Or. Admin. Code § 635-600-0030

Current through Register Vol. 63, No. 10, October 1, 2024

Section 635-600-0030 - Final Fitness Determination

(1) The Department shall consider the following factors in relation to information provided by the subject individual, including any criminal offender information obtained through a criminal history check and other information known by the Department:

(a) The nature of the crime;

(b) The facts that support the conviction, or that indicate the making of a false statement;

(c) The relevancy, if any, of the crime or the false statement to the specific requirements of the subject individual's present or proposed position, services, employment, license, certification or registration; and

(d) Intervening circumstances relevant to the responsibilities and circumstances of the position, services, employment, license, certification, registration or permit such as:

(i) The passage of time since the commission of the crime;

(ii) The age of the subject individual at the time of the crime;

(iii) The likelihood of a repetition of offenses or of the commission of another crime;

(iv) The subsequent commission of another relevant crime;

(v) Whether the conviction was set aside and the legal effect of setting aside the conviction; and

(vi) The recommendation of an employee.

(2) Upon completion of the fitness determination, one of the following outcomes shall be made and written notification shall be provided to the subject individual indicating the outcome when appeal rights are afforded or when a fitness determination is not completed;

(a) Approval.

(A) The subject individual is approved to work, obtain or retain credentials, have direct access, or otherwise provide services to individuals.

(B) An approved outcome does not guarantee employment, obtaining or retaining credentials, or the ability to have direct access, or otherwise provide services, to individuals.

(b) Restricted or Conditional Approval.

(A) The Department may restrict the approval to specific activities, clients or locations.

(B) The Department may complete a new criminal history check and fitness determination on the subject individual prior to removing a restriction.

(c) Denial.

(A) The Department denies a subject individual if the Department determines, through a fitness determination, that the subject individual is not fit to work, obtain or retain credentials, have direct access, or otherwise provide services to individuals.

(B) If a subject individual is denied, then the subject individual shall not work, receive or retain credentials, have direct access, or otherwise provide services to individuals.

(d) Incomplete Fitness Determination.

(A) The subject individual discontinues the criminal history process for any reason or refuses to be fingerprinted or respond to written correspondence from the Department.

(B) The subject individual is determined to be ineligible for reasons other than a criminal history check.

(C) The subject individual is determined to be ineligible pursuant to the Department's enabling statute, or otherwise provided by law.

(D) The subject individual shall not be allowed to work, receive credentials, have direct access, or otherwise provide services to individuals.

(e) Refusal to Consent. If a subject individual refuses to submit or consent to a criminal history check, or refuses to be fingerprinted, the Department shall deny the employment of the subject individual, or revoke or deny any applicable position, authority to provide services, license, certification, registration or permit. A person may not appeal any determination made based on a refusal to consent.

(3) Final Order. A completed final fitness determination is final unless the subject individual appeals by requesting either a contested case hearing or an alternative appeal process as provided by OAR 635-600-0050.

Or. Admin. Code § 635-600-0030

DFW 40-2008, f.& cert. ef. 4-24-08; DFW 149-2009, f. 12-15-09, cert. ef. 1-1-10; DFW 20-2018, amend filed 02/14/2018, effective 2/14/2018

Statutory/Other Authority: ORS 181A.195 & ORS 496.121

Statutes/Other Implemented: ORS 181A.195 & ORS 496.121