APA WF 17-22

COMMENT DUE DATE:

December 11, 2017

DATE:

November 28, 2017

Molly Green, Information Security Administrator 405-522-0541

Dena Thayer, Programs Administrator 405-521-4326

Nancy Kelly, Policy Specialist 405-522-6703

RE:

APA WF 17-22

It is very important that you provide your comments regarding the DRAFT COPY of policy by the comment due date. Comments are directed to *STO.LegalServices.Policy@okdhs.org.

The proposed policy is Emergency . This proposal is subject to Administrative Procedures Act

SUBJECT:CHAPTER 2. ADMINISTRATIVE COMPONENTS

Subchapter 46. Office of Background Investigations [ISSUED]

Part 1. General provisions [ISSUED]

340:2-46-1 [ISSUED]

Part 2. Child care services [ISSUED]

340:2-46-2 through 340:2-46-5 [ISSUED]

(Reference WF 17-22)

SUMMARY:The proposed rules establish the:(1) purpose and authority of the Office of Background Investigations (OBI); (2) applicable definitions related to the rules; and (3) confidentiality and dissemination guidelines for a national criminal history records check.The proposed rules also identify the background investigation process for child care programs, including language being moved from Oklahoma Administrative Code (OAC) 340:110-1-8.1 and language implementing new requirements of the Child Care Development Fund (CCDF) and Senate Bill (SB) 717 and SB 723 during the 2017 Oklahoma legislative session.

The reauthorization of CCDF requires additional criminal history prohibitions and repeating background investigations every five years for child care programs.The passage of SB 723 amended Sections 404.1 and 405.3 of Title 10 of the Oklahoma Statutes (10 O.S. §§ 404.1 and 405.3), Oklahoma Child Care Facilities Licensing Act to align with the federal mandates.

The passage of SB 717 amended 10 O.S. §§ 404.1 and 405.3 of the Oklahoma Child Care Facilities Licensing Act.Statutory amendments include requiring additional registry searches of the nontechnical services worker abuse registry and community services worker registry for owners prior to issuance of a child care permit or license.

EMERGENCY APPROVAL:is requestedto address compliance with federal Child Care Development Fund and legislative mandates due to passage of SB 717 and SB 723.

LEGAL AUTHORITY:Director of Human Services; 56 O.S. § 162; 10 O.S. § 404.1; and § 405.3 of the Oklahoma Child Care Facilities Act.

Rule Impact Statement

To:Programs administrator

Legal Services

From:Tony Bryan, Inspector General

Office of Inspector General

Date:November 28, 2017

Re:CHAPTER 2. ADMINISTRATIVE COMPONENTS

Subchapter 46. Office of Background Investigations [ISSUED]

Part 1. General provisions [ISSUED]

340:2-46-1 [ISSUED]

Part 2. Child care services [ISSUED]

340:2-46-2 through 340:2-46-5 [ISSUED]

(Reference WF 17-22)

Contact:Molly Green, Information Security Administrator, 405-522-0541

A.Brief description of the purpose of the proposed rule:

Purpose.The proposed rules establish the:(1) purpose and authority of the Office of Background Investigations (OBI); (2) applicable definitions related to the rules; and (3) confidentiality and dissemination guidelines for a national criminal history records check.The proposed rules also identify the background investigation process for child care programs, including language being moved from Oklahoma Administrative Code (OAC) 340:110-1-8.1 and language implementing new requirements of the Child Care Development Fund (CCDF) and Senate Bill (SB) 717 and SB 723 during the 2017 Oklahoma legislative session.

Strategic Plan Impact.

The proposed rules achieve Oklahoma Department of Human Services (DHS) goals by continuously improving systems and processes impacting licensed child care programs and child-placing agencies.

Substantive changes.

Subchapter 46. Office of Background Investigations

Part 1. General provisions

Oklahoma Administrative Code (OAC) 340:2-46-1 is issued to establish the purpose of OBI.

Part 2. Child care services

OAC 340:2-46-2 is issued to establish OBI authority.

OAC 340:2-46-3 is issued to establish applicable definitions related to OBI rules.

OAC 340:2-46-4 is issued to identify the confidentiality and dissemination requirements of national criminal history records checks related to Child Care Services (CCS) and Child Welfare Services (CWS).

OAC 340:2-46-5 is issued to:(1) establish the background investigations process for child care programs; (2) reflect a move of background investigation language from OAC 340:110-1-8.1 to this Subchapter; and (3) align background investigation requirements with federal CCDF and SB 717 and SB 723 legislative mandates including requiring additional registry searches, additional criminal history prohibitions, and repeating background investigations every five years.

Reasons.

The proposed rules address compliance with federal CCDF mandates and legislative mandates due to passage of SB 717 and SB 723.

Repercussions.

The proposed rules address compliance with federal CCDF mandates and legislative mandates due to passage of SB 717 and SB 723.Without these rules, DHS would not be in compliance with federal and state statutes.Additionally, the health and safety of children in child care would be negatively impacted.

Legal authority.

Director of Human Services; 56 O.S. § 162; 10 O.S. § 404.1; and § 405.3 of the Oklahoma Child Care Facilities Act.

Emergency rulemaking approval is requested.

B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:The classes of persons most likely to be affected by the proposed rules are CCS staff, licensed family child care homes, child care centers, day-camps, drop-in programs, out-of-school time programs, part-day programs, programs for sick children, residential programs, child-placing agencies, and families and children utilizing child care.

C.A description of the classes of persons who will benefit from the proposed rule:The classes of persons most likely to benefit by the proposed rules are CCS staff, licensed family child care homes, child care centers, day-camps, drop-in programs, out-of-school time programs, part-day programs, programs for sick children, residential programs, child-placing agencies, and families and children utilizing child care.

D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:There is no anticipated economic impact of the proposed rules for family child care homes, child care centers, day-camps, drop-in programs, out-of-school time programs, part-day programs, programs for sick children, residential programs, and child-placing agencies.

E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency: The estimated cost associated with the proposed rules is $4,050 for revisions to the Background Investigations Determination System (BIDS) database.

F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:Proposed rules address compliance with federal CCDF and SB 717 and SB 723 legislative mandates.

G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:There is no economic impact to licensed family child care homes, child care centers, day-camps, drop-in programs, out-of-school time programs, part-day programs, programs for sick children, residential programs or child-placing agencies.

H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:There are no less costly, non-regulatory, or less intrusive methods for achieving the purpose of the proposed rules.

I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk: Implementation of the proposed rules allows further protection of the health and safety of children in licensed child care programs by:(1) expanding the registration of individuals on the Restricted Registry; (2) expanding the Restricted Registry searches; (3) expanding criminal history prohibitions; and (4) increasing the frequency of background investigations.

J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:If the proposed rules are not implemented, DHS will not be in compliance with federal CCDF and SB 717 and SB 723 and legislative mandates.Health and safety of children in child care would be negatively impacted.

K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared November 28, 2017.

CHAPTER 2. ADMINISTRATIVE COMPONENTS

SUBCHAPTER 46. OFFICE OF BACKGROUND INVESTIGATIONS

PART 1. GENERAL PROVISIONS

340:2-46-1. Purpose

Issued 12-15-17

The purpose of the Oklahoma Department of Human Services (DHS) Office of Background Investigations is to conduct background checks and searches related to programs and services administered by DHS.

PART 2. CHILD CARE SERVICES

340:2-46-2. Authority

Issued 12-15-17

The Oklahoma Department of Human Services Office of Background Investigations performs background checks for Child Care Services, per:

(1) Section 901 et seq. of Chapter IX of Title 28 of the Code of Federal Regulations; and

(2) the National Child Protection Act of 1993 (NCPA), Public Law (P.L.) 103-209, as amended by the Volunteers for Children Act (VCA), P.L. 105-251, (NCPA/VCA).

340:2-46-3. Definitions

Issued 12-15-17

The following words and terms when used in this Part shall have the following meaning unless the context clearly states otherwise:

(1) "Background check" means a review of state and/or national criminal history records that may include fingerprint submissions, public docket searches, public registry searches, national sex offender registry searches, and child abuse and neglect searches.

(2) "General administrative office or "GAO" means an entity that receives background check results, including fingerprint results, and makes hiring decisions on behalf of one or more child care programs.

(3) "Qualified entity" or "QE" means an entity that meets the criteria and complies with federal and state laws and policies.QE standards govern the security and confidentiality of national fingerprint results.

(4) "Temporary hiring agency or "THA" means an entity that employs temporary staff who may be utilized as substitutes in a child care program.

340:2-46-4. Confidentiality and dissemination of national criminal history records checks

Issued 12-15-17

(a) National criminal history records check reports:

(1) are confidential, per Section 50.12 of Title 28 of the Code of Federal Regulations; and

(2) may not be disseminated outside of the Oklahoma Department of Human Services or authorized entities.

(b) The security, confidentiality, and dissemination of national criminal history records checks for child care programs are governed by qualified entity standards.

340:2-46-5. Background investigations process for child care programs

Issued 12-15-17

(a) Fingerprint process.¢ 1

(1) Background check review packet.The Oklahoma Department of Human Services (DHS) makes background check review packets available to individuals and child care programs.¢ 2 & 3

(2) Fingerprint rejections.When low quality fingerprints, as determined by the Oklahoma State Bureau of Investigation (OSBI) and/or the Federal Bureau of Investigation (FBI), make it impossible for the national crime information databases to provide results, a state and/or national name-based search may be authorized.¢ 4

(3) Fingerprint exceptions.When DHS Office of Background Investigations (OBI) receives a written request for a fingerprint exception from an individual, who has a severe physical condition precluding the individual from being fingerprinted, a state and/or national name-based search may be authorized.Individuals that resided outside of Oklahoma within the past five years must provide a name-based search from the state where they resided.¢ 5

(b) Background check process.¢ 1

(1) Background check review requests.

(A) Upon receipt of completed Form 19MP006E, Background Check Review Request, or an electronic background check request, OBI conducts a background check review.¢ 6

(B) Upon receipt of an incomplete Form 19MP006E, or an electronic background check request, OBI sends the program notification of an incomplete request.¢ 7

(2) Background check review results.

(A) OBI processes complete background check requests by the:

(i) close of the fifth DHS-business day after receipt; or

(ii) next DHS-business day for new programs in application status.

(B) OBI disseminates the:

(i) background check results;

(ii) criminal history record information (CHRI), when applicable; and

(iii) dispute resolution documents, when applicable.¢ 8

(1) Dispute rights.When state and national CHRI are disseminated, OBI notifies individuals of the right to dispute the completeness and accuracy of the CHRI.¢ 9 & 10

(2) Reasonable time.Individuals are given a reasonable time to dispute CHRI, prior to a final employment determination.¢ 11

(d) Five-year reassessment.Programs must obtain a background check on required individuals every five years, per applicable Child Care Services (CCS) Licensing requirements.

(e) Record of Arrest and Prosecution (RAP) RAP Back process.¢ 1

(1) RAP Back notifications.RAP Back is a notification from OSBI or FBI of subsequent arrests or prosecutions of individuals, who have had the CCS fingerprint-based national criminal history checks.OBI submits a request to the state repository to stop sending RAP Back on individuals, who:

(A) are ineligible to be associated with any program; and

(B) have not been associated with a program for two or more years.

(2) RAP Back criminal history review results.Upon receipt of RAP Back, OBI reviews the notification to determine if the record reflects arrests or prosecutions.OBI simultaneously disseminates RAP Back results to the:

(A) programs with which the individual was last associated; and

(B) CCS, when criminal history restrictions and prohibitions are involved.¢ 12

(3) Public record information.When OBI becomes aware of additional arrests, charges, or convictions, OBI validates the information through public records and processes a new background check result.

(f) Qualified entity (QE) standards.

(1) Agreement compliance.OBI maintains QE standards for DHS according to the user agreement with OSBI.

(2) QE status.QE status may be achieved by a:

(A) program;

(B) general administrative office (GAO) on behalf of one or more programs; and

(3) Dissemination to a QE.OBI only disseminates national CHRI to a program, GAO, or THA identified as a QE that has written consent from the fingerprinted individual.¢14

(4) Audits.OBI periodically audits QEs to verify compliance with standards.¢ 15

(5) Violations.When QE standards violations are:

(A) identified during an audit, OBI follows the audit process; or

(B) reported by individuals, OBI conducts an investigation.¢ 16

(6) QE status termination.The QE status may be terminated, when the QE:

(A) no longer meets QE criteria including following the QE agreement;

(B) does not cooperate with the audit process or an investigation; or

(g) Restricted Registry referrals.When OBI determines an individual meets criteria for the Restricted Registry, per Oklahoma Administrative Code 340:110-1-10.1(b)(1) through (5), the information is forwarded to Restricted Registry staff.¢ 17

(h) Out-of-state inquiries.OBI coordinates background check inquiries when requested by an out-of-state agency.

INSTRUCTIONS TO STAFF 340:2-46-5

Issued 12-15-17

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.The Office of Background Investigations (OBI) develops and maintains background check review packets that include:

(1) DHS Publication No. 11-38;

(2) Form 19MP006E, Background Check Review Request;

(3) Federal Bureau of Investigation fingerprint cards; and

(4) a current list of fingerprint vendors.

3.OBI maintains a list of approved fingerprint capture and submission locations.Participating law enforcement agencies are approved for fingerprint capture only.

4.Upon receipt of a rejected fingerprint notice, the individual is notified to resubmit the fingerprints.OBI may authorize Oklahoma State Bureau of Investigation (OSBI) and national name-based criminal history searches.

5.OBI requests a fingerprinting exception from the DHS Director or designee.Upon authorization, OBI requests an OSBI name-based criminal history search.

6.(a) Complete background check review requests include:

(1) submission of fingerprints, including a daily report from the live scan vendor; and

(2) out-of-state criminal history records, when applicable.

(b) OBI, searching by all known names, unless conducted within the last 90- calendar days:

(1) reviews criminal history records received;

(2) conducts a Restricted Registry, also known as Joshua's List, search;

(3) conducts a Community Service Worker Registry search;

(4) conducts a Nontechnical Services Worker Abuse Registry search;

(5) conducts a docket search of Oklahoma State Courts Network (OSCN);

(6) conducts a docket search of On Demand Court Records (ODCR);

(7) conducts an online search of Oklahoma Department of Corrections (DOC) records;

(8) conducts a DOC sex offender registry search;

(9) conducts a DOC Mary Rippy violent offender registry search; and

(10) conducts a national sex offender registry search.

(c) When the individual has lived outside of Oklahoma within the past five years, OBI:

(1) reviews criminal history records received for each state where the individual resided;

(2) conducts a sex offender registry check for each state where the individual resided; and

(3) conducts a child abuse and neglect registry search for each state where the individual resided.

(d) OBI staff conducts searches listed in (b) and (c) of this Instruction and conducts searches for any Record of Arrest and Prosecution (RAP) Back received on all five-year reassessments.

7.An incomplete background check result is disseminated, when:

(1) Form 19MP006Eor an electronic background check request, is incomplete; or

(2) the individual submitted fingerprints, but OSBI and national criminal history records were not received within 30-calendar days of submission.

8.(a) Preliminary results are disseminated when a complete request from the program was received but the OSBI and national criminal history records were not received.Preliminary results include the individual's fingerprint submission date.

(1) A 30-day preliminary notice is disseminated when the OSBI and national criminal history records were not received within 30-calendar days of the issuance of the preliminary result.

(2) A notice of invalid preliminary results is disseminated when the OSBI and national criminal history records were not received within 60-calendar days of the issuance of the preliminary results, unless required actions were taken by the individual.

(b) Restricted background check results are disseminated when:

(1) a complete background check review request is received from the program;

(2) the OSBI and national criminal history records or a five-year reassessment request are received; and

(3) the individual has a restricted offense, per applicable Child Care Services (CCS) Licensing requirements.

(c) Prohibited background check results are disseminated when:

(1) a complete background check review request is received from the program;

(2) the OSBI and national criminal history records or a five-year reassessment request are received; and

(3) the individual has a prohibited offense, per applicable CCS Licensing requirements.

(d) Complete background check results are disseminated when:

(1) a complete request is received from the program;

(2) the OSBI and national criminal history records are received; and

(3) no restricted or prohibited offenses occurred.

(e) Five-year reassessment background check results are disseminated when:

(1) a complete five-year reassessment request is received from the program; and

(2) no restricted or prohibited offenses occurred.

9.Individuals are notified of the right to dispute the criminal history record information (CHRI) regardless of criminal history restrictions or prohibitions identified on the record.

10.When Form 07LC111E, Criminal History Records Dispute Resolution Documents, and attached certified documents are received, OBI:

(1) reviews the documents;

(2) updates the information in the Background Investigation Determination System (BIDS) database;

(3) updates the background check results when the documents reflect criminal history restrictions or prohibitions; and

(4) disseminates the documents and updated background check results to the programs identified on Form 07LC111E, when applicable.

11.Licensed child care programs make final employment determinations for program personnel.

12.(a) When the record reflects arrests or prosecutions, OBI:

(1) reviews the RAP Back for potential criminal history restrictions or prohibitions;

(2) confirms the programs with which the individual was associated;

(3) disseminates:

(A) an incomplete RAP Back result when additional information is required to determine if an individual is restricted or prohibited;

(B) a complete RAP Back result when the charges do not reflect a restriction or prohibition; or

(C) a restricted or prohibited background check result when an individual has a restricted or prohibited offense; and

(4) updates the information in the BIDS database.

(b) OBI tracks arrests through disposition and then follows the procedures listed in (a)(1) – (4) of this Instruction.

13.Programs are considered a qualified entity (QE), when:

(1) a license number is assigned;

(2) Form 07LC112E, Qualified Entity Application and Agreement, is completed by the current owner or responsible entity and is on file with OBI;

(3) the owner or responsible entity, QE contact, and authorized recipient listed on Form 07LC112E have a complete background check review and have received the OBI-approved access and review training; and

(4) the QE status has not been terminated.

14.(a) A general administrative office (GAO) must be a QE in order to receive fingerprint results directly from OBI for individuals other than the owner or responsible entity.

(b) A temporary hiring agency (THA) must be a QE in order to receive fingerprint results from OBI.Licensed child care programs may accept the complete background check results from an individual associated with the THA.

15.(a) OBI informs the QE contact identified on Form 07LC112E of the need to complete an audit survey within 15-calendar days of receipt of the audit survey in order to maintain QE status.

(1) When the program does not return a completed survey within 15-calendar days, OBI sends an initial certified letter providing the program 15 additional calendar days to submit a completed survey.

(2) When the program does not return a completed survey after an initial certified letter is sent, OBI sends a second certified letter notifying the program that the QE status will be terminated after 10-calendar days from receipt of the letter, unless a completed survey is returned.

(3) When a completed survey is not received within 10-calendar days of the second certified letter, a recommendation of termination of the QE status is made to OBI and CCS management staff.

(4) When the program does not return a completed survey and upon approval of the recommendation, OBI sends a termination letter by certified mail confirming the termination of the program's QE status.

(5) A copy of the termination letter is sent to the CCS designee, and OBI enters the audit information into the OBI database.

(b) Upon receipt of a completed audit survey, OBI informs the program of:

(1) any QE standards violations by completing the corresponding section of the form and returning it to the program; and

(2) needed completion of an acceptable plan of correction within 15-calendar days in order to maintain QE status.

(A) When the program does not return a completed plan of correction, OBI sends an initial certified letter providing the program an additional 15-calendar days to respond.

(B) When the program does not return a completed plan of correction after a certified letter is sent, OBI sends a second certified letter notifying the program that the QE status will be terminated after 10-calendar days from receipt of the letter, unless a completed plan of correction is returned.

(C) When a completed plan of correction is not received within 10-calendar days of the second certified letter, a recommendation of termination of the QE status is made to OBI and CCS management staff.

(D) When the program does not return a completed plan of correction and upon approval of the recommendation, OBI sends a termination letter by certified mail confirming termination of the program's QE status.

(E) A copy of the termination letter is sent to the CCS designee and OBI enters the audit information into the OBI database.

16.In response to reports of suspected violations, OBI:

(1) conducts an investigation that may include personnel and collateral interviews and a visit to the facility;

(2) discusses the findings and develops an acceptable plan of correction with the program, when applicable;

(3) notifies the program that QE standards violations may result in termination of the program's QE status;

(4) verifies completion of the plan of correction;

(5) documents all information on Form 19MP007E, Office of Background Investigations Contact and Supplemental Information;

(6) maintains copies of forms and documents related to the investigation; and

(7) sends the findings to the child care program.

17.OBI provides Restricted Registry staff with:

(1) Form 19MP006E or electronic background check request;

(2) CHRI results;

(3) OSCN records;

(4) ODCR records;

(5) DOC offender lookup results; and

(6) public sex offender registry search results.