§ 56-1025.2. Criminal history records searches on community services worker applicants, Medicaid personal care assistants and contractors.

A.  1.  Except as otherwise provided by subsection C of this section, before any community services provider or Medicaid personal care services provider makes an offer to employ or to contract with a community services worker applicant or a Medicaid personal care assistant applicant to provide health-related services, training, or supportive assistance to a person with a developmental disability, or personal care services to a person who receives the services of the state Medicaid personal care program, the community services provider or Medicaid personal care services provider shall:

a.provide, prior to a check with the Department of Human Services, for a criminal history records search to be made on the community services worker applicant or Medicaid personal care assistant or contractor pursuant to the provisions of this section, and

b.check with the Department of Human Services to determine if the name of the applicant seeking employment or contract has been entered on the community services worker registry created pursuant to Section 1025.3 of this title.  Prior to a decision by the Department to enter the name of a community services worker or a Medicaid personal care assistant on such registry, the Department shall allow for notice and opportunity for due process for such community services worker or Medicaid personal care assistant against whom a final investigative finding by the Department of Human Services of maltreatment of an individual has been made.  If the name of the applicant seeking employment or a contract with the community services provider or Medicaid personal care assistant is listed on the registry as having a finding by an Administrative Law Judge pursuant to the requirements of Section 1025.3 of this title, and the Department has allowed for notice and opportunity for due process for such applicant, the provider shall not hire the applicant.

2.  If the Department of Human Services contracts directly with a Medicaid personal care assistant, the Department shall follow the screening procedures required by this section for Medicaid personal care services providers.

3.  If the Oklahoma Health Care Authority contracts directly with a specialized foster care provider or habilitation training specialist services provider or a homemaker services provider, the Department shall follow the screening procedures required by this section for community services providers.

4.  Community services providers and Medicaid personal care services providers are authorized to obtain records of any criminal conviction, guilty plea, or plea of nolo contendere maintained by the Oklahoma State Bureau of Investigation which the employer is required or authorized to request pursuant to the provisions of this section.

5.  A Medicaid personal care services provider shall request the Bureau to conduct a criminal history records search on Medicaid personal care assistants pursuant to the provisions of Section 1-1950.1 of Title 63 of the Oklahoma Statutes.

6.  The community services provider shall request the Bureau to conduct a criminal history records search on a community services worker desiring employment or a contract with the provider and shall provide to the Bureau any relevant information required by the Bureau to conduct the search.  The community services provider shall pay a reasonable fee to the Bureau for each criminal history records search that is conducted pursuant to such a request.  Such fee shall be determined by the Oklahoma State Bureau of Investigation.

7.  The requirement of a criminal history records search shall not apply to an offer of employment made to:

a.any person who is the holder of a current license or certificate issued pursuant to the laws of this state authorizing such person to practice the healing arts,

b.a registered nurse or practical nurse licensed pursuant to the Oklahoma Nursing Practice Act,

c.a physical therapist registered pursuant to the Physical Therapy Practice Act,

d.a physical therapist assistant licensed pursuant to the Physical Therapy Practice Act,

e.a social worker licensed pursuant to the provisions of the Social Worker's Licensing Act,

f.a speech pathologist or audiologist licensed pursuant to the Speech Pathology and Audiology Licensing Act,

g.a dietitian licensed pursuant to the provisions of the Licensed Dietitian Act,

h.an occupational therapist licensed pursuant to the Occupational Therapy Practice Act, or

i.a respiratory care practitioner licensed pursuant to the Respiratory Care Practice Act.

B.  At the request of the community services provider, the Bureau shall conduct a criminal history records search on any applicant desiring employment or a contract pursuant to subsection A of this section or any worker employed by the community services provider, including any of the workers specified in paragraph 6 of subsection A of this section, at any time during the period of employment of such worker with the provider.

C.  A community services provider may make an offer of temporary employment to a community services worker pending the results of such criminal history records search and the registry review on the applicant.  The community services provider in such instance shall provide to the Bureau the name and relevant information relating to the applicant within seventy-two (72) hours after the date the applicant accepts temporary employment.  Temporary employment shall not extend longer than the time necessary to receive the results of the criminal history records search and registry review, not to exceed thirty (30) days.  The community services provider shall not hire or contract with an applicant as a community services worker on a permanent basis until the results of the criminal history records search and the registry review are received.

D.  Within five (5) days of receipt of a request to conduct a criminal history records search, the Bureau shall complete the criminal history records search and report the results of the search to the requesting community services provider.

E.  Every community services provider and Medicaid personal care services provider shall inform each applicant for employment, or each prospective contract worker, as applicable, that the community services provider or Medicaid personal care services provider is required to obtain a criminal history records search and a registry review before making an offer of permanent employment or a contract with the community services worker or Medicaid personal care assistant or applicant described in subsection A of this section.

F.  1.  If the results of any criminal history records search from any jurisdiction reveals that the subject worker or applicant has been convicted, or pled guilty or nolo contendere to a felony or to a misdemeanor assault and battery, the employer shall not hire or contract with the applicant, but shall immediately terminate the community services worker's employment, contract, or volunteer arrangement, subject to the provisions of paragraph 2 of this subsection.

2.  The community services provider may request, in writing, a waiver of the provisions of paragraph 1 of this subsection from the Director of the Department of Human Services, or a designee of the Director.  The Director or a designee of the Director may waive the provisions based upon standards promulgated by the Commission for Human Services after concurrence by the Chief Executive Officer of the Oklahoma Health Care Authority as the State Medicaid Agency.  No waiver shall be granted for offenses resulting in a felony conviction or plea of guilty or nolo contendere to a felony that occurred less than five (5) calendar years prior to the date of request.  In no case shall a waiver be granted for employment of a community services worker who has been convicted of, or pled guilty or nolo contendere to, a felony count of aggravated assault and battery, homicide, murder, attempted murder, rape, incest, sodomy, or abuse, neglect, or financial exploitation of any person entrusted to the worker's care.

G.  All criminal history records received by the community services provider or Medicaid personal care services provider are for the exclusive use of the Department of Human Services, the Oklahoma Health Care Authority and the community services provider or Medicaid personal care services provider that requested the information.  Except as otherwise provided by this chapter or upon court order or with the written consent of the person being investigated, the criminal history records shall not be released or otherwise disclosed to any other person or agency.

H.  Any person releasing or disclosing any information in violation of this section, upon conviction thereof, shall be guilty of a misdemeanor.

I.  As part of any inspections required by law, the Department of Human Services shall review the employment files of the community services provider or Medicaid personal care services provider required to conduct a criminal history records search to ensure such provider is in compliance with the provisions of this section.

J.  The Department of Human Services shall disclose all registry information, all criminal records gathered and any inspections conducted as a result of this section to the Oklahoma Health Care Authority upon the request of the Oklahoma Health Care Authority.

Added by Laws 1997, c. 407, § 12, eff. Nov. 1, 1997.  Amended by Laws 1999, c. 214, § 2, eff. Nov. 1, 1999; Laws 2002, c. 378, § 2, eff. Nov. 1, 2002; Laws 2003, c. 2, § 3, emerg. eff. March 17, 2003; Laws 2008, c. 71, § 2, eff. Nov. 1, 2008.