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Disqualifying Offenses

Below is the list of Disqualifying Offenses from the Ohio Revised Code: Chapter 173-9 Database Reviews and Criminal Records Checks.

173-9-01 Introduction and Definitions.

(A) Introduction: Chapter 173-9 of the Administrative Code establishes the requirements and procedures for conducting free database reviews and criminal records checks on applicants and employees for paid positions to provide ombudsman services or direct care, as required by sections 173.27 and 173.394 of the Revised Code.

(B) Definitions:

(1) “Applicant” means either of the following:

(a) Ombudsman: A person who is under final consideration for employment with the office of the state long-term care ombudsman program in a full-time, part-time, or temporary position that involves providing ombudsman services to residents and recipients. “Applicant” includes a person who is under final consideration for employment as the state long-term care ombudsman or the head of a regional long-term care ombudsman program. “Applicant” does not include a person seeking to provide ombudsman services to residents and recipients as a volunteer without receiving or expecting to receive any form of remuneration other than reimbursement for actual expenses.

(b) Direct care: A person who is under final consideration for paid employment in a full-time, part-time, or temporary position that involves providing direct care to an individual or is referred to a responsible entity by an employment service for such a position. “Applicant” does not include a person who seeks to provide direct care to an individual in a position as a volunteer without receiving, or expecting to receive, any form of remuneration other than reimbursement for actual expenses.

(2) “BCII” means “the bureau of criminal identification and investigation” and includes the superintendent of BCII.

(3) “Chief administrator” means the individual in charge of the daily operations of responsible entity that provides direct-care services or any employee of a responsible entity whom the chief administrator has designated as the chief administrator’s representative. Under a consumer-directed or self-directed arrangement, the consumer is the chief administrator. If the responsible entity is a non-agency or self-employed provider, the responsible entity is the chief administrator. When Chapter 173-9 of the Administrative Code requires a responsible entity that provides direct-care services to perform an action, it reflects requirements in section 173.394 of the Revised Code for the chief administrator of the responsible entity to perform that action.

(4) “Criminal records check” has the same meaning as in section 109.572 of the Revised Code.

(5) “Direct care” means any in-person contact with one or more consumers who receive a community-based long-term care service or any access to a consumer’s personal property or personal records. “Community-based long-term care service” has the same meaning as in section 173.14 of the Revised Code.

(6) “Disqualifying offense” means any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

(7) “Employee” means either of the following:

(a) Ombudsman: A person employed by the office of the state long-term care ombudsman program in a full-time, part-time, or temporary position that involves providing ombudsman services to residents and recipients. “Employee” includes the person employed as the state long-term care ombudsman and a person employed as the head of a regional long-term care ombudsman program. “Employee” does not include a person who provides ombudsman services to residents and recipients as a volunteer without receiving or expecting to receive any form of remuneration other than reimbursement for actual expenses.

(b) Direct care: A person employed by a responsible entity in a full-time, part-time, or temporary position that involves providing direct care to an individual and a person who works in such a position due to being referred to a responsible entity by an employment service. Under a consumer-direction arrangement, the consumer is the responsible entity and the consumer-directed provider is the employee. If the responsible entity is a non-agency or self-employed provider, the responsible entity is the employee. “Employee” does not include a person who provides direct care to an individual as a volunteer without receiving or expecting to receive any form of remuneration other than reimbursement for actual expenses.

(8) “FBI” means “the federal bureau of investigation.”

(9) “Minor drug possession offense” has the same meaning as in section 2925.01 of the Revised Code.

(10) “ODA” means “the Ohio department of aging.”

(11) “Responsible entity” means any of the following entities (which are also listed in paragraph (A) of rule 173-9-02 of the Administrative Code):

(a) Ombudsman:

(i) In the case of an applicant who is under final consideration for employment as the state long-term care ombudsman or the person employed as the state long-term care ombudsman, the responsible entity is ODA’s director.

(ii) In the case of any other applicant or employee, the responsible entity is the state long-term care ombudsman or the ombudsman’s designee.

(b) Direct care: In this case of a provider of direct care, “responsible entity” has the same meaning as “community-based long-term care agency” in section 173.39 of the Revised Code where the term “community-based long-term care agency” means a person or government entity that provides community-based long-term care services under a program that ODA administers, regardless of whether the person or government entity is certified under section 173.391 of the Revised Code or authorized to receive payment for the services from ODA under section 173.392 of the Revised Code. Section 1.59 of the Revised Code defines “person” to include an individual, corporation, business trust, estate, trust, partnership, and association.

(12) “Waiver agency” has the same meaning as in section 5111.033 of the Revised Code.

Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-02 Applicability

(A) Applicability criteria: Chapter 173-9 of the Administrative Code applies to any of the following responsible entities:

(1) Ombudsman services:

(a) The office of the state long-term care ombudsman.

(b) A regional long-term care ombudsman office.

(2) Direct-care services:

(a) An agency provider that is an ODA-certified provider under section 173.391 of the Revised Code and Chapter 173-39 of the Administrative Code.

(b) An agency provider that is a non-certified provider under section 173.392 of the Revised Code that has entered into a provider agreement under Chapter 173-3 or 173-4 of the Administrative Code.

(c) A non-agency provider who is an ODA-certified provider under section 173.391of the Revised Code and Chapter 173-39 of the Administrative Code.(d) A self-employed provider who is a non-certified provider under section 173.392 of the Revised Code that has entered into a provider agreement under Chapter 173-3 or 173-4 of the Administrative Code.

(e) A consumer who is directing a consumer-directed individual provider who is an ODA-certified provider under section 173.391 of the Revised Code and Chapter 173-39 of the Administrative Code.

(f) A consumer who is directing a consumer-directed personal care provider who is an ODA-certified provider under section 173.391 of the Revised Code and Chapter 173-39 of the Administrative Code

(g) A consumer who is directing a self-directed provider who is a non-certified provider under section 173.392 of the Revised Code that has entered into a provider agreement under Chapter 173-3 or 173-4 of the Administrative Code.

(h) A residential care facility that is an ODA-certified assisted-living provider under section 173.391 of the Revised Code and Chapter 173-39 of the Administrative Code.

(i) A PACE organization, as a non-certified provider under section 173.392 of the Revised Code, but only for home and community-based services that the PACE organization provides. (cf., 42 C.F.R. 460.68 (October 1, 2011 edition))

(j) An area agency on aging, but only for case-management services that the agency provides.

(B) Inapplicability criteria: Chapter 173-9 of the Administrative Code does not apply to the following responsible entities under limited conditions:

(1) Medicare-certified home health agencies:

(a) Except as provided for in paragraph (B)(1)(b) of this rule, if the responsible entity is a medicare-certified home health agency that is subject to a database review or criminal records check under section 3701.881 of the Revised Code and Chapter 3701-60 of the Administrative Code, pursuant to division (B) of section 173.394 of the Revised Code, the agency is exempt from Chapter 173-9 of the Administrative Code.

(b) If the agency operates as both a medicare-certified home health agency and an agency that provides direct-care services for an ODA-administered program, the agency is not exempt from Chapter 173-9 of the Administrative Code regarding any employee who provides a direct-care service other than medicare home health care regulated under section 3701.881 of the Revised Code because section 3701.881 of the Revised Code only regulates medicare-certified home health care. (For example, if a responsible entity provides an array of services including medicare-certified home health care, adult day services, congregate meals, home-delivered meals, and personal emergency response systems, Chapter 173-9 of the Administrative Code does not apply to the direct-care employees who only provide medicare-certified home health care, but does apply to direct-care employees who provide other direct-care services that ODA regulates.)

(2) Medicaid waiver agencies:

(a) Except as provided for in paragraphs (B)(2)(b), (B)(2)(c), and (B)(2)(d) of this rule, if a responsible entity is also a waiver agency, pursuant to division (B) of section 173.394 of the Revised Code, the responsible entity may require applicants and employees to undergo database reviews and criminal records checks in accordance with section 5111.033 of the Revised Code and rules 5101:3-45-07 and 5101:3-45-11 of the Administrative Code instead of Chapter 173-9 of the Administrative Code.

(b) If rule 5101:3-45-07 of the Administrative Code exempts the responsible entities that are waiver agencies participating in ODA-administered programs, the responsible entity is subject to Chapter 173-9 of the Administrative Code instead of rule 5101:3-45-07 of the Administrative Code.

(c) If the responsible entity operates as both a waiver agency and a non-certified provider, the responsible entity may only require applicants and employees to undergo database reviews and criminal records checks in accordance with section 5111.033 of the Revised Code and rules 5101:3-45-07 and 5101:3-45-11 of the Administrative Code if the applicant would (or the employee does) only provide direct-care services through a medicaid waiver program. (For example, if a responsible entity provides home-delivered meals through the PASSPORT program and also the Older Americans Act program, the only applicants and employees who are eligible to undergo database reviews and criminal records checks in accordance with section 5111.033 of the Revised Code and rules 5101:3-45-07 and 5101:3-45-11of the Administrative Code instead of Chapter 173-9 of the Administrative Code are those employees who solely provide home-delivered meals through the PASSPORT program because it is a medicaid waiver program.)(d) If the responsible entity operates as a waiver agency, but provides a service that only pertains to an ODA-administered program, the responsible entity may only require applicants and employees to undergo database reviews and criminal records checks in accordance with section 5111.033 of the Revised Code and rules 5101:3-45-07 and 5101:3-45-11 of the Administrative Code if the applicant would (or the employee does) only provide direct-care services through a medicaid waiver program that the department of job and family services administers. (For example, the department of job and family services does not administer assisted living services, consumer-directed services, or congregate meals.)

(3) PACE organizations:

(a) Employees of a PACE organization who only provide direct-care services as specified persons or as employees of institutions or entities that are subject to criminal records checks under section 5111.032 of the Revised Code are exempt from Chapter 173-9 of the Administrative Code because Chapter 173-9 of the Administrative Code only regulates ombudsman services and direct-care services that are home and community-based services.

(b) Employees of a PACE organization who only provide direct-care services through a nursing facility or residential care facility that are subject to criminal records checks under Chapter 3701-13 of the Administrative Code are exempt from Chapter 173-9 of the Administrative Code because Chapter 173-9 of the Administrative Code only regulates ombudsman services and direct-care services that are home and community-based services.

(4) Residential care facilities: If a residential care facility is not an ODA-certified assisted-living provider under section 173.391 of the Revised Code and Chapter 173-39 of the Administrative Code the facility is not subject to the criminal records check requirements under Chapter 173-9 of the Administrative Code. However, all residential care facilities are subject to the criminal records check requirements under Chapter 3701-13 of the Administrative Code.

(5) Volunteers: sections 173.27 and 173.394 of the Revised Code exempt volunteers from the criminal records check requirements under Chapter 173-9 of the Administrative Code.

Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-03 Free database reviews.

(A) The responsible entity shall review the following free databases before conducting the criminal records checks required under paragraph (B) of rule 173-9-04 of the Administrative Code:

(1) SAM: The United States general services administration’s system for award management, which is available at https://www.sam.gov/;

(2) OIG: The office of inspector general of the United States department of health and human services’ list of excluded individuals, which is available at http://exclusions.oig.hhs.gov/;

(3) Abuser registry: The department of developmental disabilities’ registry of employees who cited for abuse, neglect, or misappropriation, which is available at https://its.prodapps.dodd.ohio.gov/ABR_Default.aspx;

(4) Sex offender search: The Ohio attorney general’s sex offender and child-victim offender database, which is available at http://www.icrimewatch.net/index.php?AgencyID=55149amp;disc=;

(5) Offender search: The department of rehabilitation and correction’s database of inmates, which is available at http://www.drc.ohio.gov/OffenderSearch/Search.aspx; and,

(6) Nurse aide registry: The department of health’s state nurse aide registry, which is available at https://odhgateway.odh.ohio.gov/nar/nar_registry_search.aspx. If the applicant or employee does not present proof that he or she has been a resident of Ohio for the five-year period immediately preceding the date of the database review, the responsible entity shall conduct a database review of the nurse aide registry in the state or states in which the applicant or employee lived.

(B) No responsible entity shall employ an applicant or continue to employ an employee in a position that involves providing ombudsman services or direct-care services if any of the following apply:

(1) Any of the databases listed in paragraphs (A)(1) to (A)(5) of this rule list the applicant or employee.

(2) The database listed in paragraph (A)(6) of this rule lists the applicant or employee as an individual who neglected or abused a long-term care facility resident or residential care facility resident or misappropriated such a resident’s property.

(C) If the responsible entity’s review of the free databases listed under paragraph (A) of this rule discloses disqualifying information about an applicant or employee, the responsible entity shall inform the applicant or employee of the disqualifying information.(D) Employment-service exemption: Pursuant to division (G) of section 173.394 of the Revised Code, a responsible entity that provides direct-care services is not required to review the free databases listed under paragraph (A) of this rule if the applicant or employee was referred to the responsible entity by an employment service that refers applicants to responsible entities to fill full-time, part-time, or temporary positions involving direct care and the employment services provides the responsible entity with a report of the results of the review of the free databases that shows that the applicant or employee is not disqualified from direct-care employment.

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

173-9-04 General Requirements.

(A) Free databases first: If the free database reviews under rule 173-9-03 of the Administrative Code do not disqualify an applicant or employee from providing ombudsman services or direct care, the responsible entity shall request that BCII conduct a criminal records check on the applicant or employee as a condition of employing the applicant or employee in a position that involves providing ombudsman services or direct care.

On Whom Is a Criminal Records Check Required?

OMBUDSMAN SERVICES APPLICANTS CURRENT EMPLOYEES

All ombudsman services Yes Yes

DIRECT CARE APPLICANTS CURRENT EMPLOYEES

Only delivers home-delivered meals Yes No

Only has access to consumers’ personal records Yes No

Only provides certain once-ever services Yes No

All other direct care Yes Yes

(B) On whom is a criminal records check required?:

(1) Applicants: The responsible entity shall conduct a criminal records check on each person who is an applicant under final consideration for employment for an ombudsman-services or direct-care position. The responsible entity shall do this even if paragraph (B)(2)(b) of this rule does not require the responsible entity to check the person as an employee.

(2) Current employees:

(a) At least once every five years: Except as provided for in paragraph (B)(2)(b) of this rule, the responsible entity shall conduct a criminal records check on each employee who provides ombudsman services or direct care at least once every five years according to one of the following three schedules:

(i) Five years for pre-2008: If the responsible entity hired the employee before January 1, 2008, the responsible entity shall conduct a criminal records check of the employee no later than thirty days after the 2013 anniversary of the employee’s date of hire and no later than thirty days after each anniversary of the date of hire every five years after 2013. (For example, if the responsible entity hired an employee on February 1, 2007, the responsible entity shall conduct a criminal records check on the employee no later than thirty days after February 1, 2013, no later than thirty days after February 1, 2018, and so on.) If the responsible entity is a non-agency provider of direct-care services, the date of hire is the date the responsible entity was certified by ODA. If the responsible entity is a self-employed provider, the date of hire is the date the responsible entity entered into a provider agreement with ODA (or ODA’s designee).

(ii) Five years for 2008 to present: If the responsible entity hired the employee on or after January 1, 2008, the responsible entity shall conduct a criminal records check of the employee no later than thirty days after the fifth anniversary of the employee’s date of hire and no later than thirty days after each anniversary of the date of hire every five years after the first fifth-year anniversary of the date of hire. (For example, if the responsible entity hired an employee on February 1, 2011, the responsible entity shall conduct a criminal records check on the employee no later than thirty days after February 1, 2016, no later than thirty days after February 1, 2021, and so on.) If the responsible entity is a non-agency provider of direct-care services, the date of hire is the date the responsible entity was certified by ODA. If the responsible entity is a self-employed provider, the date of hire is the date the responsible entity entered into a provider agreement with ODA (or ODA’s designee).

(iii) More frequently than five years: If the responsible entity conducts criminal records checks on an employee more frequently than every five years, the responsible entity is not responsible for conducting criminal records checks according the the five-year anniversaries of the employee’s date of hire. If the responsible entity is a non-agency provider of direct-care services, the date of hire is the date the responsible entity was certified by ODA. If the responsible entity is a self-employed provider, the date of hire is the date the responsible entity entered into a provider agreement with ODA (or ODA’s designee).

(b) Exemptions: A responsible entity that provides direct-care services is not required to conduct a criminal records check on a direct-care employee if the only type of direct care that the employee provides is:

(i) Delivering home-delivered meals;

(ii) Having access to a consumer’s personal records (e.g., an employee working in a responsible entity’s office who does not enter a consumer’s home or an employee of a personal emergency response system’s central monitoring station who does not enter a consumer’s home); or,

(iii) Providing a one-time chore service, home maintenance service, home modification service, home repair service, or pest control. If the responsible entity only provides one episode of the service for an ODA-administered program, the responsible entity is not subject to ongoing criminal records checks. But, the responsible entity is subject to ongoing criminal records checks if the responsible entity returns to a consumer’s residence to provide subsequent episodes of service or provides an episode of service to another consumer in an ODA-administered program.

(3) Reverification: Pursuant to division (D) of section 109.572 of the Revised Code, if any person has requested a criminal records check of an applicant or employee in the past year, a responsible entity may request a reverification of the criminal record from BCII. The reverification of a criminal records check has the same validity as a criminal records check.

(C) Notification: The responsible entity shall inform each applicant of the following at the time of initial application for employment in a position to provide ombudsman services or direct care (or referral to a responsible entity that provides direct-care services by an employment service):(1) Free database reviews: Rule 173-9-03 of the Administrative Code requires the responsible entity to review free databases to determine if the responsible entity is prohibited from employing the applicant in a direct-care position.

(2) Criminal records checks: unless the free database reviews reveal that the applicant may not be employed in a direct-care position:

(a) The responsible entity is required to conduct a criminal records check to determine if the responsible entity is prohibited from employing the applicant in a direct care position; and,

(b) The applicant is required to provide a set of the applicant’s fingerprint impressions as part of a criminal records check.

(3) Frequency: If the responsible entity employs the applicant, as a condition of continued employment, the responsible entity shall conduct the free database reviews listed in rule 173-9-03 of the Administrative Code and shall request criminal records checks to determine if the responsible entity is prohibited from employing the applicant in a direct-care position.

(4) Fees:

(a) If applicable, the fee required under paragraph (F)(2) of this rule.

(b) Any fees authorized under division (C)(2) of section 109.572 of the Revised Code that are associated with obtaining fingerprint impressions.

(D) FBI: If an applicant or employee does not provide the responsible entity with evidence that he or she has been a resident of Ohio for the five-year period immediately preceding the date the responsible entity requests the criminal records check, or if the applicant does not provide the responsible entity with evidence that BCII has requested his or her criminal records from the FBI within that five-year period, the responsible entity shall request that BCII obtain information from the FBI as part of the criminal records check. Even if an applicant does provide the responsible entity with evidence that he or she has been a resident of Ohio for the five-year period, the responsible entity may request that BCII obtain information from the FBI as part of the criminal records check.

(E) Forms and fingerprints:

(1) The responsible entity shall provide each applicant with the form and fingerprint impression sheet required to conduct a criminal records check, which may be tangible, electronic, or both tangible and electronic. If the responsible entity requests that BCII include information from the FBI in the criminal records check report, the responsible entity shall also provide the applicant with the form necessary to obtain the FBI’s information; and,

(2) The responsible entity shall forward the completed form(s) and fingerprint impression sheet to BCII for processing.

(F) Investigation fees:

(1) The responsible entity shall pay BCII the fee prescribed under division (C)(3) of section 109.572 of the Revised Code for each criminal records check.

(2) The responsible entity may charge an applicant a fee so long as the fee does not exceed the amount the responsible entity pays to BCII, but only if:

(a) The responsible entity notified the applicant at the time of initial application of the amount of the fee and that, unless the fee was paid, the responsible entity would not consider the applicant for employment; and,

(b) The medical assistance program established under Chapter 5111. of the Revised Code does not reimburse the responsible entity for the fee.

(G) Employment-service exemption: Pursuant to division (G) of section 173.394 of the Revised Code, a responsible entity that provides direct-care services is not required to request a criminal records check of an applicant or employee under paragraph (B) of this rule if the applicant or employee was referred to the responsible entity by an employment service that refers applicants to responsible entities to fill full-time, part-time, or temporary positions involving direct care and:

(1) The employment service provides the responsible entity with a criminal records check report on the applicant or employee that was conducted no more than one year before the applicant’s or employee’s referral and the criminal records check report demonstrates that the applicant or employee was not convicted of a disqualifying offense; or, the report demonstrates that the applicant or employee was convicted of a disqualifying offense, but the responsible entity chooses to hire the applicant under rule 173-9-07 of the Administrative Code; or,

(2) Pursuant to division (H)(1)(b) of section 173.394 of the Revised Code, the employment service or the applicant provides the responsible entity with a letter from the employment service, that is on the employment service’s letterhead, that is dated and signed by a supervisor or another designated official of the employment service, and that states that the employment service has requested a criminal records check on the applicant, that the requested criminal records check will include a determination of whether the applicant has been convicted of a disqualifying offense, that, as of the date set forth on the letter, the employment service had not received the criminal records check report, and that, when the employment service receives the report, it promptly will send a copy of it to the responsible entity. If the responsible entity employs an applicant conditionally under this paragraph, it shall also comply with the requirements for conditional employment under rule 173-9-05 of the Administrative Code.

Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 109.572, 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-05 Conditional Employment.

(A) Pursuant to division (F) of section 173.27 of the Revised Code and division (H) of section 173.394 of the Revised Code, a responsible entity shall only hire an applicant before obtaining a criminal records check report if:

(1) The responsible entity reviewed the free databases, as rule 173-9-03 of the Administrative Code requires, and the free database reviews do not disqualify the applicant;

(2) The responsible entity hires the applicant on a conditional basis;

(3) The responsible entity initiates the process of obtaining a criminal records check no later than five business days after the applicant begins conditional employment; and,

(4) The applicant provides the responsible entity with a completed fingerprint impression sheet before the commencement of the applicant’s conditional employment.

(B) Termination of conditionally-hired applicants:

(1) The responsible entity shall terminate the applicant’s employment if the responsible entity does not receive a criminal records check report from BCII within the period ending sixty days after the responsible entity requested it from BCII; or,

(2) Regardless of when the results of the criminal records check are obtained, if the results indicate that the applicant was convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense, the responsible entity shall terminate the applicant’s employment unless the responsible entity is able and willing to hire the applicant under the terms of rule 173-9-07 of the Administrative Code.

(C) If the conditionally-hired applicant deceived the responsible entity about the facts regarding his or her criminal records, the termination of the applicant’s conditional employment is just cause for discharge under division (D)(2) of section 4141.29of the Revised Code.Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-06 Disqualifying Offenses.

(A) Except as set forth in rule 173-9-07 of the Administrative Code, no responsible entity shall employ or continue to employ a person in a position that involves providing ombudsman services or direct care if the person has been convicted of a violation of any of the following sections of the Revised Code:

(1) 959.13 (cruelty to animals);

(2) 959.131 (prohibitions concerning companion animals);

(3) 2903.01 (aggravated murder);

(4) 2903.02(murder);

(5) 2903.03 (voluntary manslaughter);

(6) 2903.04 (involuntary manslaughter);

(7) 2903.041 (reckless homicide);

(8) 2903.11 (felonious assault);

(9) 2903.12 (aggravated assault);

(10) 2903.13(assault);

(11) 2903.15 (permitting child abuse);

(12) 2903.16 (failing to provide for a functionally-impaired person);

(13) 2903.21 (aggravated menacing);

(14) 2903.211 (menacing by stalking);

(15) 2903.22(menacing);

(16) 2903.34 (patient abuse and neglect);

(17) 2903.341 (patient endangerment);

(18) 2905.01(kidnapping);

(19) 2905.02(abduction);

(20) 2905.04 (child stealing, as it existed before July 1, 1996);

(21) 2905.05 (criminal child enticement);

(22) 2905.11(extortion);

(23) 2905.12(coercion);

(24) 2905.32 (trafficking in persons);

(25) 2905.33 (unlawful conduct with respect to documents);

(26) 2907.02(rape);

(27) 2907.03 (sexually battery);

(28) 2907.04 (unlawful sexual conduct with a minor, formerly corruption of a minor);

(29) 2907.05 (gross sexual imposition);

(30) 2907.06 (sexual imposition);

(31) 2907.07(importuning);

(32) 2907.08(voyeurism);

(33) 2907.09 (public indecency);

(34) 2907.12 (felonious sexual penetration, as it existed before July 1, 1996);

(35) 2907.21 (compelling prostitution);

(36) 2907.22 (promoting prostitution);

(37) 2907.23 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

(38) 2907.24 (soliciting, engaging in solicitation after a positive HIV test);

(39) 2907.25(prostitution);

(40) 2907.31 (disseminating matter harmful to juveniles);

(41) 2907.32 (pandering obscenity);

(42) 2907.321 (pandering obscenity involving a minor);

(43) 2907.322 (pandering sexually-oriented matter involving a minor);

(44) 2907.323 (illegal use of a minor in nudity-oriented material or performance);

(45) 2907.33 (deception to obtain matter harmless to juveniles);

(46) 2909.02 (aggravated arson);

(47) 2909.03(arson);

(48) 2909.04 (disrupting public services);

(49) 2909.22 (soliciting or providing support for act of terrorism);

(50) 2909.23 (making terroristic threat);

(51) 2909.24(terrorism);

(52) 2911.01 (aggravated robbery);

(53) 2911.02(robbery);

(54) 2911.11 (aggravated burglary);

(55) 2911.12(burglary);

(56) 2911.13 (breaking and entering);

(57) 2913.02(theft);

(58) 2913.03 (unauthorized use of a vehicle);

(59) 2913.04 (unauthorized use of computer, cable, or telecommunication property);

(60) 2913.05 (telecommunications fraud);

(61) 2913.11 (passing bad checks);

(62) 2913.21 (misuse of credit cards);

(63) 2913.31 (forgery, forging identification cards);

(64) 2913.32 (criminal simulation);

(65) 2913.40 (medicaid fraud);

(66) 2913.41 (defrauding a rental agency or hostelry);

(67) 2913.42 (tampering with records);

(68) 2913.43 (securing writings by deception);

(69) 2913.44 (personating an officer);

(70) 2913.441 (unlawful display of law enforcement emblem);

(71) 2913.45 (defrauding creditors);

(72) 2913.46 (illegal use of SNAP or WIC program benefits);

(73) 2913.47 (insurance fraud);

(74) 2913.48 (workers’ compensation fraud);

(75) 2913.49 (identify fraud);

(76) 2913.51 (receiving stolen property);

(77) 2917.01 (inciting to violence);

(78) 2917.02 (aggravated riot);

(79) 2917.03(riot);

(80) 2917.31 (inducing panic);

(81) 2919.12 (unlawful abortion);

(82) 2919.121 (unlawful abortion upon minor);

(83) 2919.123 (unlawful distribution of an abortion-inducing drug);

(84) 2919.22 (endangering children);

(85) 2919.23 (interference with custody);

(86) 2919.24 (contributing to unruliness or delinquency of child);

(87) 2919.25 (domestic violence);

(88) 2921.03(intimidation);

(89) 2921.11(perjury);

(90) 2921.12 (tampering with evidence);

(91) 2921.13 (falsification, falsification in a theft offense, falsification to purchase a firearm, or falsification to obtain a concealed handgun license);

(92) 2921.21 (compounding a crime);

(93) 2921.24 (disclosure of confidential information);

(94) 2921.32 (obstructing justice);

(95) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(96) mini jeux poker logiciel poker

2921.34(escape);

(97) 2921.35 (aiding escape or resistance to lawful authority);

(98) 2921.36 (illegal conveyance of weapons, drugs or other prohibited items onto grounds of detention facility or institution);

(99) 2921.51 (impersonation of peace officer);

(100) 2923.01 (conspiracy, related to another disqualifying offense);

(101) 2923.02 (attempt to commit an offense, related to another disqualifying offense);

(102) 2923.03 (complicity, related to another disqualifying offense);

(103) 2923.12 (carrying concealed weapons);

(104) 2923.122 (illegal conveyance or possession of deadly weapon or dangerous ordnance in a school safety zone, illegal possession of an object indistinguishable from a firearm in a school safety zone);

(105) 2923.123 (illegal conveyance, possession, or control of deadly weapon or ordnance into a courthouse);

(106) 2923.13 (having weapons while under disability);

(107) 2923.161 (improperly discharging a firearm at or into a habitation or school);

(108) 2923.162 (discharge of firearm on or near prohibited premises);

(109) 2923.21 (improperly furnishing firearms to minor);

(110) 2923.32 (engaging in a pattern of corrupt activity);

(111) 2923.42 (participating in criminal gang);

(112) 2925.02 (corrupting another with drugs);

(113) 2925.03 (trafficking in drugs);

(114) 2925.04 (illegal manufacture of drugs or cultivation of marijuana);

(115) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs);

(116) 2925.05 (funding of drug or marijuana trafficking);

(117) 2925.06 (illegal administration or distribution of anabolic steroids);

(118) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(119) 2925.11 (possession of drugs);

(120) 2925.13 (permitting drug abuse);

(121) 2925.14 (illegal use, possession, dealing, selling, or advertising of drug paraphernalia);

(122) 2925.141 (illegal use or possession of marihuana drug paraphernalia);

(123) 2925.22 (deception to obtain dangerous drugs);

(124) 2925.23 (illegal processing of drug documents);

(125) 2925.24 (tampering with drugs);

(126) 2925.36 (dispensing drug samples);

(127) 2925.55 (unlawful purchase of a pseudoephedrine product, underage purchase of a pseudoephedrine product, using false information to purchase a pseudoephedrine product, improper purchase of a pseudoephedrine product);

(128) 2925.56 (unlawfully selling a pseudoephedrine product; unlawfully selling a pseudoephedrine product to a minor; improper sale of a pseudoephedrine product);

(129) 2927.12 (ethnic intimidation); or,

(130) 3716.11 (placing harmful objects in food or confection).

(B) Except as set forth in rule 173-9-07 of the Administrative Code, no responsible entity shall employ or continue to employ a person in a position that involves providing ombudsman services or direct care if the person has been convicted of a violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraph (A) of this rule.

Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 109.572, 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-07 Disqualifying Offense Exclusionary Periods; Limited Grandfathering; Certificates; Pardons.

(A) Disqualifying offense exclusionary periods: Except as set forth in paragraphs (B) and (C) of this rule, a responsible entity may employ an applicant or continue to employ an employee who was convicted of or pleaded guilty to an offense listed in rule 173-9-06 of the Administrative Code in a position involving providing ombudsman services or direct care pursuant to the following exclusionary periods:

(1) Tier I: Permanent exclusion: No responsible entity shall employ an applicant or continue to employ an employee in a position involving providing ombudsman services or direct care if applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2903.01 (aggravated murder);

(b) 2903.02(murder);

(c) 2903.03(voluntary manslaughter);(d) 2903.11 (felonious assault);

(e) 2903.15 (permitting child abuse);

(f) 2903.16 (failing to provide for a functionally-impaired person);

(g) 2903.34 (patient abuse or neglect); (h) 2903.341 (patient endangerment); (i) 2905.01(kidnapping);

(j) 2905.02(abduction);

(k) 2905.32 (human trafficking);

(l) 2905.33 (unlawful conduct with respect to documents);

(m) 2907.02(rape);

(n) 2907.03 (sexual battery);

(o) 2907.04 (unlawful sexual conduct with a minor, formerly corruption of a minor);

(p) 2907.05 (gross sexual imposition);

(q) 2907.06 (sexual imposition);

(r) 2907.07(importuning);(s) 2907.08(voyeurism);

(t) 2907.12 (felonious sexual penetration);

(u) 2907.31 (disseminating matter harmful to juveniles);

(v) 2907.32 (pandering obscenity);

(w) 2907.321 (pandering obscenity involving a minor);

(x) 2907.322 (pandering sexually-oriented matter involving a minor);

(y) 2907.323 (illegal use of a minor in nudity-oriented material or performance);

(z) 2909.22 (soliciting or providing support for an act of terrorism);

(aa) 2909.23 (making terroristic threats);

(bb) 2909.24(terrorism);

(cc) 2913.40 (medicaid fraud);

(dd) If related to another offense under paragraph (A)(1) of this rule, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity);

(ee) A conviction related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program, excluding the disqualifying offenses set forth in section 2913.46 (illegal use of SNAP or WIC program benefits) and paragraph (A)(2)(a)(xiii) of this rule; or,

(ff) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraphs (A)(1)(a) to (A)(1)(ee) of this rule.

(2) Tier II: Ten-year exclusionary period:

(a) No responsible entity shall employ an applicant or continue to employ an employee in a position providing ombudsman services or direct care for a period of ten years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(i) 2903.04 (involuntary manslaughter);

(ii) 2903.041 (reckless homicide);

(iii) 2905.04 (child stealing, as it existed before July 1, 1996);

(iv) 2905.05 (child enticement);

(v) 2905.11(extortion);

(vi) 2907.21 (compelling prostitution);

(vii) 2907.22 (promoting prostitution);

(viii) 2907.23 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

(ix) 2909.02 (aggravated arson);

(x) 2909.03(arson);

(xi) 2911.01 (aggravated robbery);

(xii) 2911.11 (aggravated burglary);

(xiii) 2913.46 (illegal use of SNAP or WIC program benefits);

(xiv) 2913.48 (worker’s compensation fraud);

(xv) 2913.49 (identity fraud);

(xvi) 2917.02 (aggravated riot);

(xvii) 2923.12 (carrying concealed weapons);

(xviii) 2923.122 (illegal conveyance or possession of deadly weapon or dangerous ordnance in a school safety zone, illegal possession of an object indistinguishable from a firearm in a school safety zone);

(xix) 2923.123 (illegal conveyance, possession, or control of deadly weapon or ordnance into a courthouse);

(xx) 2923.13 (having weapons while under disability);

(xxi) 2923.161 (improperly discharging a firearm at or into a habitation or school);

(xxii) 2923.162 (discharge of firearm on or near prohibited premises);

(xxiii) 2923.21 (improperly furnishing firearms to a minor);

(xxiv) 2923.32 (engaging in a pattern of corrupt activity);

(xxv) 2923.42 (participating in a criminal gang);

(xxvi) 2925.02 (corrupting another with drugs);

(xxvii) 2925.03 (trafficking in drugs);

(xxviii) 2925.04 (illegal manufacture of drugs or cultivation of marijuana);

(xxix) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs) (xxx) 3716.11 (placing harmful or hazardous objects in food or confection);

(xxxi) If related to another offense under paragraph (A)(2)(a) of this rule, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity); or,

(xxxii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described under paragraphs (A)(2)(a)(i) to (A)(2)(a)(xxxi) of this rule.

(b) If an applicant or employee was convicted of multiple disqualifying offenses, including an offense listed in paragraph (A)(2)(a) of this rule, and another offense or offenses listed in paragraph (A)(2)(a), (A)(3)(a), or (A)(4)(a) of this rule, and if the multiple disqualifying offenses are not the result of, or connected to, the same act, the applicant or employee is subject to a fifteen-year exclusionary period.

(3) Tier III: Seven-year exclusionary period:

(a) No responsible entity shall employ an applicant or continue to employ an employee in a position providing ombudsman services or direct care for a period of seven years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty to, any offense in any of the following sections of the Revised Code:

(i) 959.13 (cruelty to animals);

(ii) 959.131 (prohibitions concerning companion animals);

(iii) 2903.12 (aggravated assault);

(iv) 2903.21 (aggravated menacing);

(v) 2903.211 (menacing by stalking);

(vi) 2905.12(coercion);

(vii) 2909.04 (disrupting public services);

(viii) 2911.02(robbery);

(ix) 2911.12(burglary);

(x) 2913.47 (insurance fraud);

(xi) 2917.01 (inciting to violence);

(xii) 2917.03(riot);

(xiii) 2917.31 (inducing panic);

(xiv) 2919.22 (endangering children);

(xv) 2919.25 (domestic violence);

(xvi) 2921.03(intimidation);

(xvii) 2921.11(perjury);

(xviii) 2921.13 (falsification, falsification in a theft offense, falsification to purchase a firearm, or falsification to obtain a concealed handgun license);

(xix) 2921.34(escape);

(xx) 2921.35 (aiding escape or resistance to lawful authority);

(xxi) 2921.36 (illegal conveyance of weapons, drugs, or other prohibited items onto the grounds of a detention facility or institution);

(xxii) 2925.05 (funding drug trafficking);

(xxiii) 2925.06 (illegal administration of distribution of anabolic steroids);

(xxiv) 2925.24 (tampering with drugs);

(xxv) 2927.12 (ethnic intimidation);

(xxvi) If related to another offense under paragraph (A)(3)(a) of this rule, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity); or,

(xxvii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described under paragraphs (A)(3)(a)(i) to (A)(3)(a)(xxvii) of this rule.

(b) If an applicant or employee was convicted of multiple disqualifying offenses, including an offense listed in paragraph (A)(3)(a) of this rule, and another offense or offenses listed in paragraph (A)(3)(a) or (A)(4)(a) of this rule, and if the multiple disqualifying offenses are not the result of, or connected to, the same act, the applicant or employee is subject to a ten-year exclusionary period.

(4) Tier IV: Five-year exclusionary period:

(a) No responsible entity shall employ and applicant or continue to employ an employee in a position providing ombudsman services or direct care for a period of five years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(i) 2903.13(assault);

(ii) 2903.22(menacing);

(iii) 2907.09 (public indecency);

(iv) 2907.24 (soliciting, engaging in solicitation after a positive HIV test);

(v) 2907.25(prostitution);

(vi) 2907.33 (deception to obtain matter harmful to juveniles);

(vii) 2911.13 (breaking and entering);

(viii) 2913.02(theft);

(ix) 2913.03 (unauthorized use of a vehicle);

(x) 2913.04 (unauthorized use of computer, cable, or telecommunication property);

(xi) 2913.05 (telecommunications fraud);

(xii) 2913.11 (passing bad checks);

(xiii) 2913.21 (misuse of credit cards);

(xiv) 2913.31 (forgery, forging identification cards);

(xv) 2913.32 (criminal simulation);

(xvi) 2913.41 (defrauding a rental agency or hostelry);

(xvii) 2913.42 (tampering with records);

(xviii) 2913.43 (securing writings by deception);

(xix) 2913.44 (personating an officer);

(xx) 2913.441 (unlawful display of law enforcement emblem);

(xxi) 2913.45 (defrauding creditors);

(xxii) 2913.51 (receiving stolen property);

(xxiii) 2919.12 (unlawful abortion);

(xxiv) 2919.121 (unlawful abortion upon minor);

(xxv) 2919.123 (unlawful distribution of an abortion-inducing drug);

(xxvi) 2919.23 (interference with custody);

(xxvii) 2919.24 (contributing to the unruliness or delinquency of a child);

(xxviii) 2921.12 (tampering with evidence);

(xxix) 2921.21 (compounding a crime);

(xxx) 2921.24 (disclosure of confidential information);

(xxxi) 2921.32 (obstructing justice);

(xxxii) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(xxxiii) 2921.51 (impersonation of peace officer);

(xxxiv) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(xxxv) 2925.11 (drug possession), unless a minor drug possession offense;

(xxxvi) 2925.13 (permitting drug abuse);

(xxxvii) 2925.22 (deception to obtain a dangerous drug);

(xxxviii) 2925.23 (illegal processing of drug documents);

(xxxix) 2925.36 (illegal dispensing of drug samples);

(xl) 2925.55 (unlawful purchase of a pseudoephedrine product, underage purchase of a pseudoephedrine product, using false information to purchase a pseudoephedrine product, improper purchase of a pseudoephedrine product);

(xli) 2925.56 (unlawfully selling a pseudoephedrine product; unlawfully selling a pseudoephedrine product to a minor; improper sale of a pseudoephedrine product); or,

(xlii) If related to another offense under paragraph (A)(4)(a) of this rule, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity); or,

(xliii) A violation of an existing or former municipal ordinance or law of this state, nay other state, or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (A)(4)(a)(i) to (A)(4)(a)(xli) of this rule.

(b) If an applicant or employee was convicted of multiple disqualifying offenses listed in paragraph (A)(4)(a) of this rule, and if the multiple disqualifying offenses are not the result of, or connected to, the same act, the applicant or employee is subject to a seven-year exclusionary period.

(5) Tier V: No exclusionary period: A responsible entity may employ an applicant or continue to employ an employee in a position providing ombudsman services or direct care if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2925.11 (drug possession), but only if a minor drug possession offense;

(b) 2925.14 (illegal use, possession, dealing, selling, or advertising of drug paraphernalia);

(c) 2925.141(illegal use or possession of marihuana drug paraphernalia); or,(d) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (A)(5) of this rule.

(B) Limited grandfathering: A responsible entity may choose to continue to employ an employee to provide ombudsman services or direct care who is otherwise excluded from employment to provide ombudsman services or direct care because the employee was convicted of, or pleaded guilty to, an offense(s) listed under paragraph (A)(4) of this rule, but only if:

(1) The responsible entity hired the employee before January 1, 2013;

(2) The employee’s conviction or guilty plea occurred before January 1, 2013; and,

(3) The responsible entity has considered the nature and seriousness of the offense(s), and attests in writing before April 1, 2013, to the character and fitness of the employee based upon the employee’s demonstrated work performance.

(C) Certificates: Except for an individual with a disqualifying offense listed in paragraph (A)(1) of this rule, a responsible entity may hire an applicant or continue to employ an employee who was issued either a:(1) Certificate of qualification for employment issued by a court of common pleas with competent jurisdiction pursuant to section 2953.25 of the Revised Code; or,

(2) Certificate of achievement and employability in a home and community-based service-related field, issued by the department of rehabilitation and corrections pursuant to section 2961.22 of the Revised Code.

(D) Pardons: A conviction or a plea of guilty to an offense listed or described in rule 173-9-06 of the Administrative Code shall not prevent an applicant’s employment or an employee’s continued employment under any of the following circumstances:

(1) The applicant or employee was granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;

(2) The applicant or employee was granted an unconditional pardon for the offense pursuant to an existing or former law of this state, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code;

(3) The conviction or guilty plea was set aside pursuant to law; or,

(4) The applicant or employee was granted a conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the conditions under which the pardon was granted have been satisfied.

Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-08 Records.

(A) Confidentiality: Pursuant to division (G) of section 173.27 of the Revised Code and division (I) of section 173.394 of the Revised Code, a criminal records check report is not a public record for the purposes of section 149.43 of the Revised Code and the responsible entity shall not make a report available to any person other than the following:

(1) For ombudsman services:

(a) The applicant or employee who is the subject of the criminal records check or the applicant’s or employee’s representative;

(b) The responsible entity or the responsible entity’s representative;

(c) A representative of the office of the state long-term care ombudsman program who is responsible for monitoring the regional program’s compliance with this section, if the state long-term care ombudsman designates the head or other employee of a regional long-term care ombudsman program to request a criminal records check;(d) A court, hearing officer, or other necessary individual involved in a case dealing with any of the following:

(i) A denial of employment of the applicant or employee;

(ii) Employment or unemployment benefits of the applicant or employee;

(iii) A civil or criminal action regarding the medicaid program or a program ODA administers.

(2) For direct-care services:

(a) The applicant or employee who is the subject of the criminal records check or the applicant’s or employee’s representative;

(b) The chief administrator of the responsible entity requesting the criminal records check or the administrator’s representative;

(c) The administrator of any other facility, agency, or program that provides direct care to individuals that is owned or operated by the same entity that owns or operates the responsible entity that requested the criminal records check;(d) The employment service that requested the criminal records check;

(e) ODA’s director or a person that ODA’s director authorizes to monitor the responsible entity’s compliance with Chapter 173-9 of the Administrative Code;

(f) The director of job and family services and the staff of the department of job and family services who are involved in the administration of the medicaid program if any of the following apply;

(i) In the case of a criminal records check requested by a responsible entity, the responsible entity is also a waiver agency; or,

(ii) In the case of a criminal records check requested by an employment service, the employment service makes the request for an applicant or employee that the employment service refers to a responsible entity that is also a waiver agency.

(g) A court, hearing officer, or other necessary individual involved in a case dealing with any of the following:

(i) A denial of employment of the applicant or employee;

(ii) Employment or unemployment benefits of the applicant or employee;

(iii) A civil or criminal action regarding the medicaid program or a program ODA administers.

(B) Records retention:

(1) Personnel files:

(a) What to retain: To document compliance with Chapter 173-9 of the Administrative Code, for each employee, the responsible entity shall retain the following records:

(i) A copy of the result of each free database review required under rule 173-9-03 of the Administrative Code.

(ii) The original copy of any criminal records report or the original copy of any reverified criminal records report.

(iii) A copy of the written attestation to the character and fitness of the employee, if the responsible entity completed a written attestation to comply with paragraph (B)(3) of rule 173-9-07 of the Administrative Code.

(iv) An official copy of a certificate of qualification for employment, if a court issued a certificate of qualification to the employee.

(v) An official copy of a certificate of achievement and employability, if the the department of rehabilitation and corrections issued a certificate of achievement and employability to the employee.

(vi) An official copy of a pardon, if a governor pardoned the employee.

(vii) The date the responsible entity hired each employee. If the responsible entity is a non-agency provider of direct-care services, the provider shall retain the date that he or she was certified by ODA. If the responsible entity is a self-employed provider, the provider shall retain the date that he or she entered into a provider agreement with ODA (or ODA’s designee).

(b) Sealed files: To comply with paragraph (A) of this rule, the responsible entity shall retain the records required under paragraph (B)(1) of this rule by sealing them within the personnel files or by retaining them in separate files from the personnel files. If the responsible entity is a non-agency provider, the responsible entity shall simply retain the records required under paragraph (B)(1) of this rule.

(c) Retain how long?:(i) The responsible entity that is an ODA-certified provider of direct-care services shall retain records and make them available for monitoring purposes according to the timelines and other terms established under paragraph (A)(5), (B)(5), (C)(5), (D)(5), (E)(5), or (F)(5) of rule 173-39-02 of the Administrative Code.

(ii) The responsible entity that is a non-certified provider of direct-care services shall retain records and make them available for monitoring purposes according to the timelines and other terms established under paragraph (A)(20) of rule 173-3-06 of the Administrative Code.

(2) Roster:

(a) A responsible entity, other than a non-agency provider, shall maintain a roster of applicants and employees, accessible by the director, that includes, but is not limited to:

(i) The name of each applicant and employee.

(ii) The date the applicant or employee started to work for the responsible entity.

(iii) The date the criminal records check request was submitted to BCII.

(iv) The date the criminal records check was received.

(v) A determination of whether the results of the check revealed that the applicant or employee committed a disqualifying offense(s).

(b) A responsible entity that is a non-agency provider shall maintain the following information, accessible by the director, that includes, but is not limited to:

(i) The date the provider was certified by ODA.

(ii) The date the criminal records check request was submitted to BCII.

(iii) The date the criminal records check was received.

(iv) A determination of whether the results of the check revealed that the applicant or employee committed a disqualifying offense(s).

Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), 460.71(a)(2), and 460.200 (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-09 Immunity from Negligent Hiring.

Pursuant to division (H) of section 173.27 of the Revised Code and division (J) of section 173.394 of the Revised Code, in a tort or other civil action for damages that is brought as the result of an injury, death, or loss to person or property caused by an applicant or employee that a responsible entity employs in a position that involves providing direct care to an individual or ombudsman services, the following shall apply:

(A) If the responsible entity employed the applicant or employee in good faith and reasonable reliance upon the report of a criminal records check requested under Chapter 173-9 of the Administrative Code, the responsible entity shall not be found negligent solely because of its reliance on the report, even if the information in the report is determined later to have been incomplete or inaccurate;

(B) If the responsible entity employed the applicant or employee in good faith on a conditional basis pursuant to rule 173-9-05 of the Administrative Code, the responsible entity shall not be found negligent solely because it employed the individual before receiving the report of a criminal records check requested under this chapter;

(C) If the responsible entity in good faith employed the applicant or employee according to the rule 173-9-07 of the Administrative Code, the responsible entity shall not be negligent solely because the applicant or employee, before being employed, had been convicted of, pleaded guilty to, or had been found eligible for intervention in lieu of conviction for a disqualifying offense listed or described in rule 173-9-06of the Administrative Code.Replaces: 173-9-01, 173-14-14

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.27, 173.391, 173.392, 173.394; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.27, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), and 460.71(a)(2) (10/01/2011 edition)

Prior Effective Dates: 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009

173-9-10 Disciplinary Actions.

ODA may take appropriate action against a responsible entity that provides direct-care services if the responsible entity violates this chapter, including terminating the employer’s provider agreement under Chapter 173-3 or 173-4 of the Administrative Code or certification under Chapter 173-39 of the Administrative Code.

Replaces: 173-9-01

Effective: 01/01/2013

R.C. 119.032 review dates: 01/01/2018

Promulgated Under: 119.03

Statutory Authority: 173.01, 173.02, 173.391, 173.392, 173.394; Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (10/01/2011 edition)

Rule Amplifies: 173.391, 173.392, 173.394; 42 C.F.R. 460.68(a), 460.71(a)(1), 460.71(a)(2), and 460.194 (10/01/2011 edition)

Prior Effective Dates: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011