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Ohio Laws and Rules
(A) Pursuant to section 173.394 of the Revised Code, this rule implements the processes and requirements for the criminal records check of each person under final consideration for employment with a community-based long-term care agency in a position that involves providing direct care, and prohibits certain criminal offenders from being employed in those positions.
This rule applies only to a person who is an applicant under final consideration for employment in a position that involves the provision of direct care through a community-based long-term care agency. This rule does not require a community-based long-term care agency to request a criminal records check of an existing employee, unless the community-based long-term care agency has previously failed to request a criminal records check required by law. This rule in no way prohibits a community-based long-term care agency from requesting a criminal records check of a person who is not subject to this rule, such as a current employee, when such a request is authorized by law.
This rule does not apply to a person who is under final consideration for employment with the office of the state long-term care ombudsman. Pursuant to division (F) of section 173.27 of the Revised Code, ODA has adopted rule 173-14-14 of the Administrative Code to implement the processes and requirements for the criminal records check of such a person.
In accordance with division (A)(1) of section 173.394 of the Revised Code, this rule does not apply to a person who is applying to provide direct care on a volunteer basis.
(B) As used in this rule:
(1) “Applicant” means a person who is under final consideration for employment with a community-based long-term care agency in a full-time, part-time, or temporary position that involves providing direct care. Pursuant to division (A)(1) of section 173.394 of the Revised Code, “applicant” does not include a person who provides direct care as a volunteer without receiving or expecting to receive any form of remuneration other than reimbursement for actual expenses.
(2) “BCII” means “bureau of criminal identification and investigation.”
(3) “Chief administrator” means the individual in charge of the daily operation of the community-based long-term care agency or any employee of the community-based long-term care agency whom the chief administrator has designated as the chief administrator’s representative.
(4) “Community-based long-term care agency” means a person or government entity that provides community-based long-term care services under a program ODA administers, regardless of whether the person or government entity is certified under section 173.391 or authorized to receive payment for services from ODA under section 173.392 of the Revised Code. “Community-based long-term care agency” includes, not only provider staff and caregivers, but also the staff of area agencies on aging and PASSPORT administrative agencies who provide direct care to service recipients of programs administered by ODA.
(5) “Community-based long-term care services” has the same meaning as in section 173.14 of the Revised Code.
(6) “Criminal records check” means any criminal records check conducted by the superintendent of BCII in accordance with division (B) of section 109.572 of the Revised Code.
(7) “Criminal sentence” means imprisonment, intensive program prison, probation, compact probation, parole, compact parole, post-release control (PRC), transitional control, judicial release, treatment in lieu of conviction, or a community control sanction, as defined in rule 5120:1-5-01 of the Administrative Code.
(8) “Direct care” means any in-person contact with one or more individuals receiving a community-based long-term care service or any service that requires the applicant to have access to an individual’s personal property.
(9) “FBI” means “federal bureau of investigation.”
(10) “ODA” means “the Ohio department of aging.”
(11) “Offense of violence” means any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.21, 2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.12, 2911.01, 2911.02, 2911.11, 2911.12, 2919.25, or 2923.161 of the Revised Code;
(b) A violation of an existing or former law of this or any other state or the United States, that is substantially equivalent to any section listed in paragraph (B)(10)(a) of this rule;
(c) A violation of a section listed in paragraph (D)(1) of this rule, or a violation of an existing or former law of this or any other state or the United States that is substantially equivalent to any section listed in paragraph (D)(1) of this rule, that was committed purposely or knowingly, and involved physical harm to persons or a risk of serious physical harm to persons.
(12) “Repeat violent offender” means a person who has been convicted of or pleaded guilty to the commission of any of the offenses of violence, as listed or described in paragraph (B)(11) of this rule, in two or more separate criminal actions. Convictions or guilty pleas resulting from or connected with the same act, or resulting from offenses committed at the same time, shall be counted as one conviction or guilty plea.
(13) “Sexually oriented offense” means any of the following offenses:
(a) Regardless of the age of the victim of the offense, a violation of section 2907.02, 2907.03, 2907.05, or 2907.12 of the Revised Code.
(b) Any of the following offenses involving a minor in the circumstances specified:
(i) A violation of section 2905.01 or 2905.02 of the Revised Code when the victim is under eighteen years of age;
(ii) A violation of division (A)(1) or (A)(3) of section 2907.321 or 2907.322 of the Revised Code; or,
(iii) A violation of division (A)(1) or (A)(2) of section 2907.323 of the Revised Code.
(c) Regardless of the age of the victim of the offense, a violation of section 2903.01, 2903.02, 2903.11, or 2905.01 of the Revised Code, or of division (A) of section 2903.04 of the Revised Code with a purpose to gratify the sexual needs or desires of the offender.
(d) Any sexually-violent offense listed or described in paragraph (B)(14) of this rule.
(e) A violation of any former law of this state that was substantially equivalent to any offense listed in paragraphs (B)(13)(a) to (B)(13)(d) of this rule.
(f) A violation of an existing for former law of another state or the United States, or a violation under the law applicable in a military court, that is or was substantially equivalent to any offense listed in paragraphs (B)(13)(a) to (B)(13)(e) of this rule.
(14) “Sexually-violent offense” means a violent sex offense, or a designated homicide, assault, or kidnapping offense for which the offender also was convicted of or pleaded guilty to a sexual motivation specification.
(a) “Designated homicide, assault, or kidnapping offense” means a violation of section 2903.01, 2903.02, 2903.11, or 2905.01 of the Revised Code or a violation of division (A) of section 2903.04 of the Revised Code.
(b) “Sexual motivation” means a purpose to gratify the sexual needs or desires of the offender.
(c) “Sexual motivation specification” means a specification, as described in section 2941.147 of the Revised Code, that charges that a person charged with a designated homicide assault or kidnapping offense committed the offense with a sexual motivation.
(d) “Violent sex offense” means any of the following:
(i) A violation of section 2907.02, 2907.03, or 2907.12 of the Revised Code; or,
(ii) A felony violation of a former law of this state that is substantially equivalent to a violation listed in paragraph (B)(14)(d)(i) of this rule.
(15) “Repeat offense” means a person who has been convicted of or pleaded guilty to the commission of any of the offenses as listed in paragraph (D) of this rule in two or more separate criminal actions. Convictions or guilty pleas resulting from or connected with the same act, or resulting from offenses committed at the same time, shall be counted as one conviction or guilty plea.
(16) “Repeat theft-related offense” means a person who has been convicted of or pleaded guilty to the commission of any two theft-related offenses or a combination of any two theft-related offenses as defined in paragraph (B)(18) of this rule, in two separate criminal actions.
(17) “Superintendent” means the superintendent of BCII.
(18) “Theft-related offense” means a violation of section 2913.03, 2913.11, 2913.21, 2913.31, 2913.40, 2913.47, or section 2913.51 of the Revised Code.
(C) Identification process
(1) Criminal records check requirements
(a) Except as otherwise provided in paragraph (C)(5) of this rule, the community-based long-term care agency shall request that the superintendent of BCII conduct a criminal records check with respect to each applicant.
(b) The community-based long-term care agency shall inform each individual, at the time of the initial application for a position that involves providing direct care, that a criminal records check is required to be conducted which will require that the applicant provide a set of fingerprint impressions if the applicant comes under final consideration for employment.
(2) Residency requirement
(a) If the applicant provides proof of having been a resident of the state of Ohio for a five-year period immediately prior to the date of the criminal records check, the community-based long-term care agency shall request that the superintendent obtain information from BCII as part of the criminal investigation of the applicant.
(b) If the applicant does not provide proof of having been a resident of this state for the five-year period immediately prior to the date of the criminal records check, the community-based long-term care agency shall request that the superintendent obtain information from the FBI as part of the criminal records check of the applicant.
(c) Even if the applicant presents proof of having been a resident of this state for the five-year period immediately prior to the date of the criminal records check, the community-based long-term care agency may request that the superintendent include information from the FBI in the criminal records check.
(3) The requirement of fingerprint impressions
(a) The chief administrator of a community-based long-term care agency required by paragraph (C)(1) of this rule to request a criminal records check shall do all of the following:
(i) Pursuant to division (B)(2)(a) of section 173.394 of the Revised Code, the chief administrator shall provide each applicant with the form required to obtain the information necessary to conduct a criminal records check with BCII, which, in accordance with division (C)(1) of section 109.572 of the Revised Code, may be in a tangible format, in an electronic format, or in both tangible and electronic formats. If the applicant does not meet the residency requirement of paragraph (C)(2) of this rule, the chief administrator shall also provide the applicant the form necessary to conduct a criminal records check with the FBI.
(ii) Pursuant to division (B)(2)(a) of section 173.394 of the Revised Code, the chief administrator shall provide each applicant with a standard fingerprint impression sheet, which, in accordance with division (C)(2) of section 109.572 of the Revised Code, may be in a tangible format, in an electronic format, or in both tangible and electronic formats. If the applicant does not meet the residency requirement of paragraph (C)(2) of this rule, the chief administrator shall also provide the applicant the fingerprint impression sheet necessary to conduct a criminal records check with the FBI.
(iii) Pursuant to division (B)(2)(a) of section 173.394 of the Revised Code, the chief administrator shall obtain the completed form and impression sheet from the applicant.
(iv) Pursuant to division (B)(2)(b) of section 173.394 of the Revised Code, the chief administrator shall forward the completed form and fingerprint impression sheet to the superintendent and also send the fee required by the superintendent or arrange for payment in a method prescribed by BCII prior to submitting the completed form and fingerprint impression sheet for processing.
(b) Pursuant to division (B)(3) of section 173.394 of the Revised Code, a community-based long-term are agency shall not employ an applicant in any position for which a criminal records check is required by this rule if the applicant fails to complete the form and fingerprint impression sheet provided under paragraphs (C)(3)(a)(i) and (C)(3)(a)(ii) of this rule.
(4) Investigation fees
(a) A community-based long-term care agency shall pay to the BCII the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check conducted pursuant to this rule.
(b) A community-based long-term care agency may charge an applicant a fee not exceeding the amount the agency pays under paragraph (C)(4) of this rule. An agency may collect a fee only if both of the following apply:
(i) The agency notified the person at the time of initial application for employment of the amount of the fee and that, unless the fee was paid, the person would not be considered for employment; and,
(ii) The medical assistance program established under Chapter 5111. of the Revised Code does not reimburse the agency the fee it pays under paragraph (C)(4) of this rule.
(5) The community-based long-term care agency is not required to request that the superintendent conduct a criminal records check of an applicant if the applicant has been referred to the community-based long-term care agency by an employment service that supplies full-time, part-time, or temporary staff for positions involving the direct care and both of the following apply:
(a) The community-based long-term care agency receives from the employment service or the applicant, a report of the results of a criminal records check regarding the applicant that has been conducted by BCII within the one-year period immediately preceding the applicant’s referral;
(b) The report of the criminal records check demonstrates that the applicant has not been convicted of or pleaded guilty to an offense listed in paragraph (D) of this rule, or the report demonstrates that the person has been convicted of or pleaded guilty to one or more of those offenses, but the community-based long-term care agency chooses to employ the applicant pursuant to paragraph (E) of this rule.
(D) Disqualifying offenses
(1) Except as provided in paragraph (E) of this rule, no community-based long-term care agency shall employ a person in a position that involves providing direct care if the person has been convicted of or pleaded guilty to a violation of any of the following sections of the Revised Code:
(a) 2903.01
(b) 2903.02
(c) 2903.03
(d) 2903.04
(e) 2903.11
(f) 2903.12
(g) 2903.13
(h) 2903.16
(i) 2903.21
(j) 2903.34
(k) 2905.01
(l) 2905.02
(m) 2905.11
(n) 2905.12
(o) 2907.02
(p) 2907.03
(q) 2907.05
(r) 2907.06
(s) 2907.07
(t) 2907.08
(u) 2907.09
(v) (former section) 2907.12
(w) 2907.25
(x) 2907.31
(y) 2907.32
(z) 2907.321
(aa) 2907.322
(bb) 2907.323
(cc) 2911.01
(dd) 2911.02
(ee) 2911.11
(ff) 2911.12
(gg) 2911.13
(hh) 2913.02
(ii) 2913.03
(jj) 2913.04
(kk) 2913.11
(ll) 2913.21
(mm) 2913.31
(nn) 2913.40
(oo) 2913.43
(pp) 2913.47
(qq) 2913.51
(rr) 2919.25
(ss) 2921.36
(tt) 2923.12
(uu) 2923.13
(vv) 2923.161
(ww) 2925.02
(xx) 2925.03
(yy) 2925.11
(zz) 2925.13
(aaa) 2925.22
(bbb) 2925.23
(ccc) 3716.11
(2) A violation of an existing or former 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 (D)(1) of this rule.
(E) Personal character standards
(1) A community-based long-term care agency may employ an applicant who has been convicted of or pleaded guilty to an offense listed in paragraph (D) of this rule in a position that involves providing direct care if all of the following personal character standards are met for each offense:
(a) The applicant is not a repeat violent offender as defined in paragraph (B)(12) of this rule;
(b) The offense is not a sexually-oriented offense as defined in paragraph (B)(13) of this rule;
(c) The offense is not one of abuse or neglect as described in section 2903.34 of the Revised Code or a violation of an existing or former law of this state, any other state, or the United States, if the offense is substantially equivalent to any offense described in section 2903.34 of the Revised Code;
(d) The offense is not one of adulteration of food as described in section 3716.11 of the Revised Code or a violation of an existing or former law of this state, any other state, or United States, if the offense is substantially equivalent to any offense described in section 3716.11 of the Revised Code;
(e) The offense is not a repeat theft-related offense, as defined in paragraph (C)(17) (B)(16) of this rule or a violation of any two, or a combination of any two existing or former laws of this state, any other state, or the United States, if the theft-related offenses are substantially equivalent to any of the offenses described in paragraph (B)(18) of this rule;
(f) The offense is not one of aggravated murder as described in section 2903.01 of the Revised Code or a violation of an existing or former law of this state, any other state, or the United States, if the offense is substantially equivalent to any offense described in section 2903.01 of the Revised Code;
(g) The offense is not one of murder as described in section 2903.02 of the Revised Code or a violation of an existing or former law of this state, any other state, or the United States, if the offense is substantially equivalent to any offense described in section 2903.02 of the Revised Code;
(h) The offense is not one of voluntary manslaughter as described in section 2903.03 of the Revised Code or a violation of an existing for former law of this state, any other state, or the United States, if the offense is substantially equivalent to any offense described in section 2903.03 of the Revised Code;
(i) The offense is not an offense of violence as defined in paragraph (B)(11) of this rule; and the applicant is discharged from any criminal sentence;
(j) A community-based long-term care agency may employ an applicant who has been convicted of or pleaded guilty to an offense of violence as defined in paragraph (B)(11) of this rule if, and only if, at least five years have elapsed since the applicant was fully discharged from any criminal sentence; and,
(k) A community-based long-term care agency may not employ an applicant who has been convicted of or pleaded guilty to an offense of violence, as defined in paragraph (B)(11) of this rule, if the victim was an older adult.
(2) When paragraph (E)(1) of this rule is met, the community-based long-term care agency shall consider each of the following factors in determining whether it is not likely that the applicant will commit another disqualifying offense:
(a) The duties and responsibilities of the position;
(b) The nature and seriousness of the offense;
(c) Whether or not the applicant had committed a theft-related offense as defined in paragraph (B)(18) of this rule or a violation of an existing or former law of this state, any other state, or the United States, if the offense is substantially equivalent to any theft-related offense as defined in paragraph (B)(18) of this rule;
(d) Whether or not the applicant had committed an offense of violence as described in paragraph (B)(11) of this rule;
(e) The circumstances under which the offense was committed, including but not limited to:
(i) The applicant’s age at the time of the offense;
(ii) The degree to which the applicant participated in the offense; and,
(iii) The age and ability of the victim, including whether the victim was an individual with physical disability and/or an older adult (if the victim was an older adult, the community-based long-term care agency should give greater consideration in the decision whether or not to hire).
(f) The extent to which the position being filled provides an opportunity for the commission of the same or similar offenses;
(g) The time elapsed since the applicant was fully discharged from any criminal sentence;
(h) The applicant’s efforts at rehabilitation and the results of those efforts;
(i) Whether any criminal proceedings are pending against the applicant;
(j) A conviction listed on the report of criminal background check which lists an offense contained in the Revised Code that is not listed in paragraph (D)(1) of this rule, if the crime bears a direct and substantial relationship to the duties and responsibilities of the position being filled; and,
(k) Any other factors which are relevant to the performance of the job duties.
(3) It is the duty of an applicant to provide proof that the standards in regard to personal character specified in paragraphs (E)(1) and (E)(2) of this rule are met. If the applicant fails to provide such proof or if the community-based long-term care agency determines that the proof offered by the applicant is inconclusive, the applicant shall not be placed in a position that requires direct care.
(F) Pardons
A conviction of, or a plea of guilty to, an offense listed or described in paragraph (D) of this rule shall not prevent an applicant’s employment under any of the following circumstances:
(1) The applicant has been granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;
(2) The applicant has been 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 applicant has been granted a conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the conditions(s) under which the pardon was granted have been satisfied; or,
(4) The conviction or guilty plea has been set aside pursuant to law.
(G) Conditional employment
(1) A community-based long-term care agency may employ an applicant conditionally prior to obtaining the results of a criminal records check regarding the applicant if the following requirements are met:
(a) The agency initiates the process of obtaining a criminal records check not later than five business days after the applicant begins conditional employment; and,
(b) The applicant provides the agency with a completed fingerprint impression sheet before the commencement of the applicant’s employment.
(2) The community-based long-term care agency shall terminate the applicant’s conditional employment if:
(a) The results of the criminal records check, conducted by BCII only, are not obtained within sixty days after the date the request is made; or,
(b) The results of the criminal records check indicate that the applicant has been convicted of or pleaded guilty to any of the offenses specified in paragraph (D) of this rule, unless the agency chooses to employ the applicant pursuant to paragraphs (E) and (F) of this rule.
(3) Termination of employment under this division shall be considered just cause for discharge for purposes of division (D)(2) of section 4141.29 of the Revised Code if the applicant lied to the agency about facts regarding his/her criminal record.
(H) Non-disclosure
The report of any criminal records check conducted pursuant to a request made under this rule is not a public record for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following:
(1) The applicant who is the subject of the criminal records check or the applicant’s representative;
(2) The chief administrator of the community-based long-term care agency requesting the criminal records check or the administrator’s designee;
(3) The chief administrator or designee of any other facility, agency, or program that provides direct care that is owned and operated by the same entity that owns or operates the community-based long-term care agency;
(4) A court hearing officer or other necessary individual involved in a case dealing with a denial of employment of the applicant; or,
(5) The monitoring staff of ODA, an AAA, or a PAA who, through this rule, are hereby authorized by the director of ODA to monitor a community-based long-term care agency for compliance with this rule.
(I) Documentation
The chief administrator or designee of the community-based long-term care agency shall maintain an applicant log separate from the personnel record which shall contain the following information:
(1) Names of all applicants;
(2) The date of application;
(3) The date the applicant started work;
(4) The date the criminal records check request was submitted to BCII;
(5) The type(s) of criminal records checks requested (BCII, FBI, or both);
(6) The date(s) the BCII and FBI checks were received;
(7) Whether or not the results of the check(s) revealed that the applicant committed one or more disqualifying offenses, the identity of the offense(s), and the dates they were committed;
(8) The number of references received on behalf of the applicant, the dates that the references were received, and how the references were verified;
(9) Whether the personal character standards were applied as a condition for employment;
(10) Whether the applicant was conditionally hired, hired and/or terminated;
(11) The date of the fingerprint check by BCII, FBI or both; and,
(12) A community-based long-term care agency shall certify in the applicant log that it has used each and every personal character standard described in paragraph (E) of this rule when hiring an applicant whose background check revealed the commission of a disqualifying offense described in paragraph (D) of this rule.
(J) ODA may take appropriate action against a PASSPORT community-based long-term care agency that violates this rule, including but not limited to terminating the community-based long-term care agency’s provider contract or the certification of the agency under Chapter 173-39 of the Administrative Code.
Effective: 01/01/2008
R.C. 119.032 review dates: 10/15/2007 and 10/15/2011
Promulgated Under: 119.03
Statutory Authority: 173.02, 173.394
Rule Amplifies: 173.394
Prior Effective Dates: Eff. 3/4/97 (Emer.); 7/31/97; 4/17/03