OAR 333-027-0064
Criminal Records Check
(1)
For the purposes of this rule, the following definitions apply:(a)
“Direct contact with” means to provide home health services and includes meeting in person with a potential or current patient to discuss services offered by an agency or other matters relating to the business relationship between an agency and client;(b)
“Disqualifying condition” means a non-criminal personal history issue that makes an individual unsuitable for employment, contracting or volunteering for an agency, including but not limited to discipline by a licensing or certifying agency, or drug or alcohol dependency;(c)
“Subject Individual” (SI) means an individual on whom an agency may conduct a criminal records check and from whom an agency may require fingerprints for the purpose of conducting a national criminal records check, including:(A)
An employee or prospective employee;(B)
A contractor, temporary worker, volunteer or owner of an agency who has direct contact with an agency client or potential client; and(C)
A prospective contractor, temporary worker, or volunteer or owner who may have direct contact with an agency client.(d)
“Vendor” means a researcher or company hired to provide a criminal records check on a subject individual.(2)
An agency shall conduct a criminal records check before hiring or contracting with an SI and before allowing an SI to volunteer to provide services on behalf of the agency, if the SI will have direct contact with a patient of the agency.(3)
An SI who has or will have direct contact with a recipient of home health services may not be employed, contract with, or volunteer with an agency in any capacity if the criminal records check conducted reveals the SI has been convicted of a crime as described in ORS 443.004 (Criminal records check required for employees and volunteers providing direct care)(3).(4)
An agency shall have a policy on criminal records check requirements which shall include weighing test actions should the background check screening indicate that an SI has been convicted for crimes against an individual or property other than those identified in ORS 443.004 (Criminal records check required for employees and volunteers providing direct care)(3). The policy must include the following provisions for performing a weighing test:(a)
The agency shall consider circumstances regarding the nature of potentially disqualifying convictions and conditions including but not limited to:(A)
The details of incidents leading to the charges of potentially disqualifying convictions or resulting in potentially disqualifying conditions;(B)
Age of the SI at time of the potentially disqualifying convictions or conditions;(C)
Facts that support the convictions or potentially disqualifying conditions; and(D)
Passage of time since commission of the potentially disqualifying convictions or conditions.(b)
Other factors which should be considered when available include but are not limited to:(A)
Other information related to criminal activity including charges, arrests, pending indictments and convictions. Other behavior involving contact with law enforcement may also be reviewed if information is relevant to other criminal records or shows a pattern relevant to criminal history;(B)
Periods of incarceration;(C)
Status of and compliance with parole, post-prison supervision or probation;(D)
Evidence of alcohol or drug issues directly related to criminal activity or potentially disqualifying conditions;(E)
Evidence of other treatment or rehabilitation related to criminal activity or potentially disqualifying conditions;(F)
Likelihood of repetition of criminal behavior or behaviors leading to potentially disqualifying conditions, including but not limited to patterns of criminal activity or behavior;(G)
Changes in circumstances subsequent to the criminal activity or disqualifying conditions including but not limited to:(i)
History of high school, college or other education related accomplishments;(ii)
Work history (employee or volunteer);(iii)
History regarding licensure, certification or training for licensure or certification; or(iv)
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.(c)
An agency 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 work, especially, but not exclusively:(A)
Access to medication;(B)
Access to clients’ personal information;(C)
Access to vulnerable populations.(5)
An agency shall document the weighing test and place in the employee’s file.(6)
A background check shall be performed by:(a)
The Department of Human Services Background Check Unit; or(b)
A vendor that:(A)
Is accredited by the National Association of Professional Background Screeners (NAPBS); or(B)
Meets the following criteria:(i)
Has been in business for at least two years;(ii)
Has a current business license and private investigator license, if required in the company’s home state; and(iii)
Maintains an errors and omissions insurance policy in an amount not less than $1 million.(7)
An agency may use the Oregon State Police, Open Records Unit in order to fulfill the state records requirement for a criminal records check, however, an agency would still need to complete a nationwide check through a qualified vendor.(8)
The criminal records check must include the following:(a)
Name and address history trace;(b)
Verification that the SI’s records have been correctly identified, via date of birth check and Social Security number trace;(c)
A local criminal records check, including city and county records for SI’s places of residence for the last seven years;(d)
A nationwide multijurisdictional criminal database search, including state and federal records;(e)
A nationwide sex offender registry search;(f)
The name and contact information of the vendor who completed the background check;(g)
Arrest, warrant and conviction data, including but not limited to:(A)
Charge(s);(B)
Jurisdiction; and(C)
Date.(h)
Source(s) for data included in the report.(9)
An agency shall perform and document a query of an SI with the National Practitioner Data Bank (NPDB) and the List of Excluded Individuals and Entities (LEIE).(10)
All criminal records checks conducted under this rule shall be documented in writing and made part of the agency’s personnel files.(11)
An agency that has a contract with the Department of Human Services (Department) or Oregon Health Authority for the provision of home health services on or after April 1, 2012 and who is subject to the Department’s criminal records check rules does not have to comply with section (12) of this rule.(12)
For an SI working or volunteering for an agency on or after July 6, 2011, an agency shall have until July 1, 2012 to ensure that the agency is in compliance with section (3) of this rule.(13)
On or after April 1, 2012 an agency shall ensure that a criminal records check is performed on an SI every three years from the date of the SIs last criminal records check in accordance with these rules.(14)
Notwithstanding sections (12) and (13) of this rule, the Division and not the agency shall conduct a criminal records check on an owner of any agency who is subject to a criminal records check under subsection (1)(c) of this rule. The Division shall conduct a criminal records check:(a)
At the time of application for a person who applies for a license on or after April 1, 2012 and every three years thereafter.(b)
By April 1, 2013 for an agency that is licensed on or before April 1, 2012, and every three years thereafter.
Source:
Rule 333-027-0064 — Criminal Records Check, https://secure.sos.state.or.us/oard/view.action?ruleNumber=333-027-0064.