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

 

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DEPARTMENT OF HUMAN SERVICES,

ADMINISTRATIVE SERVICES DIVISION AND DIRECTOR'S OFFICE



 


 
DIVISION 7
CRIMINAL HISTORY CHECKS
DHS Employees, Volunteers, and Contractors

407-007-0000
Purpose and Scope
(1) The purpose of these rules, OAR 407-007-0000 to 407-007-0100, is to provide for the reasonable screening under ORS 181.534 and 181.537 of the Department of Human Services’ employees, volunteers, and contractors to determine if they have a history of criminal behavior such that they should not be allowed to work, volunteer, be employed, or otherwise perform in positions covered by these rules.
(2) These rules apply to evaluating criminal records and potentially disqualifying conditions of a subject individual when conducting fitness determinations based upon such information. The fact that a subject individual is approved does not guarantee employment or placement. These rules do not apply to subject individuals covered under OAR 407-007-0200 to 407-007-0370.
(3) Although abuse checks may occur concurrently with criminal records checks performed under these rules and may share similar processes, the criminal records check process is separate and distinct from the abuse checks that may be performed under OAR 407-007-0400 to 407-007-0460.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537, 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0010
Definitions
As used in OAR 407-007-0000 to 407-007-0100, unless the context of the rule requires otherwise, the following definitions apply:
(1) “Approved” means that a subject individual, following a final fitness determination, is fit to work, volunteer, be employed, or otherwise perform in the position listed on the Background Check Request form.
(2) “Approved with restrictions” means an approval in which some restriction is made including but not limited to the subject individual, the subject individual’s environment, the type or number of clients for whom the subject individual may provide care, or the information to which the subject individual has access.
(3) “Authorized designee (AD)” means an individual whom the Department of Human Services designates and authorizes to receive and process Background Check Request forms from subject individuals and criminal records information from the Department of Human Services.
(4) “Background Check Unit” means the Department of Human Services’ Background Check Unit (BCU).
(5) “Client” means any individual who receives services, care, or funding for care through the Department of Human Services.
(6) “Closed case” means a criminal records check application that has been closed without a final fitness determination.
(7) “Criminal records check” means obtaining and reviewing criminal records as required by these rules and includes any or all of the following:
(a) An Oregon criminal records check where criminal offender information is obtained from Oregon State Police (OSP) using the Law Enforcement Data System (LEDS). The Oregon criminal records check may also include a review of other criminal information.
(b) A national criminal records check where criminal records are obtained from the Federal Bureau of Investigation (FBI) through the use of fingerprint cards sent to OSP and other identifying information.
(c) A state-specific criminal records check where criminal records are obtained from law enforcement agencies, courts, or other criminal records information resources located in, or regarding, a state or jurisdiction outside Oregon.
(8) “Criminal offender information” means records, including fingerprints and photographs, received, compiled, and disseminated by OSP for purposes of identifying criminal offenders and alleged offenders and maintained as part of an individual’s records of arrest, the nature and disposition of criminal charges, sentencing, confinement, but does not include the retention by OSP of records of transfer of inmates between penal institutions or other correctional facilities, and release. It also includes the OSP Computerized Criminal History System (see OAR 257-010-0015).
(9) “Denied” means that a subject individual, following a fitness determination including a weighing test, is not fit to work, volunteer, be employed, or otherwise perform in the position listed on the Background Check Request form.
(10) “Department” means the Department of Human Services.
(11) “Employee” means an individual working in the Department in any position including a new hire, promotion, demotion, direct appointment, re-employment, job rotation, developmental assignment, transfer, an individual impacted by the Department’s lay-off process, or temporary hire.
(12) “Fitness determination” means the decision in a case that is not closed and includes:
(a) The decision regarding a Background Check Request form, an Oregon criminal records check, and preliminary review (a preliminary fitness determination); or
(b) The decision regarding a Background Check Request form, completed criminal records check including gathering of other information as necessary, and a final review by an AD (a final fitness determination).
(13) “Good cause” means a valid and sufficient reason for not complying with time frames set during the criminal records check process or contested case hearing process, including but not limited to an explanation of circumstances beyond a subject individual’s reasonable control.
(14) “Hearing representative” means a Department employee representing the Department in a contested case hearing.
(15) “Hired on a preliminary basis” means a condition in which an subject individual may be allowed by the Department to work, volunteer, be trained, or reside in an environment following the submission of a completed Background Check Request form. Hired on a preliminary basis is applicable only during the time frame following a preliminary fitness determination and prior to a final fitness determination.
(16) “Office of Human Resources” means the Department’s Office of Human Resources.
(17) “Other criminal records information” means information obtained and used in the criminal records check that is not criminal offender information from OSP. Other criminal records information includes but is not limited to police investigations and records, information from local or regional criminal records information systems, justice records, court records, information from the Oregon Judicial Information Network, sexual offender registration records, warrants, Oregon Department of Corrections records, Oregon Department of Transportation’s Driver and Motor Vehicle Services Division information, information provided on the Background Check forms, disclosures by a subject individual, and any other information from any jurisdiction obtained by or provided to the Department for the purpose of conducting a fitness determination.
(18) “Position” means the position listed on the Background Check Request form for the subject individual which determines whether the individual is a subject individual under these rules. Covered positions include any type of employment, volunteer placement, or contract placement.
(19) “Subject individual (SI)” means an individual on whom the Department may conduct a criminal records check and from whom the Department may require fingerprints for the purpose of conducting a national criminal records check. An SI includes any of the following:
(a) A Department employee.
(b) An individual who has been offered employment by the Department.
(c) An individual secured by the Department through the services of a temporary employment agency, staffing agency, or personnel services agency who is providing any of the duties or having access as described in OAR 407-007-0060(3).
(d) A Department client who is placed in the Work Experience or JOBS Plus program at a Department site.
(e) An individual who provides or seeks to provide services to the Department at Department facilities, sites, or offices as a contractor, subcontractor, vendor, volunteer under Department direction and control, or student under Department direction and control who:
(A) May have contact with clients;
(B) Has access to personal information about employees of the Department, clients, or members of the public, including but not limited to Social Security numbers, dates of birth, driver license numbers, medical information, personal financial information, or criminal background information;
(C) Has access to information the disclosure of which is prohibited by state or federal laws, rules, or regulations or information that is defined as confidential under state or federal laws, rules, or regulations;
(D) Has access to property held in trust or to private property in the temporary custody of the state;
(E) Has payroll or fiscal functions or responsibility for:
(i) Receiving, receipting or depositing money or negotiable instruments;
(ii) Billing, collections, setting up financial accounts, or other financial transactions; or
(iii) Purchasing or selling property;
(F) Provides security, design or construction services for government buildings, grounds, or facilities;
(G) Has access to critical infrastructure or secure facilities information; or
(H) Is providing information technology services and has control over or access to information technology systems.
(f) Any individual applying for employment or a volunteer placement or any employee, volunteer, contractor, or employee of any contractor in any of the following:
(A) A State-operated or Department-contracted secure residential treatment facility;
(B) A State-operated group home within the Department’s State-Operated Community Programs;
(C) Blue Mountain Recovery Center; or
(D) Oregon State Hospital.
(20) “Weighing test” means a process carried out by the Department in which available information is considered to make a fitness determination.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0020
Criminal History Check Required
(1) The Department conducts criminal records checks on all SIs through LEDS maintained by OSP pursuant to ORS Chapter 181 and the rules adopted pursuant thereto (see OAR 257-015).
(2) If a national criminal records check of an SI is necessary, OSP shall provide the Department the results of criminal records checks conducted pursuant to ORS 181.534, including fingerprint identification, through the FBI.
(3) SIs must have a criminal records check in the following circumstances:
(a) If an individual becomes an SI on or after the effective date of these rules.
(b) Except as provided in section (3) of this rule, if the individual, whether previously considered an SI or not, changes positions, and the position requires a criminal records check. Change in a position may include but is not limited to promotion, transfer, demotion, re-employment, job rotation, developmental assignment, restoration, layoff, or recall.
(c) If the Department has reason to believe that a criminal records check is justified. Examples include but are not limited to any indication of possible criminal behavior by an SI or quality assurance monitoring of a previously conducted criminal records check.
(4) The Office of Human Resources may determine that conducting a new criminal records check and fitness determination for a Department employee is not required.
(a) After the completion of the Background Check Request form, the Office of Human Resources may consider ending the criminal records check if:
(A) The SI who has been offered a new position has completed a previous criminal records check and fitness determination with an outcome of approved; and
(B) There has been no break in employment with the Department.
(b) The Office of Human Resources may cease the criminal records check without making a new fitness determination if there is no indication of new potentially disqualifying crimes or conditions, and at least one of the following is true:
(A) The previous criminal records check identified no potentially disqualifying crimes or conditions as defined at that time and the Office of Human Resources determines that the previous fitness determination is sufficient for the new position.
(B) The Office of Human Resources determines that the new position requires the same or less responsibility or access in the duties as described in OAR 407-007-0060(3).
(5) All SIs shall notify the Department’s Office of Human Resources within five days of being arrested, charged, or convicted of any crime.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0030
Criminal History Check Process
(1) Only Department employees, called ADs, may be authorized and approved pursuant to OAR 407-007-0230 to 407-007-0240 to receive and evaluate criminal offender information and other criminal records information. Only ADs may conduct fitness determinations.
(2) An SI shall use the Background Check Request form to request the criminal records check and shall include:
(a) Name and aliases;
(b) Date of birth;
(c) Address and recent residency information;
(d) Driver license information;
(e) Position for which the SI is submitting the Background Check Request form;
(f) Disclosure of criminal history;
(A) All arrests, charges, and convictions.
(B) The disclosed crimes and the dates must reasonably match the SI’s criminal offender information and other criminal records information, as determined by the Department.
(g) Disclosure of other history required under OAR 407-007-0400 to 407-007-0460; and
(h) Disclosure of other information to be considered in the event of a weighing test if the SI disclosures any criminal history or other history required under OAR 407-007-0400 to 407-007-0460.
(3) The Background Check Request form shall include the following notices:
(a) A notice regarding disclosure of Social Security number indicating:
(A) The SI’s disclosure is voluntary; and
(B) The Department requests the Social Security number solely for the purpose of positively identifying the SI during the criminal records check process.
(b) A notice that the SI may be subject to fingerprinting and a criminal records check.
(4) The Department shall verify the identity of an SI using methods which include but are not limited to asking the SI for current and valid government-issued photo identification and confirming the information on the photo identification with the SI, the information written on the Background Check Request form, and the information written on the fingerprint card if a national criminal records check is conducted.
(5) The Department shall conduct an Oregon criminal records check after a completed Background Check Request form is received.
(a) Using information submitted on the Background Check Request form, the Department may obtain criminal offender information from the LEDS system and may request other criminal records information as needed.
(b) The Department shall handle criminal offender information obtained through LEDS in accordance with applicable OSP requirements in ORS chapter 181 and the rules adopted pursuant thereto (see OAR chapter 257, division 15).
(6) The Department may conduct a fingerprint-based national criminal records check after an Oregon criminal records check is completed.
(a) A fingerprint-based national criminal records check may be completed under any of the following circumstances:
(A) The SI has out of state residency evidenced by the SI’s possession of an out of state driver license or being outside Oregon for 60 or more consecutive days during the previous five years.
(B) The LEDS check, SI disclosures, or any other criminal records information obtained by the Department indicates there may be criminal records outside of Oregon.
(C) The Department has reason to question the identity or history of the SI.
(D) The SI’s position is at Oregon state institutions under OAR 407-007-0010(19)(g).
(E) The SI is assigned duties involving any aspect of a criminal records or abuse check process.
(F) A fingerprint-based criminal records check is required by federal or state laws or regulations, other rules adopted by the Department, or by contract with the Department.
(G) If the Department has reason to believe that fingerprints are needed to make a final fitness determination.
(b) The Department must receive consent from the parent or guardian to obtain fingerprints from an SI under 18 years of age.
(c) The SI shall complete and submit a fingerprint card when requested by the Department.
(A) The SI shall use a fingerprint card provided by the Department. The Department shall give the SI notice regarding the Social Security number as set forth in OAR 407-007-0030(3)(a).
(B) The SI shall submit the fingerprint card to the BCU within 21 calendar days of the request.
(i) The Department shall close the application, making it a closed case, if the fingerprint card is not received within 21 calendar days.
(ii) The Department may extend the time allowed for good cause.
(C) The Department may require new fingerprint cards if previous cards are rejected by OSP or the FBI.
(7) The Department may also conduct a state-specific criminal records check in lieu of or in addition to a national criminal records check. Reasons for a state-specific criminal records check include but are not limited to:
(a) When the Department has reason to believe that out-of-state criminal records may exist.
(b) When the Department has been unable to complete a national criminal records check due to illegible fingerprints.
(c) When the national criminal records check results show incomplete information about charges or criminal records without final disposition.
(d) When there is indication of residency or criminal records in a state that does not submit all criminal records to the FBI.
(e) When, based on available information, the Department has reason to believe that a state-specific criminal records check is necessary.
(8) In order to complete a criminal records check and fitness determination, the Department may require additional information from an SI.
(a) Additional information includes but is not limited to criminal, judicial, other background information, or proof of identity.
(b) If an SI who is a represented Department employee is required to provide additional information, the process for obtaining that information through investigatory interviews shall adhere to collective bargaining agreements on investigatory interviews.
(9) The Department may conduct a criminal records check in situations of imminent danger.
(a) If the Department determines there is indication of criminal behavior by an SI that could more likely than not pose an immediate risk to the Department, its clients, or vulnerable persons, the Department shall authorize a criminal records check without the completion of a Background Check Request form.
(b) If the Department determines that a fitness determination based on the criminal records check would be adverse to the SI, the Department shall provide the SI, if available, the opportunity to disclose criminal records, potentially disqualifying conditions, and other information as indicated in OAR 407-007-0060 before the completion of the fitness determination.
(10) Criminal records checks conducted under this rule shall be documented in writing.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0040
Potentially Disqualifying Crimes
(1) A conviction of any of the following crimes is potentially disqualifying. Offenses or convictions that are classified as less than a misdemeanor, such as violations or infractions, are not potentially disqualifying (see ORS 161.505 to 161.565).
(a) Any federal crime.
(b) Any U.S. military crime.
(c) Any felony or misdemeanor in Oregon Revised Statutes or local codes in Oregon.
(d) Any felony or misdemeanor in a jurisdiction outside Oregon (including known crimes outside the United States) that is the substantial equivalent of any crime in Oregon Revised Statutes, or that is serious and demonstrates behavior that poses a threat or jeopardizes the safety of the Department, its clients, or vulnerable individuals as determined by the Department.
(e) Any crime that is no longer codified in Oregon or other jurisdiction but that is the substantial equivalent of any crime listed in this section as determined by the Department.
(2) Regardless of the conviction date, evaluations of crimes may be based on Oregon laws and laws in other jurisdictions in effect at the time of the fitness determination.
(3) Under no circumstances may an SI be denied under these rules because of a juvenile record that has been expunged or set aside pursuant to ORS 419A.260 to 419A.262.
(4) Under no circumstances may an SI be denied under these rules because of an adult record that has been set aside pursuant to ORS 137.225.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0050
Other Potentially Disqualifying Conditions
The following are potentially disqualifying conditions:
(1) The SI makes a false statement to the Department, including the provision of materially false information, false information regarding criminal history, or failure to disclose information regarding criminal history. Nondisclosure of charges classified as less than a misdemeanor such as violations or infractions may not be considered as false statement.
(2) The SI is a registered sex offender in any jurisdiction. There is a rebuttable presumption that an SI is likely to engage in conduct that would pose a significant risk to the Department, its clients, or vulnerable individuals if the SI has been designated a predatory sex offender under ORS 181.585 or found to be a sexually violent dangerous offender under ORS 144.635 (or similar statutes in other jurisdictions).
(3) The SI has an outstanding warrant in any jurisdiction.
(4) The SI has a deferred sentence, conditional discharge, or is participating in a diversion program in any jurisdiction for any potentially disqualifying crime.
(5) The SI is currently on probation, parole, or post-prison supervision for any crime in any jurisdiction, regardless of the original conviction date or date of guilty or no contest plea if there is no conviction date.
(6) The SI is found in violation of post-prison supervision, parole, or probation for any crime in any jurisdiction regardless of the original conviction date or date of guilty or no contest plea if there is no conviction date, within five years or less from the date the Background Check Request form was signed or the date the Department conducted a criminal records check due to imminent danger.
(7) The SI has an unresolved arrest, charge, or a pending indictment for any crime in any jurisdiction.
(8) The SI has been arrested in any jurisdiction as a fugitive from another state or a fugitive from justice, regardless of the date of arrest.
(9) An adjudication in a juvenile court in any jurisdiction, finding that the SI was responsible for a potentially disqualifying crime that would result in a conviction if committed by an adult.
(10) A finding of “guilty except for insanity,” “guilty except by reason of insanity,” “not guilty by reason of insanity,” “responsible except for insanity,” “not responsible by reason of mental disease or defect,” or similarly worded disposition in any jurisdiction regarding a potentially disqualifying crime, unless the local statutes indicate that such an outcome is considered an acquittal.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0060
Weighing Test
If the SI has potentially disqualifying crimes or conditions, the Department shall consider any of the following factors disclosed by the SI or otherwise known when making the fitness determination:
(1) Circumstances regarding the nature of potentially disqualifying crimes and conditions including but not limited to:
(a) Age of the SI at time of the potentially disqualifying crime or condition.
(b) Details of incidents leading to the charges of potentially disqualifying crimes or resulting in potentially disqualifying conditions.
(c) Facts that support the conviction or other potentially disqualifying condition.
(d) Passage of time since commission of the crime or potentially disqualifying condition.
(e) Consideration of state or federal laws, regulations, or rules covering the position or the Department, regarding the potentially disqualifying crimes or conditions.
(2) Other factors when available including but not limited to:
(a) Other information related to criminal activity including charges, arrests, pending indictments, or convictions. Other behavior involving contact with law enforcement may also be reviewed if information is relevant to other criminal records or shows a pattern relevant to criminal history.
(b) Periods of incarceration.
(c) Status of and compliance with parole, post-prison supervision, or probation.
(d) Evidence of drug or alcohol issues directly related to criminal activity or potentially disqualifying conditions.
(e) Evidence of other treatment or rehabilitation related to criminal activity or potentially disqualifying conditions.
(f) Likelihood of repetition of criminal behavior or behaviors leading to potentially disqualifying conditions, including but not limited to patterns of criminal activity or behavior or whether the SI appears to accept responsibility for past actions, as determined by the Department.
(g) Changes in circumstances subsequent to the criminal activity or disqualifying conditions including but not limited to:
(A) History of high school, college, or other education related accomplishments.
(B) Work history (employee or volunteer).
(C) History regarding licensure, certification, or training for licensure or certification.
(D) Written recommendations from current or past employers.
(h) 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.
(3) The relevancy of the SI’s criminal history or potentially disqualifying conditions to the position or to the environment of the position, shall be considered. Consideration includes the relation between the SI’s potentially disqualifying crimes or conditions and the following tasks or duties in the position:
(a) Access to or direct contact with Department clients, client property, or client funds.
(b) Access to information technology services, or control over or access to information technology systems that would allow an individual holding the position to harm the information technology systems or the information contained in the systems.
(c) Access to information, the disclosure of which is prohibited by state or federal laws, rules, or regulations, or information that is defined as confidential under state or federal laws, rules, or regulations.
(d) Access to payroll functions.
(e) Responsibility for receiving, receipting, or depositing money or negotiable instruments.
(f) Responsibility for billing, collections, or other financial transactions.
(g) Access to mail received or sent to the Department, including interagency mail, or access to any mail facilities in the Department.
(h) Responsibility for auditing the Department or other governmental agencies.
(i) Responsibility for any personnel or human resources functions.
(j) Access to personal information about employees, clients, or members of the public including Social Security numbers, dates of birth, driver license numbers, residency information, medical information, personal financial information, criminal offender information, or other criminal records information.
(k) Access to medications, chemicals, or hazardous materials; access to facilities in which medications, chemicals, and hazardous materials are present; or access to information regarding the transportation of medications, chemicals, or hazardous materials.
(L) Access to property to which access is restricted in order to protect the health or safety of the public.
(m) Responsibility for security, design, or construction services. This includes government buildings, grounds, or facilities or buildings, owned, leased, or rented for government purposes.
(n) Access to critical infrastructure or security-sensitive facilities or information.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0065
Hired on a Preliminary Basis
The Department shall make a preliminary fitness determination to determine if an SI may work, volunteer, be employed, or otherwise perform in the position listed on the Background Check Request form prior to a final fitness determination. The Department may not hire an SI on a preliminary basis prior to the completion of a preliminary fitness determination.
(1) The SI shall complete and submit a Background Check Request form.
(2) The Department shall complete a preliminary fitness determination and send notice to the hiring manager.
(3) After review of the Background Check Request form, the Department shall make one of the following determinations:
(a) An SI may be hired on a preliminary basis, only during the time period prior to a final fitness determination, into the position listed on the Background Check Request form and allowed to participate in training, orientation, and position activities under the one of the following circumstances:
(A) If there is no indication of potentially disqualifying crimes or conditions on the Background Check Request form and the Department has no reason to believe the SI has potentially disqualifying crimes or conditions.
(B) If an SI discloses potentially disqualifying crimes or conditions, the SI may be hired on a preliminary basis only after the Office of Human Resources completes a weighing test. The Department may hire an SI on a preliminary basis only if, based on information available at the time, the Office of Human Resources determines that more likely than not that the SI poses no potential threat to the Department, its clients, or vulnerable persons.
(b) The Department shall not hire an SI on a preliminary basis if the Office of Human Resources determines that:
(A) After a weighing test, the SI more likely than not poses a potential threat to the Department, its clients, or vulnerable persons;
(B) The SI’s most recent criminal records check under these rules or other Department criminal records check rules resulted in a denial; or
(C) The SI is currently involved in contesting a criminal records check determination under these or other Department criminal records check or abuse check rules.
(4) An SI who is hired on a preliminary basis shall be actively supervised at all times by an individual who has been approved without restrictions pursuant to these rules or previous Department criminal records check rules. The individual providing active supervision shall do at all times the following:
(a) Be in the same building as the SI or, if outdoors of Department buildings or any location off Department property, be within line of sight and hearing of the SI;
(b) Know where the SI is and what the SI is doing; and
(c) Periodically observe the actions of the SI.
(5) An SI who was approved without restrictions within the previous 24 months through a documented criminal records check pursuant to these rules may work after being hired on a preliminary basis without active supervision. The 24 month time frame is calculated from the date of previous approval to the date starting the new position. This exemption is not allowed in any of the following situations:
(a) If the SI cannot provide documented proof that he or she worked continuously under the previous approval for at least one year.
(b) If there is evidence of criminal activity within the previous 24 months.
(c) If the Department determines the job duties in the new position are so substantially different from the previous position that the previous fitness determination is inadequate for the new position.
(6) The Department may immediately remove an SI hired on a preliminary basis from the position listed on the Background Check Request form. Removal is not subject to hearing or appeal. Reasons for removal include but are not limited to the following:
(a) There is any indication of falsification on the Background Check Request form.
(b) The SI fails to disclose convictions for any potentially disqualifying crimes, any arrests that did not result in convictions, or any out of state arrests or convictions.
(c) The Department determines that allowing the SI to be hired on a preliminary basis is not appropriate, based on the application, criminal records, position duties, or regulations regarding the position.
(7) Nothing in this rule is intended to require that an SI, who is eligible for being hired on a preliminary basis be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the Background Check Request form prior to a final fitness determination.
Stat. Auth.: ORS 181.534, 181.537 & 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0070
Final Fitness Determinations
The Office of Human Resources shall make a final fitness determination after all necessary criminal records checks, and a weighing test if necessary, have been completed. The Office of Human Resources may obtain and consider additional information as necessary to complete the final fitness determination.
(1) The final fitness determination may result in one of the following outcomes:
(a) The Office of Human Resources may approve an SI if:
(A) The SI has no potentially disqualifying crimes or potentially disqualifying conditions; or
(B) The SI has potentially disqualifying crimes or potentially disqualifying conditions and, after a weighing test with available information, the Department determines that more likely than not the SI poses no risk to the Department, its clients, or vulnerable persons.
(b) The Office of Human Resources may approve an SI with restrictions if, after a weighing test with available information, it determines that more likely than not that the SI poses no risk to the Department, its clients, or vulnerable persons, if certain restrictions are placed on the SI, such as but not limited to restrictions to one or more specific clients, position duties, or environments. The Department shall complete a new background check and fitness determination on the SI before removing a restriction. A fitness determination of approved with restrictions shall only be considered for the following SIs:
(A) An individual secured by the Department through the services of a temporary employment agency, staffing agency, or personnel services agency who is providing any of the duties or having access as described in OAR 407-007-0060(3).
(B) A volunteer or student under Department direction and control.
(C) A Department client who is placed in a Work Experience or JOBS Plus program at a Department site.
(D) Any individual who is required to complete a criminal records check pursuant to the statutory authority of ORS 181.534 and 181.537 or the authority of these rules pursuant to a contract with the Department.
(c) The Office of Human Resources shall deny an SI whom it determines, after a weighing test with available information, more likely than not poses a risk to the Department, its clients, or vulnerable individuals.
(2) The BCU may assist in or handle final fitness determinations as requested by the Office of Human Resources.
(3) Upon completion of a final fitness determination, the Office of Human Resources shall provide written notice to the SI. The notice shall:
(a) Be in a Department approved format;
(b) Include information regarding appeal rights for denied or approved with restrictions outcomes. The notice shall also include a statement that it becomes a final order by default in the event of a withdrawal or a failure to participate during the appeal or hearing; and
(c) Be mailed or hand-delivered to the SI no later than 14 calendar days after the decision. The effective date of action shall be recorded on the notice.
(d) The Office of Human Resources shall also provide employees with all formal disciplinary documents and letters up to and including a letter of dismissal.
(4) When an SI is denied, the Department shall not allow the SI to work, volunteer, be employed, or otherwise perform in the position listed on the Background Check Request form. A denial applies only to the position in question.
(a) The process for a Department employee’s removal from service or dismissal shall adhere to Department-wide Support Services discharge policies, Department of Administrative Services’ Human Resource Services Division dismissal polices, and collective bargaining agreements on discharge, as applicable.
(b) For all other SIs, a denial shall result in immediate dismissal.
(5) Final fitness determinations shall be documented in writing, including any other necessary details including but not limited to restrictions in a restricted approval or potentially disqualifying crimes or conditions in a denial.
(6) The Department shall make new fitness determinations for each application. The outcome of previous fitness determinations does not set a precedent for subsequent fitness determinations.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0075
Closed Case
If an SI discontinues the application or fails to cooperate with the criminal records check or fitness determination process, the application is considered incomplete and shall be closed.
(1) Discontinuance or failure to cooperate includes but is not limited to the following circumstances:
(a) The SI refuses to be fingerprinted when required by these rules.
(b) The SI fails to respond within a stated time period to a request for corrections to the application, fingerprints, or provide any other information necessary to conduct a criminal records check and there is not enough information available to make a fitness determination.
(c) The SI withdraws the application, leaves the position prior to completion of the criminal records check, or the Department cannot locate or contact the SI.
(d) The SI is determined to be ineligible for the position for reasons other than the criminal records check.
(2) When the application is closed without a final fitness determination, there is no right to contest the closure.
(3) When a case is closed, the SI shall not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the Background Check Request form. A closed case applies only to the position in question.
(a) The process for a Department employee’s removal from service or dismissal shall adhere to Department-wide Support Services discharge policies, Department of Administrative Services’ Human Resource Services Division dismissal polices, and collective bargaining agreements on discharge, as applicable.
(b) For all other SIs, a closed case shall result in immediate dismissal.
(4) The Office of Human Resources or the BCU shall document in writing the reasons for a closed case, and shall provide that information to the SI.
Stat. Auth.: ORS 181.534, 181.537 & 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0080
Contesting a Final Fitness Determination
(1) A final fitness determination of denied or approved with restrictions is considered an adverse outcome. An SI with an adverse outcome may contest that outcome.
(2) If an SI is denied, then the SI may not work, volunteer, be employed, or otherwise perform in positions covered by these rules. An SI appealing a restricted approval may only work under the terms of the restriction during the appeal.
(3) If an adverse outcome is changed at any time during the appeal process, the change does not guarantee employment or placement.
(4) If an SI wishes to challenge the accuracy or completeness of criminal offender information provided by OSP, the FBI, or other criminal records information from other agencies reporting information to the Department, the SI may appeal to the entity providing the information. These challenges are not subject to the Department’s appeal process.
(5) The SI has the right to represent himself or herself or have legal representation during the appeal process. The SI may not be represented by a lay person. In this rule, the term “SI” shall be considered to include the SI’s legal representative.
(6) An SI who is already employed by the Department at the time of the final fitness determination may appeal through applicable personnel rules, policies, and collective bargaining provisions. The SI’s decision to do so is an election of remedies as to the rights of the SI with respect to the fitness determination and constitutes a waiver of the contested case process described in this rule.
(7) An SI who wishes to challenge an adverse fitness determination may appeal the determination by requesting a contested case hearing. The appeal process is conducted pursuant to ORS 183.411 to 183.497 and the Attorney General’s Uniform and Model Rules of Procedure for the Office of Administrative Hearings (OAH), OAR 137-003-0501 to 137-003-0700.
(a) To request a contested case hearing the SI shall complete and sign the Hearing Request form.
(b) The completed and signed form must be received by the Department within the following time lines:
(A) For Department employees and SIs offered employment by the Department, no later than 15 calendar days after the effective date of action listed on the notice of the fitness determination.
(B) For all other SIs, no later than 45 calendar days after the effective date of action listed on the notice of the fitness determination.
(c) If a request for hearing is not timely, the Department shall determine, based on a written statement from the SI and available information, if there is good cause to proceed with the appeal.
(d) The Department may refer an untimely request to OAH for a hearing on the issue of timeliness.
(8) When an SI requests a contested case hearing, the Department may conduct an administrative review before referring the appeal to OAH.
(a) The SI must participate in the administrative review. Participation may include but is not limited to providing additional information or additional documents requested by the Department within a specified amount of time.
(b) The administrative review is not open to the public.
(9) The Department may conduct additional criminal records checks during the appeal process to update or verify the SI’s criminal records. If needed, the Department shall amend the notice of fitness determination during the appeal process while still maintaining the original hearing rights and deadlines.
(10) A hearing representative shall represent the Department in contested case hearings, or may use representation through the Department of Justice’s Office of the Attorney General.
(a) The Department shall provide the administrative law judge and the SI a complete copy of available information used during the criminal records checks and fitness determinations. The notice of contested case and prehearing summary and all other documents shall be mailed by regular first class mail.
(b) The contested case hearing is not open to the public.
(c) The administrative law judge shall make a new fitness determination based on the evidence and the contested case hearing record.
(d) The only remedy that may be awarded is a fitness determination that the SI is approved or denied. Under no circumstances shall the Department be required to place an SI in any position, nor shall the Department be required to accept services or enter into a contractual agreement with an SI.
(11) The result of an appeal is a final order.
(a) In the following situations, the notice of fitness determination becomes the final order as if the SI never requested a hearing:
(A) Failure to request a hearing in the time allotted in this rule. No other document shall be issued after the notice of fitness determination.
(B) Withdrawal of the request for hearing at any time during the appeal process.
(b) The Department may make an informal disposition based on the administrative review. The Department shall issue a final order and new notice of fitness determination. If the resulting fitness determination is an adverse outcome, the appeal shall proceed to contested case hearing.
(c) The Department shall issue a dismissal order in the following circumstances:
(A) The SI may withdraw a hearing request verbally or in writing at any time before the issuance of a final order. A dismissal order due to a withdrawal is effective the date the withdrawal is received by the Department or OAH. The SI may cancel the withdrawal in writing within 14 calendar days after the date of withdrawal.
(B) The Department shall dismiss a hearing request when the SI fails to participate in the administrative review. Failure to participate in the administrative review shall result in termination of hearing rights. The order is effective on the due date for participation in the administrative review. The Department shall review a good cause request to reinstate hearing rights if received in writing by the Department within 14 calendar days.
(C) The Department shall dismiss a hearing request when the SI fails to appear at the time and place specified for the contested case hearing. The order is effective on the date scheduled for the hearing. The Department shall review a good cause request to reinstate hearing rights if received in writing by the Department within 14 calendar days.
(d) After a hearing, the administrative law judge shall issue a proposed and final order.
(A) If no written exceptions are received by the Department within 14 calendar days after the service of the proposed and final order, the proposed and final order shall become the final order.
(B) If timely written exceptions to the proposed and final order are received by the Department, the Department’s Director or designee shall consider the exceptions and serve a final order, or request a written response or a revised proposed and final order from the administrative law judge.
(12) Final orders, including dismissal and default orders, are subject to reconsideration or rehearing petitions within 60 calendar days after the final order is served, pursuant to OAR 137-003-0675.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537, 183.341 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0090
Record Keeping, Confidentiality
(1) All LEDS reports are confidential and the Department shall maintain the reports in accordance with applicable OSP requirements in ORS chapter 181 and the rules adopted pursuant thereto (see OAR chapter 257, division 15).
(a) LEDS reports may only be shared with approved Department authorized designees if there is a need to know consistent with these rules.
(b) The LEDS report and any photocopies may not be shown or given to the SI.
(2) The results of a national criminal records check provided by the FBI or through OSP are confidential and may not be disseminated by the Department except:
(a) If a fingerprint-based criminal records check was conducted on the SI, the SI shall be provided a copy of the results upon request.
(b) During the contested case hearing, the Department shall provide state and national criminal offender information as exhibits.
(3) All completed Background Check Request forms, other criminal records information, and other records collected or developed during the criminal records check process shall be kept confidential and disseminated only on a need-to-know basis.
(4) The Department shall retain and destroy all criminal records check documents pursuant to federal law and records retention schedules published by Oregon State Archives.
Stat. Auth.: ORS 181.534, 181.537, 409.050

Stats. Implemented: ORS 181.534, 181.537 & 409.010

Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
407-007-0100
Variances
(1) The outcome of a fitness determination made pursuant to these rules is not subject to variance. Challenges to fitness determinations may only be made through contested case hearing rights set forth in these rules or alternative options available to Department employees.
(2) The Department may grant a variance based upon a demonstration by the Department program area or work unit that the variance would not pose a significant risk to the Department, its clients, or vulnerable individuals.
(3) The program office or work unit requesting a variance shall submit, in writing, an application to the BCU that contains the following:
(a) The section of the rule from which the variance is sought;
(b) The reason for the proposed variance;
(c) The alternative practice, service, method, concept or procedure proposed;
(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and
(e) An explanation on how the safety and well-being of the Department or affected individuals will be ensured during the time the variance period is in effect.
(4) The Assistant Director or designee for the Department’s Administrative Services Division shall approve or deny the request for a variance.
(5) The Department shall notify the program office or work unit of the decision. This notice shall be sent within 30 calendar days of the receipt of the request by the Department with a copy to other relevant divisions of the Department.
(6) Appeal of the denial of a variance request shall be made in writing to the Department’s Director or designee, whose decision shall be final.
(7) The duration of the variance shall be determined by the Department’s Director or designee.
(8) The Department program office or work unit may implement a variance only after receipt of written approval from the Department.
(9) Granting a variance does not set a precedent for subsequent requests for variances.
Stat. Auth.: ORS 181.537 & 409.050

Stats. Implemented: ORS 181.537 & 409.010

Hist.: DHSD 3-2008(Temp). f. & cert. ef. 5-22-08 thru 11-17-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 9-2009, f. 12-31-09, cert. ef. 1-1-10
Providers
407-007-0200
Purpose and Scope
(1) The purpose of these rules, OAR
407-007-0200 to 407-007-0370, is to provide for the reasonable screening under ORS
181.534, 181.537, and 409.027 of subject individuals (SIs) to determine if they
have a history of criminal or abusive behavior such that they should not be allowed
to work, volunteer, be employed, reside, or otherwise perform in positions covered
by these rules.
(2) These rules apply to
evaluating criminal records and potentially disqualifying conditions of an SI when
conducting fitness determinations based upon such information. The fact that an
SI is approved does not guarantee employment or placement. These rules do not apply
to individuals subject to OAR 407-007-0000 to 407-007-0100 or 407-007-0400 to 407-007-0460.
(3) Providers for the Department
of Human Services (Department) and the Oregon Health Authority (Authority) are subject
to criminal records and abuse checks. The Authority authorizes the Department to
act on its behalf in carrying out criminal and abuse checks associated with programs
or activities administered by the Authority. References in these rules to the Department
or Authority shall be construed to be references to either or both agencies.
Stat. Auth.: ORS 181.516, 181.534, 181.537, 183.459,
409.025, 409.027, 409.050, 410.020, 411.060, 411.122, 418.016, 418.640, 441.055,
443.730, 443.735 & 678.153
Stats. Implemented: ORS 181.516, 181.534,
181.537, 183.459, 409.010, 409.025, 409.027, 411.060, 411.122 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; Renumbered from 410-007-0200, DHSD 8-2007, f. 8-31-07, cert. ef.
9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09; DHSD 2-2009, f. & cert.
ef. 4-1-09; DHSD 7-2009, f. & cert. ef. 10-1-09; DHSD 10-2009, f. 12-31-09,
cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp)
f. & cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef.
10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp),
f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12;
DHSD 3-2013, f. & cert. ef. 8-1-13
407-007-0210
Definitions
As used in OAR 407-007-0200 to 407-007-0370
the following definitions apply:
(1) “Abuse” has
the meaning given in the administrative rules promulgated by the Department or Authority
corresponding to the setting in which the abuse was alleged or investigated.
(2) “Abuse check”
means obtaining and reviewing abuse allegations, abuse investigation reports, and
associated exhibits and documents for the purpose of determining whether an SI has
a history as a perpetrator of potentially disqualifying abuse (a potentially disqualifying
condition) as described in OAR 407-007-0290(11).
(3) “Abuse investigation
report” means a written report completed after an investigation into suspected
abuse and retained by the Department or the Authority pursuant to ORS 124.085, 419B.030,
or 430.757, or a similar report filed in another state agency or by another state.
(4) “Appointing authority”
means an individual designated by the qualified entity (QE) who is responsible for
appointing QE designees (QEDs). Examples include but are not limited to human resources
staff with the authority to offer and terminate employment, a business owner, a
member of the board of directors, a director, or a program administrator.
(5) “Approved”
means that an SI, following a final fitness determination, is fit to work, volunteer,
be employed, or otherwise perform in the position listed in the background check
request.
(6) “Approved with
restrictions” means an approval in which some restriction is made including
but not limited to an SI, an SI’s environment, the type or number of clients
for whom an SI may provide care, or the information to which an SI has access.
(7) “Authority”
means the Oregon Health Authority.
(8) “Background check”
means a criminal records check and an abuse check under these rules.
(9) “Background Check
Unit (BCU)” means the Background Check Unit conducting background checks for
the Department and the Authority.
(10) “Care” means
the provision of care, treatment, education, training, instruction, supervision,
placement services, recreation, or support to children, the elderly, or individuals
with disabilities (see ORS 181.537).
(11) “Client”
means any individual who receives services, care, or funding for care through the
Department, Authority, or qualified entities.
(12) “Closed case”
means a background check request that has been closed without a final fitness determination.
(13) “Criminal records
check” means obtaining and reviewing criminal records as required by these
rules and includes any or all of the following:
(a) An Oregon criminal records
check where criminal offender information is obtained from the Oregon State Police
(OSP) using the Law Enforcement Data System (LEDS). The Oregon criminal records
check may also include a review of other criminal records information.
(b) A national criminal records
check where records are obtained from the Federal Bureau of Investigation (FBI)
through the use of fingerprint capture sent to OSP and other identifying information.
The national criminal records check may also include a review of other criminal
records information.
(c) A state-specific criminal
records check where records are obtained from law enforcement agencies, courts,
or other criminal records information resources located in, or regarding, a state
or jurisdiction outside Oregon.
(14) “Criminal Information
Management System (CRIMS)” means the electronic records system used to process
and maintain background check records under these rules.
(15) “Criminal offender
information” means records, including fingerprints and photographs, received,
compiled, and disseminated by OSP for purposes of identifying criminal offenders
and alleged offenders and maintained as part of an individual’s records of
arrest, the nature and disposition of criminal charges, sentencing, confinement,
and release, but does not include the retention by OSP of records of transfer of
inmates between penal institutions or other correctional facilities. It also includes
the OSP Computerized Criminal History System (see OAR 257-010-0015).
(16) “Denied”
means that an SI, following a fitness determination including a weighing test, is
not fit to work, volunteer, be employed, reside, or otherwise hold the position
listed on the background check request.
(17) “Department”
means the Oregon Department of Human Services.
(18) “Fingerprint capture”
means the taking of an SI’s fingerprints for a national criminal records check
in a manner that meets current Oregon statutes and OSP’s capacity for receiving
fingerprints.
(19) “Fitness determination”
means the decision in a case that is not closed and includes:
(a) The decision regarding
a background check request and preliminary review (a preliminary fitness determination);
or
(b) The decision regarding
a background check request, completed background check, including gathering other
information as necessary, and a final review by BCU (a final fitness determination).
(20) “Founded or substantiated”
has the meaning given in the Department or Authority’s administrative rules
corresponding to the setting in which the abuse was alleged or investigated.
(21) “Good cause”
means a valid and sufficient reason for not complying with established time frames
during the background check process or contested case hearing process that includes
but is not limited to an explanation of circumstances beyond a SI’s reasonable
control.
(22) “Hearing representative”
means a Department employee representing the Department in a contested case hearing.
(23) “Hired on a preliminary
basis” means a condition in which a QE allows an SI to work, volunteer, be
trained, or reside in an environment following the submission of a background check
request. Hired on a preliminary basis may also be called probationary status.
(24) “Ineligible due
to ORS 443.004” means BCU has determined that an SI, subject to ORS 443.004
and either OAR 407-007-0275 or 407-007-0277, has one or more convictions that prohibits
the SI from holding the position listed in the background check request.
(25) “Office of Adult
Abuse Prevention and Investigations (OAAPI)” means the Office of Adult Abuse
Prevention and Investigations, formerly the Office of Investigation and Training,
a shared service of the Department and Authority.
(26) “Other criminal
records information” means information obtained and used in the criminal records
check process that is not criminal offender information from OSP. Other criminal
records information includes but is not limited to police investigations and records,
information from local or regional criminal records information systems, justice
records, court records, information from the Oregon Judicial Information Network,
sexual offender registration records, warrants, Oregon Department of Corrections
records, Oregon Department of Transportation’s Driver and Motor Vehicle Services
Division information, information provided on the background check requests, disclosures
by a SI, and any other information from any jurisdiction obtained by or provided
to the Department for the purpose of conducting a fitness determination.
(27) “Position”
means the position listed in the background check request which determines whether
the individual is a SI under these rules, Department program rules, or Authority
program rules.
(28) “Qualified entity
(QE)” means a community mental health or developmental disability program,
local health department, or an individual, business, or organization, whether public,
private, for-profit, nonprofit, or voluntary, that provides care, including a business
or organization that licenses, certifies, or registers others to provide care (see
ORS 181.537).
(29) “QE designee (QED)”
means an individual appointed by the QE’s appointing authority to handle background
checks on behalf of the QE.
(30) “QE Initiator
(QEI)” means an approved SI who BCU has granted access to CRIMS for one QE
for the purpose of entering background check request data.
(31) “Subject individual
(SI)” means an individual on whom BCU conducts a criminal records check and
an abuse check, and from whom BCU may require fingerprints for the purpose of conducting
a national criminal records check.
(a) An SI includes any of
the following:
(A) An individual who is
licensed, certified, registered, or otherwise regulated or authorized for payment
by the Department or Authority and who provides care.
(B) An employee, contractor,
temporary worker, or volunteer who provides care or has access to clients, client
information, or client funds within or on behalf of any entity or agency licensed,
certified, registered, or otherwise regulated by the Department or Authority.
(C) Any individual who is
paid directly or indirectly with public funds who has or will have contact with
recipients of:
(i) Services within an adult
foster home (defined in ORS 443.705); or
(ii) Services within a residential
facility (defined in ORS 443.400).
(D) Any individual who works
in a facility and provides care or has access to clients, client information, or
client funds secured by any residential care or assisted living facility through
the services of a personnel services or staffing agency.
(E) Any individual who works
in a facility and provides care, or has access to clients, client information, or
client funds secured by any nursing facility through the services of a personnel
services or staffing agency.
(F) Except as excluded in
section (31)(b)(C) and (D) of this rule, an individual who lives in a facility that
is licensed, certified, registered, or otherwise regulated by the Department to
provide care. The position of this SI includes but is not limited to resident manager,
household member, or boarder.
(G) An individual working
or volunteering for a private licensed child caring agency; an In-Home Safety and
Reunification Services (ISRS) program, a Strengthening, Preserving and Reunifying
Families (SPRF) provider, or system of care contractor providing child welfare services
pursuant to ORS chapter 418.
(H) A homecare worker as
defined in ORS 410.600, a personal support worker as defined in ORS 410.600, a personal
care services provider, or an independent provider employed by a Department or Authority
client who provides care to the client if the Department or Authority helps pay
for the services.
(I) A child care provider
and their employees reimbursed through the Department’s child care program
and other individuals in child care facilities that are exempt from certification
or registration by the Office of Child Care of the Oregon Department of Education.
This includes all individuals listed in OAR 461-165-0180(4).
(J) An appointing authority,
QED, or QEI associated with any entity or agency licensed, certified, registered,
otherwise regulated by the Department, or subject to these rules.
(K) An individual providing
on the job certified nursing assistant classes to staff within a long term care
facility.
(L) A student enrolled in
a Board of Nursing approved nursing assistant training program in which the instruction
and training occurs solely in a nursing facility.
(M) Except for those excluded
under OAR 407-007-0210(31)(b)(B), a student or intern who provides care or has access
to clients, client information, or client funds within or on behalf of a QE.
(N) Any individual serving
as an owner, operator, or manager of a room and board facility pursuant to OAR chapter
411, division 68.
(O) An employee providing
care to clients of the Department’s Aging and People with Disabilities (APD)
programs who works for an in-home care agency as defined by ORS 443.305 which has
a contract with the Department’s APD programs.
(P) Any individual who is
required to complete a background check pursuant to Department or Authority program
rules or a contract with the Department or Authority, if the requirement is within
the Department or Authority’s statutory authority. Specific statutory authority
or reference to these rules and the positions under the contract subject to a background
check must be specified in the contract. The exceptions in section (31)(b) do not
apply to these SIs.
(b) An SI does not include:
(A) Any individual under
16 years of age.
(B) A student or intern in
a clinical placement at a clinical training setting subject to administrative rules
implemented under ORS 413.435.
(C) Department, Authority,
or QE clients. The only circumstance in which BCU shall allow a check to be performed
on a client pursuant to this paragraph is if the client falls within the definition
of “subject individual” as listed in sections (31)(a)(A)-(E) and (31)(a)(G)-(P)
of this rule, or if the facility is dually licensed for different populations of
vulnerable individuals.
(D) Individuals working in
child care facilities certified or registered by OED.
(E) Individuals employed
by a private business that provides services to clients and the general public and
is not regulated by the Department or Authority.
(F) Individuals employed
by a business that provides appliance or structural repair for clients and the general
public and who are temporarily providing these services in a licensed or certified
QE. The QE shall ensure active supervision of these individuals while on QE property
and the QE may not allow unsupervised contact with QE clients or residents. This
exclusion does not apply to a business that receives funds from the Department or
Authority for care provided by an employee of the business.
(G) Individuals employed
by a private business in which a client of the Department or Authority is working
as part of a Department- or Authority-sponsored employment service program. This
exclusion does not apply to an employee of a business that receives funds from the
Department or Authority for care provided by the employee.
(H) Employees, contractors,
students, interns, and volunteers working in hospitals, ambulatory surgical centers,
outpatient renal dialysis facilities, and freestanding birthing centers, as defined
in ORS 442.015, and special inpatient care facilities as defined by the Authority
in administrative rule.
(I) Volunteers, who are not
under the direction and control of a licensed, certified, registered, or otherwise
regulated QE.
(J) Individuals employed
or volunteering in a Medicare-certified health care business which is not subject
to licensure or certification by the State of Oregon.
(K) Individuals working in
restaurants or at public swimming pools.
(L) Hemodialysis technicians.
(M) Employees, contractors,
temporary workers, or volunteers who provide care, or have access to clients, client
information, or client funds of an alcohol and drug program that is certified, licensed,
or approved by the Authority’s Addictions and Mental Health Division to provide
prevention, evaluation, or treatment services. This exclusion does not apply to
programs specifically required by other Authority program rules to conduct criminal
records checks in accordance with these rules.
(N) Individuals working for
a transit service provider which conducts background checks pursuant to ORS 267.237.
(O) Individuals being certified
by the Department as interpreters pursuant to ORS 409.623. This exclusion does not
apply to Department-certified interpreters when being considered for a specific
position.
(P) Emergency medical technicians
and first responders certified by the Authority’s Emergency Medical Services
and Trauma Systems program.
(Q) Employees, contractors,
temporary workers, or volunteers of continuing care retirement communities registered
under OAR chapter 411, division 67.
(R) Individuals hired by
or on behalf of a resident in a QE to provide care privately to the resident.
(S) An employee, contractor,
temporary worker, or volunteer who provides care or has access to clients, client
information, or client funds within or on behalf of any entity or agency licensed,
certified, registered, or otherwise regulated by the Department or Authority, where
the clients served permanently reside in another state.
(32) “Weighing test”
means a process in which BCU considers available information to make a fitness determination
when an SI has potentially disqualifying convictions or conditions.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027, 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 77-2004(Temp), f. & cert. ef. 10-1-04 thru 3-29-05; OMAP
22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0210, DHSD 8-2007,
f. 8-31-07, cert. ef. 9-1-07; Hist.: DHSD 2-2008(Temp), f. & cert. ef. 3-31-08
thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 10-2008, f. 12-26-08,
cert. ef. 1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. &
cert. ef. 10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 8-2010(Temp),
f. & cert. ef. 8-12-10 thru 2-7-11; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10;
DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f.
& cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11;
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. &
cert. ef. 8-1-12; DHSD 1-2013(Temp), f. & cert. ef. 2-5-13 thru 8-2-13; DHSD
3-2013, f. & cert. ef. 8-1-13; DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0220
Background Check Required
(1) BCU shall conduct criminal records
checks on all SIs through LEDS maintained by OSP in accordance with ORS chapter
181 and the rules adopted thereto (see OAR chapter 257, division 15).
(2) If a national criminal
records check is necessary, OSP shall provide BCU results of national criminal records
checks conducted pursuant to ORS 181.534, including fingerprint identification,
through the FBI.
(3) BCU shall conduct abuse
checks using available abuse investigation reports and associated documents.
(4) Unless an SI meets a
criterion under (7) of this rule, an SI must have a background check in the following
circumstances:
(a) An individual who becomes
an SI on or after the effective date of these rules.
(b) The SI changes employers
to a different QE.
(c) Except as provided in
section (7) of this rule, the individual, whether previously considered an SI or
not, changes positions under the same QE, and the new position requires a background
check.
(d) The individual, whether
previously considered an SI or not, changes Department or Authority-issued licenses,
certifications, or registrations, and the license, certification, or registration
requires a background check under these rules.
(e) For a student enrolled
in a long term care facility nursing assistant training program for employment at
the facility, a new background check is required when the student becomes an employee
at the facility. A new background check is not required by the Department or the
Authority at graduation from the training program or at the granting of certification
by the Board of Nursing unless the Department, the Authority, or the QE have reason
to believe that a background check is justified.
(f) A background check is
required by federal or state laws or regulations, other Department or Authority
administrative rules, or by contract with the Department or Authority.
(g) When BCU or the QE has
reason to believe that a background check is justified. Examples include but are
not limited to:
(A) Any indication of possible
criminal or abusive behavior by an SI.
(B) A lapse in working or
volunteering in a position under the direction and control of the QE but the SI
is still considered in the position. For example, an extended period of leave by
an SI. The QE determines the need for a background check.
(C) Quality assurance monitoring
by the Department or Authority of a previously conducted criminal records check
or abuse check.
(5) If the SI is subject
to a background check due to involvement with the foster or adoptive placement of
a child and:
(a) Is subject to the Interstate
Compact on Placement of Children (ORS 417.200 and OAR 413-040-0200 to 413-040-0330),
the background check must comply with Interstate Compact requirements.
(b) Is subject to the Inter-County
Adoption Act of 2000 (42 USC 14901 et seq.), the background check must comply with
federal requirements and ORS 417.262.
(6) If QEs, Department program
rules, or Authority program rules require an SI to report any new arrests, charges,
or convictions, the QE may determine if personnel action is required if the SI does
not report. Personnel action may include a new background check.
(7) A background check is
not required under the following circumstances:
(a) A homecare worker or
personal support worker, as defined in ORS 410.600, has a Department background
check notice of final fitness determination dated within the recheck period according
to Department program rules showing that the homecare worker or personal support
worker has been approved or approved with restrictions, and listing a worksite of
“various,” “various clients,” “statewide,” or
similar wording.
(b) A personal care services
provider, Lifespan Respite or other respite care provider, or an independent provider
paid with Department or Authority funds who changes or adds clients within the same
QE, Department, or Authority district, and the prior, documented criminal records
check or abuse check conducted within the previous 24 months through the Department
or Authority has been approved without restrictions.
(c) The SI is a child care
provider as described in OAR 461-165-0180 who changes or adds clients and who has
been approved without restrictions within the required recheck period according
to Department program rules.
(d) The SI remains with a
QE in the same position listed on the background check request while the QE merges
with another QE, is sold to another QE, or changes names. The changes may be noted
in documentation attached to the notice of fitness determination but do not warrant
a background check.
(e) The SI is on the background
check registry maintained under OAR 407-007-0600 to 407-007-0640,
(8) Background checks are
completed on SIs who otherwise meet the qualifications of the position listed on
the background check request. A background check may not be used to screen applicants
for a position.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 77-2004(Temp), f. & cert. ef. 10-1-04 thru 3-29-05; OMAP
22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0220, DHSD 8-2007,
f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09; DHSD
2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef. 10-1-09; DHSD
10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10;
DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f.
& cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11;
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 3-2012(Temp), f.
& cert. ef. 4-13-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD
3-2013, f. & cert. ef. 8-1-13; DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0230
Qualified Entity
(1) A QE and its appointing authority
must be approved in writing by the Department or Authority pursuant to these rules
in order to appoint a QED. Documentation of a current and valid license, certification,
contract, or letter of approval from the Department or Authority are considered
proof of approval. Unless specifically indicated otherwise in these rules, all QEs
and appointing authorities discussed in these rules are considered approved.
(2) A QE shall ensure the
completion of background checks for all SIs who are the QE’s employees, volunteers,
or other SIs under the direction or control of the QE.
(3) BCU may allow a QE’s
appointing authority or QED to appoint one or more QEIs based on the needs of the
QE and the volume of SIs under the QE.
(4) A QE’s appointing
authority shall appoint QEDs as needed to remain in compliance with these rules
and shall communicate any changes regarding QEDs or QEIs to BCU.
(5) If for any reason a QE
no longer has any QEDs, the QE or appointing authority shall ensure that the confidentiality
and security of background check records by immediately providing all background
check related documents to BCU or to another QE as determined by BCU.
(6) BCU shall provide QEs
with periodic training and on-going technical assistance.
(7) Any decisions made by
BCU in regard to these rules are final and may not be overturned by any QE.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 77-2004(Temp), f. & cert. ef. 10-1-04 thru 3-29-05; OMAP
85-2004(Temp), f. & cert. ef. 11-4-04 thru 3-29-05; OMAP 22-2005, f. & cert.
ef. 3-29-05; Renumbered from 410-007-0230, DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07;
DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09;
DHSD 7-2009, f. & cert. ef. 10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10;
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert.
ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11;
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef.
2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD 3-2013, f. &
cert. ef. 8-1-13; DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0240
QE Designees and QE Initiators
(1) All requirements in this section
must be completed within 90 calendar days. To receive BCU approval, a QED must meet
the following requirements:
(a) A QED must be one of
the following:
(A) Employed by the agency
for which the QED will handle criminal records check information.
(B) Contracted with the QE
to perform as a QED.
(C) Employed by another similar
QE or a parent QE. For example, an assisted living facility QED may act as QED for
another assisted living facility.
(b) A QED must be an approved
SI with a record in CRIMS within the past three years for at least one of the QEs
for which the QED will manage background checks.
(c) A QED must have:
(A) Competency in computer
skills for accessing CRIMS online and managing background check records in CRIMS;
(B) Work-related access to
the internet; and
(C) A work-related email
account.
(d) A QED must complete a
certification program and successfully pass any BCU required testing.
(e) An appointing authority
must appoint a QED. The applicant QED must complete and submit required documents
and information to BCU for processing and registration.
(2) BCU shall deny the individual’s
status as a QED if the individual does not meet QED requirements. Once denied, the
individual may no longer perform the duties of a QED. There are no exceptions for
individuals who fail to meet QED requirements.
(3) An approved QED shall
have the following responsibilities:
(a) Demonstrate understanding
of and adherence to these rules in all actions pertaining to the background check
process.
(b) Act as the Department’s
designee in any action pursuant to these rules and the background check process.
A QED may not advocate for an SI during any part of the background check process,
including contesting a fitness determination.
(c) Ensure that adequate
measures are taken to protect the confidentiality of the records and documents required
by these rules. A QED may not view criminal offender information. A QED may not
view abuse investigation reports and associated abuse investigation exhibits or
documents as part of the background check process.
(d) A QED shall verify the
SI’s identity or ensure that the same verification requirements are understood
by each individual responsible for verifying identity. The QE may verify identity
at any time during the hiring or placement process up to the submission of the background
check request.
(A) If conducting a background
check on the SI for the first time or at rehire of the SI, a QED shall verify identity
or ensure identity is verified by using methods which include but are not limited
to reviewing the SI’s current and valid government-issued photo identification
and confirming the information on the photo identification with the SI, the information
included in the background check request, and the information written on the fingerprint
card if a national criminal records check is conducted.
(B) If an SI is being rechecked
for the same QE without any break in placement, service, or employment, review of
government-issued photo identification may not be necessary. The QED shall verify
the SI’s name, current address, and any aliases or previous names, or ensure
this information is verified.
(e) Ensure that an SI is
not permitted to work, volunteer, reside, or otherwise hold any position covered
by these rules before the submission of the background check request to BCU.
(f) Ensure that the result
of the preliminary fitness determination granting the QE to hire the SI on a preliminary
basis, or prohibiting the QE from hiring the SI on a preliminary basis, is followed.
(g) Ensure that when an SI
is hired on a preliminary basis, the need for active supervision is understood by
each individual responsible for providing active supervision.
(h) Ensure that if an SI
is removed from working on a preliminary basis, the SI is immediately removed from
the position and remains removed until BCU reinstates hired on a preliminary basis
or the completion of a final fitness determination allowing the SI to resume the
position.
(i) Ensure that the SI has
directions to complete a fingerprint capture.
(j) Notify BCU of any changes
regarding an SI who still has a background check in process, including but not limited
to address or employment status changes.
(k) Monitor the status of
background check applications and investigate any delays in processing.
(l) Ensure that documentation
required by these rules is processed and maintained in accordance with these rules.
(m) Notify BCU immediately
if arrested, charged, or convicted of any crime, or if found responsible for abuse
by the Department or Authority.
(4) A QED may make preliminary
fitness determinations:
(a) A QED shall review the
SI’s completed background check request to ensure completeness of the information,
verify identity, and to determine if the SI has any disclosed criminal history.
(b) A QED shall adhere to
OAR 407-007-0315(4) when making a preliminary fitness determination.
(c) If the SI has adverse
criminal history within the five year period from the date the SI manually or electronically
signed the background check request, the QED may request in writing that BCU make
a preliminary fitness determination requiring a weighing test.
(5) BCU may change QED status
in the following circumstances which include but are not limited to:
(a) When the position with
the QE ends or when the QE terminates the appointment. The QE shall notify BCU immediately
upon the end of the position or termination of the appointment and BCU shall inactivate
QED status.
(b) If a QED fails to comply
with responsibilities or fails to continue to meet the requirements for QED status,
as applicable. After suspending or revoking the appointment, the QE must immediately
notify the BCU in writing. If BCU takes the action to suspend or revoke the appointment,
it must immediately notify the QE in writing.
(c) If a QED fails to recertify,
BCU shall revoke QED status.
(6) Any changes to QED status
are not subject to appeal rights unless the denial or termination results in immediate
loss of employment or position. A QED losing employment or position has the same
hearing rights as other SIs under these rules.
(7) If a QED leaves employment
or position with the QE for any reason, BCU shall inactivate QED status. If the
individual finds employment with another QE, BCU shall determine the requirement
for reactivation of QED status.
(8) BCU shall review and
recertify appointments of QEDs, up to and including a new application, background
check, and additional training under the following circumstances:
(a) Every three years; or
(b) At any time BCU has reason
to believe the individual no longer meets QED requirements including but not limited
to indication of criminal or abusive behavior or noncompliance with these rules.
(9) With BCU approval, QEs
may appoint QEIs to enter background check request into CRIMS. QEIs must:
(a) Be currently approved
SIs for the QE;
(b) Possess competency in
computer skills for accessing CRIMS online and entering background check records
into CRIMS;
(c) Maintain internet access
and working email accounts to access CRIMS; and
(d) Meet other criteria as
determined by BCU and the QE.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0240,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef.
10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10,
cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11;
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11,
cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD
4-2012, f. & cert. ef. 8-1-12; DHSD 3-2013, f. & cert. ef. 8-1-13; DHSD
2-2014, f. & cert. ef. 12-1-14
407-007-0250
Background Check Process
(1) A QE and SI shall use CRIMS to request
a background check which shall include the following information regarding an SI:
(a) Name and aliases;
(b) Date of birth;
(c) Address and recent residency
information;
(d) Driver license or identification
card information;
(e) Position for which the
SI is completing the background check request;
(f) Worksite location or
locations where the SI will be working;
(g) Disclosure of all criminal
history;
(A) The SI must disclose
all arrests, charges, and convictions regardless of outcome or when the arrests,
charges, or convictions occurred.
(B) The disclosed crimes
and the dates must reasonably match the SI’s criminal offender information
and other criminal records information, as determined by BCU.
(h) Disclosure of other information
to be considered in the event of a weighing test.
(2) The background check
request shall include the following notices to the SI:
(a) A notice regarding disclosure
of Social Security number indicating that:
(A) The SI’s disclosure
is voluntary; and
(B) The Department requests
the Social Security number solely for the purpose of positively identifying the
SI during the criminal records check process.
(b) A notice that the SI
may be subject to fingerprinting as part of a criminal records check.
(c) A notice that BCU shall
conduct an abuse check on the SI. Unless required by program rule, an SI is not
required to disclose any history of potentially disqualifying abuse, but may provide
BCU with mitigating or other information.
(3) Using identifying information
submitted in a background check request, BCU shall conduct an abuse check to determine
if the subject individual has potentially disqualifying abuse.
(4) BCU shall conduct an
Oregon criminal records check. Using information submitted on the background check
request, BCU may obtain criminal offender information from LEDS and may request
other criminal records information as needed.
(5) BCU shall handle criminal
offender information in accordance with applicable OSP requirements in ORS chapter
181 and the rules adopted pursuant thereto (see OAR chapter 257, division 15).
(6) BCU may conduct a fingerprint-based
national criminal records check.
(a) A fingerprint-based national
criminal records check may be completed under any of the following circumstances:
(A) The SI has been outside
Oregon:
(i) For 60 or more consecutive
days during the previous 18 months and the SI is a child care provider or other
individual included in OAR 461-165-0180(4).
(ii) For 60 or more consecutive
days during the previous five years for all other SIs.
(B) The LEDS check, SI disclosures,
or any other criminal records information obtained by BCU indicate there may be
criminal records outside of Oregon.
(C) The SI has an out-of-state
driver license or out-of-state identification card.
(D) BCU or the QE has reason
to question the identity of the SI or the information on the criminal record found
in LEDS.
(E) A fingerprint-based criminal
records check is required by federal or state laws or regulations, other Department
or Authority rules, or by contract with the Department or Authority.
(F) Any SI applying to be
or renewing the position with regard to child adoption or children in foster care
licensed by the Department or private licensed child caring agencies. Renewing SIs
do not need a fingerprint-based criminal records check if BCU has a record of a
previous fingerprint-based criminal records checks that is within BCU’s retention
schedule. Applicable SI positions include:
(i) A relative caregiver,
foster parent, or adoptive parent in Oregon;
(ii) An adult household member
in an adoptive or child foster home 18 years of age and over;
(iii) A household member
in an adoptive or child foster home under 18 years of age if there is reason to
believe that the household member may pose a risk to children placed in the home;
or
(iv) A respite care provider
in an adoptive or child foster home.
(G) BCU has reason to believe
that fingerprints are needed to make a final fitness determination.
(b) BCU must receive consent
from the parent or guardian to obtain fingerprints from an SI under 18 years of
age.
(c) The SI shall complete
and submit a fingerprint capture when requested by BCU. BCU shall send the request
to the QE and the QED shall notify the SI.
(A) BCU shall give the SI
notice regarding the Social Security number as set forth in section (2)(a) of this
rule.
(B) The SI shall submit the
fingerprint capture within 21 calendar days of the request.
(i) BCU may close the application,
making it a closed case, if the fingerprint capture is not received by BCU or OSP
within 21 calendar days. When a case is closed, the SI may not be allowed to work,
volunteer, be employed, or otherwise perform in positions covered by these rules,
and shall be immediately terminated and removed from the position.
(ii) BCU may extend the time
allowed due to processing requirements or for good cause provided by the SI or QE.
(C) BCU may require new fingerprint
capture and its submission if previous fingerprint captures results in a rejection
by OSP or the FBI.
(7) BCU may also conduct
a state-specific criminal records check instead of or in addition to a national
criminal records check. Reasons for a state-specific criminal records check include
but are not limited to:
(a) When BCU has reason to
believe that out-of-state criminal records may exist and a national criminal records
check cannot be accomplished.
(b) When BCU has been unable
to complete a national criminal records check due to illegible fingerprints.
(c) When the national criminal
records check results show incomplete information about charges or criminal records
without final disposition.
(d) When there is indication
of residency or criminal records in a state that does not submit all criminal records
to the FBI.
(e) When, based on available
information, BCU has reason to believe that a state-specific criminal records check
is necessary.
(8) In order to complete
a background check and fitness determination, BCU may require additional information
from the SI including but not limited to additional criminal, judicial, other background
information, or proof of identity.
(9) BCU may conduct a background
check in situations of imminent danger.
(a) If the Department or
Authority determines there is indication of criminal or abusive behavior that could
more likely than not pose an immediate risk to vulnerable individuals, BCU shall
conduct a new criminal records check on an SI without the completion of a new background
check request.
(b) If BCU determines that
a fitness determination based on the new background check would be adverse to the
SI, BCU shall provide the SI, if available, the opportunity to disclose criminal
records, potentially disqualifying conditions, and other information as indicated
in OAR 407-007-0300 before completion of the fitness determination.
(10) All criminal records
checks conducted under this rule shall be documented.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0250,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef.
10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10,
cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11;
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11,
cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD
4-2012, f. & cert. ef. 8-1-12; DHSD 3-2013, f. & cert. ef. 8-1-13; DHSD
2-2014, f. & cert. ef. 12-1-14
407-007-0275
Convictions Under ORS 443.004 Resulting
in Ineligibility for Aging and People with Disabilities Program and Developmental
Disabilities Program SIs
(1) Section (2) of this rule applies
to an SI who:
(a) Works with clients of
the Developmental Disabilities (DD) program.
(b) Works with clients of
the Department’s Aging & People with Disabilities programs and who
(A) An individual who is
paid directly or indirectly with public funds who has or will have contact with
recipients of services within:
(i) An adult foster home
(defined in ORS 443.705); or
(ii) A residential facility
(defined in ORS 443.400).
(B) Any direct care staff
secured by any residential care or assisted living facility through the services
of a personnel services or staffing agency and the direct care staff works in the
facility.
(C) A homecare worker as
defined in ORS 410.600, a personal support worker as defined in ORS 410.600, a personal
care services provider, or an independent provider employed by a Department client
who provides care to the client if the Department helps pay for the services.
(D) An employee providing
care to Department APD program clients who works for an in-home care agency as defined
by ORS 443.305 which has a contract with the Department APD programs.
(E) An individual in a position
specified as being subject in relevant Oregon statutes or Oregon Administrative
Rules.
(2) If BCU determines that
an individual subject to this rule has a conviction listed in ORS 443.004, BCU shall
make the determination of “ineligible due to ORS 443.004.” A fitness
determination with a weighing test is not required regardless of any other potentially
disqualifying convictions and conditions the SI has.
(3) Individual subject to
this rule who are employees and hired prior to July 28, 2009 are exempt from section
(2) of this rule provided that the employee remains in the same position working
for the same employer after July 28, 2009. This exemption is not applicable to licensees.
(4) A determination of “ineligible
due to ORS 443.004” is not subject to appeal rights under OAR 407-007-0330,
407-007-0335, 943-007-0335, or 943-007-0501.
Stat. Auth.: ORS 181.516, 181.534 & 409.050
Stats. Implemented: ORS 181.516, 181.534
& 443.004
Hist.: DHSD 3-2010(Temp),
f. & cert. ef. 5-5-10 thru 10-31-10; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10;
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 3-2012(Temp), f.
& cert. ef. 4-13-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD
3-2013, f. & cert. ef. 8-1-13; DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0277
Convictions Under ORS 443.004 Resulting
in Ineligibility for Mental Health or Alcohol and Drug Program SIs
(1) This rule applies to subject individuals
who are mental health or substance abuse treatment providers defined under ORS 443.004(8).
(2) If BCU determines that
an individual is subject to this rule and has a conviction listed in ORS 443.004(5),
BCU shall make the determination of “ineligible due to ORS 443.004.”
A fitness determination with a weighing test is not required regardless of any other
potentially disqualifying convictions and conditions the SI has.
(3) A determination of “ineligible
due to ORS 443.004” is not subject to appeal rights under OAR 943-007-0335
or 943-007-0501.
Stat. Auth.: ORS 181.516, 181.534 & 409.050
Stats. Implemented: ORS 181.516, 181.534
& 443.004
Hist.: DHSD 3-2012(Temp),
f. & cert. ef. 4-13-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12;
DHSD 3-2013, f. & cert. ef. 8-1-13; DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0280
Potentially Disqualifying Convictions
A conviction of any of the following
crimes is potentially disqualifying. Offenses or convictions that are classified
as less than a misdemeanor, such as violations or infractions, are not potentially
disqualifying (see ORS 161.505 to 161.565).
(1) The crimes listed in
this section are permanent review crimes which require that a fitness determination
with a weighing test be completed regardless of date of conviction.
(a) ORS 162.155, Escape II.
(b) ORS 162.165, Escape I.
(c) ORS 162.285, Tampering
with a witness.
(d) ORS 162.325, Hindering
prosecution.
(e) ORS 163.005, Criminal
homicide.
(f) ORS 163.095, Aggravated
murder.
(g) ORS 163.115, Murder.
(h) ORS 163.118, Manslaughter
I.
(i) ORS 163.125, Manslaughter
II.
(j) ORS 163.145, Criminally
negligent homicide.
(k) ORS 163.149, Aggravated
vehicular homicide.
(l) ORS 163.160, Assault
IV.
(m) ORS 163.165, Assault
III.
(n) ORS 163.175, Assault
II.
(o) ORS 163.185, Assault
I.
(p) ORS 163.187, Strangulation.
(q) ORS 163.190, Menacing.
(r) ORS 163.200, Criminal
mistreatment II.
(s) ORS 163.205, Criminal
mistreatment I.
(t) ORS 163.207, Female genital
mutilation.
(u) ORS 163.208, Assault
of public safety officer.
(v) ORS 163.213, Unlawful
use of an electrical stun gun, tear gas, or mace I.
(w) ORS 163.225, Kidnapping
II.
(x) ORS 163.235, Kidnapping
I.
(y) ORS 163.245, Custodial
interference II.
(z) ORS 163.257, Custodial
interference I.
(aa) ORS 163.263, Subjecting
another person to involuntary servitude in the second degree.
(bb) ORS 163.264, Subjecting
another person to involuntary servitude in the first degree.
(cc) ORS 163.266, Trafficking
in persons.
(dd) ORS 163.275, Coercion.
(ee) ORS 163.355, Rape III.
(ff) ORS 163.365, Rape II.
(gg) ORS 163.375, Rape I.
(hh) ORS 163.385, Sodomy
III.
(ii) ORS 163.395, Sodomy
II.
(jj) ORS 163.405, Sodomy
I.
(kk) ORS 163.408, Unlawful
sexual penetration II.
(ll) ORS 163.411, Unlawful
sexual penetration I.
(mm) ORS 163.415, Sexual
abuse III.
(nn) ORS 163.425, Sexual
abuse II.
(oo) ORS 163.427, Sexual
abuse I.
(pp) ORS 163.432, Online
sexual corruption of a child in the second degree.
(qq) ORS 163.433, Online
sexual corruption of a child in the first degree.
(rr) ORS 163.435, Contributing
to the sexual delinquency of a minor.
(ss) ORS 163.445, Sexual
misconduct.
(tt) ORS 163.452, Custodial
sexual misconduct I.
(uu) ORS 163.454, Custodial
sexual misconduct II.
(vv) ORS 163.465, Public
indecency.
(ww) ORS 163.467, Private
indecency.
(xx) ORS 163.476, Unlawfully
being in a location where children regularly congregate.
(yy) ORS163.479, Unlawful
contact with a child.
(zz) ORS 163.515, Bigamy.
(aaa) ORS 163.525, Incest.
(bbb) ORS 163.535, Abandonment
of a child.
(ccc) ORS 163.537, Buying
or selling a person under 18 years of age.
(ddd) ORS 163.545, Child
neglect II.
(eee) ORS 163.547, Child
neglect I.
(fff) ORS 163.555, Criminal
nonsupport.
(ggg) ORS 163.575, Endangering
the welfare of a minor.
(hhh) ORS 163.670, Using
child in display of sexually explicit conduct.
(iii) ORS 163.680, Paying
for viewing a child’s sexually explicit conduct.
(jjj) ORS 163.684, Encouraging
child sexual abuse I.
(kkk) ORS 163.686, Encouraging
child sexual abuse II.
(lll) ORS 163.687, Encouraging
child sexual abuse III.
(mmm) ORS 163.688, Possession
of materials depicting sexually explicit conduct of a child I.
(nnn) ORS 163.689, Possession
of materials depicting sexually explicit conduct of a child II.
(ooo) ORS 163.693, Failure
to report child pornography.
(ppp) ORS 163.700, Invasion
of personal privacy.
(qqq) ORS 163.732, Stalking.
(rrr) ORS 163.750, Violating
court's stalking protective order.
(sss) ORS 164.055, Theft
I.
(ttt) ORS 164.057, Aggravated
theft I.
(uuu) ORS 164.075, Theft
by extortion.
(vvv) ORS 164.085, Theft
by deception.
(www) ORS 164.098, Organized
retail theft.
(xxx) ORS 164.125, Theft
of services.
(yyy) ORS 164.135, Unauthorized
use of a vehicle.
(zzz) ORS 164.170, Laundering
a monetary instrument.
(aaaa) ORS 164.215, Burglary
II.
(bbbb) ORS 164.225, Burglary
I.
(cccc) ORS 164.315, Arson
II.
(dddd) ORS 164.325, Arson
I.
(eeee) ORS 164.365, Criminal
mischief I.
(ffff) ORS 164.377, Computer
crime.
(gggg) ORS 164.395, Robbery
III.
(hhhh) ORS 164.405, Robbery
II.
(iiii) ORS 164.415, Robbery
I.
(jjjj) ORS 165.013, Forgery
I.
(kkkk) ORS 165.022, Criminal
possession of a forged instrument I.
(llll) ORS 165.032, Criminal
possession of a forgery device.
(mmmm) ORS 165.055, Fraudulent
use of a credit card.
(nnnn) ORS 165.065, Negotiating
a bad check.
(oooo) ORS 165.581, Cellular
counterfeiting I.
(pppp) ORS 165.800, Identity
theft.
(qqqq) ORS 165.803, Aggravated
identity theft.
(rrrr) ORS 165.810, Unlawful
possession of a personal identification device.
(ssss) ORS 166.005, Treason.
(tttt) ORS 166.070 Aggravated
harassment.
(uuuu) ORS 166.085, Abuse
of corpse II.
(vvvv)   ORS
166.087, Abuse of corpse I.
(wwww) ORS 166.155, Intimidation
II.
(xxxx) ORS 166.165, Intimidation
I.
(yyyy) ORS 166.220, Unlawful
use of weapon.
(zzzz) ORS 166.270, Possession
of weapons by certain felons.
(aaaaa) ORS 166.272, Unlawful
possession of machine guns, certain short-barreled firearms and firearm silencers.
(bbbbb) ORS 166.275, Possession
of weapons by inmates of institutions.
(ccccc) ORS 166.370, Possession
of firearm or dangerous weapon in public building or court facility; exceptions;
discharging firearm at school.
(ddddd) ORS 166.382, Possession
of destructive device prohibited.
(eeeee) ORS 166.384, Unlawful
manufacture of destructive device.
(fffff) ORS 166.429, Firearms
used in felony.
(ggggg) ORS 166.450, Obliteration
or change of identification number on firearms.
(hhhhh)   ORS
166.720, Racketeering activity unlawful.
(iiiii) ORS 167.012, Promoting
prostitution.
(jjjjj) ORS 167.017, Compelling
prostitution.
(kkkkk) ORS 167.054, Furnishing
sexually explicit material to a child.
(lllll) ORS 167.057, Luring
a minor.
(mmmmm) ORS 167.062, Sadomasochistic
abuse or sexual conduct in live show.
(nnnnn) ORS 167.075, Exhibiting
an obscene performance to a minor.
(ooooo) ORS 167.080, Displaying
obscene materials to minors.
(ppppp) ORS 167.212, Tampering
with drug records.
(qqqqq) ORS 167.262, Adult
using minor in commission of controlled substance offense.
(rrrrr) ORS 167.315, Animal
abuse II.
(sssss) ORS 167.320, Animal
abuse I.
(ttttt) ORS 167.322, Aggravated
animal abuse I.
(uuuuu) ORS 167.333, Sexual
assault of animal.
(vvvvv) ORS 167.339, Assaulting
law enforcement animal.
(wwwww) ORS 181.594, Sex
crimes including transporting child pornography into the state.
(xxxxx) ORS 181.599, Failure
to report as sex offender.
(yyyyy) ORS 433.010, Spreading
disease (willfully) prohibited.
(zzzzz) ORS 475.525, Sale
of drug paraphernalia prohibited.
(aaaaaa) ORS 475.752, Prohibited
acts generally (regarding drug crimes; formerly ORS 475.840, 2005-2011; formerly
ORS 475.992, 1977-2005).
(bbbbbb) ORS 475.805, Providing
hypodermic device to minor prohibited.
(cccccc) ORS 475.840, Prohibited
acts generally (regarding drug crimes formerly ORS 475.992; renumbered to ORS 475.752
in 2011).
(dddddd) ORS 475.846, Unlawful
manufacture of heroin.
(eeeeee) ORS 475.848, Unlawful
manufacture of heroin within 1,000 feet of school.
(ffffff) ORS 475.850, Unlawful
delivery of heroin.
(gggggg) ORS 475.852, Unlawful
delivery of heroin within 1,000 feet of school.
(hhhhhh) ORS 475.854, Unlawful
possession of heroin.
(iiiiii) ORS 475.856, Unlawful
manufacture of marijuana.
(jjjjjj) ORS 475.858, Unlawful
manufacture of marijuana within 1,000 feet of school.
(kkkkkk) ORS 475.860, Unlawful
delivery of marijuana.
(llllll) ORS 475.862, Unlawful
delivery of marijuana within 1,000 feet of school.
(mmmmmm) ORS 475.864, Unlawful
possession of marijuana.
(nnnnnn) ORS 475.866, Unlawful
manufacture of 3,4-methylenedioxymethamphetamine.
(oooooo) ORS 475.868, Unlawful
manufacture of 3,4-methylenedioxymethamphetamine within 1,000 feet of school.
(pppppp) ORS 475.870, Unlawful
delivery of 3,4-methylenedioxymethamphetamine.
(qqqqqq) ORS 475.872, Unlawful
delivery of 3,4-methylenedioxymethamphetamine within 1,000 feet of school.
(rrrrrr) ORS 475.874, Unlawful
possession of 3,4-methylenedioxymethamphetamine.
(ssssss) ORS 475.876, Unlawful
manufacture of cocaine.
(tttttt) ORS 475.878, Unlawful
manufacture of cocaine within 1,000 feet of school.
(uuuuuu) ORS 475.880, Unlawful
delivery of cocaine.
(vvvvvv) ORS 475.882, Unlawful
delivery of cocaine within 1,000 feet of school.
(wwwwww) ORS 475.884, Unlawful
possession of cocaine.
(xxxxxx) ORS 475.886, Unlawful
manufacture of methamphetamine.
(yyyyyy) ORS 475.888, Unlawful
manufacture of methamphetamine within 1,000 feet of school.
(zzzzzz) ORS 475.890, Unlawful
delivery of methamphetamine.
(aaaaaaa) ORS 475.892, Unlawful
delivery of methamphetamine within 1,000 feet of school.
(bbbbbbb) ORS 475.894, Unlawful
possession of methamphetamine.
(ccccccc) ORS 475.904, Unlawful
delivery of controlled substance within 1,000 feet of school.
(ddddddd) ORS 475.906, Penalties
for distribution to minors.
(eeeeeee) ORS 475.908, Causing
another person to ingest a controlled substance.
(fffffff) ORS 475.910, Application
of controlled substance to the body of another person.
(ggggggg) ORS 475.914, Prohibited
acts for registrants (with the Oregon State Board of Pharmacy).
(hhhhhhh) ORS 475.967, Possession
of precursor substance with intent to manufacture controlled substance.
(iiiiiii) ORS 475.990, Commercial
drug offense.
(jjjjjjj) ORS 677.080, Prohibited
acts (regarding the practice of medicine).
(kkkkkkk) ORS 685.990, Penalties
(pertaining to naturopathic medicine).
(lllllll) ORS 689.527 Prohibited
practices; rules (pertaining to pharmacy technicians and practitioners).
(mmmmmmm) Any federal crime.
(nnnnnnn) Any U.S. military
crime.
(ooooooo) Any unclassified
felony defined in Oregon Revised Statutes not listed in this rule.
(ppppppp) Any other felony
in Oregon Revised Statutes not listed in this rule that is serious and indicates
behavior that poses a threat or jeopardizes the safety of vulnerable individuals,
as determined by BCU.
(qqqqqqq) Any felony in a
jurisdiction outside Oregon that is not the substantial equivalent of any of the
Oregon crimes listed in this section but that is serious and indicates behavior
that poses a threat or jeopardizes the safety of vulnerable individuals, as determined
by BCU.
(rrrrrrr) Any crime of attempt,
solicitation, or conspiracy to commit a crime listed in this section pursuant to
ORS 161.405, 161.435, or 161.450, including any crime based on criminal liability
for conduct of another pursuant to 161.155.
(sssssss) Any crime in any
other jurisdiction that is the substantial equivalent of any of the Oregon crimes
listed in section (1) of this rule, as determined by BCU.
(ttttttt) Any crime that
is no longer codified in Oregon or other jurisdiction but that is the substantial
equivalent of any of the crimes listed in section (1) of this rule, as determined
by BCU.
(2) The crimes listed in
this section are ten-year review crimes which require that a fitness determination
with a weighing test be completed if the date of conviction is within ten years
of the date the background check request was electronically submitted to BCU through
CRIMS or the date BCU conducted a criminal records check due to imminent risk.
(a) ORS 033.045, Contempt
of court.
(b) ORS 109.311, Prohibited
fees-adoption.
(c) ORS 133.076, Failure
to appear on criminal citation.
(d) ORS 133.310(3), Violation
of restraining order.
(e) ORS 135.290, Punishment
by contempt of court (violation of release agreement).
(f) ORS 162.015, Bribe giving.
(g) ORS 162.025, Bribe receiving.
(h) ORS 162.065, Perjury.
(i) ORS 162.075, False swearing.
(j) ORS 162.117, Public investment
fraud.
(k) ORS 162.145, Escape III.
(.) ORS 162.175, Unauthorized
departure.
(m) ORS 162.185, Supplying
contraband.
(n) ORS 162.195, Failure
to appear II.
(o) ORS 162.205, Failure
to appear I.
(p) ORS 162.247, Interfering
with a peace officer.
(q) ORS 162.257, Interfering
with a firefighter or emergency medical technician.
(r) ORS 162.265, Bribing
a witness.
(s) ORS 162.275, Bribe receiving
by a witness.
(t) ORS 162.295, Tampering
with physical evidence.
(u) ORS 162.305, Tampering
with public records.
(v) ORS 162.315, Resisting
arrest.
(w) ORS 162.335, Compounding.
(x) ORS 162.355, Simulating
legal process.
(y) ORS 162.365, Criminal
impersonation.
(z) ORS 162.367, Criminal
impersonation of peace officer.
(aa) ORS 162.369, Possession
of false law enforcement identification card.
(bb) ORS 162.375, Initiating
a false report.
(cc) ORS 162.385, Giving
false information to police officer for a citation.
(dd) ORS 162.405, Official
misconduct II.
(ee) ORS 162.415, Official
misconduct I.
(ff) ORS 162.425, Misuse
of confidential information.
(gg) ORS 163.195, Recklessly
endangering another person.
(hh) ORS 163.196, Aggravated
driving while suspended or revoked.
(ii) ORS 163.212, Unlawful
use of an electrical stun gun, tear gas, or mace II.
(jj) ORS 164.043, Theft III.
(kk) ORS 164.045, Theft II.
(ll) ORS 164.095, Theft by
receiving.
(mm) ORS 164.138, Criminal
possession of a rented or leased motor vehicle.
(nn) ORS 164.140, Criminal
possession of rented or leased personal property.
(oo) ORS 164.162, Mail theft
or receipt of stolen mail.
(pp) ORS 164.235, Possession
of a burglary tool or theft device.
(qq) ORS 164.255, Criminal
trespass I.
(rr) ORS 164.265, Criminal
trespass while in possession of firearm.
(ss) ORS 164.272, Unlawful
entry into motor vehicle.
(tt) ORS 164.354, Criminal
mischief II.
(uu) ORS 165.007, Forgery
II.
(vv) ORS 165.017, Criminal
possession of a forged instrument II.
(ww) ORS 165.037, Criminal
simulation.
(xx) ORS 165.042, Fraudulently
obtaining a signature.
(yy) ORS 165.070, Possessing
fraudulent communications device.
(zz) ORS 165.074, Unlawful
factoring of credit card transaction.
(aaa) ORS 165.080, Falsifying
business records.
(bbb) ORS 165.085, Sports
bribery.
(ccc) ORS 165.090, Sports
bribe receiving.
(ddd) ORS 165.095, Misapplication
of entrusted property.
(eee) ORS 165.100, Issuing
a false financial statement.
(fff) ORS 165.102, Obtaining
execution of documents by deception.
(ggg) ORS 165.540, Obtaining
contents of communication.
(hhh) ORS 165.543, Interception
of communications.
(iii) ORS 165.570, Improper
use of 9-1-1 emergency reporting system.
(jjj) ORS 165.572, Interference
with making a report.
(kkk) ORS 165.577, Cellular
counterfeiting III.
(lll) ORS 165.579, Cellular
counterfeiting II.
(mmm) ORS 165.692, Making
false claim for health care payment.
(nnn) ORS 166.015, Riot.
(ooo) ORS 166.023, Disorderly
conduct I.
(ppp) ORS 166.025, Disorderly
conduct II.
(qqq) ORS 166.065, Harassment.
(rrr) ORS 166.076, Abuse
of a memorial to the dead.
(sss) ORS 166.090, Telephonic
harassment.
(ttt) ORS 166.116, Interfering
with public transportation.
(uuu) ORS 166.180, Negligently
wounding another.
(vvv) ORS 166.190, Pointing
firearm at another.
(www) ORS 166.240, Carrying
of concealed weapon.
(xxx) ORS 166.250, Unlawful
possession of firearms.
(yyy) ORS 166.470, Limitations
and conditions for sales of firearms.
(zzz) ORS 166.480, Sale or
gift of explosives to children.
(aaaa) ORS 166.649, Throwing
an object off an overpass II.
(bbbb) ORS 166.651, Throwing
an object off an overpass I.
(cccc) ORS 166.660, Unlawful
paramilitary activity.
(dddd) ORS 167.007, Prostitution.
(eeee) ORS 167.008 Patronizing
a prostitute.
(ffff) ORS 167.090, Publicly
displaying nudity or sex for advertising purposes.
(gggg) ORS 167.122, Unlawful
gambling in the second degree.
(hhhh) ORS 167.127, Unlawful
gambling in the first degree.
(iiii) ORS 167.167, Cheating.
(jjjj) ORS 167.222, Frequenting
a place where controlled substances are used.
(kkkk) ORS 167.325, Animal
neglect II.
(llll) ORS 167.330, Animal
neglect I.
(mmmm) ORS 167.337, Interfering
with law enforcement animal.
(nnnn) ORS 167.340, Animal
abandonment.
(oooo) ORS 167.352, Interfering
with assistance, search and rescue or therapy animal.
(pppp) ORS 167.355, Involvement
in animal fighting.
(qqqq) ORS 167.365, Dogfighting.
(rrrr) ORS 167.370, Participation
in dogfighting.
(ssss) ORS 167.428, Cockfighting.
(tttt) ORS 167.431, Participation
in cockfighting.
(uuuu) ORS 167.808(5)(b),
Unlawful possession of inhalants, misdemeanor.
(vvvv) ORS 167.820, Concealing
the birth of an infant.
(wwww) ORS 192.865, Criminal
penalty (pertaining to Address Confidentiality Program).
(xxxx) ORS 314.075, Evading
requirements of law prohibited (tax evasion).
(yyyy) ORS 411.630, Unlawfully
obtaining public assistance.
(zzzz) ORS 411.640, Unlawfully
receiving public assistance.
(aaaaa) ORS 411.675, Submitting
wrongful claim or payment (e.g., public assistance).
(bbbbb) ORS 411.840, Unlawfully
obtaining or disposing of food stamp benefits.
(ccccc) ORS 412.074, Unauthorized
use and custody of records of temporary assistance for needy families program.
(ddddd) ORS 412.099, Sharing
assistance prohibited.
(eeeee) ORS 417.990, Penalty
for placement of children in violation of compact.
(fffff) ORS 471.410, Providing
liquor to persons under 21 or to intoxicated persons; allowing consumption by minor
on property.
(ggggg) ORS 475.912, Unlawful
delivery of imitation controlled substance.
(hhhhh) ORS 475.916, Prohibited
acts involving records and fraud.
(iiiii) ORS 475.918, Falsifying
drug test results.
(jjjjj) ORS 475.950, Failure
to report precursor substances transaction.
(kkkkk) ORS 475.955, Failure
to report missing precursor substances.
(lllll) ORS 475.960, Illegally
selling drug equipment.
(mmmmm) ORS 475.965, Providing
false information on precursor substances report.
(nnnnn) ORS 803.230, Forging,
altering or unlawfully producing or using title or registration.
(ooooo) ORS 807.620, Giving
false information to police officer.
(ppppp) ORS 811.060, Vehicular
assault of bicyclist or pedestrian.
(qqqqq) ORS 811.140, Reckless
driving.
(rrrrr) ORS 811.540, Fleeing
or attempting to elude police officer.
(sssss) ORS 811.700, Failure
to perform duties of driver when property is damaged.
(ttttt) ORS 811.705, Failure
to perform duties of driver to injured persons.
(uuuuu) ORS 819.300, Possession
of a stolen vehicle.
(vvvvv) ORS 830.475, Failure
to perform the duties of an operator (boat).
(wwwww) Any unclassified
misdemeanor defined in Oregon Revised Statutes not listed elsewhere in this rule.
(xxxxx) Any other misdemeanor
in Oregon Revised Statutes or a local Oregon jurisdiction not listed in this rule
that is serious and indicates behavior that poses a threat or jeopardizes the safety
of vulnerable individuals, as determined by BCU.
(yyyyy) Any misdemeanor in
a jurisdiction outside Oregon that is not the substantial equivalent of any of the
Oregon crimes listed in section (2) of this rule but that is serious and indicates
behavior that poses a threat or jeopardizes the safety of vulnerable individuals,
as determined by BCU. If a misdemeanor in a jurisdiction outside Oregon is similar
to a violation in Oregon, then it may not be considered potentially disqualifying
under this section.
(zzzzz) Any crime of attempt,
solicitation, or conspiracy to commit a crime listed in this section pursuant to
ORS 161.405 or 161.435, including any conviction based on criminal liability for
conduct of another pursuant to 161.155.
(aaaaaa) Any crime in any
other jurisdiction which is the substantial equivalent of any of the Oregon crimes
listed in section (2) of this rule, as determined by BCU.
(bbbbbb) Any crime which
is no longer codified in Oregon, but which is the substantial equivalent of any
of the crimes listed in section (2) of this rule, as determined by BCU.
(3) The crimes listed in
this section are five-year review crimes which require that a fitness determination
with a weighing test be completed if the date of conviction is within five years
of the date the background check request was electronically submitted to BCU through
CRIMS or the date BCU conducted a criminal records check due to imminent risk.
(a) ORS 162.085, Unsworn
falsification.
(b) ORS 162.235, Obstructing
governmental or judicial administration.
(c) ORS 164.245, Criminal
trespass II.
(d) ORS 164.335, Reckless
burning.
(e) ORS 164.345, Criminal
mischief III.
(f) ORS 165.813, Unlawful
possession of fictitious identification.
(g) ORS 166.075, Abuse of
venerated objects.
(h) ORS 166.095, Misconduct
with emergency telephone calls.
(i) ORS 811.182, Criminal
driving while suspended or revoked.
(j) ORS 813.010, Driving
under the influence of intoxicants (DUII).
(k) ORS 830.315, Reckless
operation of a boat.
(l) ORS 830.325, Operating
boat while under influence of intoxicating liquor or controlled substance.
(m) ORS 830.730, False information
to peace officer or Oregon State Marine Board.
(n) Any conviction for attempt,
solicitation or conspiracy to commit a crime listed in this section pursuant to
ORS 161.405 or 161.435, including any conviction based on criminal liability for
conduct of another pursuant to 161.155.
(o) Any crime in any other
jurisdiction which is the substantial equivalent of any of the Oregon crimes listed
in section (3) of this rule, as determined by BCU.
(p) Any crime which is no
longer codified in Oregon, but which is the substantial equivalent of any of the
crimes listed in section (3) of this rule, as determined by BCU.
(4) Evaluations of crimes
may be based on Oregon laws and laws in other jurisdictions in effect at the time
of the fitness determination, regardless of the jurisdiction in which the conviction
occurred.
(5) An SI may not be denied
under these rules due to the existence or contents of a juvenile record that has
been expunged pursuant to ORS 419A.260 to 419A.262.
(6) An SI may not be denied
under these rules due to the existence or contents of an adult record that has been
set aside pursuant to ORS 137.225.
Stat. Auth.: ORS 181.516, 181.537 & 409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537 & 409.010
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0280,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef.
10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10,
cert. ef. 10-31-10; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12;
DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD 3-2013, f. & cert. ef. 8-1-13;
DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0290
Other Potentially Disqualifying Conditions
The following are potentially disqualifying
conditions, if they exist on the date the Department receives the background check
request:
(1) The SI makes a false
statement to the QE, Department, or Authority, including the provision of materially
false information, false information regarding criminal records, or failure to disclose
information regarding criminal records. Nondisclosure of violation or infraction
charges may not be considered a false statement.
(2) The SI is a registered
sex offender in any jurisdiction. There is a rebuttable presumption that an SI is
likely to engage in conduct that would pose a significant risk to vulnerable individuals
if the SI has been designated a predatory sex offender in any jurisdiction under
ORS 181.585 or found to be a sexually violent dangerous offender under ORS 144.635
(or similar statutes in other jurisdictions).
(3) The SI has an outstanding
warrant for any crime in any jurisdiction.
(4) The SI has a deferred
sentence, conditional discharge, or is participating in a diversion program for
any crime in any jurisdiction.
(5) The SI is currently on
probation, parole, or post-prison supervision for any crime in any jurisdiction,
regardless of the original conviction date (or date of guilty or no contest plea
if there is no conviction date).
(6) The SI has been found
in violation of post-prison supervision, parole, or probation for any crime in any
jurisdiction, regardless of the original conviction date (or date of guilty or no
contest plea if there is no conviction date) within five years from the date the
background check request was electronically submitted to BCU through CRIMS or the
date BCU conducted a criminal records check due to imminent danger.
(7) The SI has an unresolved
arrest, charge, or a pending indictment for any crime in any jurisdiction.
(8) The SI has been arrested
in any jurisdiction as a fugitive from another state or a fugitive from justice,
regardless of the date of arrest.
(9) The SI has an adjudication
in a juvenile court in any jurisdiction, finding that the SI was responsible for
a potentially disqualifying crime that would result in a conviction if committed
by an adult. Subsequent adverse rulings from a juvenile court, such as probation
violations, shall also be considered potentially disqualifying if within five years
from the date the background check request was signed or the date BCU conducted
a criminal records check due to imminent danger.
(10) The SI has a finding
of “guilty except for insanity,” “guilty except by reason of insanity,”
“not guilty by reason of insanity,” “responsible except for insanity,”
“not responsible by reason of mental disease or defect,” or similarly
worded disposition in any jurisdiction regarding a potentially disqualifying crime,
unless the local statutes indicate that such an outcome is considered an acquittal.
(11) Potentially disqualifying
abuse as determined from abuse investigation reports which have an outcome of founded,
substantiated, or valid and in which the SI is determined to have been responsible
for the abuse.
(a) For SIs associated with
child foster homes licensed by the Department’s DD programs, child foster
homes licensed through the Department’s Child Welfare Division, child foster
homes licensed through a private licensed child caring agency, adoptive families
through a private licensed child caring agency, or adoptive families through the
Department’s Child Welfare Division, potentially disqualifying abuse includes:
(A) Child protective services
history held by the Department or OAAPI regardless of the date of initial report;
(B) Child protective services
history reviewed pursuant to the federal Adam Walsh Act requirements, determined
by BCU ADs to be potentially disqualifying; and
(C) Adult protective services
investigations of physical abuse, sexual abuse, or financial exploitation initiated
on or after January 1, 2010, as provided to BCU by OAAPI and APD programs based
on severity.
(b) For staff, volunteers,
or contractors of a private licensed child caring agency, an ISRS program, a SPRF
provider, or a System of Care contractor providing child welfare services pursuant
to ORS chapter 418 potentially disqualifying abuse includes:
(A) Child protective services
history held by the Department or OAAPI regardless of the date of initial report;
and
(B) Adult protective services
investigations of physical abuse, sexual abuse, or financial exploitation initiated
on or after January 1, 2010, as provided to BCU by OAPPI and APD based on severity.
(c) For child care providers
and associated subject individuals defined in OAR 407-007-0210(30)(a)(I):
(A) Child protective services
history held by the Department or OAAPI regardless of the date of initial report,
date of outcome, and considered potentially disqualifying pursuant to OAR 461-165-0420;
and
(B) Adult protective services
investigations of physical abuse, sexual abuse, or financial exploitation initiated
on or after January 1, 2010, as provided to BCU by the OAAPI and APD programs based
on severity.
(d) For all other SIs, potentially
disqualifying abuse includes founded or substantiated adult protective services
investigations of physical abuse, sexual abuse, or financial exploitation initiated
on or after January 1, 2010, as provided to the BCU by OAAPI and APD programs based
on severity.
(12) Child protective services
investigations open or pending through the Department or OAAPI as of the date the
background check request was electronically submitted to BCU through CRIMS or the
date BCU conducted a criminal records check due to imminent danger. This potentially
disqualifying condition only applies to:
(a) SIs associated with child
foster homes licensed by the Department’s DD programs, child foster homes
licensed through the Department’s Child Welfare Division, child foster homes
licensed through a private licensed child caring agency, adoptive families through
a private licensed child caring agency, or adoptive families through the Department’s
Child Welfare Division;
(b) Staff, volunteers or
contractors of a private licensed child caring agency, an ISRS program, a SPRF provider,
or a System of Care contractor, providing child welfare services pursuant to ORS
chapter 418; or
(c) Child care providers
and associated subject individuals defined in OAR 407-007-0210(30)(a)(I).
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0290,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef.
10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10,
cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11;
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11,
cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD
4-2012, f. & cert. ef. 8-1-12; DHSD 1-2013(Temp), f. & cert. ef. 2-5-13
thru 8-2-13; DHSD 3-2013, f. & cert. ef. 8-1-13; DHSD 2-2014, f. & cert.
ef. 12-1-14; DHSD 1-2015(Temp), f. & cert. ef. 2-3-15 thru 8-1-15; DHSD 4-2015,
f. 7-31-15, cert. ef. 8-1-15
407-007-0300
Weighing Test
When making a fitness determination,
BCU shall consider any of the following factors if an SI has potentially disqualifying
convictions or conditions as disclosed by the SI or which is otherwise known:
(1) Circumstances regarding
the nature of potentially disqualifying convictions and conditions including but
not limited to:
(a) The details of incidents
leading to the charges of potentially disqualifying convictions or resulting in
potentially disqualifying conditions.
(b) Age of the SI at time
of the potentially disqualifying convictions or conditions.
(c) Facts that support the
convictions or potentially disqualifying conditions.
(d) Passage of time since
commission of the potentially disqualifying convictions or conditions.
(e) Consideration of state
or federal laws, regulations, or rules covering the position, facility, employer,
or QE regarding the potentially disqualifying convictions or conditions.
(2) If applicable, circumstances
regarding the nature of potentially disqualifying abuse including but not limited
to:
(a) The nature and type of
abuse; and
(b) Other information gathered
during the scope of the abuse investigation.
(c) The date of the abuse
incident and abuse investigation.
(d) The quality of the abuse
investigation including, if applicable, any exhibits and related documents with
consideration taken into account regarding completeness, objectivity, and sufficiency.
(e) Due process provided
to the SI after the abuse investigation.
(f) Required action resulting
from the founded or substantiated abuse including but not limited to training, counseling,
corrective or disciplinary action, and the SI’s compliance.
(3) Other factors when available
including but not limited to:
(a) Other information related
to criminal activity including charges, arrests, pending indictments, and convictions.
Other behavior involving contact with law enforcement may also be reviewed if information
is relevant to other criminal records or shows a pattern relevant to criminal history.
(b) Periods of incarceration.
(c) Status of and compliance
with parole, post-prison supervision, or probation.
(d) Evidence of alcohol or
drug issues directly related to criminal activity or potentially disqualifying conditions.
(e) Evidence of other treatment
or rehabilitation related to criminal activity or potentially disqualifying conditions.
(f) Likelihood of repetition
of criminal behavior or behaviors leading to potentially disqualifying conditions
including but not limited to patterns of criminal activity or behavior.
(g) Information from the
Department’s or Authority’s protective services, abuse, or other investigations
in which the investigator documented behavior or conduct by the SI that would pose
a risk to or jeopardize the safety of vulnerable individuals.
(h) Changes in circumstances
subsequent to the criminal activity or disqualifying conditions including but not
limited to:
(A) History of high school,
college, or other education related accomplishments
(B) Work history (employee
or volunteer).
(C) History regarding licensure,
certification, or training for licensure or certification.
(D) Written recommendations
from current or past employers, including Department client employers.
(i) 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.
(4) BCU shall consider the
relevancy of the SI’s criminal activity or potentially disqualifying conditions
to the paid or volunteer position, or to the environment in which the SI will reside,
work, or visit.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0300,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 7-2009, f. & cert. ef. 10-1-09; DHSD 10-2009, f. 12-31-09, cert.
ef. 1-1-10; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp) f.
& cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef. 10-12-11
thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp), f.
& cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD
2-2014, f. & cert. ef. 12-1-14
407-007-0315
Hired on a Preliminary Basis
(1) A preliminary fitness determination
is required to determine if an SI may work, volunteer, or otherwise perform in the
position listed on the background check request prior to a final fitness determination.
An SI may not be hired on a preliminary basis prior to the completion of a preliminary
fitness determination.
(2) An SI may be hired on
a preliminary basis only during the period of time prior to a final fitness determination
and into the position listed on the background check request.
(3) The SI must provide information
required for a background check request and the QED must review the information.
(4) The QED shall make one
of the following determinations:
(a) If the SI makes no disclosures
of criminal history, the QED may hire the SI on a preliminary basis in accordance
with relevant program rules or QE policies.
(b) If the SI discloses any
criminal history and all of the history occurred outside the five year period from
the date the SI manually or electronically signed the background check request,
the QED may hire the SI on a preliminary basis in accordance with relevant program
rules or QE policies.
(c) If the SI indicates any
criminal history occurring within the five year period from the date the SI manually
or electronically signed the background check request:
(A) The QED may allow the
SI to be hired on a preliminary basis if the disclosed criminal history has the
outcome of “dismissed,” “no complaint filed,” “expunged,”
or other outcome that BCU determines is not adverse.
(B) The QED may not allow
the SI to be hired on a preliminary basis if the disclosed criminal history has
an outcome of “pending outcome,” “diversion or conditional discharge,”
“convicted,” “on probation,” “juvenile adjudication,”
“unknown,” or other outcome that BCU determines is adverse.
(5) The QED shall submit
the background check request to BCU immediately upon verification of the SI’s
identity, the SI’s completion of the background check request, and the QED’s
completion of the preliminary fitness determination.
(6) If requested by the QED,
BCU may conduct a preliminary fitness determination with a weighing test. The SI
may be hired on a preliminary basis only if, based on information available at the
time, BCU determines that more likely than not, the SI poses no potential threat
to vulnerable individuals.
(7) The QE may not hire a
SI on a preliminary basis under any of the following circumstances:
(a) Being hired on a preliminary
basis or probationary status is not allowed under program rules.
(b) The SI has disclosed
criminal history occurring within the past five years that has an outcome of “pending
outcome,” “diversion or conditional discharge,” “convicted,”
“on probation,” “juvenile adjudication,” “unknown”
or other outcome BCU determines to be adverse and BCU has not completed a preliminary
fitness determination resulting in the QE being allowed to hire the SI on a preliminary
basis.
(c) The QE or BCU determines
that:
(A) More likely than not,
the SI poses a potential threat to vulnerable individuals, based on a preliminary
fitness determination and weighing test;
(B) The SI’s most recent
background check under these rules or other Department or Authority criminal records
check rules or abuse check rules resulted in a denial; or
(C) The SI is currently involved
in contesting a background check under these or other Department or Authority criminal
records check rules or abuse check rules.
(D) BCU has reason to believe
hiring on a preliminary basis is not appropriate based on circumstances or compliance
with the background check process of the SI, QED, or QE.
(d) An outcome of no hiring
on a preliminary basis may only be overturned by the BCU.
(8) An SI hired on a preliminary
basis shall be actively supervised at all times.
(a) The individual providing
active supervision at all times shall do the following:
(A) Be in the same building
as the SI or, if outdoors of QE buildings or any location off the QE property, be
within line-of-sight and hearing, except as provided in section (8)(b)(B) of this
rule;
(B) Know where the SI is
and what the SI is doing; and
(C) Periodically observe
the actions of the SI.
(b) The individual providing
the active supervision may be either:
(A) An SI who has been approved
without restrictions pursuant to these rules or previous Department or Authority
criminal records check rules; or
(B) The adult client, an
adult client’s adult relation, the client’s legal representative, or
a child’s parent or guardian. Active supervision by these individuals is appropriate
in situations where care is given directly to clients usually in a home such as
but not limited to in-home care, home health, or care by home care workers, personal
care assistants, or child care providers.
(i) The adult client may
actively supervise a homecare worker, personal care services provider, independent
provider, or an employee of an in-home care agency or home health agency if the
client makes an informed decision to employ the provider. Someone related to the
client may also provide active supervision if the relative has been approved by
the Department, the Authority, the QED, or the private-pay client receiving services
through an in-home care or home health agency.
(ii) A child client’s
parent or guardian shall be responsible for providing active supervision in the
case of child care providers. The supervision is not required to be performed by
someone in the same building as the child.
(9) An SI approved without
restrictions within the previous 24 months through a documented criminal records
check or abuse check pursuant to these rules or prior Department or Authority criminal
records check rules or abuse check rules may be hired on a preliminary basis without
active supervision. Twenty-four months is calculated from date of previous approval
to the date of hire in the new position. This exemption from active supervision
is not allowed in any of the following situations:
(a) If the SI cannot provide
documented proof that he or she worked continuously under the previous approval
for at least one year.
(b) If there is evidence
of criminal activity or potentially disqualifying abuse within the previous 24 months.
(c) If, as determined by
the QE or BCU, the job duties in the new position are so substantially different
from the previous position that the previous fitness determination is inadequate
for the current position.
(10) Revocation of hired
on a preliminary basis is not subject to hearing or appeal. The QE or BCU may immediately
revoke hired on a preliminary basis for any of the following reasons:
(a) There is any indication
of falsification of application.
(b) The SI fails to disclose
convictions for any potentially disqualifying crimes, any arrests that did not result
in convictions or any out of state arrests or convictions.
(c) The QE or BCU determines
that allowing the SI to be hired on a preliminary basis is not appropriate, based
on the application, criminal record, position duties, or Department program rules.
(11) Nothing in this rule
is intended to require that an SI who is eligible to be hired on a preliminary basis
be allowed to work, volunteer, be employed, or otherwise perform in the position
listed on the background check request prior to a final fitness determination.
(12) Preliminary fitness
determinations must be documented in writing, including any details regarding a
weighing test, if required.
Stat. Auth.: ORS 181.516, 181.537,
409.027 & 409.050
Stats. Implemented: ORS 181.516, 181.534, 181.537,
409.010, 409.027 & 443.004
Hist.: DHSD 10-2009, f. 12-31-09,
cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp)
f. & cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef.
10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp),
f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12;
DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0320
Final Fitness Determinations
BCU shall make a final fitness determination
after all necessary background checks have been received and a weighing test, if
necessary, has been completed. BCU may obtain and consider additional information
as necessary to complete the final fitness determination.
(1) The final fitness determination
results in one of the following outcomes:
(a) BCU may approve an SI
if:
(A) The SI has no potentially
disqualifying convictions or potentially disqualifying conditions; or
(B) The SI has potentially
disqualifying convictions or potentially disqualifying conditions and, after a weighing
test, BCU determines that more likely than not, the SI poses no risk to the physical,
emotional, or financial well-being of vulnerable individuals.
(b) BCU may approve an SI
with restrictions if BCU determines that more likely than not, the SI poses no risk
to the physical, emotional, or financial well-being of vulnerable individuals if
certain restrictions are placed on the SI. Restrictions may include but are not
limited to restrictions to one or more specific clients, job duties, or environments.
A new background check and fitness determination shall be completed on the SI before
removing a restriction.
(c) BCU shall deny an SI
who the BCU determines, after a weighing test, more likely than not poses a risk
to the physical, emotional, or financial well-being of vulnerable individuals.
(2) Upon completion of a
final fitness determination, BCU or the QE shall provide notice to the SI.
(a) If approved, BCU shall
provide notice to the QE through CRIMS. The QE shall provide the SI a copy of the
notice or CRIMS documentation.
(b) If the final fitness
determination is a denial based on potentially disqualifying abuse under OAR 407-007-0290(11)(d)
and there are no other potentially disqualifying convictions or conditions, BCU
shall issue a Notice of Intent to Deny and provide the SI hearing rights under OAR
407-007-0335.
(c) Except as required by
section (4)(c) of this rule, if denied or approved with restrictions, BCU shall
issue a notice of fitness determination to the SI which includes the potentially
disqualifying convictions or conditions that the outcome was based upon, information
regarding appeal rights, and the notice becoming a final order in the event of a
withdrawal or failure to appear at the hearing.
(d) The effective date of
action shall be recorded on the notice or CRIMS documentation.
(3) BCU shall provide the
QE notification of the final fitness determination when the SI is being denied or
approved with restrictions.
(4) When an SI is denied,
the SI shall not be allowed to work, volunteer, be employed, or otherwise perform
in the position listed on the background check request. A denial applies only to
the position and application in question. A denial shall result in immediate termination,
dismissal, or removal of the SI.
(5) When an SI is approved
with restrictions, the SI shall only be allowed to work, volunteer, be employed,
or otherwise perform in the position listed on the background check request and
only under the stated restrictions. A restricted approval applies only to the position
and application in question. A restricted approval shall result in immediate implementation
of the restrictions.
(6) BCU shall maintain any
documents obtained or created during the background check process.
(7) BCU shall make new fitness
determinations for each background check request. The outcome of previous fitness
determinations does not set a precedent for subsequent fitness determinations.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0320,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef.
10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10,
cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11;
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11,
cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD
4-2012, f. & cert. ef. 8-1-12; DHSD 3-2013, f. & cert. ef. 8-1-13
407-007-0325
Closed Case
If the SI discontinues the application
or fails to cooperate with the criminal records check or fitness determination process,
the application is considered incomplete and may be closed.
(1) Discontinuance or failure
to cooperate includes but is not limited to the following circumstances:
(a) The SI fails to disclose
all criminal history on the background check request.
(b) The SI refuses to be
fingerprinted when required by these rules.
(c) The SI fails to respond
within a stated time period to a request for corrections to the application, fingerprints,
or any other information necessary to conduct a criminal records check or an abuse
check and there is not enough information available to make a fitness determination.
(d) The SI withdraws the
application, leaves the position prior to completion of the background check, or
the Department cannot locate or contact the subject individual.
(e) The SI is determined
to be ineligible for the position by the QE for reasons other than the background
check.
(2) When the application
is closed without a final fitness determination, the SI does not have a right to
contest the closure.
(3) When a case is closed,
the SI shall not be allowed to work, volunteer, be employed, or otherwise perform
in the position listed on the background check request. A closed case applies only
to the position in question. A closed case shall result in immediate termination,
dismissal, or removal of the SI.
(4) BCU or the QED shall
document the reasons for a closed case.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: DHSD 10-2009, f. 12-31-09,
cert. ef. 1-1-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11; DHSD
7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11,
cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD
4-2012, f. & cert. ef. 8-1-12
407-007-0330
Contesting a Fitness Determination
(1) A final fitness determination of
denied or restricted approval is considered an adverse outcome. An SI with an adverse
outcome may contest that fitness determination unless already granted contested
case hearing rights under OAR 407-007-0335.
(2) If an SI is denied, the
SI may not hold the position, provide services or be employed, licensed, certified,
or registered, or otherwise perform in positions covered by these rules. An SI appealing
a restricted approval may only work under the terms of the restriction during the
appeal.
(3) If an adverse outcome
is changed at any time during the appeal process, the change does not guarantee
employment or placement.
(4) An SI may challenge the
accuracy or completeness of information provided by the OSP, the FBI, or other agencies
reporting information to BCU, by appealing to the entity providing the information.
These challenges are not subject to BCU’s appeal process.
(5) An SI has the right to
represent himself or herself or have legal representation during the appeal process.
For the purpose of this rule, the term “SI” shall be considered to include
the SI’s legal representative.
(a) An SI who is appealing
an adverse outcome regarding the position of homecare worker as defined in ORS 410.600
or personal support worker as defined in ORS 410.600 may be represented by a labor
union representative pursuant to ORS 183.459.
(b) For all other SIs, the
SI may not be represented by a lay person.
(6) An SI may contest an
adverse fitness determination by requesting a contested case hearing. The contested
case hearing process is conducted in accordance with ORS 183.411 to 183.497 and
the Attorney General’s Uniform and Model Rules of Procedure for the Office
of Administrative Hearings (OAH), OAR 137-003-0501 to 137-003-0700.
(a) To request a contested
case hearing, the SI shall complete and sign the Hearing Request form.
(b) The completed and signed
form must be received by the Department within 45 calendar days after the effective
date of action.
(c) BCU shall accept a properly
addressed hearing request that was not timely filed if it was postmarked within
the time specified for timely filing.
(d) In the event an appeal
is not timely by the date of receipt or by the date of postmark, BCU shall determine,
based on a written statement from the SI and available information, if there is
good cause to proceed with the appeal.
(e) BCU may refer an untimely
request to the OAH for a hearing on the issue of timeliness.
(7) BCU may conduct an administrative
review before referring the appeal to OAH.
(a) The SI must participate
in the administrative review. Participation may include but is not limited to providing
additional information or additional documents requested by the BCU within a specified
amount of time.
(b) The administrative review
is not open to the public.
(8) BCU may conduct additional
criminal records checks or abuse checks during the contested case hearing process
to update or verify the SI’s potentially disqualifying convictions or conditions
and factors to consider in the weighing test. If needed, BCU shall amend the notice
of fitness determination while still maintaining the original hearing rights and
deadlines.
(9) The Department shall
be represented by a hearing representative in contested case hearings. The Department
may also be represented by the Office of the Attorney General.
(a) BCU shall provide the
administrative law judge and the SI a complete copy of available information used
during the background checks and fitness determinations. The notice of contested
case and prehearing summary and other documents may be mailed by regular first class
mail or provided electronically.
(b) An SI may not have access
to confidential information contained in abuse investigation reports or other records
collected or developed during the abuse check process without a protective order
limiting further disclosure of the information.
(c) The contested case hearing
is not open to the public.
(d) The administrative law
judge shall make a new fitness determination based on evidence and the contested
case hearing record.
(e) The only remedy an administrative
law judge may grant is a fitness determination that the subject individual is approved,
approved with restrictions, or denied. Under no circumstances shall the Department
or the QE be required to place an SI in any position, nor shall the Department or
the QE be required to accept services or enter into a contractual agreement with
an SI.
(f) A hearing pursuant to
these rules may be conducted in conjunction with a licensure or certification hearing
for the SI.
(10) The notice of fitness
determination issued is final as if the SI never requested a hearing in the following
situations:
(a) The SI failed to request
a hearing in the time allotted in this rule. No other document will be issued after
the notice of fitness determination.
(b) The SI withdraws the
request for hearing at any time during the appeal process.
(11) BCU may make an informal
disposition based on the administrative review. The Department shall issue a final
order and new notice of fitness determination. If the resulting fitness determination
is an adverse outcome, the appeal shall proceed to a contested case hearing
(12) BCU shall issue a dismissal
order in the following situations:
(a) The SI may withdraw a
hearing request verbally or in writing at any time before the issuance of a final
order. A dismissal order due to the withdrawal is effective the date the withdrawal
is received by BCU or the OAH. The SI may cancel the withdrawal in writing within
14 calendar days after the date of withdrawal.
(b) BCU shall dismiss a hearing
request when the SI fails to participate in the administrative review. Failure to
participate in the administrative review shall result in termination of hearing
rights. The order is effective on the due date for participation in the administrative
review. BCU shall review a good cause request to reinstate hearing rights if received
in writing by BCU within 14 calendar days.
(c) BCU shall dismiss a hearing
request when the SI fails to appear at the time and place specified for the contested
case hearing. The order is effective on the date scheduled for the hearing. BCU
shall review a good cause request to reinstate hearing rights if received in writing
by BCU within 14 calendar days of the order.
(13) After a hearing, the
administrative law judge shall issue a proposed and final order.
(a) If no written exceptions
are received by BCU within 14 calendar days after the service of the proposed and
final order, the proposed and final order becomes the final order.
(b) If timely written exceptions
to the proposed and final order are received by BCU, the Department’s Director
or designee shall consider the exceptions and serve a final order, or request a
written response or a revised proposed and final order from the administrative law
judge.
(14) Final orders, including
dismissal and default orders, are subject to reconsideration or rehearing petitions
within 60 calendar days after the order is served, pursuant to OAR 137-003-0675.
(15) BCU may provide the
QED with the results of the appeal.
Stat. Auth.: ORS 181.516, 181.537, 183.459, 409.027
& 409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 183.459, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0330,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 2-2008(Temp), f. & cert. ef.
3-31-08 thru 9-26-08; DHSD 7-2008, f. 8-29-08, cert. ef. 9-1-08; DHSD 10-2008, f.
12-26-08, cert. ef. 1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009,
f. & cert. ef. 10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010,
f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru
10-11-11; DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011,
f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru
8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD 2-2014, f. & cert. ef.
12-1-14
407-007-0335
Decision and Hearing Rights for Potentially
Disqualifying Abuse
(1) This rule applies only to:
(a) Background checks in
which an SI has potentially disqualifying abuse under OAR 407-007-0290(11)(d) with
no other potentially disqualifying convictions or conditions; and
(b) After a weighing test
under OAR 407-007-0300, BCU determines that more likely than not, the SI poses a
risk to the physical, emotional, or financial well-being of vulnerable individuals.
(2) BCU shall provide the
SI a Notice of Intent to Deny in writing.
(a) BCU shall indicate on
the Notice of Intent to Deny the date the final fitness determination was made and
the date of the intended action if the SI fails to request an expedited hearing.
(b) BCU shall mail the Notice
of Intent to Deny to the SI using the mailing address provided by the SI by the
next business day after the date of the final fitness determination.
(c) BCU shall include an
Expedited Hearing Request form with the Notice of Intent to Deny.
(3) An SI may contest a Notice
of Intent to Deny by requesting an expedited hearing. The expedited hearing process
is conducted in accordance with ORS 183.411 to 183.497 and the Attorney General’s
Uniform and Model Rules of Procedure for the Office of Administrative Hearings (OAH),
OAR 137-003-0501 to 137-003-0700.
(4) To request an expedited
hearing, the SI must submit a completed and signed Expedited Hearing Request form.
The request for an expedited hearing must be received by the Department within 10
calendar days after the date of the Notice of Intent to Deny.
(a) BCU shall accept a properly
addressed hearing request that was not timely filed if it was postmarked within
the time specified for timely filing.
(b) In the event an appeal
is not timely by the date of receipt or by the date of postmark, BCU shall determine,
based on a written statement from the SI and available information, if there is
good cause to proceed with the appeal.
(5) An SI has the right to
represent him or herself or have legal representation during the expedited hearing
process. For the purpose of this rule, the term “SI” shall be considered
to include the SI’s legal representative if the SI has provided BCU with such
information.
(a) An SI who is appealing
a Notice of Intent to Deny regarding the position of homecare worker as defined
in ORS 410.600 or personal support worker as defined in ORS 410.600 may be represented
by a labor union representative pursuant to ORS 183.459.
(b) For all other SIs, the
SI may not be represented by a lay person.
(6) If the SI fails to request
an expedited hearing under this rule within the allowed time, BCU shall issue a
Notice of Denial to the SI and to the QE. The SI shall have no further hearing rights
under OAR 407-007-0330.
(7) If the SI requests an
expedited hearing in a timely manner, the SI shall remain in the same status made
in a preliminary fitness determination under OAR 407-007-0315 until the date of
a final order or the Notice of Denial.
(8) BCU may conduct an administrative
review before referring the appeal to OAH.
(a) The SI must participate
in the administrative review. Participation may include but is not limited to providing
additional information or additional documents requested by BCU within a specified
amount of time.
(b) The administrative review
is not open to the public.
(c) BCU may make an informal
disposition based on the administrative review. BCU shall issue a final order and
a notice of fitness determination.
(9) The Department shall
be represented by a hearing representative in expedited hearings. The Department
may also be represented by the Office of the Attorney General.
(a) BCU shall provide the
administrative law judge and the SI a complete copy of available information used
during the background checks and fitness determinations. The claimant is entitled
to reasonable notice of all hearing documents either through personal service, electronically,
regular mail, or certified mail.
(b) An SI may not have access
to confidential information contained in abuse investigation reports or other records
collected or developed during the abuse check process without a protective order
limiting further disclosure of the information.
(10) The expedited hearing
shall be conducted by the OAH by telephone within 10 business days from the receipt
of the completed and signed Expedited Hearing Request form.
(a) The expedited hearing
is not open to the public.
(b) The administrative law
judge shall make a new fitness determination based on evidence and the record.
(c) The only remedy an administrative
law judge may grant is a fitness determination that the subject individual is approved,
approved with restrictions, or denied. Under no circumstances shall the Department
or the QE be required to place an SI in any position, nor shall the Department or
the QE be required to accept services or enter into a contractual agreement with
an SI.
(11) BCU shall issue a dismissal
order in the following situations:
(a) The SI may withdraw an
expedited hearing request verbally or in writing at any time before the issuance
of a final order. A dismissal order due to the withdrawal is effective the date
the withdrawal is received by BCU or the OAH. The SI may cancel the withdrawal in
writing within four calendar days after the date of withdrawal.
(b) BCU shall dismiss a hearing
request when the SI fails to participate in the administrative review. Failure to
participate in the administrative review shall result in termination of hearing
rights. The order is effective on the due date for participation in the administrative
review.
(c) If the QE terminates
employment or position of the SI for reasons unrelated to the potentially disqualifying
abuse, BCU may close the application.
(d) BCU shall dismiss a hearing
request when the SI fails to appear at the time specified for the expedited hearing.
The order is effective on the date scheduled for the hearing.
(12) After an expedited hearing,
the administrative law judge shall issue a final order within three business days.
(a) If the final order maintains
BCU’s intent to deny, BCU shall issue a Notice of Denial by the next business
day after the date of the final order. The SI shall have no further hearing rights
under OAR 407-007-0330.
(b) If the final order reverses
BCU’s intent to deny to an approval or a restricted approval, BCU shall issue
a Notice of Fitness Determination by the next business day after the date of the
final order unless BCU formally stays the final order. The SI shall have no further
hearing rights under OAR 407-007-0330.
(13) Final orders, including
dismissal and default orders, are subject to reconsideration or rehearing petitions
within 60 calendar days after the order is served, pursuant to OAR 137-003-0675.
Stat. Auth.: ORS 181.516, 181.537, 183.459, 409.027
& 409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 183.459, 409.010, 409.027 & 443.004
Hist.: DHSD 8-2011, f. 10-28-11,
cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD
4-2012, f. & cert. ef. 8-1-12; DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0340
Record Keeping, Confidentiality
(1) All LEDS reports are confidential
and the Department and Authority shall maintain the reports in accordance with applicable
OSP requirements in ORS chapter 181 and the rules adopted pursuant thereto (see
OAR chapter 257, division 15).
(a) LEDS reports are confidential
and may only be shared within BCU if there is a need to know consistent with these
rules.
(b) The LEDS report and any
photocopies may not be shown or given to the SI.
(2) The results of a national
criminal records check provided by the FBI or the OSP are confidential and may not
be disseminated by BCU unless:
(a) If an SI requests the
results of a fingerprint-based criminal records check received by BCU, the SI shall
be provided a copy of the results.
(b) The state and national
criminal offender information shall be provided as exhibits during the contested
case hearing.
(3) The results of an abuse
check are confidential and may not be disseminated by the Department or the Authority
except in compliance with confidentiality statutes and guidelines of the Department
or the Authority. An SI may not have access to confidential information contained
in abuse investigation reports or other records collected or developed during the
abuse check process without an order of discovery limiting further disclosure of
the information during the contested case hearing process.
(4) All completed background
check requests, other criminal records information, and other records collected
or developed during the background check or contested case process shall be kept
confidential and disseminated only on a need-to-know basis.
(5) The Department and Authority
shall retain and destroy all criminal records check documents pursuant to federal
law and records retention schedules published by Oregon State Archives.
(6) Documents retained by
a QE may only be viewed by an approved QED or licensing staff authorized by the
Department or Authority as part of monitoring compliance with licensing and program
administrative rules.
(7) Documents retained by
a QE may be requested and reviewed by the Department and the OSP for the purposes
of determining and ensuring compliance with these rules.
(8) If an error is discovered
on a notice of fitness determination, BCU may correct it by issuing an amended notice
of fitness determination.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0340,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef.
10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10,
cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11;
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11,
cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD
4-2012, f. & cert. ef. 8-1-12; DHSD 2-2014, f. & cert. ef. 12-1-14
407-007-0350
Immunity from Liability
(1) The Department, the Authority and
the QE, acting within the course and scope of employment, have immunity from any
civil liability that might otherwise be incurred or imposed for determining, in
accordance with ORS 181.537, that an SI is fit or not fit to hold a position, provide
services, or be employed, licensed, certified, or registered.
(2) The Department, and Authority,
and the QE, acting within the course and scope of employment, and an employer or
employer’s agent are not liable for the failure to hire a prospective employee
or the decision to discharge an employee on the basis of a fitness determination
or closed case if they in good faith comply with:
(a) ORS 181.537 and 409.027;
and
(b) The decision of the QE
or employee of the QE acting within the course and scope of employment.
(3) No employee of the state,
a business, or an organization, acting within the course or scope of employment,
is liable for defamation, invasion of privacy, negligence, or any other civil claim
in connection with the lawful dissemination of information lawfully obtained under
ORS 181.537.
Stat. Auth.: ORS 181.516, 181.537, 409.027 &
409.050
Stats. Implemented: ORS 181.516, 181.534,
181.537, 409.010, 409.027 & 443.004
Hist.: OMAP 8-2004, f. 2-26-04,
cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0350,
DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef.
1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef.
10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 1-2011(Temp) f. &
cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef. 10-12-11
thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp), f.
& cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD
2-2014, f. & cert. ef. 12-1-14
407-007-0370
Variances
(1) The Department
and Authority may consider variance requests regarding these rules.
(a) The outcomes
of a fitness determination made pursuant to these rules is not subject to variance.
Challenges to fitness determinations may only be made by SIs through contested case
hearing rights set forth in these rules.
(b) Neither
the Department nor the Authority may grant variances to ORS 181.534 and 181.537.
(2) The Department
or Authority may grant a variance to any section of these rules based upon a demonstration
by the QE that the variance would not pose a significant risk to physical, emotional,
or financial well-being of vulnerable individuals.
(3) The QE
requesting a variance must submit, in writing, an application to the BCU that contains:
(a) The section
of the rule from which the variance is sought;
(b) The reason
for the proposed variance;
(c) The alternative
practice, service, method, concept, or procedure proposed;
(d) A plan
and timetable for compliance with the section of the rule from which the variance
is sought; and
(e) An explanation
on how the welfare, health, or safety of individuals receiving care will be ensured
during the time the variance is in effect.
(4) The Assistant
Director or designee for the Department and Authority’s Shared Services, Office
of Human Resources shall approve or deny the request for a variance.
(5) BCU shall
notify the QE of the decision within 60 calendar days of the receipt of the request
and shall provide a copy to other relevant Department or Authority program offices.
(6) Appeal
of the denial of a variance request must be made in writing to the Department or
Authority’s Director, whose decision is final.
(7) The Department
or Authority shall determine the duration of the variance.
(8) The QE
may implement a variance only after receipt of written approval from BCU.
(9) Granting
a variance does not set a precedent that must be followed by the Department or Authority
when evaluating subsequent variance requests.
Stat. Auth.: ORS
181.516, 181.537 & 409.050

Stats. Implemented:
ORS 181.516, 181.534, 181.537 & 409.010

Hist.: OMAP
8-2004, f. 2-26-04, cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05;
Renumbered from 410-007-0370, DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008,
f. 12-26-08, cert. ef. 1-1-09; DHSD 7-2009, f. & cert. ef. 10-1-09; DHSD 10-2009,
f. 12-31-09, cert. ef. 1-1-10; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD
2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert.
ef. 8-1-12
Abuse Check Rules for Department Employees and Volunteers
407-007-0400
Purpose
(1) The purpose of these rules, OAR 407-007-0400 to 407-007-0460, is to provide for the abuse check of Department of Human Services (Department) employees, volunteers, or individuals offered employment or placement by the Department to determine if they are fit to provide care.
(2) Although criminal records checks may occur concurrently with abuse checks performed under these rules and may share similar processes, the abuse check process is separate from the criminal records checks that may be performed under OAR 407-007-0000 to 407-007-0100.
Stat. Auth.: ORS 409.027 & 409.050

Stats. Implemented: ORS 409.025, 409.027 & 409.050

Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10
407-007-0410
Definitions
As used in OAR 407-007-400 to 407-007-0460, unless the context of the rule requires otherwise, the following definitions apply:
(1) “Abuse” has the meaning given in the Department’s administrative rules corresponding to the setting in which the abuse was alleged or investigated.
(2) “Abuse check” means obtaining and reviewing abuse allegations, abuse investigation reports, and associated exhibits and documents for the purpose of screening subject individuals as allowed by ORS 409.027.
(3) “Abuse investigation report” means a written report completed after an investigation into suspected abuse and retained by the Department pursuant to ORS 124.085, 419B.030, or 430.757, or a similar report filed in another state.
(4) “Approved” means that a subject individual, following a fitness determination, is fit to work, volunteer, be employed, or otherwise perform in a position where the subject individual may provide care.
(5) “Care” means the treatment, education, training, instruction, placement services, recreational opportunities, case management, supervision of these services for clients of the Department, or Department administration and support services for Department clients.
(6) “Closed case” means an abuse check that has been closed without a fitness determination.
(7) “Denied” means that a subject individual, following a fitness determination including a weighing test, is not fit to work, volunteer, be employed, or otherwise perform services in positions covered by these rules.
(8) “Department” means the Department of Human Services.
(9) “Director” means the Department’s Director or designee.
(10) “Fitness determination” means the outcome of an abuse check and, if necessary, a weighing test.
(11) “Founded or substantiated” has the meanings given in the Department’s administrative rules corresponding to the setting in which the abuse was alleged or investigated.
(12) “Office of Human Resources” means the Department’s Office of Human Resources.
(13) “Potentially disqualifying abuse” means:
(a) The finding of an abuse investigation report is founded or substantiated; and
(b) The subject individual is determined to have been responsible for the abuse.
(14) “Subject individual,” means an individual who is:
(a) An employee, which includes:
(A) An individual who seeks to be employed by the Department to provide care or a Department Jobs Plus client who seeks placement at a Department site; or
(B) An individual who is currently employed by the Department to provide care or a current Department Jobs Plus client who is placed at a Department site.
(b) A volunteer, which includes:
(A) An individual or student, who seeks to be a volunteer to provide care on behalf of the Department;
(B) A Department Work Experience client who seeks placement as a volunteer at a Department site;
(C) An individual or student currently volunteering to provide care on behalf of the Department, over whom the Department has direction and control; or
(D) A Department Work Experience client who is placed at a Department site.
(15) “Weighing test” means a process carried out by the Department in which available information is considered in making a fitness determination.
Stat. Auth.: ORS 409.027 & 409.050

Stats. Implemented: ORS 409.027 & 409.050

Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10
407-007-0420
Reporting Abuse Allegations Required
(1) This rule applies to any subject individual who is:
(a) A current Department employee;
(b) A current Department volunteer; or
(c) An individual seeking Department employment or volunteer placement, who has been offered Department employment or volunteer placement, pending the completion of the abuse check process.
(2) Subject individuals shall notify the Office of Human Resources within five calendar days of being notified that he or she has been identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation.
Stat. Auth.: ORS 409.027 & 409.050

Stats. Implemented: ORS 409.027 & 409.050

Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10
407-007-0430
Applicants to the Department for Employment or Volunteer Position
(1) Subject to any applicable collective bargaining agreements, this rule applies to any subject individual who is:
(a) Offered employment or volunteer placement with the Department;
(b) Offered a change in employment or volunteer placement within the Department.
(2) The Department may require a subject individual to have an abuse check in the following circumstances:
(a) A subject individual is offered employment or a volunteer placement with the Department.
(b) A subject individual is currently employed by or volunteering with the Department and is offered a new position within the Department. A change in a position requiring an abuse check may be due to but not limited to promotion, transfer, demotion, re-employment, job rotation, developmental assignment, restoration, bumping, or recall. For the abuse check to be required, there must be, as determined by the Office of Human Resources:
(A) A significant change in position duties or responsibilities; or
(B) A change in position classification.
(3) Using identifying information submitted on the Department’s Background Check Request form, the Department may conduct an abuse check to determine if the subject individual has potentially disqualifying abuse.
(a) In order to complete an abuse check and fitness determination, the Department may require additional information from the subject individual including but not limited to additional background information or documentation regarding circumstances since the abuse occurred.
(b) If a subject individual is a represented Department employee, the process for obtaining additional information through investigatory interviews shall adhere to collective bargaining agreements on investigatory interviews.
(4) The Department may not determine a start date for a subject individual until the completion of an abuse check and a fitness determination of approval.
(5) If a subject individual has potentially disqualifying abuse, the Department shall conduct a weighing test in order to make a fitness determination. Factors to consider in a weighing test include but are not limited to:
(a) The details regarding the abuse including but not limited to:
(A) Circumstances leading to the incident of abuse;
(B) The nature or type of abuse; and
(C) Other information gathered during the scope of the abuse investigation.
(b) The date of abuse incident and abuse investigation, and the age of the subject individual at the time of the abuse.
(c) The quality of the abuse investigation including, if applicable, any exhibits and related documents with consideration to completeness, objectivity, and sufficiency.
(d) Due process provided to the subject individual after the abuse investigation.
(e) Required action resulting from the founded or substantiated abuse including but not limited to training, counseling, corrective or disciplinary action, and the subject individual’s compliance.
(f) Circumstances related to the subject individual including but not limited to work history, education history, and other personal information provided by the subject individual.
(g) Changes in circumstances subsequent to the potentially disqualifying abuse.
(h) The relevancy of the abuse to the position the subject individual is seeking.
(6) Following an abuse check, the Department shall complete the fitness determination.
(a) The Department may approve a subject individual if:
(A) The subject individual has no potentially disqualifying abuse; or
(B) The subject individual has potentially disqualifying abuse but, after a weighing test, the Department determines that more likely than not the subject individual poses no risk to the Department, its clients, or vulnerable persons.
(b) The Department shall deny a subject individual who has potentially disqualifying abuse and, after a weighing test, the Department determines that more likely than not the subject individual poses a risk to the Department, its clients, or vulnerable individuals.
(7) The Department shall close the case if the subject individual discontinues the application or fails to cooperate with the abuse check process. When the application is closed without a final fitness determination, the subject individual does not have a right to contest the closure.
(8) Upon completion of a fitness determination or in a closed case, the Department shall provide written notice to the subject individual. The notice shall:
(a) Be in a Department approved format; and
(b) Include an effective date of action.
(c) For an outcome of denied:
(A) Include the reasons for the denial;
(B) Include information regarding appeal rights; and
(C) Include a statement that the notice becomes a final order in the event of a withdrawal during the contested case hearing process or a failure to appear at the contested case hearing.
(9) When a subject individual is denied or a case is closed, the individual may not work, volunteer, be employed, or otherwise perform in the position that the subject individual is seeking. If a current Department employee or volunteer is denied, the Office of Human Resources shall determine if the subject individual may continue in the current position that the subject individual is seeking to change.
(a) For Department employees, if disciplinary action up to and including dismissal is appropriate, the action shall be taken in accordance with:
(A) Relevant collective bargaining contractual provisions;
(B) Statutory provisions for unrepresented or management services employees; or
(C) Relevant Department or statewide policies or procedures.
(b) For subject individuals who are current volunteers or Work Experience clients, a denial or closed case shall result in immediate dismissal.
(10) The Department shall document fitness determinations in writing and include all necessary details including but not limited to the potentially disqualifying abuse, the weighing test, or the reasons for a closed case.
(11) The Department shall make new fitness determinations for each application. The outcome of previous fitness determinations does not ensure the same outcome of a new fitness determination.
(12) Only subject individuals not offered employment or a Jobs Plus position may contest the fitness determination.
(a) The contested case hearing process, pursuant to ORS Chapter 183 and OAR 407-007-0080, shall proceed if the subject individual requests a contested case hearing. Subject individuals must request a hearing within 15 calendar days after the effective date of action listed on the notice of fitness determination.
(b) The subject individual’s hearing rights pertain to the action of denial of employment or placement, not the outcome of the abuse investigation.
(c) The only remedy that may be awarded is a fitness determination that the subject individual is approved or denied. Under no circumstances shall the Department be required to place a subject individual in any position, nor shall the Department be required to accept services or enter into a contractual agreement with a subject individual.
(d) Subject individuals may not have access to confidential information contained in abuse investigation reports or other records collected or developed during the abuse check process without a protective order limiting further disclosure of the information.
(A) A protective order issued pursuant to this section must be issued by an administrative law judge as provided in OAR 137-003-0570(8) or by a court of law.
(B) In conjunction with a protective order issued pursuant to this section, individually identifying information relating to clients, witnesses, and other persons identified in abuse investigation reports or other records collected, or developed during the abuse check process shall be redacted prior to disclosure, except for the information identifying the subject individual.
(13) Subject individuals in volunteer or Work Experience placements must have a new abuse check every three years from the date of placement.
Stat. Auth.: ORS 409.027 & 409.050

Stats. Implemented: ORS 409.010 & 409.027

Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10
407-007-0440
Current Employees of the Department
(1) This rule applies to any subject individual who is a current Department employee.
(2) If a subject individual is identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation, all relevant abuse investigation and licensing rules shall apply.
(3) The Department shall apply relevant program administrative due process policies if the subject individual is identified as responsible in a founded or substantiated abuse investigation.
(4) If a current subject individual is identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation, the Office of Human Resources may initiate an investigation during or following the investigation of the alleged abuse to determine whether to take any action, up to and including dismissal from employment.
(a) If the abuse investigation results in potentially disqualifying abuse, the Office of Human Resources shall initiate an investigation which may include conducting a weighing test as described in OAR 407-007-0430(5). The purpose of the investigation is to determine whether any action, up to and including dismissal, is justified.
(b) If the Office of Human Resources learns of potentially disqualifying abuse from previous investigations, the Office of Human Resources may initiate an investigation, to determine fitness for the position, which may include conducting a weighing test as described in OAR 407-007-0430(5). The purpose of the investigation is to determine whether any action, up to and including dismissal is justified.
(c) For Department employees, if disciplinary action up to and including dismissal, is appropriate, the action shall be taken in accordance with:
(A) Relevant collective bargaining agreements;
(B) Statutory provisions for unrepresented or management services employees; or
(C) Relevant Department or statewide policies or procedures.
(5) A pending related action, such as a civil, criminal, juvenile, or administrative proceeding in which the allegations of abuse are at issue shall not automatically be grounds for the subject individual to seek to detain or stay either the review of the founded or substantiated disposition or any resulting disciplinary action. The Department may detain or stay either the review of the founded or substantiated abuse disposition or any resulting disciplinary action based on the pending related action such as a civil, criminal, juvenile, or administrative proceeding in which the allegations of abuse are at issue.
Stat. Auth.: ORS 409.027 & 409.050

Stats. Implemented: ORS 409.027 & 409.050

Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 1-2010(Temp), f. & cert. ef. 1-8-10 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10
407-007-0450
Current Volunteers of the Department
(1) This rule applies to any subject individual who is a current Department volunteer.
(2) If a subject individual is identified as an alleged perpetrator, reported perpetrator, or accused person in an abuse investigation, the Office of Human Resources may remove the subject individual from placement and duties at any time during the investigation or any subsequent review.
(3) If removed from the placement, the subject individual may reapply for a placement under OAR 407-007-0430.
Stat. Auth.: ORS 409.027 & 409.050

Stats. Implemented: ORS 409.027 & 409.050

Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10
407-007-0460
Confidentiality
(1) The Department shall maintain abuse investigation reports as confidential pursuant to ORS 409.027 and other applicable state and federal laws and rules.
(2) All abuse information and other records collected or developed during the abuse check process shall be kept confidential and disseminated only on a need-to-know basis as permitted by applicable Oregon statutes and administrative rules.
(3) Abuse investigation reports may be used among the organizational units of the Department for the purpose of screening subject individuals necessary to protect the Department’s vulnerable clients from abuse.
(4) The Department may use abuse and neglect reports for decisions directly affecting vulnerable individuals if the vulnerable individual is also a subject individual.
Stat. Auth.: ORS 409.027 & 409.050

Stats. Implemented: ORS 409.027 & 409.050

Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10
Long Term Care Registry
407-007-0600
Purpose
(1) The purpose of these rules, OAR
407-007-0600 to 407-007-0640, is to provide for procedures and standards for the
Background Check Registry pursuant to 2014 Oregon Laws Chapter 104.
(2) These rules apply to
subject individuals (SIs), as defined in OAR 407-007-0210, who work or seek to work
in facilities and positions subject to these rules.
Stat. Auth.: Or Laws 2014, ch 104; ORS
181.534, 181.537, 183.459, 409.025, 409.027, 409.050, 410.020, 411.060, 413.036,
443.725 & 443.735
Stats. Implemented: Or Laws
2014, ch 104; ORS 181.534, 181.537, 183.459, 409.010, 409.025, 409.027, 411.060
& 443.004
Hist.: DHSD 3-2014, f. &
cert. ef. 12-1-14
407-007-0610
Definitions
In addition to the definitions in OAR
407-007-0210, the following definitions apply to OAR 407-007-0600 to 407-007-0640:
(1) “Background check”
means a criminal records check and an abuse check pursuant to OAR 407-007-0210 to
407-007-0370 and any additional checks as required per federal code or Oregon statute.
(2) “Background Check
Registry (Registry)” means a comprehensive listing of subject individuals
who meet the requirements of these rules.
(3) “Criminal Records
Information Management System (CRIMS) user” means an individual who has been
approved to use CRIMS.
(4) “Facility”
means:
(a) A long term care facility
in Oregon as defined in ORS 442.015 including skilled nursing facilities and intermediate
care facilities.
(b) A residential care facility
as defined in ORS 443.400 including but not limited to assisted living facilities
and intermediate care facilities.
(c) An adult foster home
as defined in ORS 443.705. This definition does not apply to adult foster homes
licensed by the Department to provide care and services to adults with intellectual
or developmental disabilities, or to adult foster homes licensed by the Oregon Health
Authority (Authority) to provide care to adults with mental illness.
(5) “Homecare worker”
has the same meaning given in ORS 410.600, including but not limited to personal
support workers and personal care attendants.
(6) “Permanent hire
date” means:
(a) For an employee, temporary
worker or contractor of a facility, the date the qualified entity (QE) considers
the SI to be permanently hired, after the background check approval date and when
the SI is no longer considered provisional or working under active supervision pursuant
to OAR 407-007-0315.
(b) For a volunteer of a
facility, the date the QE considers the SI to be approved to volunteer for the QE,
after the background check approval date.
(c) For a homecare worker,
the date the Department of Human Services (Department) or Authority enrolls the
SI as a homecare worker and the homecare worker enrollment number is approved and
active. For medical assistance programs this date is called the “enrollment”
contract active dates.
(7) “Position”
means the position listed in the background check request which determines whether
the individual is an SI under OAR 407-007-0210.
(8) “Qualified entity
(QE)” means:
(a) A facility;
(b) An Area Agency on Aging
(AAA) office or a Department or Oregon county Aging and People with Disabilities
program branch which enrolls homecare workers;
(c) An agency, program or
county office in Oregon serving individuals with intellectual or developmental disabilities
which hires, enrolls, or contracts personal support workers;
(d) An agency, program or
county office in Oregon serving individuals with mental illness which assists an
individual to complete personal support worker enrollment; or
(e) The Department’s
Children’s Intensive In-home Services program.
Stat. Auth.: Or Laws 2014, ch 104; ORS
181.534, 181.537, 183.459, 409.025, 409.027, 409.050, 410.020, 411.060, 413.036,
443.725 & 443.735
Stats. Implemented: Or Laws
2014, ch 104; ORS 181.534, 181.537, 183.459, 409.010, 409.025, 409.027, 411.060
& 443.004
Hist.: DHSD 3-2014, f. &
cert. ef. 12-1-14
407-007-0620
Background Check Registry
(1) The background check registry includes
SIs who work or seek to work as:
(a) An employee, contractor,
temporary worker, or volunteer in a facility; or
(b) A homecare worker, including
the position of personal support worker.
(2) The registry includes
SIs who have a record of a background check with an outcome of approved or approved
with restrictions in CRIMS dated on or after January 1, 2015 with no subsequent
background check with an outcome other than approved or approved with restrictions.
(3) The registry shall include
information regarding the SI including but not limited to:
(a) Name and other identifying
information.
(b) Date of background check
approval.
(c) Current position.
(d) QE for each current position.
(e) Permanent hire date with
each QE.
(f) Permanent hire date in
the position at each QE.
(g) Last day of work for
each position at each QE.
(4) An SI shall complete
a new background check:
(a) At least every two years.
(b) If the Department requires
a new background check due to a change in position by the SI.
(c) If the Department has
reason to believe a new background check is needed.
(5) BCU shall immediately
remove an SI from the registry if a subsequent background check results in any outcome
other than approved.
Stat. Auth.: Or Laws 2014, ch 104; ORS
181.534, 181.537, 183.459, 409.025, 409.027, 409.050, 410.020, 411.060, 413.036,
443.725 & 443.735
Stats. Implemented: Or Laws
2014, ch 104; ORS 181.534, 181.537, 183.459, 409.010, 409.025, 409.027, 411.060
& 443.004
Hist.: DHSD 3-2014, f. &
cert. ef. 12-1-14
407-007-0630
Reporting Requirements for Qualified Entities
(1) CRIMS users for facilities and homecare
workers may access the registry online through CRIMS.
(2) If an SI is not found
in a search of the registry, CRIMS users may enter a background check request in
CRIMS to determine if the SI may be placed on the registry to work.
(3) QEs shall provide BCU
with the following information regarding an SI on the registry including but not
limited to:
(a) Permanent hire date of
SI for each position.
(b) Initiation of a new background
check due to report of any potentially disqualifying convictions or conditions (see
OAR 407-007-0280 to 407-007-0290).
(c) Change of position with
the QE.
(d) The SI’s last day
of work once the SI leaves a position.
Stat. Auth.: Or Laws 2014, ch 104; ORS
181.534, 181.537, 183.459, 409.025, 409.027, 409.050, 410.020, 411.060, 413.036,
443.725 & 443.735
Hist.: DHSD 3-2014, f. &
cert. ef. 12-1-14
407-007-0640
Access and Release of Information
(1) BCU shall maintain the registry
through CRIMS. CRIMS users for facilities and homecare workers may access the registry
online through CRIMS.
(2) An SI may request in
writing that BCU provide documentation of information included in the registry about
the SI.
Stat. Auth.: Or Laws 2014, ch 104; ORS
181.534, 181.537, 183.459, 409.025, 409.027, 409.050, 410.020, 411.060, 413.036,
443.725 & 443.735

Stats. Implemented: Or Laws
2014, ch 104; ORS 181.534, 181.537, 183.459, 409.010, 409.025, 409.027, 411.060
& 443.004

Hist.: DHSD 3-2014, f. &
cert. ef. 12-1-14
 

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