HOME- AND COMMUNITY-BASED SERVICES
OKLAHOMA 2024 SESSION LAW SERVICE Fifty-Ninth Legislature, 2024 Second Regular Session
2024 Okla. Sess. Law Serv. Ch. 79 (S.B. 1385) (WEST)
OKLAHOMA 2024 SESSION LAW SERVICE
Fifty-Ninth Legislature, 2024 Second Regular Session
CHAPTER 79
S.B. No. 1385
HOME- AND COMMUNITY-BASED SERVICES
An Act relating to home- and community-based services; amending 56 O.S. 2021, Section 1025.1, which relates to definitions; modifying and adding definitions; amending 56 O.S. 2021, Section 1025.2, which relates to community services provider requirements; broadening allowed criminal history records searches for certain providers; authorizing the Department of Human Services to obtain national criminal history records search for certain community services providers; describing certain searches; broadening applicability of certain provisions; increasing time period of certain temporary employment; requiring certain community services providers to provide national criminal history records search for certain workers; updating statutory references; and providing an effective date.
SUBJECT: Home- and community-based services
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
<< OK ST T. 56 § 1025.1 >>
SECTION 1. AMENDATORY 56 O.S. 2021, Section 1025.1, is amended to read as follows:
Section 1025.1. For the purposes of Sections 1025.2 through 1025.4 of this title:
1. “Administrative information” means information reported to or obtained by the Department of Human Services regarding the community services provider during the investigative process that may be appropriate for internal administrative action but does not have the potential to impact the immediate health, safety or welfare of recipients of community services, has not been verified as true and is for informational purposes only;
2. “Area of concern” means an issue that does not rise to the level of abuse or neglect but may constitute a possible deficiency, irregularity or deviation from policies and best practices by the community services provider which has the potential to impact the health, safety or welfare of recipients of community-based services, and the Department of Human Services has conducted sufficient inquiry into the issue to meet the probable cause investigative standard;
3. “Bureau” means the Oklahoma State Bureau of Investigation;
4. “Community services provider” means a community-based program, corporation, or individual who contracts with, or is licensed or funded by, the Department of Human Services to provide residential or vocational services through in-person supports or through the use of remote supports to persons who are elderly or persons with intellectual or developmental disabilities, or contracts with the Oklahoma Health Care Authority to provide services to individuals with intellectual disabilities through a Home and Community–Based Waiver, except a private ICF/IID;
5. “Community services worker” means any person employed by or under contract with a community services provider who provides, for compensation or as a volunteer, health-related services, training, or supportive assistance to persons who are elderly or persons with developmental disabilities, and who is not a licensed health professional or any person who contracts with the Oklahoma Health Care Authority to provide specialized foster care, habilitation training specialist services, or homemaker services to persons with developmental disabilities;
6. “Department” means the Department of Human Services;
7. “Developmental disability” means a severe, chronic disability of a person which:
a. is attributable to a mental or physical impairment or combination of mental and physical impairments, such as an intellectual development disorder, cerebral palsy, or autism,
b. is manifested before the person attains twenty-two (22) years of age,
c. is likely to continue indefinitely,
d. results in substantial functional limitations in three or more of the following areas of major life activity:
(1) self-care,
(2) receptive and expressive language,
(3) learning,
(4) mobility,
(5) self-direction,
(6) capacity for independent living, and
(7) economic self-sufficiency, and
e. reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated;
8. “Health-related services” means those services provided by community services providers or community services workers to persons who are elderly or persons with developmental disabilities that include, but are not limited to, personal hygiene, transferring, range of motion, supervision or assistance in activities of daily living, basic nursing care such as taking temperature, pulse or respiration, positioning, incontinent care, and identification of signs and symptoms of disease. Certain tasks that may be performed as basic nursing care by community services workers require appropriate training provided or approved by the Department, written agreement by the service recipient's personal support team, and the primary care physician's acknowledgement and specific order related to the task. Under such circumstances, basic nursing care may include, but need not be limited to:
a. nutrition including meals by gastrostomy tube or jejeunostomy jejunostomy tube,
b. blood glucose monitoring,
c. ostomy bag care,
d. oral suctioning, and
e. administration of oral metered dose inhalers and nebulizers;
9. “Supportive assistance” means the service rendered to persons with developmental disabilities which is sufficient to enable such person to meet an adequate level of daily living. Supportive assistance includes, but is not limited to, training, supervision, assistance in housekeeping, assistance in the preparation of meals, and assistance in activities of daily living as necessary for the health and comfort of persons with developmental disabilities;
10. “Remote supports” means the utilization of technology by community services workers who are in remote locations, away from the residences or locations of individuals with developmental or intellectual disabilities, to provide health-related services or supportive assistance to those individuals. Communication with individuals with developmental or intellectual disabilities shall be achieved with the use of two-way communications by community services workers through such means as telephone or video feeds;
11. “Maltreatment” means abuse, verbal abuse, sexual abuse, neglect, financial neglect, exploitation or sexual exploitation of vulnerable adults as defined in Section 10–103 of Title 43A of the Oklahoma Statutes or abuse, neglect, sexual abuse or sexual exploitation of children as defined in Section 1–1–105 of Title 10A of the Oklahoma Statutes;
<< OK ST T. 56 § 1025.2 >>
SECTION 2. AMENDATORY 56 O.S. 2021, Section 1025.2, is amended to read as follows:
Section 1025.2. 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 (Bureau), or a Federal Bureau of Investigation (FBI) national criminal history records search, based on fingerprints which the employer is required or authorized to request pursuant to the provisions of this section.
5. The Department of Human Services is authorized to obtain a national criminal history records search based on submission of fingerprints for community services providers that provide remote supports. The search 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, with the Department as the authorized agency,
b. be submitted and have results received between the Department and the Oklahoma State Bureau of Investigation through secure electronic transmissions, and
c. be paid for by the applicant or the community services provider.
6. A criminal history records search for community services providers shall include:
a. an Oklahoma State Courts Network search, except for community services providers that provide remote supports,
b. a search of the Restricted Registry established under the Oklahoma Child Care Facilities Licensing Act,
c. a national criminal history records search for community services providers that provide remote supports in accordance with paragraph 5 of this subsection,
d. a sex offender registry search conducted by an authorized source, when the individual has lived outside this state within the last five (5) years, and
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.
7. A Medicaid personal care services provider shall request the Bureau or FBI 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.
10. 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–Language 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 10 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) forty-five (45) 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. When a community services provider will be providing remote supports from outside this state, the community services provider shall provide an FBI national criminal history records search, based on fingerprints, on out-of-state community services workers or applicants in lieu of a criminal history records search by the Oklahoma State Bureau of Investigation pursuant to this section.
G. 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.
SECTION 3. This act shall become effective November 1, 2024.
Approved April 22, 2024.
| End of Document |