DHS, Administrative Services Division and Director's Office_407

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The Oregon Administrative Rules contain OARs filed through January 15, 2010

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;

(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;

(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.

(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.

(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.

(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.

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.

(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.

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.

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.

(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.

(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).

(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.

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

(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.

(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.

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.

(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.

(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.

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;

(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

(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 and 181.537 of subject individuals to determine if they have a history of criminal 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 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 individuals subject to OAR 407-007-0000 to 407-007-0100.

Stat. Auth.: ORS 181.534, 181.537, 409.050, 410.020, 411.060, 411.122, 418.016, 418.640, 441.055, 443.730, 443.735 & 678.153
Stats. Implemented: ORS 181.534, 181.537, 409.010, 411.060 & 411.122
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

407-007-0210

Definitions

As used in OAR 407-007-0200 to 407-007-0370, unless the context of the rule requires otherwise, the following definitions apply:

(1) “Appointing authority” means the individual designated by the qualified entity responsible for appointing authorized designees and contact persons. Examples include but are not limited to human resources staff with the authority to offer and terminate employment, business owners, a member of the board of directors, a director, or a program administrator.

(2) “Approved” means, with regard to a fitness determination, 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.

(3) “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.

(4) “Authorized designee (AD)” means an individual designated by the Department of Human Services, or an approved qualified entity authorized by the Department of Human Services to receive and process criminal records check request forms from subject individuals and criminal records information from the Department of Human Services.

(5) “Background Check Unit (BCU)” means the Department of Human Services’ Background Check Unit.

(6) “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).

(7) “Client” means any individual who receives services, care, or funding for care through the Department of Human Services.

(8) “Closed case” means a criminal records check application that has been closed without a final fitness determination.

(9) “Contact person (CP)” means an individual who is designated by the Department of Human Services or an approved qualified entity to receive and process criminal records check request forms from subject individuals, but who is not authorized to receive criminal records information from the Department of Human Services.

(10) “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 cards 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.

(11) “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).

(12) “Denied” means, with regard to a fitness determination, that a subject individual, 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 form.

(13) “Department” means the Department of Human Services.

(14) “Fitness determination” means the decision in a case that is not closed, and includes:

(a) The decision regarding a Background Check Request form and preliminary review (a preliminary fitness determination); or

(b) The decision regarding a Background Check Request form, completed criminal records check, including gathering other information as necessary, and a final review by an AD (a final fitness determination).

(15) “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 that includes but is not limited to an explanation of circumstances beyond a subject individual’s reasonable control.

(16) “Hearing representative” means a Department employee representing the Department in a contested case hearing.

(17) “Hired on a preliminary basis” means a condition in which a qualified entity allows a subject individual 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 may also be called probationary status.

(18) “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 Request 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.

(19) “Position” means the position listed on the Background Check Request form which determines whether the individual is a subject individual under these or Department program rules.

(20) “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).

(21) “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.

(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 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 any entity or agency licensed, certified, registered, or otherwise regulated by the Department.

(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 direct care staff secured by any long term care facility licensed by the Department pursuant to ORS chapter 441 through the services of a personnel services or staffing agency who works in the long term care facility.

(E) Except as provided in section (21)(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.

(F) An individual working or volunteering for a private licensed child caring agency or system of care contractor providing child welfare services pursuant to ORS chapter 418.

(G) A homecare worker, 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.

(H) 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 Child Care Division of the Oregon Employment Department (OED). This includes all individuals who reside in or who are frequent visitors to the residence or facility where the child care services are provided and who may have unsupervised access to the children (see OAR 461-165-0180).

(I) An AD or CP in any entity or agency licensed, certified, registered, or otherwise regulated by the Department.

(J) An individual providing on the job certified nursing assistant classes to staff within a long term care facility.

(K) A student at a long term care facility enrolled in a certified nursing assistant class for employment at the facility.

(L) Any individual serving as an owner, operator, or manager of a room and board facility pursuant to OAR 411-068.

(M) Except as provided in section (21)(b) of this rule, any individual who is required to complete a criminal records check pursuant to other Department program rules or a contract with the Department or if the requirement is within Department’s statutory authority. Specific statutory authority or reference to these rules and the positions under the contract subject to a criminal records check must be specified in the contract.

(b) An SI does not include:

(A) Any individual under 16 years of age.

(B) An individual receiving training in a Department-licensed or Department-certified facility as part of the required curriculum through any college, university, or other training program and who is not an employee in the facility in which training is provided. The individual may not be considered a volunteer under these rules. Facilities must ensure that all students or interns have passed a substantially equivalent background check process through the training program or are:

(i) Actively supervised at all times as defined in OAR 407-007-0315; and

(ii) Not allowed to have unsupervised access to vulnerable individuals.

(C) Department clients or QE clients , unless specific written permission to conduct a criminal records check is received from the Department. The only circumstance in which the Department 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 (21)(a)(A)–(D) and 21(a)(F)-(M) of this rule.

(D) Individuals who live in or visit relative adult foster homes. This exclusion does not apply to the licensee.

(E) Individuals working in child care facilities certified or registered by the OED.

(F) Individuals employed by a private business that provides services to clients and the general public and is not regulated by the Department.

(G) 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 an environment regulated by the Department. 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 for care provided by an employee of the business.

(H) Individuals employed by a private business in which a client of the Department is working as part of a Department-sponsored employment service program. This exclusion does not apply to an employee of a business that receives funds from the Department for care provided by the employee.

(I) Employees and volunteers working in hospitals, ambulatory surgical centers, special inpatient care facilities, outpatient renal dialysis facilities, and freestanding birthing centers as defined in ORS 442.015, in-home care agencies as defined on ORS 443.305, and home health agencies as defined in ORS 443.005.

(J) Volunteers, who are not under the direction and control of any entity licensed, certified, registered, or otherwise regulated by the Department.

(K) Individuals employed or volunteering in a Medicare-certified health care business which is not subject to licensure or certification by the State of Oregon.

(L) Individuals working in restaurants or at public swimming pools.

(M) Hemodialysis technicians.

(N) Individuals employed by alcohol and drug programs that are certified, licensed, or approved by the Department’s Addictions and Mental Health Division to provide prevention, evaluation, or treatment services. This exclusion does not apply to programs specifically required by other Department rules to conduct criminal records checks in accordance with these rules.

(O) Individuals working for a transit service provider which conducts background checks pursuant to ORS 267.237.

(P) 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.

(Q) Provider group categories that were authorized for payment by the Department for care if the provider group categories were not covered by a Department criminal record check process prior to 2004.

(R) Emergency medical technicians and first responders certified by the Department’s Emergency Medical Services and Trauma Systems program.

(S) An individual employed by an entity that provides services solely contracted under ORS 414.022.

(22) “Weighing test” means a process in which one or more ADs consider available information to make a fitness determination when an SI has potentially disqualifying crimes or conditions.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 181.534, 181.537 & 409.010
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

407-007-0220

Criminal History Check Required

(1) The Department or a Department authorized QE 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).

(3) An SI is required to have a 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 (4) of this rule, the individual, whether previously considered an SI or not, changes positions under the same QE, and the new position requires a criminal records check.

(d) The individual, whether previously considered an SI or not, changes Department-issued licenses, certifications, or registrations, and the license, certification, or registration requires a criminal records check under these rules.

(e) A criminal records check is required by federal or state laws or regulations, other Department administrative rules, or by contract with the Department.

(f) When the Department or the AD 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) A criminal records check is not required under the following circumstances:

(a) A personal care services provider, Lifespan Respite care provider, or an independent provider paid with Department funds who changes or adds clients, and the prior, documented criminal records check conducted within the previous 24 months through the Department has been approved without restrictions.

(b) The SI is a child care provider as described in OAR 461-165-0180 who has been approved without restrictions and who changes or adds clients.

(c) The SI remains with a QE in the same position 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 new criminal records check.

(5) An AD must document in writing the reason why a new criminal records check was not completed.

(6) Criminal records checks are completed on SIs who otherwise meet the qualifications of the position in question. A criminal records check may not be used to screen applicants for a position.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 181.534, 181.537 & 409.010
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

407-007-0230

Qualified Entity

(1) A QE and its appointing authorities must be approved in writing by the Department pursuant to these rules in order to appoint an AD or CP. Unless specifically indicated otherwise in these rules, all QEs and appointing authorities discussed in these rules are considered approved.

(2) Except as provided in section (3) of this rule, all QEs shall ensure the completion of criminal records checks for SIs who are the QE’s employees, volunteers, or other SIs under the direction or control of the QE.

(a) The QE’s appointing authority shall appoint ADs or CPs within 30 calendar days following Department approval, or within time frames required by Department program offices.

(b) Unless specifically allowed by the Department, an appointing authority may not appoint themselves as an AD.

(c) Appointing authorities in all QEs shall appoint one or more ADs, or have a written agreement with another QE to handle AD responsibilities.

(d) Appointing authorities in all QEs may also appoint one or more CPs, or may have a written agreement with another QE to perform CP responsibilities.

(3) The Department’s appointing authorities shall appoint ADs and CPs within the Department. Department-employed ADs shall make fitness determinations for the following QEs:

(a) Private QEs with fewer than 10 employed SIs are not eligible to appoint ADs. These QEs shall do one of the following:

(A) Use another QE to perform AD responsibilities instead of using the Department. If another QE is used, the two QEs must have a written agreement. The QE must provide the Department with a copy of the agreement.

(B) Appoint one or more CPs, or have a written agreement with another QE to perform CP responsibilities. The QE must provide the Department with a copy of the agreement.

(b) QEs with SIs not under the direction and control of the QE but who provide care under programs administered by the QE may have the Department ADs make fitness determinations.

(A) The QE shall appoint one or more CPs, or use an AD or CP appointed under section (2) of this rule to perform CP responsibilities.

(B) The QE may appoint an AD for SIs not under the direction and control of the QE if the QE chooses to do so or is required to do so under other Department program rules or contract with the Department. The QE shall notify the Department in writing which programs are affected and which AD shall perform the responsibilities for each program.

(A) Administrative rules governing certain QEs may prohibit AD appointment or CP appointment, such as private licensed child caring agencies.

(B) Department program offices may determine that:

(i) Certain QEs may not have their own ADs or CPs, but must use ADs or CPs at a local Department branch or a local QE. Examples include but are not limited to adult foster homes and child foster homes.

(ii) Specific QEs may have specific AD or CP requirements resulting from licensing actions, sanctions, or from quality assurance monitoring.

(d) The Department may require certain QEs to use Department-employed ADs to make fitness determinations. Examples include but are not limited to initial opening of a new QE, newly adopted administrative rules creating a new type of QE, or Department investigation or review of the QE.

(4) The Department may revoke approval of the QE to appoint or maintain ADs if the Department is investigating a compliance issue or determines that the QE, or an AD or CP appointed by the QE, has failed to comply with these rules. The BCU and the appropriate entity or program office within the Department may develop a plan of action to resolve the compliance issues.

(5) The QE’s appointing authorities shall appoint ADs and CPs as needed to remain in compliance with these rules. If a QE no longer has an AD or CP for any reason, the appointing authorities shall ensure that new ADs or CPs are appointed within 30 calendar days from the date of no longer having ADs or CPs, and shall communicate any changes to the BCU.

(6) The Department shall provide QEs with periodic training and on-going technical assistance.

(7) Any decisions made by the Department in regard to these rules are final and may not be overturned by any QE, its ADs or CPs.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 181.534, 181.537 & 409.010
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

407-007-0240

Authorized Designees and Contact Persons

(1) All requirements in this section must be completed within 90 calendar days. To receive Department approval, all ADs and CPs must meet the following requirements:

(a) ADs and CPs for the Department must be employed by the Department. For QEs, the ADs and CPs must be one of the following:

(A) Employed by the agency for which they will handle criminal records check information.

(B) Contracted with the QE to perform as an AD or CP.

(C) Employed by another similar QE or a parent QE (e.g., assisted living facility AD helping another assisted living facility).

(b) ADs and CPs shall complete a training program and successfully pass any testing as required by the Department.

(c) An appointing authority shall appoint an AD or CP in writing on a form provided by the Department. The applicant AD or CP shall complete and submit the form to the Department for processing and registration.

(d) The Department shall conduct an Oregon criminal records check, a national criminal records check, and if necessary, a state-specific criminal records check. The AD or CP must have:

(A) No conviction for a potentially disqualifying permanent review crime;

(B) No convictions for any other crime in the past 15 years;

(D) If an AD, Criminal Justice Information Systems (CJIS) clearance and approval to view criminal records in accordance with OSP rules.

(e) The Department shall conduct an abuse check if Department program rules require an abuse check on SIs and the BCU has the authority to conduct the abuse check. The AD or CP may not have been found responsible for abuse of a vulnerable person.

(2) The Department shall deny the individual’s status as an AD or CP if the individual does not meet the AD or CP requirements. Once denied, the individual may no longer perform the duties of an AD or CP. There are no exceptions for individuals who do not meet the AD or CP requirements.

(3) Approved ADs and CPs shall have the following responsibilities:

(a) Demonstrate understanding of and adherence to these rules in all actions pertaining to the criminal records check process.

(b) Act as the Department’s designee in any action pursuant to these rules and the criminal records check process. The AD or CP may not advocate for an SI during any part of the criminal records 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. Only an AD may view criminal offender information. A CP may not view criminal offender information.

(d) Verify the identity of an SI. The AD or CP shall verify identity or ensure that the same verification requirements are understood by each individual responsible for verifying identity.

(A) If conducting a criminal records check on the SI for the first time or at rehire of the SI, the AD or CP shall verify identity by 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.

(B) If an AD or CP is verifying the identity of an SI who is being rechecked, review of government-issued photo identification may not be necessary, but the AD or CP shall verify the SI’s name, current address, and any aliases or previous names. (e) Ensure that an SI is not permitted to work, volunteer, reside, or otherwise hold any position covered by these rules before the completion of a preliminary fitness determination and submission of the Background Check Request form to the Department along with a fingerprint card if the SI discloses out of state criminal records or residency.

(f) 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.

(g) 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 the completion of a final fitness determination or unless the BCU reinstates hired on a preliminary basis.

(h) Notify the Department of any changes regarding an SI who still has a criminal records check being processed, including but not limited to address or employment status changes.

(i) Monitor the status of criminal records check applications and investigate any delays in processing.

(j) Ensure that documentation required by these rules is processed and maintained in accordance with these rules.

(k) Notify the BCU immediately if arrested, charged, or convicted of any crime.

(4) A CP may not conduct final fitness determinations or review criminal offender information. A CP has the following limitations when making preliminary fitness determinations:

(a) The CP may review the SIs completed Background Check Request form to ensure completeness of the form, verify identity, and to determine if the SI has any potentially disqualifying crimes or conditions.

(b) The CP may allow the SI to be hired on a preliminary basis only after the CP has reviewed the Background Check Request form and determined there is no indication that the SI has any potentially disqualifying crimes or conditions.

(c) The CP shall not allow an SI who discloses any potentially disqualifying crimes or conditions to work on a preliminary basis.

(d) If the SI discloses potentially disqualifying crimes or conditions, the CP shall forward the Background Check Request form to an AD for preliminary fitness determination, or to the BCU for processing if there is no local AD available.

(5) In addition to the responsibilities listed in section (3) of this rule, the AD shall:

(a) Review the completed Background Check Request form (if not already done so by a CP) and conduct a preliminary fitness determination to determine eligibility for probationary status before forwarding the Background Check Request form to the BCU.

(b) Make a final fitness determination on all SIs when the Department returns their Background Check Request form to the AD for final review. The decision of an AD may not be overruled by an employee, owner, or board member of a QE who is not an AD.

(d) Ensure the confidentiality and integrity of criminal records check documents. After the completion of a criminal records check, ADs not involved with original fitness determinations may not review criminal records check documents to gain information on an SI’s criminal history. If a review is necessary, the AD must have written approval from the Department prior to reviewing any documents.

(6) An AD may not have access to criminal offender information, other criminal information (except the Background Check Request form), or make a fitness determination if there is a conflict of interest between the AD and the SI.

(a) A conflict of interest includes but is not limited to the following situations:

(A) If the AD is related to the SI. In this context, “related” means spouse, domestic partner, natural parent, child, sibling, adopted child, adopted parent, stepparent, stepchild, stepbrother, stepsister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, or cousin.

(B) If the AD has a close personal or financial relationship, other than an employee-employer relationship, with the SI.

(b) When there is a conflict of interest and the QE has no other ADs available to conduct the fitness determination, the Department shall complete the fitness determination.

(7) The Department may change AD or CP status in the following circumstances which include but are not limited to:

(a) The Department shall inactivate AD or CP status when the AD or CP position with the QE ends or when the QE terminates the appointment. The QE shall notify the Department immediately upon the end of the position or termination of the appointment.

(b) The Department or QE shall suspend or revoke the appointment if an AD or CP fails to comply with responsibilities or fails to continue to meet the requirements for AD or CP, as applicable. After suspending or revoking the appointment, the QE must immediately notify the BCU in writing. If the Department takes the action, it must immediately notify the QE in writing.

(8) Any changes to AD or CP status are not subject to appeal rights unless the denial or termination results in immediate loss of employment or position. ADs or CPs losing employment or position have the same hearing rights as other SIs under these rules.

(9) If an AD or CP leaves employment with the QE for any reason, the Department shall inactivate AD or CP status. If the individual finds employment with another QE, a new appointment, application, and registration must be completed.

(10) The Department shall review and recertify appointments of ADs and CPs, up to and including a new application, criminal records check, abuse check if required, and additional training, to under the following circumstances:

(a) Every three years; or

(b) Any time the Department has reason to believe the individual no longer meets the AD or CP requirements including but not limited to indication of criminal behavior or indication of noncompliance with these rules.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 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 410-007-0240, 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

407-007-0250

Oregon Criminal History Check Process

(1) A QE and SI shall use the Background Check Request form to request a criminal records check that must include the following information:

(a) Name and aliases;

(b) Date of birth;

(d) Driver license or identification card information;

(e) Position the SI is completing the Background Check Request form;

(f) 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 the Department.

(g) Disclosure of other information to be considered in the event of a weighing test.

(2) The Background Check Request form shall include the following notices:

(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.

(3) The BCU shall review each Background Check Request form received for completeness and timeliness. If the BCU rejects the form, the QE’s AD or CP shall immediately remove the SI from the position. If the QE still plans to hire the SI, the QE shall resolve the reasons for rejection and re-submit the form.

(4) The Department or an approved QE under contract with OSP for LEDS access shall conduct an Oregon criminal records check after a completed Background Check Request form is received. Using information submitted on the Background Check Request form, the Department or QE may obtain criminal offender information from LEDS and may request other criminal records information as needed.

(5) The Department and all QEs receiving LEDS information 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) The Department may conduct a fingerprint-based national criminal records check after an Oregon criminal records check has been completed.

(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.

(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 the Department indicate there may be criminal records outside of Oregon.

(D) The Department has reason to question the identity or criminal record of the SI.

(E) A fingerprint-based criminal records check is required by federal or state laws or regulations, other Department rules, or by contract with the Department.

(F) The SI is an AD or CP.

(G) 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. The Department shall send the request to the QE and the AD or CP shall notify the SI.

(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 407-007-0250(2)(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. 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) The Department may extend the time allowed for good cause provided by the SI or QE.

(7) The Department 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 the Department has reason to believe that out-of-state criminal records may exist and a national criminal records check may not be accomplished.

(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 the SI including but not limited to additional criminal, judicial, other background information, or proof of identity.

(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 that could more likely than not pose an immediate risk to vulnerable individuals, the Department shall conduct a new criminal records check on an SI without the completion of a new Background Check Request form.

(b) If the Department determines that a fitness determination based on the new 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 407-007-0300 before the completion of the fitness determination.

(10) All criminal records checks conducted under this rule shall be documented in writing.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 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

407-007-0280

Potentially Disqualifying Crimes

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 be completed regardless of date of conviction.

(a) ORS 162.155, Escape II.

(b) ORS 162.165, Escape I.

(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 163.257, Custodial interference I.

(z) ORS 163.263, Subjecting another person to involuntary servitude in the second degree.

(aa) ORS 163.264, Subjecting another person to involuntary servitude in the first degree.

(bb) ORS 163.266, Trafficking in persons.

(cc) ORS 163.275, Coercion.

(dd) ORS 163.355, Rape III.

(ee) ORS 163.365, Rape II.

(ff) ORS 163.375, Rape I.

(gg) ORS 163.385, Sodomy III.

(hh) ORS 163.395, Sodomy II.

(ii) ORS 163.405, Sodomy I.

(jj) ORS 163.408, Unlawful sexual penetration II.

(kk) ORS 163.411, Unlawful sexual penetration I.

(ll) ORS 163.415, Sexual abuse III.

(mm) ORS 163.425, Sexual abuse II.

(nn) ORS 163.427, Sexual abuse I.

(oo) ORS 163.432, Online sexual corruption of a child in the second degree.

(pp) ORS 163.433, Online sexual corruption of a child in the first degree.

(qq) ORS 163.435, Contributing to the sexual delinquency of a minor.

(rr) ORS 163.445, Sexual misconduct.

(ss) ORS 163.452, Custodial sexual misconduct I.

(tt) ORS 163.454, Custodial sexual misconduct II.

(uu) ORS 163.465, Public indecency.

(vv) ORS 163.467, Private indecency.

(ww) ORS 163.476, Unlawfully being in a location where children regularly congregate.

(xx) ORS163.479, Unlawful contact with a child.

(yy) ORS 163.515, Bigamy.

(zz) ORS 163.525, Incest.

(aaa) ORS 163.535, Abandonment of a child.

(bbb) ORS 163.537, Buying or selling a person under 18 years of age.

(ccc) ORS 163.545, Child neglect II.

(ddd) ORS 163.547, Child neglect I.

(eee) ORS 163.555, Criminal nonsupport.

(fff) ORS 163.575, Endangering the welfare of a minor.

(ggg) ORS 163.670, Using child in display of sexually explicit conduct.

(hhh) ORS 163.680, Paying for viewing a child’s sexually explicit conduct.

(iii) ORS 163.684, Encouraging child sexual abuse I.

(jjj) ORS 163.686, Encouraging child sexual abuse II.

(kkk) ORS 163.687, Encouraging child sexual abuse III.

(lll) ORS 163.688, Possession of materials depicting sexually explicit conduct of a child I.

(mmm) ORS 163.689, Possession of materials depicting sexually explicit conduct of a child II.

(nnn) ORS 163.693, Failure to report child pornography.

(ooo) ORS 163.700, Invasion of personal privacy.

(ppp) ORS 163.732, Stalking.

(qqq) ORS 163.750, Violating court's stalking protective order.

(rrr) ORS 164.055, Theft I.

(sss) ORS 164.057, Aggravated theft I.

(ttt) ORS 164.075, Theft by extortion.

(uuu) ORS 164.085, Theft by deception.

(vvv) ORS 164.098, Organized retail theft.

(www) ORS 164.125, Theft of services.

(xxx) ORS 164.135, Unauthorized use of a vehicle.

(yyy) ORS 164.170, Laundering a monetary instrument.

(zzz) ORS 164.215, Burglary II.

(aaaa) ORS 164.225, Burglary I.

(bbbb) ORS 164.315, Arson II.

(cccc) ORS 164.325, Arson I.

(dddd) ORS 164.377, Computer crime.

(eeee) ORS 164.395, Robbery III.

(ffff) ORS 164.405, Robbery II.

(gggg) ORS 164.415, Robbery I.

(hhhh) ORS 165.013, Forgery I.

(iiii) ORS 165.022, Criminal possession of a forged instrument I.

(jjjj) ORS 165.032, Criminal possession of a forgery device.

(kkkk) ORS 165.055, Fraudulent use of a credit card.

(llll) ORS 165.065, Negotiating a bad check.

(mmmm) ORS 165.581, Cellular counterfeiting I.

(nnnn) ORS 165.800, Identity theft.

(oooo) ORS 165.803, Aggravated identity theft.

(pppp) ORS 165.810, Unlawful possession of a personal identification device.

(qqqq) ORS 166.005, Treason.

(rrrr) ORS 166.085, Abuse of corpse II.

(ssss) ORS 166.087, Abuse of corpse I.

(tttt) ORS 166.155, Intimidation II.

(uuuu) ORS 166.165, Intimidation I.

(vvvv) ORS 166.220, Unlawful use of weapon.

(wwww) ORS 166.270, Possession of weapons by certain felons.

(xxxx) ORS 166.272, Unlawful possession of machine guns, certain short-barreled firearms and firearm silencers.

(yyyy) ORS 166.275, Possession of weapons by inmates of institutions.

(zzzz) ORS 166.370, Possession of firearm or dangerous weapon in public building or court facility; exceptions; discharging firearm at school.

(aaaaa) ORS 166.382, Possession of destructive device prohibited.

(bbbbb) ORS 166.384, Unlawful manufacture of destructive device.

(ccccc) ORS 166.429, Firearms used in felony.

(ddddd) ORS 166.720, Racketeering activity unlawful.

(eeeee) ORS 167.012, Promoting prostitution.

(fffff) ORS 167.017, Compelling prostitution.

(ggggg) ORS 167.054, Furnishing sexually explicit material to a child.

(hhhhh) ORS 167.057, Luring a minor.

(iiiii) ORS 167.062, Sadomasochistic abuse or sexual conduct in live show.

(jjjjj) ORS 167.075, Exhibiting an obscene performance to a minor.

(kkkkk) ORS 167.080, Displaying obscene materials to minors.

(lllll) ORS 167.212, Tampering with drug records.

(mmmmm) ORS 167.262, Adult using minor in commission of controlled substance offense.

(nnnnn) ORS 167.315, Animal abuse II.

(ooooo) ORS 167.320, Animal abuse I.

(ppppp) ORS 167.322, Aggravated animal abuse I.

(qqqqq) ORS 167.333, Sexual assault of animal.

(rrrrr) ORS 167.339, Assaulting law enforcement animal.

(sssss) ORS 181.594, Sex crimes including transporting child pornography into the state.

(ttttt) ORS 181.599, Failure to report as sex offender.

(uuuuu) ORS 433.010, Spreading disease (willfully) prohibited.

(vvvvv) ORS 475.525, Sale of drug paraphernalia prohibited.

(wwwww) ORS 475.805, Providing hypodermic device to minor prohibited.

(xxxxx) ORS 475.840, Prohibited acts generally (regarding drug crimes).

(yyyyy) ORS 475.846, Unlawful manufacture of heroin.

(zzzzz) ORS 475.848, Unlawful manufacture of heroin within 1,000 feet of school.

(aaaaaa) ORS 475.850, Unlawful delivery of heroin.

(bbbbbb) ORS 475.852, Unlawful delivery of heroin within 1,000 feet of school.

(cccccc) ORS 475.854, Unlawful possession of heroin.

(dddddd) ORS 475.856, Unlawful manufacture of marijuana.

(eeeeee) ORS 475.858, Unlawful manufacture of marijuana within 1,000 feet of school.

(ffffff) ORS 475.860, Unlawful delivery of marijuana.

(gggggg) ORS 475.862, Unlawful delivery of marijuana within 1,000 feet of school.

(hhhhhh) ORS 475.864, Unlawful possession of marijuana.

(iiiiii) ORS 475.866, Unlawful manufacture of 3,4-methylenedioxymethamphetamine.

(jjjjjj) ORS 475.868, Unlawful manufacture of 3,4-methylenedioxymethamphetamine within 1,000 feet of school.

(kkkkkk) ORS 475.870, Unlawful delivery of 3,4-methylenedioxymethamphetamine.

(llllll) ORS 475.872, Unlawful delivery of 3,4-methylenedioxymethamphetamine within 1,000 feet of school.

(mmmmmm) ORS 475.874, Unlawful possession of 3,4-methylenedioxymethamphetamine.

(nnnnnn) ORS 475.876, Unlawful manufacture of cocaine.

(oooooo) ORS 475.878, Unlawful manufacture of cocaine within 1,000 feet of school.

(pppppp) ORS 475.880, Unlawful delivery of cocaine.

(qqqqqq) ORS 475.882, Unlawful delivery of cocaine within 1,000 feet of school.

(rrrrrr) ORS 475.884, Unlawful possession of cocaine.

(ssssss) ORS 475.886, Unlawful manufacture of methamphetamine.

(tttttt) ORS 475.888, Unlawful manufacture of methamphetamine within 1,000 feet of school.

(uuuuuu) ORS 475.890, Unlawful delivery of methamphetamine.

(vvvvvv) ORS 475.892, Unlawful delivery of methamphetamine within 1,000 feet of school.

(wwwwww) ORS 475.894, Unlawful possession of methamphetamine.

(xxxxxx) ORS 475.904, Unlawful delivery of controlled substance within 1,000 feet of school.

(yyyyyy) ORS 475.906, Penalties for distribution to minors.

(zzzzzz) ORS 475.908, Causing another person to ingest a controlled substance.

(aaaaaaa) ORS 475.910, Application of controlled substance to the body of another person.

(bbbbbbb) ORS 475.914, Prohibited acts for registrants (with the Oregon State Board of Pharmacy).

(ccccccc) ORS 475.967, Possession of precursor substance with intent to manufacture controlled substance.

(ddddddd) ORS 475.990, Commercial drug offense.

(eeeeeee) ORS 677.080, Prohibited acts (regarding the practice of medicine).

(fffffff) ORS 685.990, Penalties (pertaining to naturopathic medicine).

(ggggggg) Any federal crime.

(hhhhhhh) Any U.S. military crime.

(iiiiiii) Any unclassified felony defined in Oregon Revised Statutes not listed in this rule.

(jjjjjjj) 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 persons, as determined by the AD.

(kkkkkkk) 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 persons, as determined by the AD.

(lllllll) 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 ORS 161.155

(mmmmmmm) Any crime in any other jurisdiction that is the substantial equivalent of any of the Oregon crimes listed in section (1), as determined by the AD.

(nnnnnnn) 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), as determined by the AD.

(2) The crimes listed in this section are ten-year review crimes which require that a fitness determination be completed if the date of conviction is within ten years of the date the Background Check Request form was signed or the date the Department conducted a criminal records check due to imminent risk.

(a) ORS 109.311, Prohibited fees-adoption.

(b) ORS 133.076, Failure to appear on criminal citation.

(d) ORS 162.025, Bribe receiving.

(e) ORS 162.065, Perjury.

(f) ORS 162.075, False swearing.

(g) ORS 162.117, Public investment fraud.

(h) ORS 162.145, Escape III.

(i) ORS 162.175, Unauthorized departure.

(j) ORS 162.185, Supplying contraband.

(k) ORS 162.195, Failure to appear II.

(L) ORS 162.205, Failure to appear I.

(m) ORS 162.247, Interfering with a peace officer.

(n) ORS 162.257, Interfering with a firefighter or emergency medical technician.

(o) ORS 162.265, Bribing a witness.

(p) ORS 162.275, Bribe receiving by a witness.

(q) ORS 162.295, Tampering with physical evidence.

(r) ORS 162.305, Tampering with public records.

(s) ORS 162.315, Resisting arrest.

(t) ORS 162.335, Compounding.

(u) ORS 162.355, Simulating legal process.

(v) ORS 162.365, Criminal impersonation.

(w) ORS 162.367, Criminal impersonation of peace officer.

(x) ORS 162.369, Possession of false law enforcement identification card.

(y) ORS 162.375, Initiating a false report.

(z) ORS 162.385, Giving false information to police officer for a citation.

(aa) ORS 162.405, Official misconduct II.

(bb) ORS 162.415, Official misconduct I.

(cc) ORS 162.425, Misuse of confidential information.

(dd) ORS 163.195, Recklessly endangering another person.

(ee) ORS 163.212, Unlawful use of an electrical stun gun, tear gas, or mace II.

(ff) ORS 163.245, Custodial interference II.

(gg) ORS 164.043, Theft III.

(hh) ORS 164.045, Theft II.

(ii) ORS 164.095, Theft by receiving.

(jj) ORS 164.138, Criminal possession of a rented or leased motor vehicle.

(kk) ORS 164.140, Criminal possession of rented or leased personal property.

(LL) ORS 164.162, Mail theft or receipt of stolen mail.

(mm) ORS 164.235, Possession of a burglary tool or theft device.

(nn) ORS 164.255, Criminal trespass I.

(oo) ORS 164.265, Criminal trespass while in possession of firearm.

(pp) ORS 164.272, Unlawful entry into motor vehicle.

(qq) ORS 164.354, Criminal mischief II.

(rr) ORS 164.365, Criminal mischief I.

(ss) ORS 165.007, Forgery II.

(tt) ORS 165.017, Criminal possession of a forged instrument II.

(uu) ORS 165.037, Criminal simulation.

(vv) ORS 165.042, Fraudulently obtaining a signature.

(ww) ORS 165.070, Possessing fraudulent communications device.

(xx) ORS 165.074, Unlawful factoring of credit card transaction.

(yy) ORS 165.080, Falsifying business records.

(zz) ORS 165.085, Sports bribery.

(aaa) ORS 165.090, Sports bribe receiving.

(bbb) ORS 165.095, Misapplication of entrusted property.

(ccc) ORS 165.100, Issuing a false financial statement.

(ddd) ORS 165.102, Obtaining execution of documents by deception.

(eee) ORS 165.540, Obtaining contents of communication.

(fff) ORS 165.543, Interception of communications.

(ggg) ORS 165.570, Improper use of 9-1-1 emergency reporting system.

(hhh) ORS 165.572, Interference with making a report.

(iii) ORS 165.577, Cellular counterfeiting III.

(jjj) ORS 165.579, Cellular counterfeiting II.

(kkk) ORS 165.692, Making false claim for health care payment.

(LLL) ORS 166.015, Riot.

(mmm) ORS 166.023, Disorderly conduct I.

(nnn) ORS 166.025, Disorderly conduct II.

(ooo) ORS 166.065, Harassment.

(ppp) ORS 166.076, Abuse of a memorial to the dead.

(qqq) ORS 166.090, Telephonic harassment.

(rrr) ORS 166.116, Interfering with public transportation.

(sss) ORS 166.180, Negligently wounding another.

(ttt) ORS 166.190, Pointing firearm at another.

(uuu) ORS 166.240, Carrying of concealed weapon.

(vvv) ORS 166.250, Unlawful possession of firearms.

(www) ORS 166.470, Limitations and conditions for sales of firearms.

(xxx) ORS 166.480, Sale or gift of explosives to children.

(yyy) ORS 166.649, Throwing an object off an overpass II.

(zzz) ORS 166.651, Throwing an object off an overpass I.

(aaaa) ORS 166.660, Unlawful paramilitary activity.

(bbbb) ORS 167.007, Prostitution.

(cccc) ORS 167.090, Publicly displaying nudity or sex for advertising purposes.

(dddd) ORS 167.122, Unlawful gambling in the second degree.

(eeee) ORS 167.127, Unlawful gambling in the first degree.

(ffff) ORS 167.167, Cheating.

(gggg) ORS 167.222, Frequenting a place where controlled substances are used.

(hhhh) ORS 167.325, Animal neglect II.

(iiii) ORS 167.330, Animal neglect I.

(jjjj) ORS 167.337, Interfering with law enforcement animal.

(kkkk) ORS 167.340, Animal abandonment.

(LLLL) ORS 167.352, Interfering with assistance, search and rescue or therapy animal.

(mmmm) ORS 167.355, Involvement in animal fighting.

(nnnn) ORS 167.365, Dogfighting.

(oooo) ORS 167.370, Participation in dogfighting.

(pppp) ORS 167.428, Cockfighting.

(qqqq) ORS 167.431, Participation in cockfighting.

(rrrr) ORS 167.820, Concealing the birth of an infant.

(ssss) ORS 192.865, Criminal penalty (pertaining to Address Confidentiality Program).

(tttt) ORS 314.075, Evading requirements of law prohibited (tax evasion).

(uuuu) ORS 411.630, Unlawfully obtaining public assistance.

(vvvv) ORS 411.640, Unlawfully receiving public assistance.

(wwww) ORS 411.675, Submitting wrongful claim or payment (e.g., public assistance).

(xxxx) ORS 411.840, Unlawfully obtaining or disposing of food stamp benefits.

(yyyy) ORS 412.074, Unauthorized use and custody of records of temporary assistance for needy families program.

(zzzz) ORS 412.099, Sharing assistance prohibited.

(aaaaa) ORS 417.990, Penalty for placement of children in violation of compact.

(bbbbb) ORS 471.410, Providing liquor to persons under 21 or to intoxicated persons; allowing consumption by minor on property.

(ccccc) ORS 475.912, Unlawful delivery of imitation controlled substance.

(ddddd) ORS 475.916, Prohibited acts involving records and fraud.

(eeeee) ORS 475.918, Falsifying drug test results.

(fffff) ORS 475.950, Failure to report precursor substances transaction.

(ggggg) ORS 475.955, Failure to report missing precursor substances.

(hhhhh) ORS 475.960, Illegally selling drug equipment.

(iiiii) ORS 475.965, Providing false information on precursor substances report.

(jjjjj) ORS 803.230, Forging, altering or unlawfully producing or using title or registration.

(kkkkk) ORS 807.620, Giving false information to police officer.

(LLLLL) ORS 811.060, Vehicular assault of bicyclist or pedestrian.

(mmmmm) ORS 811.140, Reckless driving.

(nnnnn) ORS 811.540, Fleeing or attempting to elude police officer.

(ooooo) ORS 811.700, Failure to perform duties of driver when property is damaged.

(ppppp) ORS 811.705, Failure to perform duties of driver to injured persons.

(qqqqq) ORS 819.300, Possession of a stolen vehicle.

(rrrrr) ORS 830.475, Failure to perform the duties of an operator (boat).

(sssss) Any unclassified misdemeanor defined in Oregon Revised Statutes not listed elsewhere in this rule.

(ttttt) Any other misdemeanor 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 persons, as determined by the AD.

(uuuuu) Any misdemeanor in a jurisdiction outside Oregon that is not the substantial equivalent of any of the Oregon crimes listed in section (2) but that is serious and indicates behavior that poses a threat or jeopardizes the safety of vulnerable persons, as determined by the AD. 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.

(vvvvv) 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 ORS 161.155.

(wwwww) Any crime in any other jurisdiction which is the substantial equivalent of any of the Oregon crimes listed in section (2), as determined by the AD.

(xxxxx) Any crime which is no longer codified in Oregon, but which is the substantial equivalent of any of the crimes listed in section (2), as determined by the AD.

(3) The crimes listed in this section are five-year review crimes which require that a fitness determination be completed if the date of conviction is within five years of the date the Background Check Request form was signed or the date the Department conducted a criminal records check due to imminent risk.

(a) ORS 033.045, Contempt of court.

(b) ORS 133.310, Violation of restraining order.

(d) ORS 162.085, Unsworn falsification.

(e) ORS 162.235, Obstructing governmental or judicial administration.

(f) ORS 164.245, Criminal trespass II.

(g) ORS 164.335, Reckless burning.

(h) ORS 164.345, Criminal mischief III.

(i) ORS 165.555, Unlawful telephone solicitation of contributions for charitable purposes.

(j) ORS 165.813, Unlawful possession of fictitious identification.

(k) ORS 166.075, Abuse of venerated objects.

(L) ORS 166.095, Misconduct with emergency telephone calls.

(m) ORS 811.182, Criminal driving while suspended or revoked.

(n) ORS 813.010, Driving under the influence of intoxicants (DUII).

(o) ORS 830.315, Reckless operation of a boat.

(p) ORS 830.325, Operating boat while under influence of intoxicating liquor or controlled substance.

(q) ORS 830.730, False information to peace officer or Oregon State Marine Board.

(r) 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 ORS 161.155.

(s) Any crime in any other jurisdiction which is the substantial equivalent of any of the Oregon crimes listed in section (3), as determined by the AD.

(t) Any crime which is no longer codified in Oregon, but which is the substantial equivalent of any of the crimes listed in section (3), as determined by the AD.

(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 181.537 & 409.050
Stats. Implemented: ORS 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

407-007-0290

Other Potentially Disqualifying Conditions

The following are potentially disqualifying conditions:

(1) The SI makes a false statement to the QE, AD, or Department, 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 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 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 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) 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.

(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) Child protective services reports that show behavior or conduct by the SI that would pose a risk to or jeopardize the safety of vulnerable individuals. This potentially disqualifying condition only applies when:

(a) The Department administrative rules specifically require a protective services background check as part of the application process including but not limited to child foster homes, adoptive families, licensed private child caring agencies, or child care providers; and

(b) The BCU has the authority to conduct an abuse check.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 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 410-007-0290, 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

407-007-0300

Other Information Considered

When making a fitness determination, the AD shall consider any of the following factors if an SI has potentially disqualifying crimes or conditions as disclosed by the SI or which is otherwise known:

(1) Circumstances regarding the nature of potentially disqualifying crimes and conditions including but not limited to:

(a) The details of incidents leading to the charges of potentially disqualifying crimes or resulting in potentially disqualifying conditions.

(b) Age of the SI at time of the potentially disqualifying crimes or conditions.

(d) Passage of time since commission of the potentially disqualifying crimes or conditions.

(e) Consideration of state or federal laws, regulations, or rules covering the position, facility, employer, or QE 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, 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.

(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) 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).

(D) Written recommendations from current or past employers, including Department client employers.

(3) The AD 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 181.537 & 409.050
Stats. Implemented: ORS 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 410-007-0300, 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

407-007-0315

Hired on a Preliminary Basis

A preliminary fitness determination is required 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 SI may not be hired on a preliminary basis prior to the completion of a preliminary fitness determination.

(1) The SI must complete required information on a Background Check Request form and the AD or CP must review the form.

(2) The AD or CP shall review the Background Check Request form, complete a preliminary fitness determination and shall then make one of the following determinations

(a) An SI may be hired on a preliminary basis, only during the period of time prior to a final fitness determination, into the position listed on the Background Check Request form and be allowed to participate in training, orientation, and position activities under the one of the following circumstances:

(A) If there is no indication of a potentially disqualifying crime or condition on the Background Check Request form and the AD or CP have no reason to believe the SI has potentially disqualifying history., This is the only situation in which a CP may hire an SI on a preliminary basis.

(B) If the SI discloses convictions or arrests for a potentially disqualifying crime or any other potentially disqualifying condition, the SI may be hired on a preliminary basis only after the completion of a weighing test by an AD. The SI may be hired on a preliminary basis only if, based on information available at the time, the AD determines that more likely than not that the SI poses no potential threat to vulnerable individuals.

(b) 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 by program rules.

(B) The SI has disclosed potentially disqualifying crimes or conditions and the QE does not have an AD to make a preliminary fitness determination.

(i) More likely than not, the SI poses a potential threat to vulnerable individuals, based on a preliminary fitness determination and weighing test;

(ii) The SI’s most recent criminal records check under these rules or other Department criminal records check rules resulted in a denial; or

(iii) The SI is currently involved in contesting a criminal records check under these or other Department criminal records check rules.

(D) An outcome of no hiring on a preliminary basis may only be overturned by the Department.

(3) The QE shall forward the Background Check Request form to the Department immediately upon completion of the preliminary fitness determination or, if the QE cannot make a preliminary fitness determination, immediately after the SI’s completion of the form and verification of the SIs identity.

(4) The Department shall review the preliminary fitness determination made by the QE.

(a) The Department may change the outcome of the preliminary fitness determination based on available information.

(b) A QE without access to an AD may request the Department make a preliminary fitness determination if the SI discloses potentially disqualifying crimes or conditions.

(5) An SI 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.

(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 (6)(b)(B) of this rule;

(B) Know where the SI is and what the SI is doing; and

(b) A Department client , an adult client’s adult relation, or a child’s parent or guardian may provide active supervision without a criminal records check.

(A) The client may actively supervise a homecare worker, personal care services provider, or independent provider 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 AD.

(B) A child’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.

(6) An SI approved without restrictions within the previous 24 months through a documented criminal records check pursuant to these rules or prior Department criminal records 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 within the previous 24 months.

(c) If, as determined by the AD or the Department, 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.

(7) Revocation of hired on a preliminary basis is not subject to hearing or appeal. The QE or the Department 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 QE or Department 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.

(8) 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 form prior to a final fitness determination.

(9) Preliminary fitness determinations must be documented in writing, including any details regarding a weighing test, if required.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 181.537 & 409.010
Hist.: DHSD 10-2009, f. 12-31-09 cert. ef. 1-1-10

407-007-0320

Final Fitness Determinations

The AD shall make a final fitness determination after all necessary criminal records checks have been received and a weighing test, if necessary, has been completed. The AD 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) The AD 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, the AD determines that more likely than not that the SI poses no risk to the physical, emotional, or financial well-being of vulnerable individuals.

(b) The AD may approve an SI with restrictions if the AD determines that more likely than not that 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 criminal records check and fitness determination shall be completed on the SI before removing a restriction.

(c) The AD shall deny an SI whom the AD determines, after a weighing test, more likely than not poses a risk to the physical, emotional, or financial well-being of vulnerable individuals.

(2) The Department shall make a final fitness determination in the following situations:

(a) A national or state-specific criminal records check has been completed on the SI;

(b) If program rules governing the QE or the position require that the Department makes the final fitness determination;

(A) The SI’s most recent criminal records check under these rules or other Department criminal records check rules resulted in a denial; or

(B) The SI’s most recent criminal records check under these or other Department criminal records check rules required a weighing test which was completed by the Department.

(d) If, after conducting a criminal records check, the Department determines that, based on the presence of a potentially disqualifying crime or condition, there is a potential for imminent danger to vulnerable individuals;

(e) If the QE requests the Department to make the final fitness determination because the QE is temporarily unable to provide an AD to conduct a fitness determination;

(f) Upon request of an AD , the Department may provide technical assistance or make the final fitness determination;

(g) If the Department has reason to believe a final fitness determination has not been conducted in compliance with these rules, the Department may repeat the criminal records check and make a final fitness determination; or

(h) If the QE or AD is under investigation regarding compliance with these rules and the status of all ADs have been suspended during the investigation.

(3) The Department may review final fitness determinations made by local ADs and make a new final fitness determination at its discretion.

(4) Upon completion of a final fitness determination, the Department or AD making the decision shall provide written notice to the SI. The notice shall:

(a) Be in a Department approved format;

(b) If denied or approved with restrictions, include information regarding appeal rights and the notice becoming a final order in the event of a withdrawal or failure to appear at the hearing; and

(c) Be mailed or hand-delivered to the SI within 14 calendar days after the decision. The effective date of action shall be recorded on the form.

(5) 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 form. A denial applies only to the position and application in question. A denial shall result in immediate termination, dismissal, or removal of the SI.

(6) Final fitness determinations must be documented in writing, including any details needed including but not limited to the weighing test, restrictions in a restricted approval, or the potentially disqualifying crimes or convictions in a denial.

(7) The Department or AD 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 181.537 & 409.050
Stats. Implemented: ORS 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 410-007-0320, 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

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 form.

(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 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 criminal records check, or the Department cannot locate or contact the subject individual.

(e) 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, the SI does not have a right to contest the closure.

(4) The AD or CP 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 10-2009, f. 12-31-09 cert. ef. 1-1-10

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.

(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 the Department, by appealing to the entity providing the information. These challenges are not subject to the Department’s appeal process.

(5) An SI has the right to represent him 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 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 listed on the notice of the fitness determination.

(c) In the event an appeal 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 the OAH for a hearing on the issue of timeliness.

(7) The Department may conduct an administrative review before referring the appeal to OAH.

(b) The administrative review is not open to the public.

(8) The Department may conduct additional criminal records checks during the contested case hearing process to update or verify the SI’s criminal records. If needed, the Department 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 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 other documents may be mailed by regular first class mail.

(b) SIs 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 for 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 SI.

(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) 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.

(12) The Department 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 the Department or the 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 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 the Department 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 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.

(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) The Department may provide the QE’s AD with the results of the appeal.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 181.534, 181.537, 183.341 & 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 410-007-0330, 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

407-007-0340

Record Keeping, Confidentiality

(1) All LEDS reports are confidential and the AD 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 with another AD 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 the Department unless:

(a) If a fingerprint-based criminal records check was conducted on the SI, the SI shall be provided a copy of the results if requested.

(b) The state and national criminal offender information shall be provided as exhibits during the contested case hearing.

(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.

(5) Documents may be requested and reviewed by the Department and the OSP for the purposes of determining and ensuring compliance with these rules.

(6) Neither local ADs nor the Department may re-create past notices of fitness determinations. If an error is discovered on a notice of fitness determination, the local AD or the Department may correct it by issuing an amended notice of fitness determination.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 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 410-007-0340, 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

407-007-0350

Immunity from Liability

(1) The Department, QE, AD, or CP, 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, QE, AD, or CP, 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 the QE’s decision if they in good faith comply with:

(a) ORS 181.537; 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 181.537 & 409.050
Stats. Implemented: ORS 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 410-007-0350, 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

407-007-0370

Variances

(1) The Department 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) The Department may not grant variances to ORS 181.534 and 181.537.

(2) The Department 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;

(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’s Administrative Services Division shall approve or deny the request for a variance.

(5) The Department 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 program offices.

(6) Appeal of the denial of a variance request must be made in writing to the Department’s Director, whose decision is final.

(7) The Department shall determine the duration of the variance.

(8) The QE may implement a variance only after receipt of written approval from the Department.

(9) Granting a variance does not set a precedent that must be followed by the Department when evaluating subsequent variance requests.

Stat. Auth.: ORS 181.537 & 409.050
Stats. Implemented: ORS 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

Abuse Check Rules for Department Employees and Volunteers

407-007-0400

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 it in the Department 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” is defined as treatment, education, training, instruction, placement services, recreational opportunities or case management, supervision of such services for clients of the Department, or Department administration and support services for clients of the Department.

(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 (DHS).

(9) “Director” means the Director of the Department or the Director’s designee.

(10) “Fitness determination” means the outcome of an abuse check and, if necessary, a weighing test. Outcomes are approved or denied.

(11) “Founded or substantiated” has the meanings given these terms in the Department 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 in the Department’s Administrative Services Division.

(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. Employees include:

(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 Department Jobs Plus client who is currently placed at a Department site.

(b) A volunteer. Volunteers include:

(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. A weighing test is only conducted under these rules when a subject individual has potentially disqualifying abuse.

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

407-007-0410

Purpose

(1) Abuse check of department employees and volunteers. The purpose of these rules, OAR 407-007-0400 to 407-007-0460, is to provide for the abuse check of Department employees, Department volunteers, or persons offered employment or placement by the Department to determine if they are fit to provide care.

(2) Confidentiality. To protect the confidentiality of information contained in abuse investigation reports otherwise protected under these rules, abuse investigation reports may be used jointly among the organizational units under the guidance of the Director for screening subject individuals pursuant to ORS 409.027 and OAR 407-007-0400 to 407-007-0460. Such reports shall be maintained as confidential pursuant to ORS 409.027 and other applicable state and federal laws.

(a) Abuse investigation reports used for screening subject individuals must be used as such for the purpose of protecting vulnerable children and adults served by the Department from abuse, but may not be used for decisions directly affecting vulnerable individuals unless the vulnerable individual is also a subject individual under these rules.

(b) Abuse investigation reports used for screening subject individuals may not be disclosed to any other person or entity outside of the Department without a protective order limiting further disclosure of the confidential information.

(3) Rule applicability. 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 and distinct 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 409.027 & 409.050
Hist.: DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10

407-007-0420

Reporting Abuse Allegations Required

(1) Subject individuals covered by this rule. 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) Report required. A subject individual 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

407-007-0430

Applicants to the Department for Employment or Volunteer Position

(1) Subject individuals covered by this rule. 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) When abuse check is required. 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 but not limited to promotion, transfer, demotion, re-employment, job rotation, developmental assignment, restoration, bumping, or recall. In order for the check to be required, there must be, as determined by the Office of Human Resources, either:

(A) A significant change in position duties or responsibilities; or

(B) A change in position classification.

(3) Obtaining information.

(a) Using identifying information submitted on the Department’s Background Check Request form (DHS 301HR), the Department may conduct an abuse check to determine if the subject individual has potentially disqualifying abuse.

(b) 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.

(c) 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) Start date for employment or placement. 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) Weighing test. 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

(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) Fitness determination. After an abuse check, the Department shall complete the fitness determination.

(a) Approved. 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) Denied. 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) Closed case.

(a) If the subject individual discontinues the application or fails to cooperate with the abuse check process, the application is considered incomplete and shall be closed.

(b) When the application is closed without a final fitness determination, the subject individual does not have a right to contest the closure.

(8) Notice to subject individual. 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;

(b) Include an effective date of action on the notice; and

(A) Include the reasons for the denial; and

(B) Include information regarding appeal rights. A statement shall be included that indicates 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) Termination following denial or closed case. 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 for which 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 be able to continue in the current position from which 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

(b) For subject individuals who are current volunteers or current Work Experience clients, a denial or closed case shall result in immediate dismissal.

(10) Documentation. Fitness determinations shall be documented 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) No binding precedent. 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) Contesting a fitness determination. Only subject individuals 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 for in OAR 137-003-0570(8) or by a court of law.

(13) Rechecks on volunteers. 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

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 Department employee administrative review policies if the person identified as responsible in a founded or substantiated abuse finding is a Department employee.

(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 or removal 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 or removal from employment, is justified.

(b) If the Office of Human Resources learns of potentially disqualifying abuse from previous investigations that may be inconsistent with a subject individual’s current position, the Office of Human Resources may 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 or removal from employment, 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

(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

407-007-0450

Current Volunteers of the Department

(1) Subject individuals covered by this rule. This rule applies to any subject individual who is a current volunteer.

(2) Duties during abuse investigation and review. 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 remove the subject individual from placement and duties at any time during the investigation or any subsequent review.

(3) Placement after abuse investigation. 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

407-007-0460

Confidentiality

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 Oregon administrative rules.

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

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DEPARTMENT OF HUMAN SERVICES, ADMINISTRATIVE SERVICES DIVISION AND DIRECTOR'S OFFICE

DEPARTMENT OF HUMAN SERVICES,
ADMINISTRATIVE SERVICES DIVISION AND DIRECTOR'S OFFICE