Or. Admin. Code § 407-007-0220

Current through Register Vol. 63, No. 12, December 1, 2024

Section 407-007-0220 - Background Check Required

(1) An SI must have a background 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) The individual, whether previously considered an SI or not, changes positions under the same QE, and the new position requires a background check.

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

(e) For a student enrolled in a nursing facility nursing assistant training program for employment at the facility, a new background check is required when the student is first enrolled in the training program to be in contact with nursing facility patients, and again if the student becomes an employee at the facility unless the first background check results in good standing in the background check registry and portability pursuant to OAR 407-007-0600 to 407-007-0640.

(f) A background check is required by federal or state laws or regulations, other Department or Authority administrative rules, or by contract with the Department or Authority.

(g) When BCU or the QE has reason to believe that a background check is justified, if allowed by statute or rule. Examples include but are not limited to:

(A) Credible evidence of new potentially disqualifying convictions or conditions. Pursuant to OAR 407-007-0620(6), BCU must either immediately remove an SI's portability, revoke an SI's good standing, or both if BCU receives credible evidence indicating that the SI has new potentially disqualifying convictions or conditions.

(B) A lapse in working or volunteering in a position under the direction and control of the QE but the SI is still considered in the position. For example, an extended period of leave by an SI. The QE determines the need for a background check.

(C) Quality assurance monitoring by the Department or Authority of a previously conducted criminal records check or abuse check.

(2) If the SI is subject to a background check due to involvement with the foster or adoptive placement of a child and:

(a) Is subject to the Interstate Compact on Placement of Children (ORS 417.200 and OAR 413-040-0200 to 413-040-0330), the background check must comply with Interstate Compact requirements.

(b) Is subject to the Inter-County Adoption Act of 2000 (42 USC 14901 et seq.), the background check must comply with federal requirements and ORS 417.262.

(3) If QEs, Department program rules, or Authority program rules require an SI to report any new arrests, charges, or convictions, the QE may determine if personnel action is required if the SI does not report. Personnel action may include a new background check if allowed by statute or rule.

(4) A homecare worker or personal support worker, as defined in ORS 410.600, is subject to section (1) of this rules. However, a homecare worker or personal support worker does not need a new background check when adding new client employers by meeting the following requirements: the homecare worker or personal support worker must have:

(a) A Department background check notice of final fitness determination dated within the recheck period according to Department program rules showing that the homecare worker or personal support worker has been:

(A) Approved;

(B) Approved with restrictions that do not prohibit additional clients; or

(C) Approved but not having portability pursuant to OAR 407-007-0600 to 407-007-0640; and

(b) The background check notice of final fitness determination lists a worksite of "various," "various clients," "statewide," or similar wording.

(5) A personal care services provider, life span respite or other respite care provider, or an independent provider paid with Department or Authority funds is subject to section (1) of this rule. However, an SI in these positions may change or add clients within the same QE, Department, or Authority district without a new background check if the prior, documented criminal records check or abuse check conducted within the previous 24 months through the Department or Authority has been:

(a) Approved;

(b) Approved with restrictions that do not prohibit additional clients; or

(c) Approved but not having portability pursuant to OAR 407-007-0600 to 407-007-0640.

(6) Regardless of section (1) of this rules, an individual subject to ORS 475A and OAR 333-333-4100 follows the criminal records check requirements in ORS chapter 475A and OAR 333-333-4100.

(7) If an SI remains with a QE in the same position listed in the background check request and the QE merges with another QE, is sold to another QE, or changes names, the SI does not need a new background check. The changes to the QE may be noted in documentation attached to the notice of fitness determination but do not warrant a new background check.

(8) For a student enrolled in a nursing facility nursing assistant training program for employment at the facility, a new background check is not required at graduation from the training program or at the granting of certification by the Board of Nursing.

(9) The SI on the background check registry in good standing maintained under OAR 407-007-0600 to 407-007-0640 is subject to section (1) of this rule when the SI's new background check being considered is not for a position that would result in placement on the background check registry maintained under OAR 407-007-0600 to 407-007-0640 if approved.

(10) The restrictions on criminal records checks in this section may exempt an SI from background checks required under section (1) of this rule as determined by the Department pursuant to ORS 443.004(1)(b).

(a) This section applies to an SI subject to ORS 443.004 who is:

(A) An employee of a residential facility or an adult foster home;

(B) Any individual who is paid directly or indirectly with public funds who has or will have contact with a recipient of support services or a resident of an adult foster home or a residential facility; and

(C) A home care worker or a personal support worker as defined in ORS 410.600.

(b) The Department must complete not more than one criminal records check every 18 months on an SI subject to this section, effective as of the completion of the SI's first background check after the implementation of ORS 443.004(1)(b) (Or Law 2021 chapter 198), on June 8, 2021.

(c) A criminal records check, as part of a new background check, may be completed more often only if the Department:

(A) Receives credible evidence of a new criminal conviction;

(B) Receives credible evidence of potentially disqualifying abuse;

(C) Is required by federal law to conduct more frequent criminal record checks;

(D) Is notified by a QE and an SI has changed position or duties for which there are different criminal records check requirements; or

(E) Determines that it would be burdensome for an SI to wait for a new criminal records check, including but not limited to:

(i) The Department receives credible evidence of a change in circumstances that could positively impact a previous fitness determination;

(ii) The SI is seeking certification, licensure, or some other qualification associated with his or her job that requires a background check;

(d) If the Department determines that a new fitness determination is necessary and a new criminal records check is not allowed, the Department may complete a new abuse check and use information from the most recent criminal records check completed on the SI in the Department's records. An example of when a new fitness determination is necessary, and a new criminal records check is not allowed, is when BCU learns of a new potentially disqualifying condition.

(e) If an SI changes positions while staying with the same QE and the new position is not subject to the registry under OAR 407-007-0600 to 407-007-0640, the QED must document that no new background check may be completed for the new position pursuant to ORS 443.004 and OAR 407-007-0220(10)(b).

(f) If the SI is applying for a position that requires a background check under these rules but is not subject to ORS 443.004, the restrictions in this section do not apply and do not count as criminal records checks towards this section.

(11) Background checks are completed on SIs who otherwise meet the qualifications of the position listed on the background check request, the position description completed by the QE, and the program rules governing the QE and position. A background check may not be used to screen applicants for a position or who do not meet such qualifications.

Or. Admin. Code § 407-007-0220

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; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 3-2012(Temp), f. & cert. ef. 4-13-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD 3-2013, f. & cert. ef. 8-1-13; DHSD 2-2014, f. & cert. ef. 12/1/2014; DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16; DHSD 5-2016, f. 6-10-16, cert. ef. 6/15/2016; DHSD 18-2019, temporary amend filed 09/26/2019, effective 9/27/2019 through 03/24/2020; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020; DHS 7-2021, temporary amend filed 06/25/2021, effective 6/25/2021 through 12/21/2021; DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021; DHS 1-2023, amend filed 01/27/2023, effective 2/1/2023

Statutory/Other Authority: ORS 181A.200, ORS 409.027 & 409.050

Statutes/Other Implemented: ORS 181A.200, ORS 409.027, ORS 181A.195 & 443.004