1. (a)

   1. (1) The following persons shall apply to the Identification Bureau of the Division of Arkansas State Police for a nationwide criminal record check, to be conducted by the Federal Bureau of Investigation, which shall include a fingerprint check.

      1. (A) The individual is responsible for the cost of a nationwide check.
      2. (B) Each request must be accompanied by a check or money order made out to the division.

   2. (2)

      1. (A) Fingerprints submitted will be used to check the criminal history records of the Federal Bureau of Investigation.
      2. (B) Individuals with results showing a prohibited offense shall be advised to contact the Child Care Licensing Unit for procedures to:

2. (i) Obtain the results; and

   1. (ii) Update or make corrections to the record of their individual history.
   2. (3) Criminal records check.

      (A)	Each applicant to own or operate an out-of-school time (OST) facility	At initial application and every five (5) years thereafter
      (B)	Direct care staff or staff with routine contact with participants	Prior to employment and every five (5) years thereafter
      (C)	Administrative persons who have direct contact with participants	Prior to employment and every five (5) years thereafter
      (D)	Therapists, volunteers, or other persons who have supervisory control, disciplinary control over participants, or are left alone with participants	Prior to providing services or participating in center program activities and every five (5) years thereafter

3. (b) Division of Arkansas State Police criminal background check.

   1. (1) The following persons shall be required to have their backgrounds reviewed through a fingerprint criminal records check, which includes the Arkansas Sex Offender Registry, conducted by the division.

   2. (2)

      1. (A) A prospective staff member may not begin work until the division’s criminal record check result has been returned as satisfactory.
      2. (B) Following receipt of the satisfactory result, this individual must be supervised at all times, pending completion of all of the required background check components, by a staff member who has successfully completed all required background checks.

   3. (3)

      1. (A) Prospective employees who have not lived in the State of Arkansas during the preceding five (5) years will be subject to current federal guidelines regarding conducting a criminal background check and sex offender registry check in any states where they resided during the past five (5) years.
      2. (B) A National Sex Offender Registry check will also be conducted on prospective employees.

   4. (4) Criminal records check.

      (A)	Each applicant to own or operate out-of-school time (OST) facility	At initial application and every five (5) years thereafter
      (B)	Staff and applicants for employment in an OST Facility	Prior to employment and every five (5) years thereafter
      (C)	Administrative persons who have direct contact with participants	Prior to providing services or participating in home activities and every five (5) years thereafter
      (D)	Therapists or other persons who have supervisory or disciplinary control over children, or are left alone with participants	Prior to providing services or participating in home activities and every five (5) years thereafter

      1. (c)
   5. (1) Criminal records will be returned to the division for review.

   6. (2) Any charge or convictions listed in this section that are returned will be considered regardless of whether the record is:

      1. (A) Expunged;
      2. (B) Pardoned; or

      3. (C) Otherwise sealed.

         1. (d)

   7. (1) No person shall be eligible to be an OST facility owner, operator, or employee if that person has pleaded guilty, or been found guilty, of:

      1. (A) Any of the following offenses by any court in the State of Arkansas;
      2. (B) Any similar offense by a court in another state; or
      3. (C) Any similar offense by a federal court.
   8. (2) The following offenses are permanently prohibited:

      Abuse of an endangered or impaired person, if felony;	§ 5-28-103;
      Arson;	§ 5-38-301;
      Capital murder;	§ 5-10-101;
      Endangering the welfare of an incompetent person in the first degree;	§ 5-27-201;
      Kidnapping;	§ 5-11-102;
      Murder in the first degree;	§ 5-10-102;
      Murder in the second degree;	§ 5-10-103;
      Rape;	§ 5-14-103;
      Sexual assault in the first degree; and	§ 5-14-124; and
      Sexual assault in the second degree.	§ 5-14-125.

4. (e)

   1. (1) No person shall be eligible to be an OST facility owner, operator, or employee if that person has pleaded guilty, or been found guilty, of:

      1. (A) Any of the following offenses by any court in the State of Arkansas;
      2. (B) Any similar offense by a court in another state; or
      3. (C) Any similar offense by a federal court.
   2. (2) The following offenses are prohibited:

      Criminal attempt to commit any offenses;	§ 5-3-201;
      Criminal complicity to commit any offenses;	§ 5-3-202;
      Criminal conspiracy to commit any offenses;	§ 5-3-401;
      Criminal solicitation to commit any offenses;	§ 5-3-301;
      Assault in the first, second, or third degree;	§§ 5-13-205 to 5-13-207;
      Aggravated assault;	§ 5-13-204;
      Aggravated assault on a family or household member;	§ 5-26-306;
      Battery in the first, second, or third degree;	§§ 5-13-201 to 5-13-203;
      Breaking or entering;	§ 5-39-202;
      Burglary;	§ 5-39-201;
      Coercion;	§ 5-13-208;
      Computer crimes against minors;	§ 5-27-601 et seq.;
      Contributing to the delinquency of a juvenile;	§ 5-27-220;
      Contributing to the delinquency of a minor;	§ 5-27-209;
      Criminal impersonation;	§ 5-37-208;
      Criminal use of a prohibited weapon;	§ 5-73-104;
      Communicating a death threat concerning a school employee or students;	§ 5-17-101;
      Domestic battering in the first, second, or third degree;	§§ 5-26-303 to 5-26-305;
      Employing or consenting to the use of a child in a sexual performance;	§ 5-27-402;
      Endangering the welfare of a minor in the first or second degree;	§§ 5-27-205 to 5-27-206;
      Endangering the welfare of an incompetent person in the first or second degree;	§§ 5-27-201 to 5-27-202;
      Engaging children in sexually explicit conduct for use in visual or print medium;	§ 5-27-303;
      False imprisonment in the first or second degree;	§§ 5-11-103 to 5-11-104;
      Felony abuse of an endangered or impaired person;	§ 5-28-103;
      Felony interference with a law enforcement officer;	§ 5-54-104;
      Felony violation of the Uniform Controlled Substances Act;	§ 5-64-101 et seq.;
      Financial identity fraud;	§ 5-37-227;
      Forgery;	§ 5-37-201;
      Incest;	§ 5-26-202;
      Interference with court-ordered custody;	§ 5-26-502;
      Interference with visitation;	§ 5-26-501;
      Introduction of controlled substance into body of another person;	§ 5-13-210;
      Manslaughter;	§ 5-10-104;
      Negligent homicide;	§ 5-10-105;
      Obscene performance at a live public show;	§ 5-68-305;
      Offense of cruelty to animals;	§ 5-62-103;
      Offense of aggravated cruelty to dog, cat, or horse;	§ 5-62-104;
      Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child;	§ 5-27-304;
      Sexual solicitation;	§ 5-70-103;
      Permanent detention or restraint;	§ 5-11-106;
      Permitting abuse of a minor;	§ 5-27-221;
      Producing, directing, or promoting a sexual performance by a child;	§ 5-27-403;
      Promoting obscene materials;	§ 5-68-303;
      Promoting obscene performance;	§ 5-68-304;
      Promoting prostitution in the first, second, or third degree;	§§ 5-70-104 to 5-70-106;
      Prostitution;	§ 5-70-102;
      Public display of obscenity;	§ 5-68-205;
      Resisting arrest;	§ 5-54-103;
      Robbery;	§ 5-12-102;
      Aggravated robbery;	§ 5-12-103;
      Sexual offenses;	§ 5-14-101 et seq.;
      Simultaneous possession of drugs and firearms;	§ 5-74-106;
      Soliciting money or property from incompetents;	§ 5-27-229;
      Stalking;	§ 5-71-229;
      Terroristic act;	§ 5-13-310;
      Terroristic threatening;	§ 5-13-301;
      Theft by receiving;	§ 5-36-106;
      Theft of property;	§ 5-36-103;
      Theft of services;	§ 5-36-104;
      Transportation of minors for prohibited sexual conduct;	§ 5-27-305;
      Unlawful discharge of a firearm from a vehicle; and	§ 5-74-107; and
      Voyeurism.	§ 5-16-102.

5. (f)

   1. (1) If the licensee wishes to employ an individual with a conviction or plea of guilty or nolo contendere for the following nonviolent offenses, they shall submit a written request for a waiver prior to employment:

      1. (A) Theft by receiving, Arkansas Code § 5-36-106;
      2. (B) Forgery, Arkansas Code § 5-37-201;
      3. (C) Financial identity fraud, Arkansas Code § 5-37-227;
      4. (D) Resisting arrest, Arkansas Code § 5-54-103;
      5. (E) Criminal impersonation in the second degree, Arkansas Code § 5-37-208(b);
      6. (F) Interference with visitation, Arkansas Code § 5-26-501;
      7. (G) Interference with court-ordered custody, Arkansas Code § 5-26-502;
      8. (H) Prostitution, Arkansas Code § 5-70-102; or
      9. (I) Sexual solicitation, Arkansas Code § 5-70-103.

   2. (2) The waiver may be approved if all the following conditions are met:

      1. (A) The individual has completed probation or parole supervision;

      2. (B) The individual has paid all court-ordered:

         1. (i) Fees;
         2. (ii) Fines; and
         3. (iii) Restitution; and
      3. (C) The individual has fully complied with all court orders pertaining to the conviction or plea.

6. (g) The waiver will be revoked if after employment the individual:

   1. (1) Pleads guilty or nolo contendere or is found guilty of any prohibited offense, including the list in subdivision (f)(1) of this section; or
   2. (2) Has a true or founded report of child maltreatment or adult maltreatment in a central registry.

7. (h) The request for waiver and certification of approval shall be kept in the individual’s file for the term of employment and three (3) years after termination of employment.

   1. (i) If approved, the waiver is not transferable to another licensed facility.

8. (j)

   1. (1) Any person who has pleaded guilty or nolo contendere or who has been found guilty of any one (1) of the offenses listed as prohibited above (subdivision (e)(2) of this section) may not work in child care unless:

      1. (A) The date of the conviction or plea of guilty or nolo contendere for a misdemeanor offense:

         1. (i) Is at least five (5) years from the date of the request for the criminal history records check; and
         2. (ii) There have been no criminal convictions or pleas of guilty or nolo contendere of any type or nature during the five-year period preceding the background check request; or

      2. (B) The date of the conviction or plea of guilty or nolo contendere for a felony offense:

         1. (i) Is at least more than ten (10) years from the date of the request for the criminal history records check; and
         2. (ii) There have been no criminal convictions or pleas of guilty or nolo contendere of any type or nature during the ten-year period preceding the background check request.
   2. (2) Anyone employed in a licensed center, church-operated exempt center, licensed childcare family home, or a registered childcare family home prior to September 1, 2009, with a clear background check history may remain eligible for employment unless the employee had a conviction, pleaded guilty, or pleaded nolo contendere to an offense listed in subsection (f) of this section since September 1, 2009.

Codification Notes: This section as promulgated prior to codification into the Code of Arkansas Rules contained the following at the end of subdivision (f)(1) of this section: "§ 20-38-103(e)(3)(a) Act 990 of 2013".