340:100-3-39. Pre-employment screening for community services workers
(a) Legal basis. Section 1025.1 et seq. of Title 56 of the Oklahoma Statutes (56 O.S. §§1025.1 et seq.) requires Oklahoma 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, was made by OKDHS or an administrative law judge. Providers of community services:
(1) are required to conduct criminal history records and OKDHS Community Services Worker Registry (Registry) searches prior to any community services worker's permanent employment; and
(2) must not hire, contract with, or use as a volunteer, a person whose name is listed in the Registry or who has a criminal background, per Oklahoma Administrative Code (OAC) 340:100-3-39(e)(1)(G).
(b) Applicability. The requirements set forth in OAC 340:100-3-39 apply to all community services providers who contract with, are licensed or funded by OKDHS, or who contract with the Oklahoma Health Care Authority (OHCA) to provide residential or employment services to service recipients through Developmental Disabilities Services (DDS) 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:
(1) "Community services provider" means a community-based program, corporation, or person who contracts with, is licensed or funded by OKDHS, or who contracts with OHCA to provide residential or employment services to a service recipient through DDS HCBS Waivers.
(2) "Community services worker" means any person who:
(A) contracts with OHCA to provide specialized foster care, habilitation training specialist services, or homemaker services to persons with developmental disabilities; or
(B) is not a licensed health professional; and
(C) is employed by, or under contract with a community services provider, for compensation or as a volunteer, to provide:
(i) health-related services;
(ii) training; or
(iii) supportive assistance.
(3) "Good cause" means the failure of a community services worker to make a timely response for reconsideration of a confirmed finding of maltreatment due to:
(A) a death within the community services worker's immediate family;
(B) hospitalization of the community services worker; or
(C) an equally meritorious reason, determined within the sound discretion of the administrative law judge or other OKDHS staff as authorized, per OAC 340:100-3-39 and 340:2-3-39, as applicable, to determine such cause.
(4) "Habilitation training specialist services" means the HCBS as defined in the 1915(c) Waiver approved by the Centers for Medicare and Medicaid Services (CMS).
(5) "Health related services" means assistance provided to a service recipient that includes, but is not limited to:
(A) personal hygiene;
(C) range of motion;
(D) supervision or assistance in activities of daily living; or
(E) basic nursing care, such as:
(i) taking temperature, pulse, or respiration;
(iii) incontinent care; or
(iv) identification of signs and symptoms of disease; and
(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 is not limited to:
(i) nutrition, including meals by gastrostomy tube or jejeunostomy tube;
(ii) blood glucose monitoring;
(iii) ostomy bag care;
(iv) oral suctioning; and
(v) administration of oral metered dose inhalers and nebulizers.
(6) "Homemaker services" means the HCBS as defined in the 1915(c) Waiver approved by CMS.
(7) "Maltreatment" means abuse, verbal abuse, sexual abuse, neglect, financial neglect, exploitation, or sexual exploitation of vulnerable adults, per Section 10-103 of Title 43A of the Oklahoma Statutes (43A O.S. § 10-103); or abuse, neglect, sexual abuse, or sexual exploitation of children, per 10A O.S. § 1-1-105.
(8) "Specialized foster care" means the HCBS as defined in the 1915(c) Waiver approved by the CMS.
(9) "Supportive assistance" means service rendered sufficient to enable the service recipient to meet an adequate level of daily living including, but not limited to:
(C) assistance in housekeeping;
(D) assistance in meal preparation; and
(E) assistance in personal care and activities of daily living necessary for the health and comfort of the service recipient.
(d) OKDHS duties. When OHCA contracts directly with a specialized foster care provider, habilitation training specialist services provider, or a homemaker services provider to provide services through DDS HCBS Waivers, OKDHS follows the screening procedures required for community services providers.
(e) Community services provider duties.
(1) Provider pre-employment responsibilities. Each community services provider conducts a search of criminal history records and the Registry for every potential employee who is not a licensed health professional and who will provide, for compensation or as a volunteer, on a full- 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- or part-time basis, supportive assistance, health-related services, or training to a service recipient. The provider:
(A) uses Form 06PE039E, Employment Application Supplement, to formally advise each applicant of the:
(i) required criminal history records search, the Registry, and Restricted Registry, as applicable, per 10 O.S. § 405.3;
(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)(1)(G);
(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;
(iv) requirement to report all current and previous employers who provide services to children or to vulnerable adults;
(v) fact that giving false information regarding current and previous employers results in termination of employment; and
(vi) requirement of criminal prosecution for having sexual contact with a person in his or her care, per 10 O.S. § 1430.3 and 43A O.S. § 10-113.
(B) contacts all previous employers engaged in delivery of services to children or vulnerable adults, per 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 reported to Adult Protective Services (APS), Office of Client Advocacy (OCA), or Child Protective Services (CPS);
(D) requests a criminal history records search from the 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(e)(1)(F) and (G).
(i) The provider must secure the criminal history records search and cannot accept documents provided by the applicant.
(ii) When 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;
(E) investigates discrepancies in the criminal record information received from OSBI.
(i) When discrepancies exist between criminal history information and information reported by the applicant, such as convictions not reported by the applicant, the provider secures a written explanation of the discrepancy from the applicant, which is sent to OKDHS when the provider is requesting a waiver, per OAC 340:100-3-39(f).
(ii) When 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;
(F) may choose to make an offer of temporary employment to an applicant, pending the results of the OSBI criminal history records search.
(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.
(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.
(iii) During any period of temporary employment the temporary employee may not work alone nor work solely with other temporary employees; and
(G) when the OSBI search reveals the applicant was convicted, pled guilty or 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. When a waiver is requested, per OAC 340:100-3-39(f), the community services worker is relieved of responsibilities working directly with service recipients until the provider receives a written OKDHS decision.
(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:
(A) ensures protection and the health and safety for any and all persons receiving services from the provider;
(B) notifies the community services worker, in a face-to-face conference, of the upcoming investigation; and
(C) explains the rights and responsibilities of the community services worker, using Form 15IV015E, Rights and Responsibilities of Accused Caretakers, Community Services Workers, and Persons Responsible for the Childs' Health, Safety, and Welfare of Interest (PRFCI), before the community services worker is interviewed by the investigator, including:
(i) the investigation outcome notice is mailed to the community services worker's address on Form 15IV015E; and
(ii) the community services worker's right to request due process per procedures provided in the notice.
(3) Provider responsibilities regarding due process procedures. When an employee of a provider is called as a witness in a hearing, the provider:
(A) directs the employee to attend the hearing to give testimony;
(B) accommodates his or her work schedule; and
(C) when written records are required, submits the required records or certified copies. Failure to comply with these responsibilities may result in sanctions, per OAC 340:100-3-27.2.
(f) Waiver of requirement not to hire based on criminal history records search. When 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.
(1) The provider sends a written request for a waiver to the DDS director. The request includes:
(A) the applicant's:
(i) full name;
(ii) Social Security number; and
(iii) date of birth;
(B) a legible copy of the criminal history records search that is no more than 30-calendar days old;
(C) the criminal history record information request; and
(D) an explanation of all factors or circumstances the provider wants to be considered.
(2) A waiver is not granted, under any circumstance, for employment of an applicant who was convicted of, pled guilty, or nolo contendere to:
(A) a felony count of:
(i) aggravated assault and battery;
(iv) attempted murder;
(vi) incest; or
(vii) sodomy; or
(B) abuse, neglect, or exploitation of any person entrusted to the applicant's care.
(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.
(4) Factors considered in the OKDHS decision to grant or deny a waiver include:
(A) his or her other convictions;
(B) responsibility evidenced since conviction;
(C) time lapse since the conviction;
(D) his or her age upon conviction;
(E) nature and underlying circumstances of his or her offense;
(F) evidence of efforts made by him or her toward rehabilitation, including job training or educational programs in which he or she participated;
(G) his or her prior employment record; and
(H) the nature and location of the position he or she seeks.
(A) may grant a Waiver for applicants who will provide services through DDS HCBS Waivers only upon concurrence by OHCA; and
(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 an employee of the provider subsequently abused, neglected, exploited, or otherwise injured a service recipient.
(g) Procedures for notice and due process. The procedures for maltreatment investigations and the Registry are found at OAC 340:2-3-36 and OAC 340:2-3-39.1.
(h) Disclosure requirements for Registry.
(1) The Registry information includes, but is not limited to the:
(A) community services worker's:
(i) full name;
(ii) Social Security number; and
(iii) date of birth;
(B) date the community services worker's name was placed in the Registry; and
(C) final investigative finding regarding the community services worker.
(2) 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. When 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.
(h) Public access to Registry. Access to the Registry is available to the public at www.OKDHS.org.