OKDHS.org - OAC 340:110-1-51. Criminal background checks

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340:110-1-51. Criminal background checks

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Revised 10-1-09

(a) Oklahoma State Bureau of Investigation (OSBI) criminal history investigation. Section 404.1 et seq. of Title 10 of the Oklahoma Statutes requires that every child care facility provides to Oklahoma Child Care Services (OCCS) prior to employment, a completed OSBI criminal history investigation conducted within the last 12 months for: • 1

(1) any person making application to establish or operate a residential child care facility and child-placing agency;
(2) any person to be employed by a child care facility or child-placing agency, including all caregivers, auxiliary staff, and substitute or assistant caregivers;
(3) others who have unsupervised access to children, such as students, workers, contracted staff, volunteers, or custodians; and • 2
(4) adults, including the provider's spouse or adult children, who live in the child care facility.

(b) Out-of-state criminal history investigations. A criminal history investigation conducted within the last 12 months by the authorized agency in the previous states of residence is also required for persons in (a)(1) - (4) when they have resided in Oklahoma less than three years. • 3

(c) Oklahoma State Courts Network (OSCN) for new facilities. • 4 Prior to the issuance of an initial permit, the facility's owner or director submits a completed Form 07LC096E, Criminal History Review Request, to OCCS licensing records office for completion of OSCN criminal history investigation and receives Form 07LC106E, Criminal History Review Results for: • 5

(1) any person making application to establish or operate a facility;
(2) any person to be employed by a child care facility, including all caregivers, auxiliary staff, and substitute or assistant caregivers; and
(3) adults, including providers' spouses or adult children, who live in the child care facility.

(d) Oklahoma State Courts Network (OSCN) for existing facilities. Facilities permitted or licensed after May 21, 2009 submit a completed Form 07LC096E, Criminal History Review Request, to OCCS licensing records office requesting completion of OSCN criminal history investigation for: • 5

(1) any persons prior to employment at a child care facility, including all caregivers, auxiliary staff, substitute or assistant caregivers; and
(2) persons age 18 years or older prior to their residence in the facility.

(e) Exceptions. OSBI, out-of-state criminal history, and OSCN investigations are not required for:

(1) staff persons who move to a facility or agency operated by the same organization;
(2) contracted staff persons who provide transportation, lessons, or other services, provided facility staff are present with children at all times;
(3) parent volunteers who transport children on an irregular basis; and
(4) provider's children who become adults, age 18, during continuous residence at the licensed facility.

(f) OKDHS background checks. Prior to permission to operate, computer checks to identify prior involvement with OKDHS are completed by licensing staff on owners and program directors who sign the application. • 6

(1) When there has been prior involvement with Child Welfare, the licensing staff reviews the case for information regarding the person's ability to meet licensing requirements. • 7 Other cases are reviewed only if concerns exist.
(2) When the provider's medical information is confidential or concerns exist, the licensing staff may request information from the provider by requiring the provider to sign OKDHS Form 08HI003E, Authorization to Disclose Medical Records. • 8

(g) Authorized agencies. Criminal history investigations are acceptable only when conducted by:

(1) the Oklahoma State Bureau of Investigation (OSBI); and
(2) the authorized agency in the previous states of residence if the person has resided in Oklahoma for less than three years.

(h) Sex Offender and Mary Rippy Violent Crime Offenders Registries. According to Section 404.1 of Title 10 and Section 589 of Title 57 of the Oklahoma Statutes, it is unlawful for any person who is required to register pursuant to the Sex Offender Registration Act or the Mary Rippy Violent Crime Offenders Registration Act to work with or provide services to children, to live in a child care facility, or to be employed or contracted by the facility to care for children. If it is determined that a facility has violated this Statute, the Oklahoma Department of Human Services (OKDHS) may pursue:

(1) an Emergency Order;
(2) revocation of the license or denial of the application for license;
(3) an injunction; and
(4) referral for criminal proceedings.

(i) Documentation and procedure. The licensing staff provides information and the criminal history investigation request forms to licensees and persons interested in becoming licensed.

(1) Facility provides completed OSBI and out-of-state criminal background investigations and Form 07LC096E, Criminal History Review Request, to OCCS licensing records office.
(2) Review of submitted information and OSCN criminal history search is conducted by OCCS licensing records office and results returned to the facility on Form 07LC106E, Criminal History Review Results, by the close of the next OKDHS business day for new facilities and by the close of the fifth OKDHS business day for existing facilities. • 9
(3) Hospitals contracting with the Oklahoma Health Care Authority are exempt from submitting a criminal history review request to OCCS licensing records office. Documentation of all criminal history records searches is maintained at the hospital and is available for review by OCCS.

(j) Waiver. The prohibition for a person with specified criminal history as referenced in (a), (b), and (c) of this Section to be employed or reside in a licensed facility may be waived if requested on Form 07LC089E, Child Care Waiver Request, and signed by the facility's owner or director. • 10

(1) Licensing staff completes and submits Form 07LC071E, Licensing Services Waiver Referral, to OCCS. A waiver is not requested or granted to any person who:
- (A) has been convicted of a sex offense pursuant to the Sex Offender Registration Act or the Mary Rippy Violent Offenders Registration Act; or
- (B) whose sentence has not been completed for any of the specified crimes.
(2) The decision to grant a waiver is made by the waiver review committee consisting of three OCCS staff. The decision is based on documentation indicating the health, safety, and well-being of children is not endangered and must be approved unanimously by the committee. • 11 Criteria considered by the committee include the:
- (A) type of crime or offense for which the person was convicted or disposition that includes a plea of guilty or nolo contendere or a finding made;
- (B) nature of the offense(s);
- (C) age of the person at the time of the offense(s);
- (D) circumstances surrounding commission of the offense(s) that demonstrate whether it is likely that the person will re-offend;
- (E) number of offenses for which the person was convicted or findings of guilt made;
- (F) length of time that has elapsed since the last conviction or disposition that includes a plea of guilty or nolo contendere or a finding made;
- (G) relationship of the offense(s) and the person's ability to care for children;
- (H) evidence of rehabilitation or education activities such as counseling since the offense was committed;
- (I) statement from the person who has the criminal history; and
- (J) opinions of community members concerning the person in question documented on Form 07LC090E, Waiver Reference, which includes name, address, and phone number of the individual providing the opinion. • 12
(3) A waiver may be rescinded at the discretion of the committee.
(4) The programs manager notifies the facility of the decision in writing.
(5) Licensing staff monitors any additional instructions made to the program and verifies the waiver notice is posted in the facility.

INSTRUCTIONS TO STAFF 340:110-1-51

Revised 10-01-09

1.   A report obtained from an Indian tribe, private agency, or Oklahoma Department of Human Services (OKDHS) program such as foster care, is acceptable only with verification that information was obtained from the Oklahoma State Bureau of Investigation (OSBI) within the last 12 months.

2. Local licensing staff verify compliance with background investigations for these individuals and:

(1) reviews each criminal history report, including out-of-state reports, and maintains a copy for the licensing record;

(2) requests a copy of the disposition from the facility if a report includes a charge without a disposition for an offense listed in licensing requirements;

(3) advises the owner or director that the person does not meet licensing requirements if a report includes a conviction or disposition that includes a plea of guilty or nolo contendere or a pending charge for an offense listed in licensing requirements. Orders of expungement are staffed with the licensing supervisor; and

(4) may request a copy of police reports if the report contains information regarding behavior that may endanger children.

3.  The licensing staff documents on Form 07LC080E, Licensing Services Supplemental Information, if a criminal history report cannot be obtained from the previous state of residence due to laws in that state that restrict the release of such reports. Licensing staff instructs the individual to contact the local law enforcement agency for the previous residence to obtain, at minimum, a local criminal history investigation. If a sex offender registry check is not available from the previous state of residence, this is documented on Form 07LC080E.

4.  The term new facility applies to:

(1) a first six month permit for a facility;

(2) a first six month permit for change of ownership; or

(3) a facility placed directly on a license. Examples include, but are not limited to:

(A) a facility is reopened per OAC 340:110-1-47; or

(B) changes of ownership which are changes in business entity only.

5.  Oklahoma Child Care Services (OCCS) licensing records office conducts an OSCN search. A docket search of OSCN includes Oklahoma Court Information System (OCIS) and non-OCIS counties. The court clerk in non-reporting counties where a person resides or is employed is contacted. Information received from a court clerk is documented on Form 07LC080E.

6.  The check is conducted by name, date of birth, and Social Security number. Documentation of the findings is filed in the confidential section of the case record. A computer check is not completed on the facility director if the facility director is not the owner of the facility.

7.  Information from the Child Welfare case is discussed with the programs manager, statewide licensing coordinator, or designee. If concerns exist, the programs manager and statewide licensing coordinator are consulted to assist in developing a course of action.

8.   If the provider signs Form 08HI003E, Authorization to Disclose Medical Records, a letter may then be sent to the doctor asking if the provider is able to provide care for the number and ages of children in care and including but not limited to type of medication, length of treatment, hospitalizations, or any behavior that would place children at risk.

9.  Form 07LC096E, Criminal History Review Request, with submitted documentation including any additional information obtained is returned to the facility. A copy of all information is maintained at OCCS licensing records office. Local licensing staff are responsible for verifying compliance with Form 07LC096E for the most recent staff hired during routine monitoring visits.

10. Forms 07LC087E, Waiver Notification, 07LC089E, Child Waiver Request, and 07LC090E, Waiver Reference, may remain in the public file unless they contain information regarding a juvenile.

11.The members of the committee are the statewide licensing coordinator or designee, assistant licensing coordinator, and the residential programs manager or designee.

12. If received, the opinions of community members are verified by telephone contact with the individual providing the opinion. For employees or household members, these references are verified by the person requesting the waiver. References on all other waiver requests are verified by the licensing staff.

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