OAR 333-536-0093: Criminal Records Checks

(1) For the purposes of this rule, the following definitions apply: (a) "Direct contact with" means to provide in-home care services and includes meeting in person with a potential or current client to discuss services offered by an agency or other matters relating to the business relationship between an agency and client. (b) "Disqualifying condition" means a non-criminal personal history issue that makes an individual unsuitable for employment, contracting or volunteering for an agency, including but not limited to discipline by a licensing or certifying agency, or drug or alcohol dependency. (c) "Fitness determination" means a decision made by an agency pursuant to the policy established in accordance with section (5) of this rule, that a subject individual is or is not fit to hold a position, paid or not paid, have direct access, or otherwise provide services to a client. (d) "Subject individual" (SI) means an individual on whom an agency may conduct a criminal records check and from whom an agency may require fingerprints for the purpose of conducting a national criminal records check, including: (A) An employee or prospective employee; (B) A temporary worker, volunteer or owner of an agency who has direct contact with an agency client or potential client; and (C) A prospective temporary worker, or volunteer or owner who may have direct contact with an agency client. (e) "Vendor" means a researcher or company hired to provide a criminal records check on a subject individual. (f) "Weighing test" means a process in which an agency considers available information to make a fitness determination when an SI has potentially disqualifying convictions or conditions. (2) An agency shall conduct a criminal records check and make a fitness determination before hiring an SI and before allowing an SI to volunteer to provide services on behalf of the agency, if an SI will have direct contact with a client of the agency. (3) An SI who has or will have direct contact with a recipient of in-home care services may not be employed or volunteer with an agency in any capacity if the criminal records check conducted reveals the SI has been convicted of a crime as described in ORS 443.004(3). (4)(a) Notwithstanding sections (2) and (3) of this rule, an agency may employ an individual pending the outcome of a criminal records check if the agency ensures that there is no direct contact with any client prior to making a final fitness determination. The agency shall: (A) Conduct a preliminary fitness determination to determine if an individual may participate in employment orientation, training, or otherwise perform in the position without direct contact with any client; (B) Ensure that an individual employed based on a preliminary fitness determination is actively supervised at all times; and (C) Provide clear documentation in the personnel record of the following: (i) Date of preliminary fitness determination and documentation that preliminary hire is appropriate; (ii) Employee disclosure that clearly states until a criminal records check has been completed, the employee may not have any direct contact with any client. (b) A preliminary fitness determination of an SI working with an ODHS client shall comply with subsection (9)(b) of this rule. (5) An agency shall have a policy on criminal records check requirements that shall include at a minimum: (a) Any person convicted of a crime described in ORS 443.004 may not be employed; (b) Preliminary fitness determination requirements for purposes of preliminary hire; (c) Weighing test actions should a criminal records check indicate that an SI has been convicted for crimes against an individual or property other than those identified in ORS 443.004(3). (6) The policy must include the following provisions for performing a weighing test: (a) The agency shall consider circumstances regarding the nature of potentially disqualifying convictions and conditions including but not limited to: (A) The nature of the crime and details of incidents leading to the charges of potentially disqualifying convictions or potentially disqualifying conditions; (B) Facts that support the convictions or potentially disqualifying conditions; (C) The relevancy, if any, of the potentially disqualifying convictions or conditions to the specific requirements of the SI's current or proposed position and any services provided; (D) Intervening circumstances relevant to the responsibilities and circumstances of the position, such as: (i) Passage of time since the commission of the potentially disqualifying conviction; (ii) The age of the subject individual at the time of the potentially disqualifying conviction or condition; (iii) The likelihood of a commission of another potentially disqualifying conviction or condition; (iv) Whether the conviction was set aside and the legal effect of setting aside the conviction; and (v) Recommendation of an employer. (b) Other factors which should be considered when available: (A) Other information related to criminal activity including charges, arrests, pending indictments and convictions. Behavior involving contact with law enforcement may also be reviewed if information is relevant to potentially disqualifying convictions or conditions; (B) Periods of incarceration for any potentially disqualifying conviction or condition; (C) Status of and compliance with parole, post-prison supervision or probation for any potentially disqualifying conviction or condition; (D) Evidence of alcohol or drug issues directly related to a potentially disqualifying conviction or condition; (E) Evidence of other treatment or rehabilitation related to a potentially disqualifying conviction or condition; (F) Changes in circumstances subsequent to the potentially disqualifying conviction or conditions including but not limited to: (i) History of high school, college or other education related accomplishments; (ii) Work history (employee or volunteer); or (iii) History regarding licensure, certification or training for licensure or certification; (G) Indication of the SI’s cooperation, honesty or the making of a false statement during the criminal records check process, including acknowledgment and acceptance of responsibility of criminal activity and potentially disqualifying conditions. (c) An agency shall consider the relevancy of an SI’s criminal activity or potentially disqualifying conditions to the paid or volunteer position, or to the environment in which the SI will work, especially, but not exclusively: (A) Access to medication; (B) Access to clients’ personal information; (C) Access to vulnerable populations. (7) An agency shall document the weighing test and place in the employee’s file. (8) A criminal records check shall be performed by a vendor that: (a) Is accredited by the National Association of Professional Background Screeners (NAPBS); or (b) Meets the following criteria: (A) Has been in business for at least two years; (B) Has a current business license and private investigator license, if required in the company’s home state; and (C) Maintains an errors and omissions insurance policy in an amount not less than $1 million. (9) If an agency is providing Medicaid in-home services to ODHS clients under OAR chapter 411, division 033, the agency shall submit a criminal records check request on any SI working with an ODHS client to the ODHS, Background Check Unit (BCU). (a) The agency shall comply with OAR chapter 943, division 007 and OAR 407-007-0200 to 407-007-0370 for these SIs. (b) When completing a criminal records check through the BCU on an SI for the first time, an agency may allow an SI to be hired on a preliminary basis in accordance with OAR 407-007-0315 after the SI completes authorization and disclosure for the criminal records check. (c) Notwithstanding section (2) of this rule, the BCU shall make the final fitness determination for an SI working with an ODHS client. If the BCU makes a final fitness determination of approved, the subject individual may have portability to another agency under OAR chapter 411, division 033. (d) To maintain portability, the SI must be rechecked through the BCU every three years. (e) The agency shall maintain documentation of the BCU criminal records check in the SI's personnel record. (f) An agency that submits a criminal records check for an SI through the BCU is not required to submit a separate criminal records check through a vendor specified in section (8) of this rule. (10) A criminal records check must include the following: (a) Name and address history trace; (b) Verification that the SI’s records have been correctly identified, via date of birth check and Social Security number trace; (c) A local criminal records check, including city and county records for SI’s places of residence for the last seven years; (d) A nationwide multijurisdictional criminal database search, including state and federal records; (e) A nationwide sex offender registry search; (f) The name and contact information of the vendor who completed the records check; (g) Arrest, warrant and conviction data, including but not limited to: (A) Charge(s); (B) Jurisdiction; and (C) Date. (h) Source(s) for data included in the report. (11) An agency shall perform and document a query of the List of Excluded Individuals and Entities (LEIE). (12) All criminal records checks conducted under this rule shall be documented in writing and made part of the agency’s personnel files. (13) An agency shall ensure that a criminal records check is performed on an SI every three years from the date of the SI’s last criminal records check in accordance with these rules. (14) Notwithstanding section (2) and (13) of this rule, the Authority and not the agency shall conduct a criminal records check on an owner or administrator of any agency who is subject to a criminal records check under subsection (1)(d) of this rule. (a) As used in this section, a criminal records check means obtaining and reviewing criminal records including but not limited to: (A) A check of criminal offender information and driving records conducted through the use of the Law Enforcement Data System maintained by the Oregon State Police (OSP), in accordance with the rules adopted and procedures established by OSP; (B) A check of Oregon or other state criminal offender information, including through fingerprint identification or other means, conducted by OSP at the Authority’s request; or (C) A nationwide check of federal criminal offender information, including through fingerprint identification, conducted by OSP through the Federal Bureau of Investigation. (b) Any cost for a nationwide check of criminal records shall be the responsibility of the agency and shall not exceed the cost charged to the Authority. (c) The Authority shall conduct a criminal records check at the time of application for a person who applies for an agency license and every three years thereafter; (d) The Authority may use information obtained through a criminal records check to make a fitness determination on the administrator or owner. (A) If the Authority determines the information contained in the record may result in a denial, the owner or administrator will be afforded reasonable time to complete, challenge, or correct the accuracy of the record before a final fitness determination is made. (B) Procedures for obtaining a change, correction or updating of an FBI record are set forth in Title 28, CFR 16.34. (C) Procedures for obtaining a change, correction or updating of an Oregon criminal history record are set forth in OAR 257-010-0035.