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Stat. Auth.: ORS181.534, 303, 676 & 677.280 Stats. Implemented:ORS181.534 Hist.: Omb 11-2011, F. & Cert. Ef. 7-13-11


Published: 2015

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The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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OREGON MEDICAL BOARD

 

DIVISION 2
CRIMINAL BACKGROUND CHECKS
847-002-0000
Purpose
and Intent
The purpose of
these rules is to provide for the reasonable screening of subject individuals to
determine if they have a history of criminal behavior such that they are not fit
to work or volunteer for the Board. The fact that the Board determines that a subject
individual is fit does not guarantee the individual a position as a Board employee,
volunteer, or that the individual will be hired by the Board.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0005
Definitions
As used in OAR
847-002-0000 through 847-002-0050, unless the context of the rule requires otherwise,
the following definitions apply:
(1) “Board”
means the Oregon Medical Board.
(2) “Conviction”
means a final judgment on a verdict or finding of guilty, a plea of guilty, or a
plea of nolo contendere (no contest) or any determination of guilt entered by a
court of law against a subject individual in a criminal case, unless that judgment
has been reversed or set aside by a subsequent court decision.
(3) “Criminal offender information”
means records and related data concerning physical description and vital statistics,
fingerprints received and compiled by the Oregon State Police (OSP) to identify
criminal offenders and alleged offenders, records of arrests and the nature and
disposition of criminal charges, including sentencing, confinement, parole and release
records.
(4) “Criminal records
check” means one or more of the following three processes undertaken by the
Board to check the criminal history of a subject individual:
(a) Law
Enforcement Data System (LEDS) Check: A name-based check of criminal offender information
maintained by the OSP;
(b) Oregon
Criminal Records Check: A check of Oregon criminal offender information, through
fingerprint identification and other means, conducted by the OSP at the Board's
request; or
(c) Nationwide
Criminal Records Check: A nationwide check of federal criminal offender information,
through fingerprint identification and other means, conducted by the OSP through
the Federal Bureau of Investigations (FBI) or otherwise at the Board's request.
(5) “Criminal
records request form” means a Board-approved form, completed by a subject
individual, requesting the Board to conduct a criminal records check.
(6) “False
statement” means, in association with an activity governed by these rules,
a subject individual either:
(a) Provided
the Board with false information about the subject individual’s criminal history,
including but not limited to false information about the individual’s identity
or conviction record; or
(b) Failed
to provide the Board information material to determine the individual’s criminal
history.
(7) “Fitness
determination” means a determination made by the Board, pursuant to the process
established under OAR 847-002-0020, that a subject individual is fit or not fit
to be a Board employee or volunteer.
(8) “OSP”
means the Oregon State Police.
(9) “Subject
individual” means an individual the Board may require to complete a criminal
records check pursuant to these rules because the person is:
(a) A
Board employee;
(b) A
Board volunteer; or
(c) An
applicant for employment with the Board.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0010
Criminal
Records Check Process
(1) A subject
individual must disclose information required by the Board as described below:
(a) Before
a criminal records check, a subject individual must complete and sign the Board
Criminal Records Request form and a fingerprint card, both of which may include
identifying information (e.g., name, birth date, social security number, physical
characteristics, driver's license or identification card number and current and
previous addresses).
(b) A
subject individual must complete and submit to the Board the Criminal Records Request
form and, if requested, a fingerprint card within five business days of receiving
the forms. The deadline may be extended for good cause.
(c) Additional
information may be required from the subject individual as necessary to complete
the criminal records check and fitness determination, including but not limited
to, proof of identity or additional criminal, judicial, or other background information.
(d) The
Board may not request a fingerprint card from a subject individual under the age
of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550
et seq, or unless the Board also requests the written consent of a parent or guardian.
Such parent or guardian and youth must be informed that they are not required to
consent. Notwithstanding, failure to consent may be construed as a refusal to consent
under OAR 847-002-0015(4).
(2) The
Board or its staff may conduct, or request the OSP to conduct, a criminal record
check when:
(a) An
individual meets the definition of a subject individual; or
(b) A
federal law or regulation, state statute or administrative rule, or contract or
written agreement with the Board requires a criminal record check.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0015
Final
Fitness Determination
(1) After a criminal
records check, the Board or its staff must make a fitness determination about a
subject individual based on information provided by the subject individual under
OAR 847-002-0010(1), any criminal records check conducted, and any false statement
made by the subject individual.
(2) In
relation to information described in section (1) of this rule and other known information,
the following factors will be considered:
(a) Whether
the subject individual has been convicted, found guilty except for insanity (or
a comparable disposition), or has a pending indictment for a crime listed in OAR
847-002-0020;
(b) The
nature of any crime identified under section (2)(a) of this rule;
(c) The
facts that support the conviction, finding of guilty except for insanity, or pending
indictment;
(d) Any
facts that indicate the subject individual made a false statement;
(e) The
relevance, if any, of a crime identified under section (2)(a) of this rule or of
a false statement made by the subject individual to the specific requirements of
the subject individual's present or proposed position, services or employment; and
(f) The
following intervening circumstances, to the extent that they are relevant to the
responsibilities and circumstances of the position, services or employment:
(A) The
passage of time since the commission or alleged commission of the crime identified
under section (2)(a) of this rule;
(B) The
age of the subject individual at the time of the commission or alleged commission
of the crime identified under section (2)(a) of this rule;
(C) The
likelihood of a repetition of offenses or of the commission of another crime;
(D) The
subsequent commission of another crime listed in OAR 847-002-0020;
(E) Whether
the conviction identified under section (2)(a) of this rule has been set aside,
and the legal effect of setting aside the conviction;
(F) A
recommendation of an employer;
(G) The
disposition of the pending indictment identified under section (2)(a) of this rule;
(H) Whether
the subject individual has been arrested for or charged with a crime listed under
OAR 847-002-0020;
(I) Whether
the subject individual is being investigated, or has an outstanding warrant, for
a crime listed under OAR 847-002-0020;
(J) Whether
the subject individual is currently on probation, parole or another form of post-prison
supervision for a crime listed under OAR 847-002-0020;
(K) Whether
the subject individual has a deferred sentence or conditional discharge in connection
with a crime listed under OAR 847-002-0020;
(L) Whether
the subject individual has been adjudicated in a juvenile court and found to be
within the court's jurisdiction for an offense that would have constituted a crime
listed in OAR 847-002-0020 if committed by an adult;
(M) Periods
of incarceration of the subject individual; and
(N) The
education and work history (paid or volunteer) of the subject individual since the
commission or alleged commission of a crime.
(3) The
subject individual must meet with the Board or its staff if requested and provide
additional relevant information or authorization to obtain other relevant information
within a reasonable period of time, as established by the Board.
(4) If a subject individual refuses to submit
or consent to a criminal records check including fingerprint identification, the
Board may deny the position, employment or services. A person may not appeal any
determination made based on a refusal to consent.
(5) If a subject individual
is determined to be not fit, the subject individual may not be employed by or provide
services as a volunteer to the Board.
(6) A
completed final fitness determination is a final order of the Board unless the affected
subject individual appeals the determination by requesting a contested case hearing
as provided by OAR 847-002-0035(1) or an alternative appeals process as provided
by OAR 847-002-0035(6).
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0020
Potentially
Disqualifying Crimes
(1) Crimes Relevant
to a Fitness Determination:
(a) All
felonies;
(b) All
misdemeanors; and
(c) Any
United States Military crime or international crime.
(2) A
crime will be evaluated on the basis of the law of the jurisdiction in which the
crime or offense occurred, as those laws are in effect at the time of the fitness
determination.
(3) Under
no circumstances may a subject individual be determined to be not fit under these
rules on the basis of the existence or contents of a juvenile record that has been
expunged pursuant to ORS 419A.260 and ORS 419A.262.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0025
Incomplete
Fitness Determination.
(1) A preliminary
or final fitness determination is incomplete when:
(a) Circumstances
change so that a person no longer meets the definition of a "subject individual"
under OAR 847-002-0005;
(b) The
subject individual does not submit materials or information within the time required
under OAR 847-001-0045;
(c) The
Board cannot locate or contact the subject individual;
(d) The
subject individual fails or refuses to cooperate with attempts to acquire other
criminal records information under OAR 847-002-0015;
(e) The
subject individual is not eligible or not qualified for the position of employee
or volunteer, for a reason unrelated to the fitness determination process; or
(f) The
position is no longer open.
(2) A
subject individual does not have a right to a contested case hearing under OAR 847-002-0035(1)
or a right to an alternative appeals process under OAR 847-002-0035(6) to challenge
the closing of a fitness determination as incomplete.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0030
Notice
to Subject Individual of Fitness Determination.
The Board must
inform the subject individual if he or she is determined not to be fit via personal
service or registered or certified mail to the most current address provided by
the subject individual.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0035
Appealing
a Fitness Determination
(1) Appeal process:
(a) To
request a contested case hearing, the subject individual or the subject individual's
legal representative must submit a written request for a contested case within 14
calendar days of the date of the notice provided under OAR 847-002-0030 to the address
specified in that notice. The Board must address a request received after expiration
of the deadline as provided under OAR 137-003-0528.
(b) When
a timely request is received, a contested case hearing will be conducted by an administrative
law judge assigned by the Office of Administrative Hearings, pursuant to the Attorney
General's Uniform and Model Rules, “Procedural Rules, Office of Administrative
Hearings” OAR 137-003-0501 to 137-003-0700, as supplemented by the provisions
of this rule.
(2) Discovery:
The Board or the administrative law judge may protect information made confidential
by ORS 181.534(15) or other applicable law as provided under OAR 137-003-0570(7)
or (8).
(3) Contested
case hearings on fitness determinations are closed to non-participants.
(4) Proposed
and Final Order:
(a) After
a hearing, the administrative law judge will issue a proposed order.
(b) Exceptions,
if any, must be filed within 14 calendar days after service of the proposed order.
The proposed order must provide an address to which exceptions must be sent.
(c) A
completed final fitness determination made under OAR 847-002-0015 becomes final:
(A) Unless
the subject individual makes a timely request for a hearing; or
(B) When
a party withdraws a hearing request, notifies the Board or the Administrative Law
Judge that the party will not appear, or fails to appear at the hearing.
(5) The
only remedy that may be awarded is a determination that the subject individual is
fit or not fit. Under no circumstances may the Board be required to place a subject
individual in any position, nor may the Board be required to accept services or
enter into a contractual agreement with a subject individual.
(6) Alternative
Process: A subject individual currently employed by the Board may choose to appeal
a fitness determination either under the process made available in sections (1)
to (5) of this rule or through a process made available by applicable personnel
rules, policies and collective bargaining provisions. A subject individual's decision
to appeal a fitness determination through applicable personnel rules, policies,
and collective bargaining provisions is an election of remedies as to the rights
of the individual with respect to the fitness determination and is a waiver of the
contested case process made available by this rule.
(7) A
subject individual may not use the appeals process established by this rule to challenge
the accuracy or completeness of information provided by the OSP, the FBI, or agencies
reporting information to the OSP or the FBI.
(a) To
challenge such information, a subject individual may use any process made available
by the agency that provided the information.
(b) If
the subject individual successfully challenges the accuracy or completeness of such
information and the position for which the original criminal history check was conducted
is vacant and available, the subject individual may request that the Board conduct
a new criminal records check and re-evaluate the original fitness determination
made under OAR 847-002-0015 by submitting a new Board Criminal Records Request form.
(8) Appealing
a fitness determination under section (1) or section (6) of this rule, challenging
criminal offender information with the agency that provided the information, or
requesting a new criminal records check and re-evaluation of the original fitness
determination under section (7)(b) of this rule, will not delay or postpone the
Board’s hiring process or employment decisions.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0040
Recordkeeping
and Confidentiality
Any information
obtained in the criminal records check is confidential. The Board must restrict
the access and dissemination of information obtained in the criminal records check
to only those persons with a demonstrated and legitimate need to know the information.
Stat. Auth.: ORS 181.534, 303, 676 & 677.280
Stats. Implemented: ORS
181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11
847-002-0045
Fees
(1) The Board
may charge a fee for acquiring criminal offender information for use in making a
fitness determination that will not exceed the fee charged the Board by the OSP
and the FBI to obtain such information.
(2) The
Board may charge the fee to the subject individual on whom criminal offender information
is sought.
Stat. Auth.:
ORS 181.534, 303, 676 & 677.280

Stats.
Implemented: ORS 181.534

Hist.:
OMB 11-2011, f. & cert. ef. 7-13-11


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