Okla. Stat. tit. 10, § 404.1 – Criminal History Records Search and Child Care Restricted Registry for Individual Applying to Establish or Operate Child Care Facility

Multiple Amendments Enacted During the 1997 Legislative Session

A. Every owner or administrator of a child care facility shall arrange, prior to employment, for a criminal history investigation conducted by the Oklahoma State Bureau of Investigation for an applicant for employment and for any adult residing in a child care facility that is licensed or approved by a child-placing agency and located in a private residence. If the applicant for employment or resident has resided in Oklahoma for less than one (1) year, the criminal history investigation shall be obtained from the previous state of residence.
B.
1. 1. Adults not required to obtain a criminal history investigation are: a. parent volunteers who transport children on an irregular basis, and
2. b. a child of a foster, adoptive, group or family child care home who became an adult during continuous residence at the licensed facility.
3. 2. These exemptions shall not preclude the Department from requesting a criminal history investigation or investigating criminal, abusive or harmful behavior, if warranted.
4. 3. Prior to the acceptance of a foster family home for placement of any child in the custody of the Department of Human Services, the Department shall arrange for a criminal history investigation, conducted by the Oklahoma State Bureau of Investigation, for a foster family applicant and for any adult residing in such foster family home. A criminal history investigation conducted by the Oklahoma State Bureau of Investigation shall be done for any adult who moves into the residence at a later time.
5. 4. The Department of Human Services shall promulgate rules to identify circumstances when a criminal history investigation of a foster family applicant and of any adult residing in such foster family home shall be expanded beyond the investigation conducted by the Oklahoma State Bureau of Investigation.
C. A conviction for a crime shall not be an absolute bar to employment, except as provided in subsection E of this section, but shall be considered in relation to specific employment duties and responsibilities.
D.
1. 1. Information received pursuant to this section by an owner or administrator of a child care facility shall be maintained in a confidential manner in a file that is separate from employment records. The information may be transmitted to the Department for child care facility licensing purposes.
2. 2. Whenever an applicant is subsequently employed by the owner or administrator of a child care facility, the information received pursuant to a criminal history investigation shall not be made a part of that individual's personnel records. Such information, along with any other information relevant to the individual's ability to perform tasks that require direct contact with children, may be released to another child care facility in response to a request from an owner or administrator of a child care facility who is considering employing the individual.
3. 3. Requirements for confidentiality and record keeping with regard to the information shall be the same for the owner or administrator receiving the information in response to a request as those provided for in paragraph 1 of this subsection for the owner or administrator releasing such information.
E.
1. 1. A criminal history investigation conducted by the Oklahoma State Bureau of Investigation shall include a search of Department of Corrections' files maintained pursuant to the Sex Offenders Registration Act.
2. 2. It shall be unlawful for any person who is 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 allow continued employment of any person who is required to register pursuant to the Sex Offenders Registration Act. Any person required to register pursuant to the Sex Offenders Registration Act who violates any provision of this act 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) or both such fine and imprisonment. Upon a determination of any violation of the provisions of this section, the violator shall be subject to an administrative fine not to exceed One Thousand Dollars ($1,000.00). In addition, the violator may be liable for civil damages.
  Version 2 (as amended by Laws 1997, HB 2133, c. 389, § 20, eff. November 1, 1997)
3. A.
  1. 1. The Department of Human Services shall require a criminal history investigation, conducted by the Oklahoma State Bureau of Investigation, for any person making application to establish or operate a child care facility prior to the issuance of a license to operate such facility.
  2. 2.
    1. a. Every child care facility shall arrange, prior to employment for a criminal history investigation to be conducted by the Oklahoma State Bureau of Investigation for any person to be employed by the child care facility.
    2. b. In addition, any child care facility, licensed or approved pursuant to the Oklahoma Child Care Facilities Licensing Act, and located in a private residence, shall arrange for a criminal background investigation for any adult residing in the child care facility. A criminal history investigation conducted by the Oklahoma State Bureau of Investigation shall also be completed for any adult who subsequently moves into the private residence.
  3. 3.
    1. a. Any child care facility, contracting with any 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, arrange for a criminal history investigation for the contractor conducted by the Oklahoma State Bureau of Investigation.
    2. b. Any child care facility contracting with any person for foster family home services shall arrange for a criminal background investigation for any adult residing in the foster family home. A criminal history investigation conducted by the Oklahoma State Bureau of Investigation shall also be completed for any adult who subsequently moves into the residence.
    3. c. Any child care facility contracting with any person for foster family home services shall request the Office of Juvenile Justice for a juvenile justice information system review pursuant to Sections 7302-9.6 and 7302-3.8 of this title 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 private residence. As a condition of contract, the child care facility shall obtain the consent of the parent or guardian of the child for such review.
  4. 4. If the applicant planning to establish or operate a child care facility, or an employee or contract employee of the child care facility, or the contractor of the child care facility has resided in Oklahoma for less than one (1) year, the criminal history investigation shall also be obtained from such person's previous state of residence.
4. B.
  1. 1. Prior to contracting with a foster family home for placement of any child who is in custody of the Department of Human Services, the Department shall arrange for a criminal history investigation, conducted by the Oklahoma State Bureau of Investigation, for such foster family applicant and for any adult residing in such foster family home. A criminal history investigation conducted by the Oklahoma State Bureau of Investigation shall also be completed for any adult who subsequently moves into the residence.
  2. 2. The Department shall provide for a juvenile justice information system review pursuant to Section 7302-3.8 of this title 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 private residence.
5. C. The Commission for Human Services shall promulgate rules to identify circumstances when a criminal history investigation 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 investigation conducted by the Oklahoma State Bureau of Investigation or as otherwise provided pursuant to this section.
6. D.
  1. 1. The following persons shall not be required to obtain a criminal history investigation pursuant to this section:
    1. a. a parent volunteer who transports children on an irregular basis, and
    2. b. a child day care center or family child care home operator who became an adult during continuous residence at the licensed or approved facility.
  2. 2. These exemptions shall not preclude the Department from requesting a criminal history investigation or investigating criminal, abusive or harmful behavior of such persons, if warranted.
7. E. A conviction for a crime shall not be an absolute bar to employment, except as provided in subsection G of this section, but shall be considered in relation to specific employment duties and responsibilities.
8. F.
  1. 1. Information received pursuant to this section by an owner or administrator of a child care facility shall be maintained in a confidential manner in a file that is separate from employment records. The information may be transmitted to the Department for child care facility licensing purposes.
  2. 2. Whenever an applicant is subsequently employed by or contracts with a child care facility, the information received pursuant to a criminal history investigation shall not be made a part of that individual's personnel or contract records. Such information, along with any other information relevant to the individual's ability 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.
  3. 3. Requirements for confidentiality and record keeping 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.
9. G.
  1. 1. A criminal history investigation conducted by the Oklahoma State Bureau of Investigation shall include a search of Department of Corrections' files maintained pursuant to the Sex Offenders Registration Act.
  2. 2.
    1. a. It shall be unlawful for any person who is 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 any person who is required to register pursuant to the Sex Offenders Registration Act. Any person required to register pursuant to the Sex Offenders Registration Act who violates any provision of this act 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) or both such fine and imprisonment.
    2. b. 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:
      1. (1) an emergency order,
      2. (2) license revocation, denial or renewal,
      3. (3) injunctive proceedings,
      4. (4) an administrative penalty not to exceed Ten Thousand Dollars ($10,000.00), and
      5. (5) referral for criminal proceedings.
    3. c. In addition to the penalties specified by this section, the violator may be liable for civil damages.

Version 1 (as amended by Laws 1997, HB 1729, c. 260, § 1, eff. November 1, 1997) (repealed by Laws 1998, HB 3348, c. 5, § 29, emerg. eff. March 4, 1998)

Laws 1990, HB 2227, c. 186, § 1, eff. September 1, 1990; Amended by Laws 1993, HB 1491, c. 122, § 4, emerg. eff. April 29, 1993; Amended by Laws 1995, HB 1207, c. 142, § 8, emerg. eff. July 1, 1995; Amended by Laws 1995, SB 384, c. 222, § 1, eff. November 1, 1995; Amended by Laws 1996, HB 2053, c. 200, § 1, eff. November 1, 1996; Amended by Laws 1997, HB 1729, c. 260, § 1, eff. November 1, 1997 (repealed by Laws 1998, HB 3348, c. 5, § 29, emerg. eff. March 4, 1998); Amended by Laws 1997, HB 2133, c. 389, § 20, eff. November 1, 1997 (superseded document available).