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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
CONFERENCE COMMITTEE
SUBSTITUTE
FOR ENGROSSED
HOUSE BILL NO. 1797 By: Miller and Lawson of the
House
and
Garvin of the Senate
CONFERENCE COMMITTEE SUBSTITUTE
An Act relating to child care facilities; amending 10
O.S. 2011, Section 404.1, as last amended by Section
1, Chapter 109, O.S.L. 2017 (10 O.S. Supp. 2020,
Section 404.1), which relates to criminal history
searches; prohibiting employment of perpetrator with
substantiated finding of heinous and shocking abuse;
amending 10 O.S. 2011, Section 406, as last amended
by Section 1, Chapter 368, O.S.L. 2019 (10 O.S. Supp.
2020, Section 406), which relates to investigations
of child care facilities; requiring notification when
there is a substantiated finding of heinous and
shocking abuse; prescribing method and timing for
notification; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 10 O.S. 2 011, Section 404.1, as
last amended by Section 1, Chapter 109, O.S.L. 2017 (10 O.S. Supp.
2020, Section 404.1), is amended to read as follows:
Section 404.1 A. On and after November 1, 2013:
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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 reside d 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
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h. a search of the community services work er 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 requ ested 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 Registr y 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 off ender 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 S ex Offenders Registration
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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 Service s
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,
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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;
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4. Prior to the iss uance 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 conducte d 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,
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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
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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,
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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 a gency,
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 exc eption to the
fingerprinting requirements for individuals who have a severe
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physical condition which precludes such individuals from being
fingerprinted;
12. The Director of the Department, or designee, shall
promulgate rules that ensure individuals obtai n 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 define d 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 cert ified by the
Office of Juvenile Affairs,
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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.
B. 1. 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 f amily home
through the Department of Human Services
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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 ch ild
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 Serv ices
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
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(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.
2. a. (1) On and after September 1, 1998, e xcept as
otherwise provided in divisions (2) and (4) of
this subparagraph, prior to contracting with a
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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 subparagr aph, 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 pen ding
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
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be completed for any adult who subsequently moves
into the foster family home.
(4) The Director of Human Services or the Dire ctor 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.
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.
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
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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 res idence 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 Childr en'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.
E. 1. Information received pursuant to this section b y 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 indi vidual 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
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provided for in paragraph 1 of th is 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.
F. 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 prov ides 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 pu rsuant 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 an d 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
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and shocking abuse by a person respons ible 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 provid es 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 sh all 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.
3. 4. In addition to the penalties specified by this section,
the violator may be liable for civil damages.
SECTION 2. AMENDATORY 10 O.S. 2011, Section 406, as last
amended by Section 1, Chapter 368, O.S.L. 2019 (10 O.S. Supp. 2020,
Section 406), is amended to read as follows:
Section 406. A. 1. Except as provided in paragraph 2 of this
subsection, the Department of Human Services shall have authority at
any reasonable time to investigate and examine the conditions of any
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child care facility in which a licensee or applicant hereunder
receives and maintains children, and shall have authority at any
time to require the facility to provide information pertaining to
children in its care.
2. When the Department of Human Services is revi ewing the star
rating of a child care program with a capacity of fifty or more, the
comprehensive visit to inspect and examine the program shall be
scheduled with the administration of the program at least one (1)
week in advance of the visit, if requested by the child care
facility.
B. 1. The State Department of Health may visit any licensee or
applicant at the request of the Department to advise on matters
affecting the health of children and to inspect the sanitation of
the buildings used for their car e.
2. The State Fire Marshal may visit any licensee or applicant
at the request of the Department to advise on matters affecting the
safety of children and to inspect the condition of the buildings
used for their care.
C. 1. Upon receipt of a complaint against any child care
facility alleging a violation of the provisions of the Oklahoma
Child Care Facilities Licensing Act, or any licensing standard
promulgated by the Department, the Department shall conduct a full
investigation. If upon investigation, it is determined that there
are reasonable grounds to believe that a facility is in violation of
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the Oklahoma Child Care Facilities Licensing Act or of any standard
or rule promulgated pursuant thereto, the Department shall:
a. document the complaint,
b. provide the complaint allegations in writing to the
facility involved and, upon written request by the
child care facility, provide a summary of the facts
used to evaluate the completed complaint, and
c. document the facility's plan for correcting any
substantiated violations.
2. If the Department determines there has been a violation and
the violation has a direct impact on the health, safety or well -
being of one or more of the children cared for by the facility, the
Department shall notify the facility an d require correction of the
violation.
3. The Department shall notify the facility that failure to
correct the confirmed violation can result in the revocation of the
license, the denial of an application for a license, the issuance of
an emergency order or the filing of an injunction pursuant to the
provisions of Section 409 of this title.
4. If the facility refuses to correct a violation or fails to
complete the plan of correction, the Department may issue an
emergency order, revoke the license, or deny the application for a
license. Nothing in this section or Section 407 of this title shall
be construed as preventing the Department from denying an
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application, revoking a license, or issuing an emergency order for a
single violation of this act, or the rules of the Department as
provided in Section 404 of this title.
5. If the Department determines there has been a substantiated
finding of heinous and shocking abuse by a person responsible for a
child's health, safety or welfare, as those terms are defi ned in
Section 1-1-105 of Title 10A of the Oklahoma Statutes, the
Department shall notify the child care facility owner or operator
and the child care resource and referral organization in writing
immediately or not later than one (1) business day after th e
substantiated finding. Upon receiving notice of a substantiated
finding, the facility owner or operator shall attempt to immediately
notify, but not later than seventy -two (72) hours after receiving
notice of the substantiated finding, parents or legal guardians of
children attending the facility by certified mail.
D. Upon the completion of the investigation of a complaint
against any child care facility alleging a violation of the
provisions of the Oklahoma Child Care Facilities Licensing Act or
any licensing standard promulgated thereto by the Department, the
Department shall clearly designate its findings on the first page of
the report of the investigation. The findings shall state whether
the complaint was substantiated or unsubstantiated.
E. Information obtained by the Department or Oklahoma Child
Care Services concerning a report of a violation of a licensing
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requirement, or from any licensee regarding children or their
parents or other relatives shall be deemed confidential and
privileged communications, shall be properly safeguarded, and shall
not be accessible to anyone except as herein provided, unless upon
order of a court of competent jurisdiction. Provided, however, this
provision shall not prohibit the Department from providing a summary
of allegations and findings of an investigation involving a child
care facility that does not disclose identities but that permits
parents to evaluate the facility.
F. The Department shall promulgate rules to establish and
maintain a grievance process tha t shall include an anonymous
complaint system for reporting and investigating complaints or
grievances about employees of the Department who retaliate against a
child care facility or facility employee.
SECTION 3. This act shall become eff ective November 1, 2021.
58-1-8229 EK 05/06/21