Sec. 13a.16.06.03. Suitability for Employment

A. A child care center operator may not employ an individual who has received a conviction, a probation before judgment disposition, a not criminally responsible disposition, or a pending charge for the commission or attempted commission of:

(1) A crime involving:

(a) A child;

(b) Cruelty to animals;

(c) Domestic violence; or

(d) A weapons or firearms violation of federal or state laws;

(2) A sex offense;

(3) A violent crime classified as a felony, including physical assault or battery;

(4) Abduction or kidnapping;

(5) Abuse of a child or an adult;

(6) Confinement of an unattended child;

(7) Manufacturing, distributing, or dispensing a controlled dangerous substance;

(8) Perjury;

(9) Pornography;

(10) Possession with intent to manufacture, distribute, or dispense a controlled dangerous substance;

(11) Reckless endangerment; or

(12) The felony of:

(a) Murder;

(b) Spousal abuse; or

(c) Arson.

B. If an individual has been identified as responsible for child abuse or neglect or received a conviction, a probation before judgment disposition, a not criminally responsible disposition, or a pending charge for the commission or attempted commission of a crime or offense that is not included in §A of this regulation, the office:

(1) Shall assess, on the basis of the following factors, the individual's suitability for employment:

(a) The job position at the center for which the individual is applying or in which the individual is currently employed;

(b) The nature and seriousness of the incident, crime, or offense;

(c) How long ago the incident, crime, or offense occurred;

(d) The age of the individual at the time the incident, crime, or offense occurred;

(e) The individual's probation or parole status, if applicable; and

(f) Any other information the office considers pertinent; and

(2) Depending on the results of the assessment, shall permit or prohibit employment of the individual.

C. Request for Reassessment.

(1) An individual who is prohibited from employment by the office pursuant to §B of this regulation may request the office to conduct a reassessment with respect to the incident, crime, or offense.

(2) For a reassessment request to be eligible for consideration:

(a) The request shall be in writing and shall include documentation, such as but not limited to letters of support or evaluation reports, pertinent to the incident, crime, or offense; and

(b) The individual may not have submitted a reassessment request, whether for the same or a different job position, within the previous 12 months.

(3) In order to reach a decision on the request, the office may request additional information from the individual, the center operator, or any agency or entity cited by the individual or the operator in connection with the reassessment request.

(4) Upon reaching a decision on the request, the office shall promptly notify the individual of that decision.

(5) The center operator may not permit the individual to begin or to resume employment until the office has notified the operator that the individual may be employed.

D. Notification of Employment Prohibition.

(1) If the office, pursuant to this chapter, determines that an individual may not be employed at a center, the office shall notify the individual and the center operator in writing of that decision and its basis.

(2) The written notification to the individual shall also:

(a) State that the individual may appeal the decision to the Office of Administrative Hearings (OAH); and

(b) Specify the requirements for submitting an appeal to the OAH.

E. Upon notification that an individual may not be employed, the center operator:

(1) Shall promptly terminate the individual from employment or from consideration for employment, as applicable; and

(2) Unless the individual appeals the decision to the OAH and the appeal is concluded in favor of the individual, may not:

(a) Reconsider the individual for employment;

(b) Permit the individual to have any contact with an unrelated child in care; or

(c) Allow the individual on the premises of the facility except to exercise parental responsibilities with respect to a related child in care.

F. An operator may not allow an individual to serve, or to continue to serve, in a child care position for which the individual does not meet the employment qualification or training requirements set forth at Regulations .05-.12, as applicable, of this chapter, unless the individual is a substitute functioning in accordance with Regulation .13 of this chapter.