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BOARD OF PHARMACY
DIVISION 10
BOARD ADMINISTRATION AND POLICIES
855-010-0001
Definitions
(1) "Accredited": In these rules, accredited shall mean a school or college that is currently accredited by the Accreditation Council for Pharmacy Education (ACPE) or that is in a pre-candidate or candidate status with ACPE.
(2) "Board" means Oregon State Board of Pharmacy.
Stat. Auth.: ORS 475.005, 689.205
Stats. Implemented: ORS 689.115
Hist.: 1PB 18, f. & ef. 10-14-64; 1PB 2-1979(Temp), f. & ef. 10-3-79; 1PB 2-1980, f. & ef. 4-3-80; BP 1-2007, f. & cert. ef. 6-29-07
855-010-0005
Meetings
(1) The Board meetings shall be held not less than once every three months as designated by the Board.
(2) The President of the Board shall have power to call special meetings, subject to ORS 689.185, when it may be deemed necessary or upon request of a majority of members.
(3) The Board shall hold an annual meeting each year for the election of officers, the reorganization of the Board and the transaction of other business, which may include but is not limited to:
(a) Approval of ACPE programs;
(b) Approval of preceptor sites;
(c) Approval of accredited schools and colleges of pharmacy;
(d) Review and adopt by reference the Federal list of controlled substances.
Stat. Auth.: ORS 689.205
Stats. Implemented: ORS 689.135, 689.151, 689.185, 689.255
Hist.: 1PB 18, f. & ef. 10-14-64; 1PB 2-1980, f. & ef. 4-3-80; PB 1-1989, f. & cert. ef. 1-3-89; BP 1-2007, f. & cert. ef. 6-29-07
855-010-0015
Individual Commitments
(1) Board members shall be governed by Board action and shall make no individual commitments or promises on matters of Board policies.
(2) No declaration shall be made nor vote taken on any question, except at Board meetings. However, after due notification to each Board member, emergency votes may be taken by telephone conference or mail ballot of a majority of Board members, such vote to be confirmed at the next Board meeting.
Stat. Auth.: ORS 689
Stats. Implemented:
Hist.: 1PB 18, f. & ef. 10-14-64; 1PB 2-1979(Temp), f. & ef. 10-3-79; 1PB 2-1980, f. & ef. 4-3-80
855-010-0021
Adoption by Reference
All outside standards, statutes, rules and publications referred to in any rules adopted by the Board are by those references made a part of those rules as though fully set forth. Copies are available in the office of the Board of Pharmacy.
Stat. Auth.: ORS 689
Stats. Implemented:
Hist.: 1PB 2-1980, f. & ef. 4-3-80
855-010-0035
Board Compliance Program
The Board's Compliance Director and Pharmacy Inspectors shall be pharmacists licensed in the State of Oregon.
Stat. Auth.: ORS 689
Stats. Implemented:
Hist.: PB 6-1989, f. & cert. ef. 4-27-89
855-010-0045
State and Nationwide Criminal Background Checks
(1) The purpose of this rule is to provide for the reasonable screening of: applicants for licensure; directors, officers and designated representatives of drug outlets applying for registration; and individuals subject to investigation by the Board, in order to determine if they have a history of criminal behavior such that they are not fit to be granted or retain a license or registration issued by the Board.
(2) "Subject individual" means a person from whom the Board may require fingerprints for the purpose of enabling the Board to request a state or nationwide criminal records check. In this rule, subject individual means: applicants for licensure or renewal of a license; directors, officers and designated representatives of drug outlets applying for registration or renewal of a registration; and individuals subject to an investigation by the Board.
(3) This rule is to be applied when evaluating the criminal history of a subject individual and conducting fitness determinations based upon such history. The fact that a subject individual does not have an adverse criminal history does not guarantee the granting or renewal of a license, or registration.
(4) The Board may request that the Department of State Police conduct a state criminal history check and a national criminal history check, using fingerprint identification of subject individuals. The Board may conduct state criminal records checks on subject individuals and any licensee through the Law Enforcement Data System maintained by the Department of State Police in accordance with rules adopted, and procedures established, by the Department of State Police. Criminal history information obtained from the Law Enforcement Data System must be handled in accordance with ORS Chapter 181, OAR 257-010 to 257-015 and applicable Oregon State Police procedures.
(5) Additional Information Required. In order to conduct a state and national criminal history check and fitness determination, the Board may require additional information from the subject individual as necessary. Additional information may include but is not limited to, proof of identity; residential history; names used while living at each residence; or additional criminal, judicial, or other background information.
(6) In making the fitness determination, the Board may consider:
(a) The nature of any record that may include but is not limited to any record of arrest or conviction for:
(A) Any drug or alcohol offence;
(B) Any felony;
(C) Any offence involving fraud, theft, identity theft or other instance of dishonesty;
(D) Any offence involving violation of federal importation or customs laws or rules;
(E) Any offence requiring registration as a sex offender.
(b) The facts that support the conviction or indictment or that indicate the making of the false statement;
(c) The relevancy, if any, of the crime or the false statement to the specific requirements of the subject individual's license or registration; and
(d) Intervening circumstances relevant to the responsibilities and circumstances of the license or registration. Intervening circumstances include but are not limited to:
(A) The passage of time since the commission of the crime;
(B) The age of the subject individual at the time of the crime;
(C) The likelihood of a repetition of offenses or of the commission of another crime;
(D) The subsequent commission of another relevant crime;
(E) Whether the conviction was set aside and the legal effect of setting aside the conviction; and
(F) A recommendation of an employer.
(e) Any false statement made by the individual regarding the criminal history of the individual;
(f) Any refusal to submit or consent to a criminal record check including a refusal to provide fingerprint identification;
(g) Any other pertinent information obtained as part of an investigation.
(7) If a subject individual is determined to be unfit, then the individual may not be granted a license or registration or a renewal of a license or registration. The Board may make a fitness determination conditional upon applicant's acceptance of probation, conditions, limitations, or other restrictions upon licensure or registration.
(8) All background checks shall be requested to include available state and national data, unless obtaining one or the other is an acceptable alternative.
(9) Criminal offender information is confidential. Dissemination of information received under this rule may only be made to people with a demonstrated and legitimate need to know the information. When the information is part of the investigation of an applicant or licensee, it is confidential pursuant to ORS 676.175. Any fingerprint cards used to conduct a check shall be destroyed by either the Federal Bureau of Investigation or the Department of State Police as specified in ORS 181.534.
(10) The Board will permit the subject individual for whom a fingerprint-based criminal records check was conducted to inspect the individual's own state and national criminal offender records and, if requested by the subject individual, provide the individual with a copy of the individual's own state and national criminal offender records.
(11) If an applicant, licensee or certificate holder is determined not to be fit for a license or registration, they are entitled to a contested case hearing pursuant to ORS 183.413 to 470 and in accordance with OAR 855-001-0005 to 0017.
(12) A challenge to the accuracy or completeness of information provided by the Department of State Police, Federal Bureau of Investigation and agencies reporting information must be made through the Department of State Police, Federal Bureau of Investigation or reporting agency and not through the contested case process.
(13) Request for re-evaluation following correction. If the subject individual successfully contests the accuracy or completeness of information provided by the Oregon State Police, the Federal Bureau of Investigation or other agency reporting information to the Board, the Board will conduct a new criminal history check and re-evaluate the criminal history upon submission of a new criminal history request form.
(14) If the subject individual discontinues the application or fails to cooperate with the criminal history check process then the application is considered incomplete.
(15) Subject individuals will be required to pay the actual costs charged by the Department of State Police for the state and national criminal background check.
Stat. Auth.: ORS 181.534, 689.205
Stats. Implemented: ORS 689.207
Hist.: BP 2-2008, f. & cert. ef. 2-20-08
Criminal Background Checks
Employees, Applicants for Employment and Volunteers
855-010-0050
Purpose
The purpose of
these rules is to provide for the reasonable screening of subject individuals to
determine if they have a history of criminal behavior such that they are not fit
to work or volunteer for the Board. The fact that the Board determines that a subject
individual is fit does not guarantee the individual a position as a Board employee,
volunteer, or that the individual will be hired by the Board.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0055
Definitions
As used in OAR
855-010-0050 through 855-010-0086, unless the context of the rule requires otherwise,
the following definitions apply:
(1) Conviction:
A final judgment on a verdict or finding of guilty, a plea of guilty, or a plea
of nolo contendere (no contest) or any determination of guilt entered by a court
of law against a subject individual in a criminal case, unless that judgment has
been reversed or set aside by a subsequent court decision.
(2) Fitness
determination: A determination made by the Board, pursuant to the process established
under OAR 855-010-0060, that a subject individual is fit or not fit to be a Board
employee or volunteer.
(3) Criminal
offender information: Records and related data concerning physical description and
vital statistics, fingerprints received and compiled by the Oregon State Police
(OSP) to identify criminal offenders and alleged offenders, records of arrests and
the nature and disposition of criminal charges, including sentencing, confinement,
parole and release records.
(4) Criminal
records check: One or more of the following three processes undertaken by the Board
to check the criminal history of a subject individual:
(a) A
name-based check of criminal offender information conducted through the Law enforcement
Data System (LEDS) maintained by the OSP, in accordance with the rules adopted and
procedures established by the OSP;
(b) A
check of Oregon criminal offender information, through fingerprint identification
and other means, conducted by the OSP at the Board's request (Oregon Criminal Records
Check); or
(c) A
nationwide check of federal criminal offender information, through fingerprint identification
and other means, conducted by the OSP through the FBI or otherwise at the Board's
request (Nationwide Criminal Records Check).
(5) Criminal
Records Request form: A Board-approved form, completed by a subject individual,
requesting the Board to conduct a criminal records check.
(6) False
statement: In association with an activity governed by these rules, a subject individual
either:
(a) Provided
the Board with false information about the subject individual’s criminal history,
including but not limited to false information about the individual’s identity
or conviction record; or
(b) Failed
to provide the Board information material to determining the individual’s
criminal history.
(7) Subject
Individual: An individual identified in OAR 855-010-0057 as someone from whom the
Board may require a criminal records check.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0057
Subject Individual
The Board may
require a subject individual to complete a criminal records check pursuant to these
rules because the person is:
(1) A
Board employee
(2) A
Board volunteer; or
(3) An
applicant for employment with the Board.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0060
Criminal
Records Check Process
(1) Disclosure
of Information by Subject Individual.
(a) Preliminary
to a criminal records check, a subject individual must complete and sign the Board
Criminal Records Request form and a fingerprint card. Both forms ask for identifying
information (e.g., name, birth date, social security number, physical characteristics,
driver's license or identification card number and current address of the subject
individual). The Board Criminal Records Request form also requires information about
the subject individual’s prior residences in other states and any other identifying
information deemed necessary by the Board.
(b) A
subject individual must complete and submit to the Board the Criminal Records Request
form and, if requested, a fingerprint card within five business days of receiving
the forms. The Board may extend the deadline for good cause.
(c) The
Board may require additional information from the subject individual as necessary
to complete the criminal records check and fitness determination, such as, but not
limited to, proof of identity, or additional criminal, judicial, or other background
information.
(d) The
Board shall not request a fingerprint card from a subject individual under the age
of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550
et seq, or unless the Board also requests the written consent of a parent or guardian.
In such case, such parent or guardian and youth must be informed that they are
not required to consent. Notwithstanding, failure to consent may be construed as
a refusal to consent under OAR 855-010-0065(3).
(2) When
a Criminal Records Check is required. The Board may conduct, or request the OSP
to conduct, a criminal record check when:
(a) An
individual meets the definition of a subject individual; or
(b) Required
by federal law or regulation, by state statute or administrative rule, or by contract
or written agreement with the Board.
(3) Which
Criminal Records Check is conducted. When the Board determines under section (2)
of this rule that a criminal records check is needed, the Board may request or conduct
a LEDS Criminal Records Check, an Oregon Criminal Records Check, a Nationwide Criminal
Records Check, or any combination thereof.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0065
Final Fitness Determination
(1) If the Board
elects to conduct a criminal records check, the Board shall make a fitness determination
about a subject individual based on information provided by the subject individual
under OAR 855-010-0060(1), any criminal records check conducted, and any false statement
made by the subject individual.
(2) In
making a fitness determination about a subject individual, the Board will also consider
the factors in subsections (a) through (f) below in relation to information provided
by the subject individual under OAR 855-010-0060(1), any LEDS report or criminal
offender information obtained through a criminal records check, and other information
known by the Board. To assist in considering these factors, the Board may obtain
any other information deemed relevant from the subject individual or any other source,
including law enforcement and criminal justice agencies or courts within or outside
of Oregon. To acquire other criminal offender information from the subject individual,
the Board may request to meet with the subject individual, and may request to receive
written materials or authorization to obtain other relevant information, from the
subject individual. The subject individual shall meet with the Board if requested
and provide additional information or authorization within a reasonable period of
time, as established by the Board. The Board will use all collected information
in considering:
(a) Whether
the subject individual has been convicted, found guilty except for insanity (or
a comparable disposition), or has a pending indictment for a crime listed in OAR
855-010-0067;
(b) The
nature of any crime identified under section (2)(a) of this rule;
(c) The
facts that support the conviction, finding of guilty except for insanity, or pending
indictment;
(d) Any
facts that indicate the subject individual made a false statement;
(e) The
relevance, if any, of a crime identified under section (2)(a) of this rule or of
a false statement made by the subject individual to the specific requirements of
the subject individual's present or proposed position, services or employment; and
(f) The
following intervening circumstances, to the extent that they are relevant to the
responsibilities and circumstances of the services or employment for which the fitness
determination is being made:
(A) The
passage of time since the commission or alleged commission of a crime identified
under section (2)(a) of this rule;
(B) The
age of the subject individual at the time of the commission or alleged commission
of a crime identified under section (2)(a) of this rule;
(C) The
likelihood of a repetition of offenses or of the commission of another crime;
(D) The
subsequent commission of another crime listed in OAR 855-010-0067;
(E) Whether
a conviction identified under section (2)(a) of this rule has been set aside, and
the legal effect of setting aside the conviction;
(F) A
recommendation of an employer;
(G) The
disposition of a pending indictment identified under section (2)(a) of this rule;
(H) Whether
the subject individual has been arrested for or charged with a crime listed under
OAR 855-010-0067;
(I) Whether
the subject individual is being investigated, or has an outstanding warrant, for
a crime listed under OAR 855-010-0067;
(J) Whether
the subject individual is currently on probation, parole or another form of post-prison
supervision for a crime listed under 855-010-0067;
(K) Whether
the subject individual has a deferred sentence or conditional discharge in connection
with a crime listed under OAR 855-010-0067;
(L) Whether
the subject individual has been adjudicated in a juvenile court and found to be
within the court's jurisdiction for an offense that would have constituted a crime
listed in OAR 855-010-0067if committed by an adult;
(M) Periods
of incarceration of the subject individual;
(N) The
education and work history (paid or volunteer) of the subject individual since the
commission or alleged commission of a crime.
(3) Refusal
to Consent. If a subject individual refuses to submit or consent to a criminal records
check including fingerprint identification, the Board will deny the employment of
the subject individual or deny any applicable position or authority to provide services.
A person may not appeal any determination made based on a refusal to consent.
(4) If
a subject individual is determined to be not fit, the subject individual may not
be employed by or provide services as a volunteer to the Board.
(5) Final
Order. A completed final fitness determination is a final order of the Board unless
the affected subject individual appeals the determination by requesting a contested
case hearing as provided by OAR 855-010-0080(2) or an alternative appeals process
as provided by OAR 855-010-0080(6).
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0067
Potentially
Disqualifying Crimes
(1) Crimes Relevant
to a Fitness Determination:
(a) All
felonies;
(b) All
misdemeanors;
(c) Any
United States Military crime or international crime;
(2) Evaluation
of Crimes. The Board shall evaluate a crime on the basis of the law of the jurisdiction
in which the crime or offense occurred, as those laws are in effect at the time
of the fitness determination.
(3) Expunged
Juvenile Record. Under no circumstances shall a subject individual be determined
to be not fit under these rules on the basis of the existence or contents of a juvenile
record that has been expunged pursuant to ORS 419A.260 and ORS 419A.262.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0070
Incomplete Fitness Determination
(1) The Board
will close a preliminary or final fitness determination as incomplete when:
(a) Circumstances
change so that a person no longer meets the definition of a "subject individual"
under OAR 855-010-0057;
(b) The
subject individual does not submit materials or information within the time required
under OAR 855-010-0060;
(c) The
Board cannot locate or contact the subject individual;
(d) The
subject individual fails or refuses to cooperate with the Board's attempts to acquire
other criminal records information under OAR 855-010-0065; or
(e) The
Board determines that the subject individual is not eligible or not qualified for
the position of employee or volunteer, for a reason unrelated to the fitness determination
process.
(f) The
position is no longer open.
(2) A
subject individual does not have a right to a contested case hearing under OAR 855-010-0080(2)
or a right to an alternative appeals process under OAR 855-010-0080(6) to challenge
the closing of a fitness determination as incomplete.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0075
Notice
to Subject Individual of Fitness Determination
The Board shall
inform the subject individual who has been determined not to be fit on the basis
of a criminal records check, via
personal service, or registered or certified mail to the most current address provided
by the subject individual, of such disqualification.
Stat. Auth.: ORS 181.534,
676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0080
Appealing a Fitness Determination
(1) Purpose:
Sections (2) to (5) of this rule set forth the contested case hearing process a
subject individual must use to appeal a completed final fitness determination made
under OAR 855-010-0065 that the individual is not fit to hold a position with, or
provide services to the Board as an employee or volunteer. Section (6) of this rule
identifies an alternative appeal process available only to current Board employees.
(2) Appeal
process.
(a) To
request a contested case hearing, the subject individual or the subject individual's
legal representative must submit a written request for a contested case hearing
to the address specified in the notice provided under OAR 855-010-0075. To be timely,
the request must be received by the Board at the specified address within 14 calendar
days of the date stated on the notice. The Board shall address a request received
after expiration of the deadline as provided under OAR 137-003-0528.
(b) When
a timely request is received by the Board under subsection (a), a contested case
hearing shall be conducted by an administrative law judge assigned by the Office
of Administrative Hearings, pursuant to the Attorney General's Uniform and Model
Rules, “Procedural Rules, Office of Administrative Hearings” OAR 137-003-0501
to 137-003-0700, as supplemented by the provisions of this rule.
(3) Discovery.
The Board or the administrative law judge may protect information made confidential
by ORS 181.534(15) or other applicable law as provided under OAR 137-003-0570(7)
or (8).
(4) No
Public Attendance. Contested case hearings on fitness determinations are closed
to non-participants.
(5) Proposed
and Final Order:
(a) Proposed
Order. After a hearing, the administrative law judge will issue a proposed order.
(b) Exceptions.
Exceptions, if any, shall be filed within 14 calendar days after service of the
proposed order. The proposed order shall provide an address to which exceptions
must be sent.
(c) Default.
A completed final fitness determination made under OAR 855-010-0065 becomes final:
(A) Unless
the subject individual makes a timely request for a hearing; or
(B) When
a party withdraws a hearing request, notifies the Board or the ALJ that the party
will not appear, or fails to appear at the hearing.
(6) Alternative
Process. A subject individual currently employed by the Board may choose to appeal
a fitness determination either under the process made available by this rule or
through a process made available by applicable personnel rules, policies and collective
bargaining provisions. A subject individual's decision to appeal a fitness determination
through applicable personnel rules, policies, and collective bargaining provisions
is an election of remedies as to the rights of the individual with respect to the
fitness determination and is a waiver of the contested case process made available
by this rule.
(7) Remedy.
The only remedy that may be awarded is a determination that the subject individual
is fit or not fit. Under no circumstances shall the Board be required to place
a subject individual in any position, nor shall the Board be required to accept
services or enter into a contractual agreement with a subject individual.
(8) Challenging
Criminal Offender Information. A subject individual may not use the appeals process
established by this rule to challenge the accuracy or completeness of information
provided by the OSP, the FBI, or agencies reporting information to the OSP or the
FBI.
(a) To
challenge information identified in this section of the rule, a subject individual
may use any process made available by the agency that provided the information.
(b) If
the subject individual successfully challenges the accuracy or completeness of information
provided by the OSP, the FBI, or an agency reporting information to the OSP or the
FBI, the subject individual may request that the Board conduct a new criminal records
check and re-evaluate the original fitness determination made under OAR 855-010-0065
by submitting a new Board Criminal Records Request form. This provision only applies
if the position for which the original criminal history check was conducted is vacant
and available.
(9) Appealing
a fitness determination under section (2) or section (6) of this rule, challenging
criminal offender information with the agency that provided the information, or
requesting a new criminal records check and re-evaluation of the original fitness
determination under section (8)(b) of this rule, will not delay or postpone the
Board’s hiring process or employment decisions.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0085
Recordkeeping
and Confidentiality
Any information
obtained in the criminal records check is confidential. The Board must restrict
the dissemination of information obtained in the criminal records check. Only those
persons, as identified by the Board, with a demonstrated and legitimate need to
know the information, may have access to criminal records check records.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
855-010-0087
Fees
(1) The Board
may charge a fee for acquiring criminal offender information for use in making a
fitness determination that will not exceed the fee charged the Board by the OSP
and the FBI to obtain such information.
(2) The
Board may charge the fee to the subject individual on whom criminal offender information
is sought.
Stat. Auth.:
ORS 181.534, 676.303, 689.205
Stats.
Implemented: ORS 181.534
Hist.:
BP 1-2011(Temp), f. & cert. ef. 2-8-11 thru 6-30-11; BP 4-2011, f. 6-24-11,
cert. ef. 7-1-11
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contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
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