Okla. Stat. tit. 10 § 404.1

Current through Laws 2024, c. 453.

Section 404.1 - Child care facility permit or license - Criminal history records search - Foster parent eligibility

A. On and after November 1, 2013:

1. Prior to the issuance of a permit or license, owners and responsible entities making a request to establish or operate a child care facility shall have:

a. an Oklahoma State Courts Network search conducted by the Department,

b. a Restricted Registry search conducted by the facility,

c. a national criminal history records search conducted pursuant to paragraph 10 of this subsection,

d. a criminal history records and sex offender registry search conducted by an authorized source, when the individual has lived outside this state within the last five (5) years,

e. a search of the Department of Corrections' files maintained pursuant to the Sex Offenders Registration Act and conducted by the Department of Human Services,

f. a search of any available child abuse and neglect registry within a state the individual has resided in within the last five (5) years,

g. search of the nontechnical services worker abuse registry maintained by the State Department of Health pursuant to Section 1-1950.7 of Title 63 of the Oklahoma Statutes, and

h. a search of the community services worker registry maintained by the Department of Human Services pursuant to Section 1025.3 of Title 56 of the Oklahoma Statutes;

2. Prior to the employment of an individual:

a. an Oklahoma State Courts Network search, conducted by the Department, shall be requested and received by the facility; provided however, if twenty-four (24) hours has passed from the time the request to the Department was made, the facility may initiate employment, notwithstanding the provisions of this paragraph,

b. a Restricted Registry search shall be conducted by the facility with notification of the search submitted to the Department,

c. a national criminal history records search pursuant to paragraph 10 of this subsection shall be submitted,

d. a criminal history records and sex offender registry search conducted by an authorized source, when the individual has lived outside this state within the last five (5) years, shall be submitted to the Department,

e. a search of the Department of Corrections' files maintained pursuant to the Sex Offenders Registration Act shall be conducted by the Department and received by the facility,

f. a search of any available child abuse and neglect registry within a state the individual has resided in within the last five (5) years,

g. search of the nontechnical services worker abuse registry maintained by the State Department of Health pursuant to Section 1-1950.7 of Title 63 of the Oklahoma Statutes, and

h. a search of the community services worker registry maintained by the Department of Human Services pursuant to Section 1025.3 of Title 56 of the Oklahoma Statutes;

3. Prior to allowing unsupervised access to children by employees or individuals, including contract employees and volunteers and excluding the exceptions in paragraph 8 of this subsection:

a. Oklahoma State Courts Network search results, conducted by the Department, shall be received by the facility,

b. a Child Care Restricted Registry search shall be conducted by the facility with notification of the search submitted to the Department,

c. national criminal history records search results pursuant to paragraph 10 of this subsection shall be received by the facility,

d. a criminal history records and sex offender registry search conducted by an authorized source, when the individual has lived outside this state within the last five (5) years shall be submitted to the Department,

e. a search of the Department of Corrections' files maintained pursuant to the Sex Offenders Registration Act shall be conducted by the Department and received by the facility,

f. a search of any available child abuse and neglect registry within a state the individual has resided in within the last five (5) years,

g. search of the nontechnical services worker abuse registry maintained by the State Department of Health pursuant to Section 1-1950.7 of Title 63 of the Oklahoma Statutes, and

h. a search of the community services worker registry maintained by the Department of Human Services pursuant to Section 1025.3 of Title 56 of the Oklahoma Statutes;

4. Prior to the issuance of a permit or license and prior to the residence of adults who subsequently move into a facility, adults living in the facility excluding the exception in paragraph 7 of this subsection shall have:

a. an Oklahoma State Courts Network search conducted by the Department and the facility shall be in receipt of the search results,

b. a Restricted Registry search conducted by the facility with notification of the search submitted to the Department,

c. a national criminal history records search conducted pursuant to paragraph 10 of this subsection,

d. a criminal history records and sex offender registry search conducted by an authorized source, when the individual has lived outside this state within the last five (5) years,

e. a search of the Department of Corrections' files maintained pursuant to the Sex Offenders Registration Act conducted by the Department and received by the facility,

f. a search of any available child abuse and neglect registry within a state the individual has resided in within the last five (5) years,

g. search of the nontechnical services worker abuse registry maintained by the State Department of Health pursuant to Section 1-1950.7 of Title 63 of the Oklahoma Statutes, and

h. a search of the community services worker registry maintained by the Department of Human Services pursuant to Section 1025.3 of Title 56 of the Oklahoma Statutes;

5. Children who reside in the facility and turn eighteen (18) years of age excluding the exception in paragraph 7 of this subsection shall have:

a. an Oklahoma State Courts Network search conducted by the Department,

b. a Restricted Registry search conducted by the facility with notification of the search submitted to the Department,

c. a national criminal history records search conducted pursuant to paragraph 10 of this subsection, and

d. a search of the Department of Corrections' files pursuant to the Sex Offenders Registration Act conducted by the Department and received by the facility;

6. Prior to review of or access to fingerprint results, owners, responsible entities, directors, and other individuals who have review of or access to fingerprint results shall have a national criminal history records search pursuant to paragraph 10 of this subsection;

7. Provisions specified in paragraphs 4 and 5 of this subsection shall not apply to residents who are receiving services from a residential child care facility;

8. A national criminal history records search pursuant to paragraph 10 of this subsection shall not be required for volunteers who transport children on an irregular basis when a release is signed by the parent or legal guardian noting their understanding that the volunteer does not have a completed national criminal history records search. The provisions in paragraph 3 of this subsection shall not be required for specialized service professionals who are not employed by the program and have unsupervised access to a child when a release is signed by the parent or legal guardian noting his or her understanding of this exception. These exceptions shall not preclude the Department from requesting a national fingerprint or an Oklahoma State Bureau of Investigation name-based criminal history records search or investigating criminal, abusive, or harmful behavior of such individuals, if warranted;

9. A national criminal history records search pursuant to paragraph 10 of this subsection shall be required on or before November 1, 2016, for existing owners, responsible entities, employees, individuals with unsupervised access to children, and adults living in the facility, as of November 1, 2013, unless paragraph 6 of this subsection applies;

10. The Department shall require a national criminal history records search based upon submission of fingerprints that shall:

a. be conducted by the Oklahoma State Bureau of Investigation and the Federal Bureau of Investigation pursuant to Section 150.9 of Title 74 of the Oklahoma Statutes and the federal National Child Protection Act and the federal Volunteers for Children Act with the Department as the authorized agency,

b. be submitted and have results received between the Department and the Oklahoma State Bureau of Investigation through secure electronic transmissions,

c. include Oklahoma State Bureau of Investigation rap back, requiring the Oklahoma State Bureau of Investigation to immediately notify the Department upon receipt of subsequent criminal history activity, and

d. be paid by the individual or the facility;

11. The Director of the Department, or designee, shall promulgate rules that may authorize an exception to the fingerprinting requirements for individuals who have a severe physical condition which precludes such individuals from being fingerprinted;

12. The Director of the Department, or designee, shall promulgate rules that ensure individuals obtain a criminal history records search, not to include the re-submission of fingerprints, not less than once during each five (5) year period;

13. Any individual who refuses to consent to the criminal background check or knowingly makes a materially-false statement in connection with such criminal background check shall be ineligible for ownership of, employment of or residence in a child care facility; and

14. The Office of Juvenile Affairs shall require national criminal history records searches, as defined by Section 150.9 of Title 74 of the Oklahoma Statutes, which shall be provided by the Oklahoma State Bureau of Investigation for the purpose of obtaining the national criminal history records search, including Rap Back notification of and through direct request by the Office of Juvenile Affairs on behalf of any:

a. operator or responsible entity making a request to establish or operate a secure detention center, municipal juvenile facility, community intervention center or secure facility licensed or certified by the Office of Juvenile Affairs,

b. employee or applicant of a secure detention center, municipal juvenile facility, community intervention center or secure facility licensed or certified by the Office of Juvenile Affairs, or

c. persons allowed unsupervised access to children, including contract employees or volunteers, of a secure detention center, municipal juvenile facility, community intervention center or secure facility licensed or certified by the Office of Juvenile Affairs.

a. On and after September 1, 1998:

(1) any child-placing agency contracting with a person for foster family home services or in any manner for services for the care and supervision of children shall also, prior to executing a contract, complete:

(a) a foster parent eligibility assessment for the foster care provider except as otherwise provided by divisions (2) and (4) of this subparagraph, and

(b) a national criminal history records search based upon submission of fingerprints for any adult residing in the foster family home through the Department of Human Services pursuant to the provisions of Section 1-7-106 of Title 10A of the Oklahoma Statutes, except as otherwise provided by divisions

(2) and (4) of this subparagraph,

(2) the child-placing agency may place a child pending completion of the national criminal history records search if the foster care provider and every adult residing in the foster family home has resided in this state for at least five (5) years immediately preceding such placement,

(3) a national criminal history records search based upon submission of fingerprints to the Oklahoma State Bureau of Investigation shall also be completed for any adult who subsequently moves into the foster family home,

(4) provided, however, the Director of Human Services or the Director of the Office of Juvenile Affairs, or a designee, may authorize an exception to the fingerprinting requirement for a person residing in the home who has a severe physical condition which precludes such person's being fingerprinted, and

(5) any child care facility contracting with any person for foster family home services shall request the Office of Juvenile Affairs to conduct a juvenile justice information system review, pursuant to the provisions of Sections 2-7-905 and 2-7-308 of Title 10A of the Oklahoma Statutes, for any child over the age of thirteen (13) years residing in the foster family home, other than a foster child, or who subsequently moves into the foster family home. As a condition of contract, the child care facility shall obtain the consent of the parent or legal guardian of the child for such review.

b. The provisions of this paragraph shall not apply to foster care providers having a contract or contracting with a child-placing agency, the Department of Human Services or the Office of Juvenile Affairs prior to September 1, 1998. Such existing foster care providers shall comply with the provisions of this section, until otherwise provided by rules of the Department or by law.

(1) On and after September 1, 1998, except as otherwise provided in divisions (2) and (4) of this subparagraph, prior to contracting with a foster family home for placement of any child who is in the custody of the Department of Human Services or the Office of Juvenile Affairs, each Department shall complete a foster parent eligibility assessment, pursuant to the provisions of the Oklahoma Child Care Facilities Licensing Act, for such foster family applicant. In addition, except as otherwise provided by divisions (2) and (4) of this subparagraph, the Department shall complete a national criminal history records search based upon submission of fingerprints for any adult residing in such foster family home.

(2) The Department of Human Services and Office of Juvenile Affairs may place a child pending completion of the national criminal history records search if the foster care provider and every adult residing in the foster family home has resided in this state for at least five (5) years immediately preceding such placement.

(3) A national criminal history records search based upon submission of fingerprints conducted by the Oklahoma State Bureau of Investigation shall also be completed for any adult who subsequently moves into the foster family home.

(4) The Director of Human Services or the Director of the Office of Juvenile Affairs or their designee may authorize an exception to the fingerprinting requirement for any person residing in the home who has a severe physical condition which precludes such person's being fingerprinted.

3. The Department of Human Services or the Office of Juvenile Affairs shall provide for a juvenile justice information system review pursuant to Section 2-7-308 of Title 10A of the Oklahoma Statutes for any child over the age of thirteen (13) years residing in a foster family home, other than the foster child, or who subsequently moves into the foster family home.

C. The Department or the Board of Juvenile Affairs shall promulgate rules to identify circumstances when a criminal history records search or foster parent eligibility assessment for an applicant or contractor, or any person over the age of thirteen (13) years residing in a private residence in which a child care facility is located, shall be expanded beyond the records search conducted by the Oklahoma State Bureau of Investigation or as otherwise provided pursuant to this section.

D. Except as otherwise provided by the Oklahoma Children's Code and subsection F of this section, a conviction for a crime shall not be an absolute bar to employment, but shall be considered in relation to specific employment duties and responsibilities.

1. Information received pursuant to this section by an owner, administrator, or responsible entity of a child care facility, shall be maintained in a confidential manner pursuant to applicable state and federal laws.

2. The information, along with any other information relevant to the ability of the individual to perform tasks that require direct contact with children, may be released to another child care facility in response to a request from the child care facility that is considering employing or contracting with the individual unless deemed confidential by state and federal laws.

3. Requirements for confidentiality and recordkeeping with regard to the information shall be the same for the child care facility receiving the information in response to a request as those provided for in paragraph 1 of this subsection for the child care facility releasing such information.

4. Information received by any facility certified by the Office of Juvenile Affairs may be released to another facility certified by the Office if an individual is being considered for employment or contract, along with any other relevant information, unless the information is deemed confidential by state or federal law. Any information received by the Office shall be maintained in a confidential manner pursuant to applicable state and federal law.

1. It shall be unlawful for individuals who are required to register pursuant to the Sex Offenders Registration Act to work with or provide services to children or to reside in a child care facility and for any employer who offers or provides services to children to knowingly and willfully employ or contract with, or allow continued employment of or contracting with individuals who are required to register pursuant to the Sex Offenders Registration Act. Individuals required to register pursuant to the Sex Offenders Registration Act who violate any provision of Section 401 et seq. of this title shall, upon conviction, be guilty of a felony punishable by incarceration in a correctional facility for a period of not more than five (5) years and a fine of not more than Five Thousand Dollars ($5,000.00) or both such fine and imprisonment.

2. It shall be unlawful for an individual who is the perpetrator of a substantiated finding by the Department of heinous and shocking abuse by a person responsible for a child's health, safety, or welfare, as those terms are defined in Section 1-1-105 of Title 10A of the Oklahoma Statutes, to work with or provide services to children or to reside in a child care facility and for any employer who offers or provides services to children to knowingly and willfully employ or contract with, or allow continued employment of or contracting with such individual.

3. Upon a determination by the Department of any violation of the provisions of this section, the violator shall be subject to and the Department may pursue:

a. an emergency order,

b. license revocation or denial,

c. injunctive proceedings,

d. an administrative penalty not to exceed Ten Thousand Dollars ($10,000.00), and

e. referral for criminal proceedings.

4. In addition to the penalties specified by this section, the violator may be liable for civil damages.

Okla. Stat. tit. 10, § 404.1

Amended by Laws 2021 , c. 547, s. 1, eff. 11/1/2021.

Amended without change by Laws 2018 , c. 304, s. 3, eff. 5/10/2018.

Amended by Laws 2017 , c. 253, s. 1, eff. 11/1/2017.

Amended by Laws 2017 , c. 109, s. 1, eff. 11/1/2017.

Amended by Laws 2016 , c. 307, s. 1, eff. 11/1/2016.

Amended by Laws 2015 , c. 115, s. 1, eff. 11/1/2015.

Amended by Laws 2013 , c. 308, s. 4, eff. 11/1/2013.

Added by Laws 1990, HB 2227, c. 186, § 1, eff. 9/1/1990; Amended by Laws 1993, HB 1491, c. 122, §4, emerg. eff. 4/29/1993; Amended by Laws 1995, HB 1207, c. 142, §8, emerg. eff. 7/1/1995; Amended by Laws 1995, SB 384, c. 222, § 1, eff. 11/1/1995; Amended by Laws 1996, HB 2053, c. 200, § 1, eff. 11/1/1996; Amended by Laws 1997, HB 1729, c. 260, §1, eff. 11/1/1997(repealed by Laws 1998 , HB 3348, c. 5, §29, emerg. eff. 3/4/1998); Amended by Laws 1997, HB 2133, c. 389, §20, eff. 11/1/1997; Amended by Laws 1998 , HB 3348, c. 5, §1, emerg. eff. 3/4/1998; Amended by Laws 1998 , HB 2826, c. 414, §16, emerg. eff. 6/11/1998; Amended by Laws 1999 , SB 428, c. 2, §1; Amended by Laws 2000 , HB 2169, c. 177, §1, emerg. eff. 7/1/2000; Amended by Laws 2001 , SB 39, c. 174, §5, eff. 11/1/2001; Amended by Laws 2003 , SB 705, c. 213, §1, emerg. eff. 7/1/2003; Amended by Laws 2008 , HB 2643, c. 296, §3, eff. 11/1/2008; Amended by Laws 2009 , HB 1742, c. 230, §5, emerg. eff. 5/21/2009; Amended by Laws 2011 , SB 674, c. 266, §2, eff. 11/1/2011.