is aggrieved by the decision, a judicial appeal, solely on the administrative record, may be initiated by filing a petition in the Oklahoma district court with jurisdiction within 30 calendar days from the date the decision is signed by the administrative law judge, pursuant to 56 O.S. § 1025.3 and 75 O.S. § 318; and -
(v) states a copy of any petition and summons filed in district court must be served on OKDHS Legal Division.
(j) Disclosure requirements for Registry.
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(1) The Registry information includes, but is not limited to:
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(A) community services worker's:
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(B) date the community services worker's name was placed in the Registry; and
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(C) information on the final investigative finding or administrative law judge finding regarding the community services worker.
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(2) The information disclosed includes only whether the person is listed in the Registry. No other information related to the allegation, investigation, or evidence is disclosed.
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(3) The provider requesting Registry information on an applicant or employing a community services worker alleged to have committed maltreatment is notified when the community services worker's or applicant's name is entered in the Registry. If more than one community services worker is named as an accused caretaker, a separate letter is sent to the provider for each community services worker.
(k) Public access to Registry. Access to the Registry is available to the public through the OKDHS Web site: www.okdhs.org.
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