6 CAR Part 194 — Rules Governing Background Checks

Chapter I

Subchapter G

Subpart 1

6 CAR § 194-101 Purpose {#sec-6-car-194-101 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-101}

6 CAR § 194-101. Purpose.

(a) It is the purpose of this part to set forth the requirements for a criminal background check and a Child Maltreatment Central Registry check for each:

(1) First-time applicant for a license issued by the State Board of Education;

(2) Applicant for his or her license renewal;

(3) Applicant for initial employment in a licensed staff position with an educational entity;

(4) Applicant for initial employment or noncontinuous reemployment in a nonlicensed staff position with an educational entity;

(5) Preservice teacher; and

(6) Registered volunteer who is in the process of obtaining a coaching certificate or will be working with students in an athletic coaching capacity.

(b) It is further the purpose of this part to prescribe the procedure for revoking, suspending, or placing on probation an educational license when an applicant is disqualified for licensure on the basis of a background check under this part.

(c) It is further the purpose of this part to clarify that superintendents, directors of educational entities, and third-party vendors shall have the responsibility of reporting licensure violations of teachers, disqualifying offenses of classified employees, disqualifying offenses of registered volunteer coaches as defined by this part, and fraudulent acts by fiscal officers to the state board.

(d) It is further the purpose of this part to provide for the participation in state and federal rap back programs.

6 CAR § 194-102 Definitions {#sec-6-car-194-102 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-102}

6 CAR § 194-102. Definitions.

For the purposes of this part:

(1) “Affected district” means a public school district that loses territory or students as a result of:

(A) Annexation;

(B) Consolidation; or

(C) Detachment;

(2) “Applicant” includes any individual who must apply to the Identification Bureau of the Division of Arkansas State Police:

(A) For a statewide or nationwide criminal records check or with the Child Maltreatment Central Registry check as a condition for a license issued by the State Board of Education under Arkansas Code § 6-17-410; or

(B) As a condition for employment by an educational entity under Arkansas Code § 6-17-411, § 6-17-414, or § 6-17-421;

(3) “Breach of fiduciary trust” means the wrongful misappropriation by a person of any fund or property, which had lawfully been committed to him or her in a fiduciary character;

(4) “Division” means the Division of Elementary and Secondary Education of the Department of Education;

(5) “Educational entity” means:

(A) The Division of Elementary and Secondary Education; or

(B) An entity that is identified by the Division of Elementary and Secondary Education as a local education agency, except that for a public school operated by a school district, the school district is the educational entity;

(6)(A) “Employment” includes any contract of hire:

(i) Whether written or oral;

(ii) Whether express or implied;

(iii) For any type of work on behalf of an educational entity;

(iv) Whether full-time or part-time; and

(v) Whether permanent or temporary.

(B) “Employment” also specifically includes without limitation:

(i) Service as a substitute teacher, whether paid or unpaid; and

(ii) Student teaching in a supervised clinical practice, whether paid or unpaid.

(C) “Employment” does not include contractors and workers for hire from third-party vendors under the exclusion in subdivision (22)(B) of this section;

(7) “Fiscal officer” means any licensed or nonlicensed employee of an educational entity who has any right, duty, or responsibility to access funds of the educational entity in excess of five thousand dollars ($5,000), specifically including without limitation:

(A) Superintendents;

(B) Fiscal officers; and

(C) Bookkeepers;

(8) “Fraud” means all acts, omissions, and concealments involving:

(A) A breach of a legal or equitable duty; and

(B) Resulting in damage to another;

(9) “Fraudulent act” means an act:

(A) Performed willfully and with the specific intent to deceive or cheat for the purpose of either:

(i) Causing some financial loss to another; or

(ii) Bringing about some financial gain to the actor; and

(B) In which the actor has:

(i) Pleaded guilty or nolo contendere; or

(ii) Been found guilty by:

(a) Any court in this state or another state; or

(b) A federal court;

(10) “Initial employment” means the first time that an applicant has been employed by an educational entity;

(11) “Law enforcement officer” means a:

(A) State police officer;

(B) City police officer;

(C) Sheriff; or

(D) Deputy sheriff;

(12) “Letter of provisional eligibility” means a six-month, nonrenewable letter of provisional eligibility for licensure issued by the State Board of Education to an applicant for first-time licensure during the period that a criminal records check and Child Maltreatment Central Registry check are being conducted;

(13) “Noncontinuous reemployment” means employment in an educational entity by an applicant who was previously employed by the same entity but not at any point during the immediately preceding school year;

(14)(A) “Nonlicensed staff position” means a position with an educational entity, in which the position does not require the holder of the position to possess an Arkansas teacher’s license.

(B) “Nonlicensed staff position” includes a:

(i) Parental monitor on a school bus as permitted under Arkansas Code § 6-19-127;

(ii) Staff position for which the nonlicensed staff person is either paid:

(a) Directly by the educational entity; or

(b) By a third-party vendor under contract with the educational entity to staff the position; and

(iii) Designated employee position with the Division of Elementary and Secondary Education;

(15) “Preservice teacher” means an unlicensed person accepted or enrolled in a teacher preparation program approved by the Division of Elementary and Secondary Education;

(16) “Rap back program” means a state or federal program that provides notification to the Division of Elementary and Secondary Education of an arrest subsequent to an initial background check that is conducted pursuant to this part;

(17) “Receiving or resulting public school district” means a public school district that is created or gains territory or students as the result of a:

(A) Consolidation;

(B) Annexation; or

(C) Detachment;

(18) “Registered volunteer coach” means a registered volunteer, as defined by Arkansas Code § 6-22-103, who:

(A) Is in the process of obtaining a coaching certificate; or

(B) Will be working with students in an athletic coaching capacity;

(19)(A) “Revocation” means the invalidation of any educator’s license.

(B) The revocation will remain permanently in:

(i) The Division of Elementary and Secondary Education file of the educator; and

(ii) In the files retained by the Professional Licensure Standards Board.

(C) An educator whose license has been revoked may refer to the Division of Elementary and Secondary Education Rules Governing Educator Licensure, 6 CAR pt. 180, on the reinstatement of a revoked license;

(20) “State board” means the State Board of Education;

(21) “Supervised clinical practice” means the placement of a preservice teacher by a teacher preparation program approved by the Division of Elementary and Secondary Education at the educational entity for the purpose of the student completing an internship or a student teaching experience required by the teacher education program; and

(22) “Third-party vendor” (or “outside vendor”) means:

(A) A person or business organization that contracts with an educational entity to provide staffing for:

(i) Nonlicensed positions;

(ii) Positions requiring a license issued by the State Board of Education; and

(iii) Positions where the requirement for a license is waived by the State Board of Education.

(B) “Third-party vendor” does not include a contractor or vendor who is:

(i) Temporarily on an educational entity’s property solely for the purpose of routine maintenance or service; and

(ii) Not filling a staff position.

History

• Codification Notes: This part as promulgated prior to codification into the Code of Arkansas Rules provided as follows: “Source: Ark. Code Ann. §§ 6-17-410, 6-17-411, 6-17-414, 6-17-417, and 6-17-421.” Authorities: Arkansas Code § 6-11-105; Arkansas Code § 6-17-410; Arkansas Code § 6-17-414

6 CAR § 194-103 Licensure, license renewals, and license revocation {#sec-6-car-194-103 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-103}

6 CAR § 194-103. Licensure, license renewals, and license revocation.

(a) Unless a waiver is granted pursuant to this section, the State Board of Education shall not issue a license or license renewal to, and shall revoke, suspend, or place on probation the existing license of any individual who:

(1) Has pled guilty, pled nolo contendere to, or been found guilty of any offense that will or may result in license revocation under Arkansas Code § 6-17-410;

(2)(A) Has a sealed, an expunged, or a pardoned conviction for any offense in Arkansas Code § 6-17-410(c) that involves the physical or sexual injury, mistreatment, or abuse of another.

(B) A sealed, an expunged, or a pardoned conviction shall not disqualify a person if the conviction does not involve the physical or sexual injury, mistreatment, or abuse of another;

(3) Has a true report in the Child Maltreatment Central Registry;

(4) Holds a teaching or similar license obtained by fraudulent means;

(5) Has had a teaching or similar license revoked in another state for any reason that Arkansas would disqualify the individual for licensure or employment under this part;

(6) Intentionally compromises the validity or security of any student test or testing program administered by or required by the:

(A) State board; or

(B) Division of Elementary and Secondary Education;

(7) Has the completed examination test score of any testing program required by the state board for teacher licensure:

(A) Declared invalid by the testing program company; and

(B) So reported to the division by the testing company;

(8) Fails to establish or maintain the necessary requirements and standards set forth in Arkansas law or state board rules for teacher licensure;

(9) Knowingly submits or provides false or misleading information or knowingly fails to submit or provide information requested or required by law to the:

(A) Division;

(B) State board; or

(C) Arkansas Legislative Audit; or

(10) Knowingly falsifies or directs another to falsify any grade given to a student, whether the grade was given:

(A) For an individual assignment or examination; or

(B) At the conclusion of a regular grading period.

(b)(1) Before denying an application for licensure or renewal or taking action against an existing license, the division shall:

(A) Provide to the applicant or licensee a written notice of the reason for the action; and

(B) Afford the applicant or licensee the opportunity to request a hearing before the state board.

(2) Upon receiving the written notice required by this section a person may:

(A) Decline to answer the notice, in which case the state board shall hold a hearing to establish by a preponderance of the evidence that cause for the proposed action exists;

(B) Contest the allegations of fact and request a hearing in writing, in which case the person shall be given an evidentiary hearing before the state board if one is requested;

(C) Admit the allegations of fact and request a hearing before the state board to request a waiver; or

(D) Stipulate or reach a negotiated agreement that must be approved by the state board.

(3) A preservice teacher who receives notice under this section and who desires to request a hearing before applying for licensure shall submit to the division the following items with the written request for a hearing:

(A) Proof of acceptance or enrollment in a teacher preparation program approved by the division; and

(B) A written recommendation from the teacher preparation program.

(4)(A) A written request for hearing by the applicant, licensee, or board of directors of a school district or open-enrollment public charter school must be received by the division’s Office of Legal Services no more than thirty (30) calendar days after the receipt of the notice of denial, nonrenewal, or other action by the applicant or licensee.

(B) If the person requesting a hearing fails to appear at the hearing, the hearing shall proceed in the manner described in subdivision (b)(2)(A) of this section.

(c) Any hearing shall comply with the procedures set forth in 6 CAR § 194-108.

(d) Circumstances for which a waiver may be granted after a hearing pursuant to subsections (b) and (c) of this section shall include without limitation the following:

(1) The age at which the crime or incident was committed;

(2) The circumstances surrounding the crime or incident;

(3) The length of time since the crime or incident;

(4) Subsequent work history;

(5) Employment references;

(6) Character references; and

(7) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of:

(A) School children; or

(B) School personnel.

(e) After a hearing, the state board may take one (1) or more of the following actions:

(1) Revoke a license permanently or allow an educator the ability to apply for reinstatement pursuant to Acts 2019, No. 628;

(2) Suspend a license for:

(A) A terminable period of time; or

(B) Indefinitely;

(3) Place or grant a license on probationary status for a terminable period of time with the license to be revoked or suspended if the probationary period is not successfully completed;

(4) Impose a monetary penalty not to exceed five hundred dollars ($500) for each violation;

(5) Require a licensee to complete appropriate:

(A) Professional development programs;

(B) Education courses; or

(C) Both;

(6) Require a licensee to successfully complete a licensing examination, credentialing examination, or any other examination required by law or rule to obtain a:

(A) Permit;

(B) License; or

(C) Endorsement;

(7) Impose conditions or restrictions on the teaching or educational activities of the licensee;

(8) Impose any other requirement or penalty as may be appropriate under the circumstances of the case and which would achieve the state board’s desired disciplinary purposes, but which would not impair the public health or welfare; or

(9) Take no action against a licensee.

(f) If after a hearing the state board approves a waiver for a licensee, the waiver shall also operate as a waiver under Arkansas Code § 6-17-411 for the licensee to work for an educational entity.

(g) If, after a hearing, the state board approves a waiver for a preservice teacher:

(1) The individual may obtain a license only upon:

(A) Successful completion of the teacher preparation program for which the preservice teacher has provided proof of acceptance or enrollment under subdivision (b)(3)(A) of this section; and

(B) Fulfillment of all other requirements for licensure; and

(2) A waiver granted under subsection (f) of this section shall also operate as a waiver under Arkansas Code § 6-17-414 for the preservice teacher to work for a school district as a student teacher.

6 CAR § 194-104 Background checks required for licensure and school employment {#sec-6-car-194-104 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-104}

6 CAR § 194-104. Background checks required for licensure and school employment.

(a)(1) Except as otherwise provided herein, an applicant may not be issued a first-time license or license renewal, nor may an applicant be employed by or serve in a supervised clinical practice at an educational entity or work as a registered volunteer coach, without the successful completion of a criminal records check and the successful completion of a Child Maltreatment Central Registry check as required by this part.

(2)(A) Before a teacher or administrator may be hired for employment at an Arkansas school, the school hiring officer shall check the Arkansas Educator Licensure System (AELS) to determine whether the State Board of Education has acted upon a violation of Standard 1 by the applicant.

(B) Source: Ark. Code Ann. Arkansas Code § 6-17-428(p).

(3) Registered volunteer coaches, as a condition for unsupervised contact with students, shall:

(A) Complete a criminal records check per Arkansas Code § 6-17-414; and

(B) Meet the requirements of subsection (f) of this section.

(b) Applicants for a first-time license issued by the state board.

(1) Each first-time applicant for a license issued by the state board shall be required to apply to:

(A) The Identification Bureau of the Division of Arkansas State Police for a state and federal criminal records check including the taking of fingerprints; and

(B) The Department of Human Services for a Child Maltreatment Central Registry check.

(2) A background check for a first-time applicant for a license obtained during the twelve (12) months before the license is issued meets the requirement under subdivision (b)(1) of this section for the first-time applicant.

(3) The state board may issue a six-month, nonrenewable letter of provisional eligibility for licensure to a first-time applicant if the applicant meets all other qualifications, pending the results of the nationwide criminal records and Child Maltreatment Central Registry checks.

(4) The Commissioner of Elementary and Secondary Education may extend the period of provisional eligibility to the end of the contract year if:

(A) The applicant is employed by an educational entity; and

(B) Results of the nationwide criminal records check or Child Maltreatment Central Registry check are delayed.

(5) The letter of provisional eligibility will immediately become invalid upon receipt of information that the applicant has a true report on the Child Maltreatment Central Registry, information obtained from the criminal records check from the Arkansas State Police or the Federal Bureau of Investigation, or other eligibility information indicating that the applicant has pled guilty or nolo contendere to, or has been found guilty of, any offense that will or may result in license revocation under Arkansas Code § 6-17-410.

(6) The applicant shall be responsible for the payment of any fees associated with the criminal records check and Child Maltreatment Central Registry check.

(c) Applicants for a license renewal.

(1) Each applicant for license renewal shall be required to apply to:

(A) The Identification Bureau of the Division of Arkansas State Police for a state and federal criminal records check including the taking of fingerprints; and

(B) The Department of Human Services for a Child Maltreatment Central Registry check.

(2) The applicant should begin the process of obtaining the criminal records check and Child Maltreatment Central Registry check by July 1 of the year in which the applicant’s license expires.

(3) The state board may issue a six-month, non-renewable letter of provisional eligibility for licensure to a first-time applicant if the applicant meets all other qualifications, pending the results of the nationwide criminal records and Child Maltreatment Central Registry checks.

(4) The commissioner may extend the period of provisional eligibility to the end of the contract year if:

(A) The applicant is employed by a public school district or open-enrollment public charter school; and

(B) Results of the nationwide criminal records check or Child Maltreatment Central Registry check are delayed.

(5) The letter of provisional eligibility will immediately become invalid upon receipt of information that the applicant has a true report on the Child Maltreatment Central Registry, information obtained from the criminal records check from the Arkansas State Police or the Federal Bureau of Investigation, or other eligibility information indicating that the applicant has pled guilty or nolo contendere to, or has been found guilty of, any offense that will or may result in license revocation under Arkansas Code § 6-17-410.

(6) This applicant shall be responsible for the payment of any fees associated with the:

(A) Criminal records check; and

(B) Child Maltreatment Central Registry check.

(d) Preservice teachers.

(1) Each applicant who is a preservice teacher shall apply to:

(A) The Identification Bureau of the Division of Arkansas State Police for a state and federal criminal records check including the taking of fingerprints; and

(B) The Department of Human Services for a Child Maltreatment Central Registry check.

(2) The applicant shall be responsible for the payment of any fees associated with the criminal records check and Child Maltreatment Central Registry check.

(3) This part does not require an institution of higher education to bar a student from enrollment due to a:

(A) Disqualifying criminal conviction; or

(B) True report in the Child Maltreatment Central Registry.

(4) The preservice teacher shall successfully complete the required criminal records check and Child Maltreatment Central Registry check before beginning a supervised clinical practice for a:

(A) School district; or

(B) Public charter school.

(e) Applicants for employment in a licensed staff position.

(1) Each applicant for initial employment or noncontinuous reemployment in a licensed staff position for an educational entity shall be required as a condition of employment to apply to:

(A) The Identification Bureau of the Division of Arkansas State Police for a state and federal criminal records check including the taking of fingerprints; and

(B) The Department of Human Services for a Child Maltreatment Central Registry check.

(2) The board of directors of a receiving or resulting public school district in a consolidation, annexation, or detachment may waive the requirements of this subsection for personnel who:

(A) Were employed by an affected district immediately prior to the annexation, consolidation, or detachment; and

(B) Had a complete criminal records check conducted as a condition of the person’s most recent employment with the affected district as required under this section.

(3) An educational entity shall not employ in a licensed staff position any individual who has a true report in the Child Maltreatment Central Registry, unless the state board granted a waiver by awarding a license or renewal under 6 CAR § 194-103.

(4) An educational entity shall not employ in a licensed staff position any individual who has pled guilty, pled nolo contendere to, or been found guilty of any offense that will or may result in license revocation under Arkansas Code § 6-17-410, unless the state board granted a waiver by awarding a license or renewal under 6 CAR § 194-103.

(5) An educational entity may offer provisional employment to an affected applicant pending notification from the Division of Elementary and Secondary Education that the:

(A) Applicant is eligible for employment based on the background checks; or

(B) State board has waived the disqualifying offense or placement on the Child Maltreatment Central Registry.

(6) The applicant shall be responsible for the payment of any fees associated with the criminal records check and Child Maltreatment Central Registry check, unless the board of directors of the employing educational entity chooses to pay the fees.

(f) Applicants for employment in a nonlicensed staff position and registered volunteer coaches.

(1) Each applicant for initial employment or noncontinuous reemployment in a nonlicensed staff position for an educational entity or registered volunteer coach, shall be required as a condition of employment to apply to:

(A) The Identification Bureau of the Division of Arkansas State Police for a state and federal criminal records check including the taking of fingerprints; and

(B) The Department of Human Services for a Child Maltreatment Central Registry check.

(2) The board of directors of a receiving or resulting public school district in a consolidation, annexation, or detachment may waive the requirements of this subsection for personnel who:

(A) Were employed by an affected district immediately prior to the:

(i) Annexation;

(ii) Consolidation; or

(iii) Detachment; and

(B) Had a complete criminal records check conducted as a condition of the person’s most recent employment with the affected district as required under this section.

(3) An educational entity shall not allow a registered volunteer coach to work or employ in a nonlicensed staff position any individual who has:

(A) A true report in the Child Maltreatment Central Registry; or

(B) Pled guilty or nolo contendere to, or has been found guilty of, any offense identified in Arkansas Code § 6-17-414(b).

(4) An educational entity may offer provisional employment to an affected applicant pending receipt of the results of the nationwide criminal records or Child Maltreatment Central Registry checks.

(5) The applicant shall be responsible for the payment of any fees associated with the criminal records check and Child Maltreatment Central Registry check unless the board of directors of the employing educational entity chooses to pay the fees.

(6)(A) Notwithstanding the provisions of subdivision (f)(5) of this section, an educational entity may at its discretion pay the full cost of the criminal records checks and Child Maltreatment Central Registry checks.

(B)(i) A school district shall require a criminal records check and Child Maltreatment Central Registry check at least one (1) time every five (5) years.

(ii) School districts should review all classified employees’ records to see when their last background check was completed.

(iii) School districts should review all records of registered volunteer coaches to verify when the last background check was completed.

(7)(A) If an applicant has been determined ineligible for employment or work in an educational entity because the applicant has a true report in the Child Maltreatment Central Registry, or has pled guilty or nolo contendere to, or has been found guilty of, any offense identified in Arkansas Code § 6-17-414(b), the board of directors of the educational entity shall:

(i) Provide a written notice to the applicant; and

(ii) Afford the applicant the opportunity to request a waiver.

(B) The waiver shall be requested, pursuant to school district policy, no more than thirty (30) days after receipt of the notice of the denial of employment or denial of approval for work at an educational entity.

(C) The waiver may be requested by:

(i) The hiring official;

(ii) The affected applicant; or

(iii) The person subject to dismissal.

(D) Circumstances for which a waiver may be granted shall include without limitation the following:

(i) The age at which the incident was committed;

(ii) The circumstances surrounding the incident;

(iii) The length of time since the incident;

(iv) Subsequent work history;

(v) Employment references;

(vi) Character references; and

(vii) Other evidence demonstrating that the applicant does not pose a threat to the health or safety of school children or school personnel.

(E)(i) The board of directors of the educational entity may grant the waiver by:

(a) Adopting a written resolution identifying the applicant by name; and

(b) Listing the specific facts and circumstances for which the waiver is being granted.

(ii) A waiver request may be discussed and acted upon by the board of directors only in an open public meeting and not in an executive session.

(iii) After adopting the resolution, the board of directors shall immediately provide a copy of the resolution and waiver request to the Division of Elementary and Secondary Education.

(g) If an applicant is employed by a third-party vendor under contract with the educational entity, the educational entity may, but is not required to, afford the applicant the opportunity to request a waiver from the school district board of directors.

History

• Codification Notes: This part as promulgated prior to codification into the Code of Arkansas Rules provided as follows: “Source: Ark. Code Ann. §§ 6-17-410, 6-17-411, and 6-17-414.” Authorities: Arkansas Code § 6-11-105; Arkansas Code § 6-17-410; Arkansas Code § 6-17-414

6 CAR § 194-105 Background check procedures {#sec-6-car-194-105 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-105}

6 CAR § 194-105. Background check procedures.

(a)(1) The criminal records check and Child Maltreatment Central Registry check required by this part shall be initiated by the submission to the Division of Elementary and Secondary Education of a form developed by the Division of Elementary and Secondary Education containing a release of information and notice of the purpose for fingerprinting signed by the applicant.

(2) For the purposes of this part, a criminal records check shall consist of a:

(A) Statewide criminal records check to be conducted by the Identification Bureau of the Division of Arkansas State Police; and

(B) Nationwide criminal records check to be conducted by the Federal Bureau of Investigation.

(3)(A) Criminal records checks shall:

(i) Conform to the applicable federal or state standards; and

(ii) Include the taking of fingerprints.

(B) The Identification Bureau of the Division of Arkansas State Police and the Federal Bureau of Investigation may maintain these fingerprints in the automated fingerprint identification system.

(4) An educational entity that is initiating a criminal records check shall:

(A) Subscribe to the Arkansas State Police online background check system; and

(B) Simultaneously initiate both the state and federal criminal records check on that system.

(5) An individual who initiates the criminal records check shall use the online system:

(A) Approved by the Division of Elementary and Secondary Education; and

(B) Identified on the Division of Elementary and Secondary Education’s website.

(6) Every applicant shall complete the consent forms prescribed by the Division of Elementary and Secondary Education.

(7) Each applicant shall provide fingerprints by an electronic fingerprinting method approved by the Arkansas State Police.

(8) If a legible set of fingerprints, as determined by the Identification Bureau of the Division of Arkansas State Police, cannot be obtained after a minimum of two (2) attempts, the Division of Elementary and Secondary Education shall determine eligibility for licensure or employment based upon a name check by the:

(A) Identification Bureau of the Division of Arkansas State Police; and

(B) Federal Bureau of Investigation.

(9) To be valid for consideration, a criminal records check or Child Maltreatment Central Registry check must have been completed no earlier than twelve (12) months prior to the application for:

(A) Licensure;

(B) Renewal; or

(C) Employment.

(10)(A) A criminal records check shall be conducted only under the specific Arkansas law governing the request.

(B) Every employer or prospective employer of an applicant shall ensure that the applicant is correctly informed of the proper reason for the criminal records checks by providing to the applicant instructions developed by the Division of Elementary and Secondary Education.

(C) An applicant who submits the criminal records check based on an incorrect reason shall be required to resubmit the background check at his or her own expense under the correct reason.

(b)(1) Any information received by the Division of Elementary and Secondary Education from the Identification Bureau of the Division of Arkansas State Police, the Department of Human Services, or the Federal Bureau of Investigation pursuant to this part shall not be available for examination except by the affected applicant or his or her duly authorized representative, and no record, file, or document shall be removed from the custody of the Division of Elementary and Secondary Education.

(2) Any information made available to the affected applicant for licensure or the person whose license is subject to revocation shall be information pertaining to that applicant only.

(3) Rights of privilege and confidentiality established under this section shall not extend to any document created for purposes other than this background check.

(4)(A) Within thirty (30) days of receiving the criminal records background check from the Identification Bureau of the Division of Arkansas State Police and the Department of Human Services, the Division of Elementary and Secondary Education shall inform the board of directors of an educational entity whether the affected applicant is eligible for employment.

(B) The Division of Elementary and Secondary Education will only send written notice when an employee is not eligible for employment.

(C) Districts can check the employability status of any employee online at the Arkansas Educator Licensure System website.

(c) New or existing employees of an educational entity who have a contract with or work for more than one (1) school district in one (1) school year shall be required to have only one (1) criminal records check and one (1) Child Maltreatment Central Registry check to satisfy the requirements of all employing school districts for that year.

(d) Participation in state and federal rap back programs. The following shall apply when the Division of Elementary and Secondary Education receives approval from the Arkansas State Police, the Federal Bureau of Investigation or Arkansas Crime Information Center, as applicable, for the Division of Elementary and Secondary Education to participate in state and federal rap back programs:

(1) The Division of Elementary and Secondary Education may subscribe to the state rap back program an applicant who has consented to participation in the state rap back program;

(2)(A) Upon the submission of a legible set of fingerprints, the Division of Elementary and Secondary Education may subscribe to the national rap back program an applicant who has consented to participation in the national rap back program.

(B) For the duration of the subscription, the applicant is not required to provide fingerprints, but will submit and pay for the:

(i) Criminal records check; and

(ii) Child Maltreatment Central Registry check; and

(3)(A) An applicant:

(a) May withdraw his or her consent to participation in the state or federal rap back program; and

(b) Will thereafter be removed from participation in the rap back program.

(B) Once the applicant is no longer subscribed in the rap back program, he or she shall provide fingerprints as required under this part.

History

• Codification Notes: This part as promulgated prior to codification into the Code of Arkansas Rules provided as follows: “Source: Ark. Code Ann. §§ 6-17-410, 6-17-411, 6-17-414, and 6-17-417.” Authorities: Arkansas Code § 6-11-105; Arkansas Code § 6-17-410; Arkansas Code § 6-17-414

6 CAR § 194-106 Reporting requirements for superintendents, directors of educational entities, and third-party vendors {#sec-6-car-194-106 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-106}

6 CAR § 194-106. Reporting requirements for superintendents, directors of educational entities, and third-party vendors.

(a) The superintendent or director of an educational entity, or a third-party vendor, shall report in writing to the Division of Elementary and Secondary Education’s Office of Legal Services the name of any employee of the educational entity, any employee of a third-party vendor whose employment is covered by this part, whether currently employed or previously employed at any time during the two (2) preceding school years, or any registered volunteer coach who:

(1) Has pled guilty or nolo contendere, or has been found guilty, of any offense listed in Arkansas Code §§ 6-17-410(c) or 6-17-414(b);

(2) Has been arrested or charged with a felony or any misdemeanor listed in Arkansas Code § 6-17-410(c) or § 6-17-414(b);

(3) Holds a teaching or similar license obtained by fraudulent means;

(4) Has had a teaching or similar license revoked in another state;

(5) Has intentionally compromised the validity or security of any student test or testing program administered or required by the division;

(6) Has knowingly submitted falsified information or failed to submit information requested or required by law to:

(A) The division;

(B) The State Board of Education; or

(C) Arkansas Legislative Audit; or

(7) Has a true report in the Child Maltreatment Central Registry.

(b) The superintendent or director of an educational entity, or a third-party vendor, shall report in writing to the office the name of any fiscal officer of the educational entity, whether currently employed or previously employed at any time during the two (2) preceding school years, who has pled guilty or nolo contendere to, or has been found guilty of, a fraudulent act.

(c) Third-party vendor reporting under this section is intended only for classified employee positions.

(d) Failure of a superintendent or director of an educational entity to report a violation in writing within five (5) business days of knowledge as listed in subsection (a) of this section may result in sanctions imposed by the state board, including but not limited to loss of accreditation.

(e) If an arrest or charge is reported in accordance with subdivision (a)(2) of this section, the division shall indicate in the Arkansas Educator Licensure System that the person’s employment eligibility is pending or under review.

(f) When the individual’s criminal case is resolved, the individual’s profile shall be updated to reflect the individual’s employment eligibility based on current background check status.

History

• Codification Notes: This part as promulgated prior to codification into the Code of Arkansas Rules provided as follows: “Source: Ark. Code Ann. §§ 6-17-410 and 6-17-414.” Authorities: Arkansas Code § 6-11-105; Arkansas Code § 6-17-410; Arkansas Code § 6-17-414

6 CAR § 194-107 Fiscal officers {#sec-6-car-194-107 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-107}

6 CAR § 194-107. Fiscal officers.

(a) In addition to the requirements of 6 CAR § 194-104 of this part, an educational entity shall not employ as a fiscal officer any individual who has pled guilty or nolo contendere to, or has been found guilty of, a fraudulent act.

(b)(1) A currently employed fiscal officer of an educational entity who has pled guilty or nolo contendere to, or has been found guilty of, a fraudulent act shall be dismissed from employment with the educational entity.

(2)(A) Within five (5) business days of knowledge of the plea or conviction, the educational entity shall serve written notice of termination on the fiscal officer in person or by certified mail.

(B) The notice shall advise the fiscal officer of his or her right to a hearing before the State Board of Education.

(3) The fiscal officer may, within thirty (30) calendar days of service of the written notice of termination, request a hearing before the state board by sending a written request to the Division of Elementary and Secondary Education’s Office of Legal Services.

(4) If the fiscal officer does not timely request a hearing before the state board, termination shall become effective thirty (30) calendar days after the date of service of the written notice of termination.

(c) Circumstances for which a waiver may be granted shall include without limitation the following:

(1) The age of the fiscal officer at the time the criminal act occurred;

(2) The length of time since the conviction;

(3) Whether the fiscal officer has pled guilty or nolo contendere to, or has been found guilty of, any other criminal violations since the original conviction;

(4) Whether the original conviction was expunged or pardoned; and

(5) Any other relevant facts.

(d) The hearing shall follow the procedures set forth in 6 CAR § 194-108.

(e) After making its decision, the state board shall:

(1) Reduce its decision to writing; and

(2) Forward copies of the decision to the fiscal officer or applicant and the superintendent or director of the educational entity that issued the notice of termination.

History

• Codification Notes: This part as promulgated prior to codification into the Code of Arkansas Rules provided as follows: “Source: Ark. Code Ann. § 6-17-421.” Authorities: Arkansas Code § 6-11-105; Arkansas Code § 6-17-410; Arkansas Code § 6-17-414

6 CAR § 194-108 State Board of Education hearing procedures {#sec-6-car-194-108 omnilex-key=us-ar-regs-official--title-6-part-194--6 CAR § 194-108}

6 CAR § 194-108. State Board of Education hearing procedures.

(a) Each party shall exchange exhibits and witness lists not less than ten (10) calendar days before the scheduled hearing date unless both parties agree to a shorter period of time.

(b) Requests for subpoenas must be received in the Division of Elementary and Secondary Education’s Office of Legal Counsel not less than ten (10) calendar days before the hearing date.

(c)(1) Each party will have the opportunity to present an opening statement of no longer than five (5) minutes, beginning with the representative of the Division of Elementary and Secondary Education.

(2) The Chair of the State Board of Education may, only for good cause shown and upon the request of either party, allow either party additional time to present its opening statement.

(d)(1) Each party will be provided fifteen (15) minutes to present its case, beginning with the representative of the division.

(2) The chair may, only for good cause shown and upon the request of either party, allow either party additional time to present its case.

(e) Every witness giving oral testimony:

(1) Must be sworn under oath by the chair; and

(2) Shall be subject to direct examination, cross examination, and questioning by the state board.

(f) For the purposes of the record, documents offered during the hearing by the division shall be clearly marked “DESE” and numbered in sequential, numeric order:

Example: DESE-1

(g) For the purposes of the record, documents offered during the hearing by the appealing public school district, open-enrollment public charter school, applicant, or licensee shall be clearly marked “Educator” and numbered in sequential, numeric order:

Example: Educator-1

(h) The division shall have the burden of proving by a preponderance of the evidence that:

(1) Cause for the proposed licensure action exists; and

(2) The recommended disposition from the division be adopted.

(i) While the scope of each party’s presentation ultimately lies within the chair’s discretion, case presentation should be arranged in such a way as to avoid redundant testimony.

(j) After both parties have presented their cases, the state board may allow each party to present limited rebuttal testimony.

(k) Each party will be given five (5) minutes to present a closing argument, ending with the division.

(l) After making its decision, the state board shall reduce its decision to writing and shall provide copies of the decision to:

(1) Each party;

(2) Each party’s attorney; and

(3) The superintendent or director of any interested:

(A) Public school district; or

(B) Open-enrollment public charter school.

(m) The state board’s written decision shall constitute the final agency action for purposes of judicial review pursuant to the Arkansas Administrative Procedure Act, Arkansas Code § 25-15-201 et seq.