OAR 407-007-0279
Federal Mandatory Exclusions

(1)

Convictions and conditions under 42 USC 1320a-7(a) (Exclusion of certain individuals and entities from participation in Medicare and State health programs) result in mandatory exclusion for an SI if the convictions or conditions occurred within five years from the date the final fitness determination. If the convictions or conditions under 42 USC 1320a-7(a) occurred after five years from the date the final fitness determination, the SI is subject to a fitness determination under OAR 125-007-0260 (Final Fitness Determination) and 407-007-0320 (Final Fitness Determinations).

(a)

Section (1) of this rule applies to an SI who is:

(A)

A home care worker or personal support worker as defined in ORS 410.600 (Definitions for ORS 410.595 to 410.625); or

(B)

Employed by:
(i)
A residential facility as defined in ORS 443.400 (Definitions for ORS 443.400 to 443.455) that receives Medicare or state health care funds;
(ii)
An in-home care agency as defined in ORS 443.005 that receives Medicare or state health care funds;
(iii)
A home health agency as defined in ORS 443.005 that receives Medicare or state health care funds;

(b)

If BCU determines that an individual is subject to this rule and has an exclusion listed in 42 USC 1320a-7, BCU shall make the determination of mandatory exclusion. Convictions or conditions requiring mandatory exclusion include:

(A)

Convictions related to the delivery of Medicare or State health care program services.

(B)

Convictions related to the abuse of a client or patient.

(C)

Felony convictions related to health care fraud.

(D)

Felony convictions related to the manufacture, delivery, prescription or dispensing of a controlled substance.

(c)

Under OAR 125-007-0260 (Final Fitness Determination), the determination of mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying convictions and conditions the SI has.

(d)

A determination of mandatory exclusion is subject to appeal rights only if allowed under 42 UCS 1320a-7(c) or 42 USC 1320a-7(d). If allowed, appeals shall comply with OAR 125-007-0300 (Appealing a Fitness Determination) and 943-007-0501 (Contesting a Final Fitness Determination).

(2)

Convictions and conditions under 42 USC 12645g (Criminal history checks under the National and Community Service State Grant Program) result in mandatory exclusion for an SI.

(a)

Section (2) of this rule applies to an SI who is working or volunteering under the National and Community Service Act of 1990 as amended by the Serve America Act, including participants and employees in:

(A)

Americorps;

(B)

Foster Grandparents;

(C)

Senior Companions; or

(D)

Any other programs funded under national service laws.

(b)

If BCU determines that an individual is subject to this rule and has an exclusion listed in 42 USC 12645g, BCU shall make the determination of mandatory exclusion. Exclusions include:

(A)

Listing on, or requirement to be listed on a sex offender registry;

(B)

Conviction for murder.

(C)

Refusal to complete the background check.

(D)

False statement by the SI in connection with criminal history disclosure, specifically intentionally providing false information impacting the ability to conduct the background check, such as:
(i)
A false name;
(ii)
A government-issued identification belonging to another person;
(iii)
A false identification; or
(iv)
Fingerprints of another person.

(c)

Under OAR 125-007-0260 (Final Fitness Determination)(2)(d), the determination of “mandatory exclusion” is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of whether the SI has any other potentially disqualifying convictions and conditions.

(d)

A determination of “mandatory exclusion” due to 42 USC 12645g is not subject to appeal rights under OAR 125-007-0300 (Appealing a Fitness Determination), 407-007-0330 (Contesting a Fitness Determination), or 943-007-0501 (Contesting a Final Fitness Determination).

(3)

Prohibitions under 45 USC 9858f (Criminal background checks) under the Child Care and Development Block Grant result in mandatory exclusion for an SI.

(a)

Section (3) of this rule applies to child care provider SI under OAR 407-007-0210 (Definitions)(10)(a)(K).

(b)

If BCU determines that an individual is subject to this rule and has an exclusion listed in 45 USC 9858f, BCU shall make the determination of mandatory exclusion. Exclusions include:

(A)

Refusal to complete the background check;

(B)

Knowingly making a materially false statement in connection with the SI’s criminal records check;

(C)

Listing on, or requirement to be listed on, a sex offender registry;

(D)

Felony conviction consisting of:
(i)
Murder;
(ii)
Child abuse or neglect;
(iii)
A crime against children, including child pornography;
(iv)
Spousal abuse;
(v)
Rape or sexual assault;
(vi)
Kidnapping;
(vii)
Arson
(viii)
Physical assault or battery; or
(ix)
A drug-related offense, if it occurred within five years from the date the final decision; and

(E)

Conviction of a violent misdemeanor as an adult against a child including but not limited to:
(i)
Child abuse;
(ii)
Child endangerment;
(iii)
Sexual assault; or
(iv)
Child pornography.

(c)

A fitness determination with a weighing test is not required if the SI has an exclusion listed in this section (with the exception of a drug-related offense within five years from the date the final decision), regardless of any other potentially disqualifying convictions and conditions the SI has. BCU shall make the determination of mandatory exclusion.

(d)

If the SI has only the exclusion of a drug-related offense within five years from the date of the final decision, and no other exclusions listed in this section, BCU shall conduct a weighing test pursuant to OAR 407-007-0300 (Weighing Test) in making a final decision. If the weighing test determines that the SI is a risk to the well-being of vulnerable individuals, BCU shall make the determination of mandatory exclusion.

(e)

Pursuant to OAR 125-007-0260 (Final Fitness Determination)(2)(d), the determination of mandatory exclusion is considered an incomplete fitness determination.
(f) A determination of mandatory exclusion due to 45 USC 9858f is not subject to appeal rights under OAR 125-007-0300 (Appealing a Fitness Determination), 407-007-0330 (Contesting a Fitness Determination), or 943-007-0501 (Contesting a Final Fitness Determination). The SI may appeal only to challenge the accuracy or completeness of the criminal records check.

(A)

The SI may not hold the position during an appeal.

(B)

If the mandatory exclusion is changed at any time during the appeal process, the change does not guarantee placement of the SI, or the SI child care provider.

(C)

An SI may represent himself or herself or have legal representation during the appeal process. For the purpose of this rule, the term “SI” shall be considered to include the SI’s legal representative.

(D)

Any appeal or subsequent request for information must be received by the Department by 11:59 p.m. on the due date, or if mailed, postmarked by 11:59 p.m. on the due date.
(i)
To request an appeal, the SI shall complete, sign, and date the Child Care Mandatory Exclusion Appeal Request form and submit it to BCU via mail or fax on or before the due date.
(ii)
The due date is 30 calendar days after the effective date of the mandatory exclusion.
(iii)
In the event BCU does not receive an appeal by the due date, BCU shall determine, based on a written statement from the SI and available information, if there is good cause to proceed with the appeal.

(E)

BCU may conduct additional criminal records checks during the appeal process to update or verify the SI’s potentially disqualifying convictions or conditions. If BCU finds new potentially disqualifying convictions and conditions during the appeal resulting in mandatory exclusion, BCU shall amend the notice of fitness determination while still maintaining the original hearing rights and deadlines.

(F)

BCU shall provide notice to the SI, indicating its efforts to verify the completeness of the criminal records check and the accuracy of the information challenged by the SI. If BCU determines that the criminal records check was incomplete or inaccurate, BCU shall rectify these issues during the appeal or explain to the SI the issues preventing BCU from making the criminal records check complete or accurate. If the mandatory exclusion is maintained, the SI has no other appeal rights through BCU.

(G)

BCU shall ensure the appeal is completed in a timely manner.

(4)

Prohibitions under 42 USC 671(a)(20) under the State Plan for Foster Care and Adoption Assistance result in mandatory exclusion for an SI.

(a)

Section (4) of this rule applies to the following SIs:

(A)

An SI who is an employee of a qualified entity which is subject to Section 471(a)(20)(D) of the federal 2018 Family First Prevention Services Act and which receives title IV-E funds; and

(B)

For child foster homes licensed by the Department’s DD programs, or child foster or adoptive homes governed by OAR chapter 413 division 215 and the federal 2006 Adam Walsh Act:
(i)
A foster parent or proctor foster parent;
(ii)
An adoptive parent applicant or an approved adoptive parent;
(iii)
A household member in an adoptive or foster home 18 years of age and over;
(iv)
A household member in an adoptive or foster home under 18 years of age if there is reason to believe that the household member may pose a risk to children placed in the home.

(b)

If BCU determines that an individual is subject to this rule and has an exclusion listed in 42 USC 671(a)(20)(A), BCU shall make the determination of mandatory exclusion. Exclusions include:

(A)

Felony conviction consisting of:
(i)
Child abuse or neglect;
(ii)
Spousal abuse;
(iii)
A crime against children (including child pornography);
(iv)
A crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery;

(B)

If, within five years from the date of the background check request, a felony conviction of:
(i)
Physical assault or battery; or
(ii)
A drug-related offense.

(c)

Under OAR 125-007-0260 (Final Fitness Determination)(2)(d), the determination of mandatory exclusion is considered an incomplete fitness determination. A fitness determination with a weighing test is not required regardless of any other potentially disqualifying crimes or conditions the SI has.

(d)

A determination of mandatory exclusion due to 42 USC 671(a)(20) is not subject to appeal rights under OAR 125-007-0300 (Appealing a Fitness Determination) or 943-007-0501 (Contesting a Final Fitness Determination).

Source: Rule 407-007-0279 — Federal Mandatory Exclusions, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=407-007-0279.

407‑007‑0000
Purpose and Scope 407‑007‑0010
Definitions 407‑007‑0020
Criminal History Check Required 407‑007‑0030
Criminal Records Check Process 407‑007‑0041
Potentially Disqualifying Convictions 407‑007‑0050
Potentially Disqualifying Conditions 407‑007‑0060
Weighing Test 407‑007‑0065
Hired on a Preliminary Basis 407‑007‑0070
Final Fitness Determinations 407‑007‑0080
Contesting a Final Fitness Determination 407‑007‑0090
Record Keeping, Confidentiality 407‑007‑0100
Variances 407‑007‑0200
Purpose and Scope 407‑007‑0210
Definitions 407‑007‑0220
Background Check Required 407‑007‑0230
Qualified Entity 407‑007‑0240
QE Designees and QE Initiators 407‑007‑0250
Background Check Process 407‑007‑0275
Convictions Under ORS 443.004 Resulting in Ineligibility for Aging and People with Disabilities Program and Developmental Disabilities Program SIs 407‑007‑0277
Convictions Under ORS 443.004 Resulting in Ineligibility for Mental Health or Alcohol and Drug Program SIs 407‑007‑0279
Federal Mandatory Exclusions 407‑007‑0281
Potentially Disqualifying Convictions 407‑007‑0290
Potentially Disqualifying Conditions 407‑007‑0300
Weighing Test 407‑007‑0315
Hired on a Preliminary Basis 407‑007‑0318
Approval for “Family First” Subject Individuals 407‑007‑0320
Final Fitness Determinations 407‑007‑0330
Contesting a Fitness Determination 407‑007‑0340
Record Keeping, Confidentiality 407‑007‑0350
Immunity from Liability 407‑007‑0370
Variances 407‑007‑0400
Purpose 407‑007‑0410
Definitions 407‑007‑0420
Reporting Abuse Allegations Required 407‑007‑0430
Applicants to the Department 407‑007‑0440
Current Employees of the Department 407‑007‑0445
Employees Who Apply or Are Hired at SACU after 1/1/2018 407‑007‑0450
Current Volunteers of the Department 407‑007‑0455
Current Contract SIs of the Department 407‑007‑0460
Confidentiality 407‑007‑0600
Purpose 407‑007‑0610
Definitions 407‑007‑0620
Background Check Registry 407‑007‑0630
Reporting Requirements for Qualified Entities 407‑007‑0640
Access and Release of Information
Last Updated

Jun. 8, 2021

Rule 407-007-0279’s source at or​.us