Oklahoma Implements New Regulations for Criminal History Background Checks

The Oklahoma Department of Health has published rules implementing amendments to the state’s Long-Term Care Security Act (63 Oklahoma Statute § 1-1944 et. seq.) as required with the passage of House Bill 2582 in May 2012. The bill authorized fingerprint-based criminal history background checks for applicants who would be employed in a variety of long-term care settings, and amended barrier crimes affecting the employment of nurse aides.

Most of the amendments in the law became effective November 1, 2012. But, the provisions relating to required screening and fingerprint-based background checks were not implemented. The Department had released proposed rules and held a public hearing in November 2013. backgroundchecks.com released a Legislation and Compliance Update on October 28, 2013 about the Department’s proposed rules. After the public hearing, the Department made changes to the proposed effective dates for implementing the required screening and fingerprint-based background checks as outlined in the Department’s Rule 310:2-29 et. seq.

The rules establish staggered effective dates for complying with screening and fingerprint-based background check requirements as follows:

1. Adult day care centers and residential care homes – may begin February 1, 2014, but required no later than March 1, 2014.
2. Specialized nursing facilities – may begin February 1, 2014, but required no later than April 1, 2014.
3. Nursing facilities and applicants for employment with the State Department of Health and Department of Human Services whose responsibilities include working in long term care facilities – may begin February 1, 2014, but required no later than May 1, 2014.
4. Assisted living facilities, continuum of care and hospice programs – may begin February 1, 2014, but required no later than June 1, 2014.
5. Medicare certified home care agencies – may begin February 1, 2014, but required no later than July 1, 2014.
6. All other employers subject to the Long Term Care Security Act (defined in Title 63 O.S. Section 1-1945(4)), including home health or home care agencies - may begin February 1, 2014, but required no later than August 1, 2014.
7. Nurse aide scholarship programs – may begin July 1, 2014, but required no later than August 1, 2014.
8. Staffing agencies or independent contractors – may begin February 1, 2014, but required no later than August 1, 2014.

The new rules also establish procedures to appeal a denial of employment based on a criminal background check, and to request a waiver of denial. An applicant may appeal the determination of denial of employment by challenging the accuracy of the criminal history record or the finding that the applicant is the actual subject of the results from a name-based registry background check. The Department will consider the following criteria when considering whether an applicant merits a waiver of disqualification for employment:

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;
2. 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, and the applicant’s record of employment history, education, and training after conviction; and,
4. The relevancy of the particular disqualifying information with respect to the proposed employment of the individual to include the job type and duties, the extent to which the applicant has unsupervised access to service recipients, 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.

The Department of Health has completed the implementation of House Bill 2582 with the release of Rule 310:2-29 et. seq.

A copy of the Department’s Rule 310:2-29 et seq. is available here: http://www.ok.gov/health2/documents/310-002%20Rule%20Background%20Checks%20110813.pdf

A copy of House Bill 2582 is available here: http://webserver1.lsb.state.ok.us/cf_pdf/2011-12%20ENR/hB/HB2582%20ENR.PDF

A copy of backgroundchecks.com’s Legislation and Compliance Update dated October 28, 2013 is available here: http://www.backgroundbiz.com/compliance/complianceupdate_10282013.html