Okla. Admin. Code § 340:110-3-85

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

Section 340:110-3-85 - Caregiver requirements

(a)Caregiver responsibilities. Caregiver responsibilities in (1) through (15) of this subsection are met.

(1)Primary caregiver. The primary caregiver is present in the home at least 80 percent of weekly-operating hours and is responsible for the day-to-day program operation. The sole proprietor is the primary caregiver.

(2)Care and supervision. The caregiver provides children's care and supervision at all times, both indoors and outdoors.

(A) Caregivers prevent and respond to allergies and life-threatening conditions by:

(i) being aware of children's known food and life-threatening allergies;

(ii) knowing the location of life-threatening condition medications; and

(iii) ensuring life-threatening condition medications, such as epinephrine pens and rescue inhalers, are in close proximity to the child for immediate administration when needed, including outdoors when the child is outside, during transportation, or on field trips. However, medications are inaccessible to children.

(B) Supervision of children means observing, overseeing, and guiding a child or group of children, including:

(i) awareness of, and responsibility for, each child's ongoing activity and, being near enough to intervene when needed;

(ii) observation of infants at least every 15 minutes while awake or sleeping; and

(iii) observation of children 1 year of age and older at least every 15 minutes while in cribs and playpens.

(3)Outdoor play supervision. In addition to the requirements in (2) of this subsection, the caregiver remains outdoors with children at all times when:

(A) there is a potentially hazardous situation, such as a pool on the premises or a trampoline in the outdoor play area;

(B) there is access to a dog(s) outdoors;

(C) there are children 3 years of age and younger present; or

(D) the outdoor area is not completely fenced.

(4)Overnight care supervision. When children are in care overnight and more than one caregiver is required due to the children's ages and number, at least one caregiver is awake at all times.

(5)Assistant and substitute caregivers. When the primary caregiver employs an individual to assist with or provide children's care and supervision in the primary caregiver's absence, the primary caregiver ensures the assistant or substitute caregiver is qualified, understands and complies with requirements, and has current cardio-pulmonary resuscitation (CPR) and first aid certification documentation, per Oklahoma Administrative Code (OAC) 340:110-3-85(h).

(A)Required records. Prior to employment, a personnel information form provided by Oklahoma Human Services (OKDHS) is completed. Relative references are not accepted. Assistant and substitute personnel records are maintained at the home and available to Licensing on request.

(B)Assistant caregiver. When an assistant caregiver is employed to meet the required staff to child ratio, the assistant caregiver is a responsible, mature, and healthy individual at least 16 years of age. The caregiver is prohibited from leaving children alone in the care of individuals younger than 18 years of age.

(C)Substitute caregiver. A substitute caregiver, at least 18 years of age, is available to provide care for short periods of time in the caregiver's absence.

(i) The substitute caregiver may be used in emergency situations and occasionally in non-emergency situations. In non-emergency situations, the caregiver notifies parents in advance when the substitute will be providing care.

(ii) The substitute's name, address, and phone number are provided to Licensing and posted with the other required emergency numbers.

(6)Criminal history investigation verification. The family child care owner or primary caregiver is responsible for submitting to OKDHS Office of Background Investigations (OBI), criminal history investigations and obtaining dispositions on any charges shown on the report lacking dispositions.

(7)Realistic expectations. The caregiver demonstrates a capacity for setting realistic behavior and performance expectations based on the children's ages, abilities, and special needs.

(8)Constructive influence. The caregiver's family members and others living in the home accept the children in care and provide constructive influence. There is an indication of a stable and harmonious home life.

(9)Hazards. The caregiver recognizes and acts to correct hazards to children's safety, both indoors and outdoors.

(10)Child abuse and human trafficking reporting. Reporting requirements in (A) and (B) of this paragraph are met.

(A) Any person who has reason to believe a child was abused or neglected, per Section 1-1-105 of Title 10A of the Oklahoma Statutes (10A O.S. § 1-1-105) is required to report the matter promptly to the OKDHS Child Abuse and Neglect Hotline at 1-800-522-3511, per 10A O.S. § 1-2-101. Failure to report is a misdemeanor offense and upon conviction is punishable by law. Failure to report with prolonged knowledge, six months or more, of ongoing abuse or neglect is a felony offense.

(B) Per 21 O.S. § 870, every person having reason to believe that a person or child-placing agency is engaging in the crime of human trafficking in children, per 21 O.S. § 866, reports the matter promptly to the Oklahoma Bureau of Narcotics and Dangerous Drugs Control.

(11)Licensing notification. The primary caregiver notifies Licensing within:

(A) 24-hours of a child death while in care;

(B) 24-hours of accidents involving transportation unless there were no injuries and only minor vehicle damage;

(C) 24-hours of changes in liability insurance coverage;

(D) 24-hours of a phone number change;

(E) 24-hours of an unscheduled temporary or permanent program closure or relocation;

(F) 24-hours of a child's injury requiring emergency medical attention;

(G) 24-hours of an incident exposing children to an imminent risk of harm, such as a child leaving the premises without caregiver knowledge or being left alone on- or off-site or in a vehicle;

(H) 24-hours of remodeling, changes, or physical facility damage affecting compliance with licensing requirements;

(I) 24-hours of known arrests, criminal investigations, criminal charges, or child abuse investigations involving individuals living in the home, providing care, or assisting with children's care;

(J) 24-hours of any legal action against a caregiver involving or affecting a child in care or program operation;

(K) 24-hours when an animal bites a child and the skin is broken;

(L) 24-hours of any disease or illness requiring prompt local or Oklahoma State Department of Health (OSDH) notification, per OAC 340:110-3-90(c)(2)(A).

(M) five-calendar days of an individual moving into the home; and

(N) 30-calendar days in advance of moving from one residence to another, unless an emergency exists. The new home complies with licensing requirements.

(12)Heinous and shocking abuse notification. OKDHS notifies programs of a substantiated finding of heinous and shocking abuse by a person responsible for a child's health, safety, or welfare, as defined per 10A O.S. § 1-1-105. Upon receiving the notice, the facility owner or primary caregiver provides notification to parents or legal guardians of children attending the facility using an OKDHS-provided form.

(A) Notification is:

(i) immediately attempted but not later than 72 hours of notice receipt from OKDHS; and

(ii) provided by certified mail; and

(B) The program maintains the list of notified parents and legal guardians for at least 12 months.

(13)License posting. The permit or license is displayed in the home, including the denial or revocation notice, when applicable.

(14)Other employment. The caregiver is prohibited from conducting business in the home during the hours children are in care. The primary caregiver is not employed outside the home during child care hours.

(15)Foster care. The caregiver may not provide therapeutic foster care. The caregiver may provide foster care only with prior written approval from Licensing for each child placement.

(A) The written approval includes the number and ages of foster children.

(B) Foster children 12 years of age and younger are counted in the license capacity.

(16)Inactive care. A primary caregiver is in inactive status when care was not provided for more than 90-consecutive calendar days.

(A) Prior to resuming care, the caregiver notifies Licensing to verify compliance with licensing requirements.

(B) When care was not provided for more than 12-consecutive months, the family child care home is closed. Prior to resuming care, the caregiver must reapply and be approved for a license.

(b)Caregiver qualifications. Caregiver qualifications are described in this subsection.

(1)General. The caregiver is a responsible, mature, healthy adult capable of understanding and complying with licensing requirements, and meeting children's needs. The caregiver demonstrates prudent and responsible behavior reasonably ensuring children's health, safety, and well-being. Caregivers interact with children without physical, psychological, or emotional punishment, mistreatment, neglect, or abuse.

(A) Primary caregivers are at least 21 years of age.

(B) Primary caregivers applying for a license after October 1, 2007, have obtained a high school diploma or General Educational Development credential (GED).

(C) Caregivers left alone with children have the ability to read and write for keeping required records, reading the licensing requirements, and administering medication.

(D) Caregivers cooperate with Licensing during monitoring visits and OKDHS investigations.

(2)Primary caregivers licensed or employed before June 1, 2022. Primary caregivers obtain a current Level 1 or higher Oklahoma Professional Development Ladder (OPDL) certificate, per OAC 340 Appendix FF - Oklahoma Professional Development Ladder, by June 1, 2023.

(3)Primary caregivers licensed or employed on or after June 1, 2022. Prior to or within 12 months of licensure or employment, primary caregivers obtain and maintain a current Level 1 or higher OPDL certificate, per OAC 340 Appendix FF - Oklahoma Professional Development Ladder.

(4)Health. The requirements relating to the caregiver's, assistant caregiver's, and household members' health in (A) through (C) of this paragraph are met.

(A)General health. Caregivers and household members where licensed care is provided are in good physical, mental, and emotional health. When it is reported or observed that a caregiver or household member has a physical, mental, or emotional condition that could negatively impact children's care, a licensed physician's statement is requested.

(B)Tuberculosis testing. The need for personnel tuberculin skin testing is based upon a local identified tuberculosis exposure, the degree of transmission risk of latent tuberculosis infection, the impact to public health and safety, and OSDH specific recommendations.

(C)Immunizations. There is documentation verifying children living in the home have or are in the process of obtaining the required immunizations at the medically appropriate time, per OAC 340 Appendix II - Immunizations.

(5)References. The primary caregiver submits to Licensing the names of three non-relative references that may include a licensed personal or family physician.

(c)Background investigations - general.

(1)Required individuals. Background investigations are required, per the Oklahoma Child Care Facilities Licensing Act (Licensing Act), 10 O.S. § 404.1, unless an exception, per (3) of this subsection applies for:

(A) owners, prior to authorization to operate;

(B) responsible entities, prior to authorization to operate and, when there is a change in a responsible entity;

(C) personnel applicants, prior to hire; however, the program may hire individuals, when:

(i) the program has submitted a criminal history review request to OBI;

(ii) only awaiting the national criminal history records search, based on fingerprint submission;

(iii) criminal history review results from OBI are received by the program. However, until complete results are received, the individual does not have unsupervised access to children; and

(iv) coming from another licensed program owned by the same business entity. Individuals are not required to repeat the background investigation process, unless required, per (2) of this subsection, with the exception of criminal history restriction waivers, provided there is no break in employment from the business entity; and

(D) individuals with unsupervised access to children, prior to having access to children, unless an exception, per (3) of this subsection applies;

(E) adults living in the facility, prior to authorization to operate or moving into the facility of an existing program. This includes children, who become 18 years of age while living in the facility; and

(F) individuals having access to, or review of, fingerprint results, prior to access to or review of results.

(2)Resubmission of criminal history reviews as of November 2, 2017. Effective November 2, 2017, programs request a criminal history review process, excluding fingerprinting, for required individuals every five years. However criminal history reviews requested prior to November 2, 2017, are resubmitted by November 1, 2022.

(3)Non-required individuals. Background investigations are not required for:

(A) specialized service professionals who are not program personnel, provided parent releases are obtained, per OAC 340:110-3-88(c);

(B) volunteer drivers transporting children on an irregular basis and not filling another position, provided parent releases are obtained, per OAC 340:110-3-88(c);

(C) contracted drivers not filling another position or having unsupervised access to children; and

(D) contracted non-personnel not having unsupervised access to children, such as when the program contracts for special activities or facility repair.

(d)Background investigations - Restricted Registry. The program conducts an online search of the Restricted Registry, also known as Joshua's List, when required, per (c) of this Section.

(1)Non-registrants. Non-registrants are individuals not recorded on the Restricted Registry.

(2)Registrants. Registrants are individuals recorded on the Restricted Registry who are prohibited from licensure, ownership, employment, unsupervised access to children, or facility residence, and prohibited individuals, per (e) of this Section.

(e)Background investigations - criminal history. The program and required individuals complete the criminal history review process. The program receives the completed criminal history review results from OBI, when required, per (c) of this Section.

(1)Criminal history prohibitions. Individuals with criminal history prohibitions are prohibited, per (f) of this Section. Criminal history prohibitions include:

(A) required registration under the:

(i) Sex Offenders Registration Act, including state and national repositories; or

(ii) Mary Rippy Violent Crime Offenders Registration Act; or

(B) pleas of guilty or nolo contendere (no contest), or convictions of felonies involving:

(i) murder, as defined in Section 1111 of Title 18 of United States Code;

(ii) child abuse or neglect;

(iii) crimes against children, including child pornography;

(iv) spousal abuse;

(v) crimes involving rape or sexual assault;

(vi) kidnapping;

(vii) arson;

(viii) physical assault or battery; or

(ix) a drug-related offense committed during the preceding five years, unless a criminal history restriction waiver, per (2) of this subsection, is granted; or

(C) pleas of guilty or nolo contendere (no contest), or convictions of violent misdemeanors committed as adults against a child involving:

(i) child abuse or child endangerment; or

(ii) sexual assault; or

(D) pleas of guilty or nolo contendere (no contest), or convictions of misdemeanors involving child pornography.

(2)Criminal history restrictions. Individuals with criminal history restrictions are prohibited, per (f) of this Section, unless a criminal history restriction waiver is granted. Criminal history restrictions include pending charges, pleas of guilty or nolo contendere (no contest), or convictions of criminal activity involving:

(A) gross irresponsibility or disregard for the safety of others;

(B) violence against an individual;

(C) sexual misconduct;

(D) child abuse or neglect;

(E) animal cruelty;

(F) illegal drug possession, sale, or distribution; or

(G) a pattern of criminal activity.

(3)Criminal history restriction waivers. Restriction waivers are described in (A) through (C) of this paragraph.

(A) Restriction waivers may be requested for individuals having criminal history restrictions. The owner, responsible entity, or primary caregiver completes requests on an OKDHS form.

(B) Restriction waivers are not requested or granted for:

(i) Restricted Registry registrants;

(ii) individuals with criminal history prohibitions; or

(iii) individuals whose sentence has not expired for criminal history restrictions, per (2) of this subsection.

(C) Individuals identified in pending or denied restriction waiver requests are prohibited, per (f) of this Section.

(f)Prohibited individuals.

(1)Background investigation of required individuals. The program does not allow a required individual to be the owner or responsible entity, to be employed, to live in the facility, or have:

(A) access to children, such as being present at the facility during the hours of operation or present with the children in care while off-site, when the individual has:

(i) criminal history prohibitions;

(ii) criminal history restrictions, unless a criminal history restriction waiver is granted. Individuals identified in a pending or denied restriction waiver request are prohibited; or

(iii) a substantiated heinous and shocking abuse finding; or

(B) unsupervised access to children, when the individual is a Restricted Registry registrant.

(2)Background investigation statements and consents. Individuals are prohibited to be the owner or responsible entity, to be employed, or to live in the facility, when:

(A) the individual refuses to consent to background investigations, per (c) of this Section; or

(B) knowingly makes a materially-false statement in connection with criminal background investigations.

(3)Child endangerment. An individual whose health or behavior would endanger children's health, safety, or well-being is not permitted to live in the home or be on the premises when children are in care.

(4)Alcohol, drugs, and medication. When children are in care, no caregiver is under the influence of:

(A) alcohol or illegal drugs; or

(B) medication impairing his or her functioning.

(g)Child abuse and neglect-OKDHS database. An OKDHS database search is conducted on individuals signing the request for license. A confirmed or substantiated allegation of child abuse or neglect is considered when evaluating the applicant's qualifications and children's safety and well-being.

(h)Professional development requirements. Caregiver professional development requirements in (1) through (5) of this subsection are met.

(1)General. The primary caregiver is required to complete 12 clock-hours of professional development annually through workshops, training, videos, or individual position-related readings. Only six clock-hours of videos or individual position-related readings are counted annually toward the required 12 clock-hours. Effective June 1, 2023, professional development meets requirements, per (5) of this paragraph.

(2)CPR and first aid certification. CPR and first aid requirements in (A) through (C) of this subsection are met.

(A) CPR and first aid are age-appropriate for the children's ages accepted into care and from approved sources listed on the Oklahoma Professional Development Registry (OPDR) website.

(B) Current CPR and first aid certification is required for:

(i) the primary caregiver, prior to permission to operate or initial permit issuance;

(ii) individuals caring for children alone, on or off of the premises, including during transportation; and

(iii) other caregivers, included in the adult-child ratio. CPR and first aid certification is obtained within three months of beginning child care.

(C) CPR and first aid certification is kept current, approved by Licensing, and maintained at the facility.

(3)Health and safety training. Prior to caring for children, caregivers obtain professional development in:

(A) the prevention and control of infectious disease and injury prevention measures;

(B) fire extinguisher use;

(C) the prevention of shaken baby syndrome and abusive head trauma;

(D) reducing the risks of sudden infant death syndrome (SIDS) and other sleep-related causes of infant death;

(E) use of infant safe sleep practices;

(F) car seat and transportation precautions and safety;

(G) building and physical premise safety including identification of, and protection from, hazards that can cause bodily injury, such as electrical hazards, bodies of water, or vehicular traffic;

(H) the handling and storage of hazardous materials and appropriate bio-contaminant disposal;

(I) emergency preparedness and response planning for emergencies resulting from a natural disaster or human-caused event addressing continuity of planning and all situations, per OAC 340:110-3-86.1;

(J) immunizations;

(K) medication administration, consistent with standards for parental consent;

(L) the prevention of, and response to, emergencies due to food and allergic reactions;

(M) the definition, identification, and mandatory reporting of child abuse and neglect;

(N) behavior, guidance, and child maltreatment prevention methods; and

(O) child development.

(4)Safe-sleep training. Prior to caring for infants, the primary caregiver and individuals caring for infants alone, obtain two or more clock-hours of professional development in safe-sleep practices from an OPDR-approved training organization.

(5)Continuing professional development effective June 1, 2023. Ongoing professional development is required.

(A) Primary caregivers obtain at least the required number of professional development clock-hours to maintain a current Level 1 or higher OPDL certificate, per OAC 340 Appendix FF - Oklahoma Professional Development Ladder. However, informal professional development clock-hours are limited.

(B) Formal professional development is:

(i) a course or training event of two or more clock-hours from an OPDR-approved training organization; and

(ii) OPDR-approved college credit hours.

(C) Informal professional development is:

(i) a course or training event of less than two clock-hours from an OPDR-approved training organization;

(ii) any number of clock-hours from an OPDR non-approved training organization; and

(iii) any training from electronic media, such as videos or DVDs.

(D) Reading and television programs do not count toward required clock-hours.

Okla. Admin. Code § 340:110-3-85

Amended at 10 Ok Reg 107, eff 10-13-92 (emergency); Amended at 10 Ok Reg 2287, eff 6-11-93; Amended at 11 Ok Reg 189, eff 10-6-93 (emergency); Amended at 11 Ok Reg 2773, eff 6-13-94; Amended at 17 Ok Reg 1607, eff 5-25-00; Amended at 19 Ok Reg 658, eff 2-1-02 (emergency); Amended at 19 Ok Reg 1171, eff 5-13-02; Amended at 25 Ok Reg 22, eff 10-1-07 (emergency); Amended at 25 Ok Reg 1962, eff 7-1-08; Amended at 26 Ok Reg 415, eff 11-20-08 (emergency); Amended at 26 Ok Reg 2239, eff 7-1-09; Amended at 27 Ok Reg 48, eff 10-1-09 (emergency); Amended at 27 Ok Reg 1869, eff 7-1-10; Amended at 31 Ok Reg 154, eff 11-1-13 (emergency); Amended at 31 Ok Reg 1854, eff 9-15-14; Amended at 34 Ok Reg 200, eff 11-22-16 (emergency)

Amended by Oklahoma Register, Volume 34, Issue 24, September 1, 2017, eff. 9/15/2017

Amended at 35 Ok Reg 475, eff 1-31-18 (emergency)

Amended by Oklahoma Register, Volume 35, Issue 24, September 4, 2018, eff. 9/17/2018

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

Amended by Oklahoma Register, Volume 40, Issue 22, August 1, 2023, eff 9/15/2023