Okla. Admin. Code § 310:2-29-5

Current through Vol. 42, No. 4, November 1, 2024

Section 310:2-29-5 - Appeals

(a)Notice. A determination by the Department that finds an applicant not eligible for a license, certification, permit or employment will result in a notice to the applicant to include the reasons why the applicant is not eligible for license, certification, permit or employment and a statement that the applicant has a right to appeal the decision made by the Department regarding the eligibility. The notice shall also include information regarding where to file and describe the appellate procedures.

(b)Days to initiate an appeal.

(1) Pursuant to Title 63 O.S. 1-1947(T)(1), any individual who has been disqualified from or denied employment by an employer pursuant to Title 63 O.S. Section 1-1947 may file an appeal with the Department within thirty (30) days of the receipt of the notice of disqualification. An applicant under 63 O.S. 1-1947(T)(1) may receive an extension of the thirty (30) days allowed to appeal where good cause is shown.

(2) An individual who has been found not eligible for a license, certification, or permit based on their criminal history may file an appeal with the Department at any time following receipt of the notice of disqualification.

(c)Types of appeals. An applicant may appeal the determination by:

(1) Challenging the finding that the applicant is the true subject of the results from a name-based registry background check;

(2) Challenging the criminal history record as inaccurate;

(3) Requesting a waiver which gives the applicant the opportunity to demonstrate that the applicant should be allowed to work because he or she does not pose a risk to patients, facilities or their property; or

(4) Requesting a reconsideration of eligibility, which may be considered no sooner than twelve (12) months from the previous appeal of a determination of ineligibility.

(d)Inaccuracy of criminal history record. To demonstrate that the criminal history record is inaccurate, the applicant shall submit to the Department written documents, issued and certified by a governmental entity that demonstrate that the information contained in the criminal history report is inaccurate.

(e)Criteria for consideration in a waiver review. The Department shall consider the following criteria in considering whether the applicant merits a waiver of the applicant's determination of ineligibility:

(1) The time elapsed since the disqualifying criminal conviction, whether the applicant has fulfilled the sentence requirements, and whether there are any subsequent arrests or convictions of any nature;

(2) Any extenuating circumstances such as the offender's age at the time of conviction, substance abuse history and treatment, or mental health issues and treatment;

(3) Rehabilitation as demonstrated by character references and recommendation letters from past employers, the applicant's record of employment history, education, and training subsequent to conviction;

(4) The relevancy of the particular disqualifying information with respect to the proposed employment of the individual to include the job type and duties, and the extent to which the applicant has unsupervised access to service recipients; and

(5) For appeals under the authority of 63 O.S. 1-1947(T)(2), whether the crime was committed against a vulnerable child or adult, and whether the conviction was related to an employer subject to the requirements of the Long Term Care Security Act.

(f)Where to file. The applicant's appeal shall be submitted in writing to the Administrative Hearings Clerk for the Oklahoma State Department of Health, 1000 Northeast 10 ^th Street, Oklahoma City, OK 73117, and shall address the criteria specified in (d) of this Section and how the applicant merits a waiver of the disqualification from employment.

(g)Conduct of hearing. The appeal shall be conducted as an individual proceeding pursuant to this Chapter and the Administrative Procedures Act.

Okla. Admin. Code § 310:2-29-5

Adopted by Oklahoma Register, Volume 31, Issue 24, September 2, 2014, eff. 9/12/2014

Amended by Oklahoma Register, Volume 37, Issue 24, September 1, 2020, eff. 9/11/2020