340:110-1-8.1. Background investigations
(a) Criminal history review-program process. • 1
(1) Criminal history review requests and results for programs. Programs request criminal history reviews from the Oklahoma Department of Human Services (DHS) Office of Background Investigations (OBI), per Oklahoma Administrative Code (OAC) 340:2-46-4.
(2) Criminal history restriction waiver process. The process in (A) - (D) of this paragraph is followed when a program requests a criminal history restriction waiver. • 2 & 3
(A) The decision to grant or deny a criminal history restriction waiver is made by the restriction waiver review committee consisting of three Child Care Services (CCS) staff. • 4 The committee decision is based on documentation indicating that the health, safety, and well-being of children will not be endangered. The granting of a restriction waiver requires unanimous committee decision. Criteria considered include the:
(i) types of crimes or offenses the individual was convicted of or disposition, including a plea of guilty or nolo contendere (no contest), or a finding made;
(ii) nature of the offense(s);
(iii) individual's age at the time of the offense(s);
(iv) circumstances surrounding commission of the offense(s) demonstrating whether the individual will re-offend;
(v) number of offenses the individual was convicted of or findings made;
(vi) length of time elapsed since the last conviction or disposition including a plea of guilty or nolo contendere (no contest), or a finding made;
(vii) relationship of the offense(s) to the individual's ability to care for children;
(viii) evidence of rehabilitation or education activities since the offense was committed, such as counseling;
(ix) statement from the individual having the criminal history; and
(x) references of community members concerning the individual documented on Form 07LC090E, Criminal History Restriction Waiver Reference, including the reference's name, address, and phone number.
(B) CCS State Office provides programs with written notice of the decision.
(C) Licensing staff monitors:
(i) criminal history restriction waiver notification posting in the facility and placement in the compliance file, when required; and
(ii) any additional program instructions.
(D) A criminal history restriction waiver may be rescinded at the discretion of the criminal history restriction waiver review committee.
(b) Additional background investigations.
(1) DHS database searches. Licensing staff searches DHS databases for involvement that may impact the individual's ability to meet requirements. Searches are conducted: • 5
(A) on all adults with the exception of directors, who are not owners or responsible entities, who sign Forms 07LC004E, Request for License – Child Care Program, or 07LC040E, Request for License – Child-Placing Agency and Residential Child Care;
(B) prior to authorization to operate; and
(2) Docket searches. Licensing staff conducts docket searches for prior criminal activity. Searches are conducted annually on all adults who sign Form 07LC004E or Form 07LC040E. • 6
(3) Background investigations for children 14 years of age and older living in a facility. When Licensing has concerns or receives a report of criminal or delinquent activity, Licensing may request a criminal history investigation, including a juvenile justice information system review. However, this does not apply to residents receiving services from a residential child care program.
(4) Treating medical personnel statement. When concerns exist, Licensing staff may request information from the provider by requiring provider's signature on Form 08HI003E, Authorization to Disclose Medical Records. All medical information is confidential. • 7
(c) Oklahoma State Bureau of Investigation (OSBI) Record of Arrest and Prosecution (RAP) Back process. • 1
(1) Definition. RAP Back is an OSBI notification of subsequent Oklahoma arrests of previously-fingerprinted individuals.
(2) RAP Back criminal history review results. This process is followed when RAP Back is received. • 8
(A) OBI simultaneously disseminates RAP Back criminal history review results to:
(i) program(s) where the individual is associated; and
(ii) CCS for determination of appropriate action.
(B) Within 24 hours of receiving RAP Back from OBI, excluding weekends or holidays when the program is closed, Licensing staff contacts the program, to:
(i) determine what action the program is taking to protect children; and
(ii) inform the program of required actions.
(d) Qualified entity (QE) – CCS.
(1) QE definition. QE means an entity meeting the criteria and complying with federal and state laws and policies. QE standards govern the security and confidentiality of national fingerprint results.
(2) Agreement compliance. CCS maintains QE standards, per the user agreement with OSBI. • 1 and 9
(3) Agreement revisions. CCS submits a revised agreement to OSBI when DHS Director or CCS contact individual(s) changes.
(e) QE violations. Licensing staff reports QE standard violations to OBI. • 1 & 10
INSTRUCTIONS TO STAFF 340:110-1-8.1
1. Oklahoma Department of Human Services (DHS) Publication No. 11-38, Licensing Records Office - A Guide to Background Investigations, provides additional information for the processes identified in this Section.
2. When personnel with a criminal history restriction waiver moves to a different program under the same ownership, the program is required to submit a new criminal history restriction waiver request using the existing criminal history restriction waiver information.
3. Form 07LC089E, Criminal History Restriction Waiver Request, is forwarded to the statewide licensing coordinator or designee for review by the criminal history restriction waiver review committee.
4. The restriction waiver review committee members are the statewide licensing coordinator, an assistant licensing coordinator, and the residential programs manager or respective designees. After criminal historyrestriction waiver request review, Form 07LC087E, Waiver Notification, is forwarded to the program and Licensing staff.
5. Licensing staff:
(1) searches for child welfare and adult protective services involvement;
(2) conducts searches from the last review date and documents new information;
(3) searches by all known names, dates of birth, and Social Security numbers;
(4) compares the dates of involvement with the individual's date of birth, either as an adult or a child;
(5) consults with the supervisor. When concerns exist, the regional programs manager and statewide licensing coordinator or designee are consulted for appropriate action; and
(6) files the documentation in the case file's confidential section.
6. Licensing staff, when applicable:
(1) conducts searches from the last review date and documents new information;
(2) conducts searches using all of the individual's known names;
(3) conducts an online search of Oklahoma State Courts Network (OSCN) for:
(A) Oklahoma Court Information System (OCIS) counties; and
(B) non-OCIS counties, on Oklahoma's On Demand Court Records (ODCR);
(4) consults with the supervisor. When concerns exist, the regional programs manager and statewide licensing coordinator or designee are consulted for appropriate action; and
(5) files the documentation in the case file's confidential section.
7. When the provider signs Form 08HI003E, Authorization to Disclose Medical Records, a letter may be sent to treating medical personnel asking for provider information including, but not limited to, types of medication, length of treatment, hospitalizations, and behaviors that would place children at risk.
8. When RAP Back is received, Licensing staff:
(1) consults with the supervisor or programs manager to determine appropriate program contact and follow-up. Program discussion is documented on Form 07LC080E, Licensing Services Supplemental Information; and
(2) notifies the statewide licensing coordinator or designee when the individual has a previously-granted criminal history restriction waiver.
9. CCS personnel having access to, or review of criminal history records information, are required to complete a national criminal history records search and are informed of the national criminal history record information (CHRI) dispute rights, per Oklahoma Administrative Code (OAC) 340:2-46-4.
10. When Licensing considers qualified entity (QE) standards may have been violated, Licensing staff emails
the Office of Background Investigations (OBI) at OBICC@okdhs.org with the program information and nature of the report. QE standards violations are not considered a Licensing complaint. When non-licensing individuals consider QE standards may have been violated, the individual is referred to OBI.