Current through Vol. 41, No. 13, March 15, 2024
(a)
Notice. A determination by
the Department that finds an applicant not eligible for a license,
certification, permit or employment will result in a notice to the applicant to
include the reasons why the applicant is not eligible for license,
certification, permit or employment and a statement that the applicant has a
right to appeal the decision made by the Department regarding the eligibility.
The notice shall also include information regarding where to file and describe
the appellate procedures.
(b)
Days to initiate an appeal.
(1)
Pursuant to Title 63 O.S. 1-1947(T)(1), any individual who has been
disqualified from or denied employment by an employer pursuant to Title 63 O.S.
Section
1-1947
may file an appeal with the Department within thirty (30) days of the receipt
of the notice of disqualification. An applicant under 63 O.S. 1-1947(T)(1) may
receive an extension of the thirty (30) days allowed to appeal where good cause
is shown.
(2) An individual who has
been found not eligible for a license, certification, or permit based on their
criminal history may file an appeal with the Department at any time following
receipt of the notice of disqualification.
(c)
Types of appeals. An
applicant may appeal the determination by:
(1) Challenging the finding that the
applicant is the true subject of the results from a name-based registry
background check;
(2) Challenging
the criminal history record as inaccurate;
(3) Requesting a waiver which gives the
applicant the opportunity to demonstrate that the applicant should be allowed
to work because he or she does not pose a risk to patients, facilities or their
property; or
(4) Requesting a
reconsideration of eligibility, which may be considered no sooner than twelve
(12) months from the previous appeal of a determination of ineligibility.
(d)
Inaccuracy of
criminal history record. To demonstrate that the criminal history record
is inaccurate, the applicant shall submit to the Department written documents,
issued and certified by a governmental entity that demonstrate that the
information contained in the criminal history report is inaccurate.
(e)
Criteria for consideration in a
waiver review. The Department shall consider the following criteria in
considering whether the applicant merits a waiver of the applicant's
determination of ineligibility:
(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 of any nature;
(2) Any 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, the
applicant's record of employment history, education, and training subsequent to
conviction;
(4) The relevancy of
the particular disqualifying information with respect to the proposed
employment of the individual to include the job type and duties, and the extent
to which the applicant has unsupervised access to service recipients; and
(5) For appeals under the
authority of 63 O.S. 1-1947(T)(2), 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.
(f)
Where to
file. The applicant's appeal shall be submitted in writing to the
Administrative Hearings Clerk for the Oklahoma State Department of Health, 1000
Northeast 10
th Street, Oklahoma City, OK 73117, and
shall address the criteria specified in (d) of this Section and how the
applicant merits a waiver of the disqualification from employment.
(g)
Conduct of hearing. The
appeal shall be conducted as an individual proceeding pursuant to this Chapter
and the Administrative Procedures Act.
