Chapter 173-9 | Criminal Records Check - Paid Direct-Care Position

Rule 173-9-01 | Background checks for paid direct-care positions: introduction and definitions.

• Effective: November 1, 2023
• Promulgated Under: 119.03

(A) Introduction: This chapter implements sections 173.38 and 173.381 of the Revised Code.

(B) Definitions for this chapter:

(1) "Area agency on aging" has the same meaning as in section 173.14 of the Revised Code.

(2) "Applicant" means a person that a responsible party is giving final consideration for hiring into a paid direct-care position that is a full-time, part-time, or temporary position that involves providing services to consumers through an ODA-administered program, even if an employment service refers the person to the responsible party. "Applicant" includes a person that a consumer has under final consideration for hiring as a participant-directed or self-directed provider. "Applicant" does not include a volunteer.

(3) "BCII" means "the bureau of criminal identification and investigation" and includes the superintendent of BCII.

(4) "Check criminal records" means to conduct a criminal records check.

(5) "Community-based long-term care services" means community-based long-term care services that are provided under any ODA-administered program.

(6) "Consumer" means a person who receives community-based long-term care services through a program that ODA administers. "Consumer" includes individuals in the PASSPORT and assisted living programs and participants in PACE.

(7) "Criminal records" has the same meaning as "results of the criminal records check," "results," and "report" in sections 173.38 and 173.381 of the Revised Code when those sections use "results of the criminal records check," "results," and "report" to refer to the criminal records that BCII provides to responsible parties that conduct criminal records checks. Criminal records originate from BCII unless the context indicates that the criminal records originate from the FBI.

(8) "Criminal records check" ("check") means the criminal records check described in section 173.38 or 173.381 of the Revised Code and Chapter 173-9 of the Administrative Code.

(9) "Database reviews" means the database reviews under rule 173-9-03 of the Administrative Code.

(10) "Direct-care position":

(a) "Direct-care position" means an employment position in which an employee has either one or both of the following:

(i) In-person contact with one or more consumers.

(ii) Access to one or more consumers' personal property or records.

(b) "Direct-care position" does not include a position whose sole duties are transporting people under Chapter 306. of the Revised Code (i.e., while working for a county transit system, regional transit authority, or regional transit commission).

(11) "Disqualifying offense" means any offense listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

(12) "Employee" means a person that a responsible party hired into a paid direct-care position that is a full-time, part-time, or temporary position that involves providing services to consumers through an ODA-administered program, even if an employment service initially referred the person to the responsible party. "Employee" includes a participant-directed provider and a self-directed provider. "Employee" does not include a volunteer.

(13) "FBI" means "federal bureau of investigation."

(14) "Fire" has the same meaning as "terminate" in section 173.38 of the Revised Code when the "terminate" regards firing an employee.

(15) "Hire" has the same meaning as "employ" in section 173.38 of the Revised Code when "employ" regards hiring an applicant.

(16) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

(17) "ODA" means "the Ohio department of aging."

(18) "PACE organization" has the same meaning as in rule 173-50-01 of the Administrative Code.

(19) "PASSPORT administrative agency" has the same meaning as in section 173.42 of the Revised Code.

(20) "Provider" means a person or government entity that provides community-based long-term care services under an ODA-administered program.

(21) "Release" has the same meaning as "terminate" in section 173.38 of the Revised Code when "terminate" regards releasing a conditionally-hired applicant.

(22) "Request criminal records" means to request a criminal records check, unless the context indicates that the request is of criminal records from the FBI.

(23) "Responsible party":

(a) When hiring an applicant for, or retaining an employee in, a paid direct-care position, "responsible party" means the area agency on aging, PASSPORT administrative agency, provider, or sub-contractor.

(b) When hiring an applicant for, or retaining an employee in, a paid direct-care position in a participant-direction or self-direction arrangement, "responsible party" means the consumer.

(c) When considering a self-employed applicant for ODA-certification under section 173.391 of the Revised Code or a self-employed person already ODA-certified section 173.391 of the Revised Code, "responsible party" means ODA or the PASSPORT administrative agency.

(d) When considering a self-employed bidder for an AAA-provider agreement under section 173.392 of the Revised Code or a self-employed person already in an AAA-provider agreement under section 173.392 of the Revised Code, "responsible party" means the area agency on aging.

(24) "Retain" has the same meaning as "continue to employ" in section 173.38 of the Revised Code.

(25) "Reviewing databases" means the action involved in database reviews.

(26) "Self-employed" means the state of working for one's self with no employees. Non-agency and independent providers are self-employed. Participant-directed providers are not self-employed because the consumer is the employer of record.

(27) "Sub-contractor" means a provider that enters into a contract with a responsible party to provide a component of one or more of the other responsible party's direct-care positions. "Sub-contractor" includes a party that directly supplies services to a consumer on behalf of another responsible party. "Sub-contractor" does not include a party that indirectly supplies services to a consumer by directly providing the services to a responsible party.

(28) "Volunteer" means a person who serves in a direct-care position without receiving, or expecting to receive, any form of remuneration other than reimbursement for actual expenses.

Last updated November 1, 2023 at 8:21 AM

Supplemental Information

Authorized By: 121.07, 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68, 460.71
Five Year Review Date: 11/1/2028
Prior Effective Dates: 3/4/1997 (Emer.), 4/17/2003, 1/1/2008, 2/15/2009, 8/11/2011, 2/1/2015

Rule 173-9-02 | Background checks for paid direct-care positions: applicability.

• Effective: November 1, 2023
• Promulgated Under: 119.03

(A) Applicability: This chapter applies to every paid direct-care position unless this rule states otherwise. (For more information, please see the tables to appendix A to rule 173-9-04 of the Administrative Code.)

(B) Inapplicability: This chapter does not apply to the following positions:

(1) A volunteer position.

(2) A position whose sole duty is transporting consumers under Chapter 306. of the Revised Code (i.e., while working for a county transit system, regional transit authority, or regional transit commission).

(3) A position in a residential care facility. (See the background check requirements in Chapter 3701-13 of the Administrative Code.)

(4) A position providing home health services or another service for which the provider needs a home health license under Chapter 3740. of the Revised Code. (See the background check requirements in Chapter 3701-60 of the Administrative Code.)

Last updated November 1, 2023 at 8:22 AM

Supplemental Information

Authorized By: 121.07, 173.01. 173.02, 173.38, 173.381, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68, 460.71
Five Year Review Date: 11/1/2028
Prior Effective Dates: 1/1/2013, 8/1/2017

Rule 173-9-03 | Background checks for paid direct-care positions: reviewing databases.

• Effective: November 1, 2023
• Promulgated Under: 119.03

(A) When to review: The responsible party shall review the databases listed under paragraph (B) of this rule to see if an applicant, employee, or self-employed provider has a disqualifying status in any of those databases before the deadlines for conducting a criminal records check on the applicant, employee, or self-employed provider in appendix B to rule 173-9-04 of the Administrative Code. The responsible party may conduct a criminal records check before reviewing databases if the responsible party completes both before the deadlines in appendix B to rule 173-9-04 of the Administrative Code. Any responsible party may use the automated registry check system (ARCS) to review all databases listed under paragraph (B) of this rule at the same time and on a continual basis.

(B) Databases to review: If the URL associated with any of the following databases becomes obsolete, please consult with the government entity publishing the database for an updated URL:

(1) The United States general services administration's system for award management (https://www.sam.gov/), which is maintained pursuant to subpart 9.4 of the federal acquisition regulation.

(2) The office of inspector general of the United States department of health and human services' list of excluded individuals and entities (https://exclusions.oig.hhs.gov/), which is maintained pursuant to sections 1128 and 1156 of the "Social Security Act," 42 U.S.C. 1320a-7 and 1320c-5; or, if using ODM's automated registry check system (ARCS), the medicare exclusion database which is maintained pursuant to 42 C.F.R. 455.436.

(3) The department of developmental disabilities' online abuser registry (https://its.prodapps.dodd.ohio.gov/ABR_Default.aspx), established under section 5123.52 of the Revised Code, which lists people cited for abuse, neglect, or misappropriation.

(4) The department of medicaid's online provider exclusion and suspension list (https://medicaid.ohio.gov/resources-for-providers/enrollment-and-support/provider-enrollment/provider-exclusion-and-suspension-list).

(5) The Ohio attorney general's sex offender and child-victim offender database (http://www.icrimewatch.net/index.php?AgencyID=55149&disc=), established under division (A)(1) of section 2950.13 of the Revised Code.

(6) The department of rehabilitation and correction's database of inmates (https://appgateway.drc.ohio.gov/OffenderSearch), established under section 5120.66 of the Revised Code.

(7) The department of health's state nurse aide registry (https://nurseaideregistry.odh.ohio.gov/Public/PublicNurseAideSearch), established under section 3721.32 of the Revised Code. If the applicant or employee does not present proof of Ohio residency for the five-year period immediately preceding the date of the database review, the responsible party shall conduct a review of the nurse aide registry in the state or states in which the applicant or employee lived.

(C) Disqualifying status:

(1) If an applicant's, employee's, or self-employed provider's name or alias appears in any of the databases listed in paragraphs (B)(1) to (B)(6) of this rule, the applicant, employee, or self-employed provider has a disqualifying status and is ineligible to work in a paid direct-care position.

(2) If an applicant's, employee's, or self-employed provider's name or alias appears in a database listed in paragraph (B)(7) of this rule as a person who has abused or neglected a resident of a long-term care facility or residential care facility, or misappropriated such a resident's property, the applicant, employee, or self-employed provider has a disqualifying status and is ineligible to work in a paid direct-care position.

(D) Referral by an employment service: Division (G) of section 173.38 of the Revised Code establishes an exception to the requirement to review an applicant's or employee's status in the databases listed under paragraph (B) of this rule.

Last updated November 1, 2023 at 8:22 AM

Supplemental Information

Authorized By: 121.07, 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68, 460.71
Five Year Review Date: 11/1/2028
Prior Effective Dates: 8/1/2017

Rule 173-9-04 | Background checks for paid direct-care positions: who to check, procedures, deadlines, and special situations.

• Effective: November 1, 2023
• Promulgated Under: 119.03

(A) Who to check: The tables to appendix A to this rule determine on which applicants, employees, and self-employed providers to conduct a criminal records check with BCII.

(B) Procedures: Sections 173.38 and 173.381 of the Revised Code and Chapter 109:5-1 of the Administrative Code establish the procedures for conducting criminal records checks.

(C) Deadlines: The tables to appendix B to this rule establish the deadlines for a responsible party to conduct a criminal records check with BCII on the applicant, employee, or self-employed provider identified under paragraph (A) of this rule.

(D) Special situations:

(1) Reverification: If any person has requested a criminal records check from BCII on the person identified under paragraph (B) of this rule in the past year that required BCII to include sealed criminal records, the responsible party may request a reverification of the criminal records from BCII. The reverification of the criminal records has the same validity as the criminal records received during the past year.

(2) FBI records: Division (F) of section 173.38 and division (F) of section 173.381 of the Revised Code establish standards for when to request that BCII obtain information from FBI as part of the criminal records check on the applicant, employee, or self-employed provider identified under paragraph (A) of this rule.

(3) Referrals from an employment service: Division (G) of section 173.38 of the Revised Code establishes an exception to the requirement to conduct a criminal records check on an applicant or employee referred to a responsible party by an employment agency.

(4) Participant-directed providers: Rules 173-40-06 and 173-42-06 of the Administrative Code establish a requirement for PAAs to assist consumers enrolled in the PASSPORT program with their duties under this rule as responsible parties for participant-directed providers.

View AppendixView Appendix

Last updated November 1, 2023 at 8:22 AM

Supplemental Information

Authorized By: 121.07, 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68, 460.71
Five Year Review Date: 11/1/2028
Prior Effective Dates: 7/11/1991, 12/27/2001, 12/28/2006, 1/1/2008, 1/1/2013

Rule 173-9-05 | Background checks for paid direct-care positions: conditional hiring.

• Effective: November 1, 2023
• Promulgated Under: 119.03

(A) If the responsible party is an AAA, a PAA, an agency provider (including a PACE organization or a subcontractor), or a consumer (in the case of a hiring an applicant to be a participant-directed provider), the responsible party may conditionally hire an applicant for up to sixty days if the responsible party complies with all requirements and limitations under division (H) of section 173.38 of the Revised Code.

(B) Limited applicability:

(1) This rule does not establish a requirement for an employee who holds a paid direct-care position to enter a conditional status when undergoing a criminal records check.

(2) This rule does not authorize ODA to offer a conditional status to a self-employed applicant for ODA certification as a non-agency provider.

(3) This rule does not authorize an AAA to offer a conditional status to a self-employed bidder on an AAA-provider agreement.

Last updated November 1, 2023 at 8:22 AM

Supplemental Information

Authorized By: 121.07, 173.01, 173.02, 173.38, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 173.38
Five Year Review Date: 11/1/2028
Prior Effective Dates: 1/1/2013, 2/1/2015

Rule 173-9-06 | Background checks for paid direct-care positions: disqualifying offenses.

• Effective: November 1, 2023
• Promulgated Under: 119.03

(A) No responsible party may hire an applicant or subcontract with a self-employed provider, retain an employee or a self-employed provider, certify a self-employed provider, fail to revoke a self-employed person's certification, enter into an AAA-provider agreement (agreement) with a self-employed provider, or fail to terminate that agreement, if the applicant, employee, or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to an offense in any of the following sections of the Revised Code unless allowed under rule 173-9-07 of the Administrative 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 (knowingly or recklessly 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, gross patient abuse, patient 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 (enticing or soliciting another person to patronize a prostitute or brothel; procurement of a prostitute for another person to patronize).

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

(39) 2907.25 (prostitution, engaging in prostitution after a positive HIV test).

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

(41) 2907.32 (pandering obscenity).

(42) 2907.321 (pandering obscenity involving a minor or impaired person).

(43) 2907.322 (pandering sexually-oriented matter involving a minor or impaired person).

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

(45) 2907.33 (deception to obtain matter harmful 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 an act of terrorism).

(50) 2909.23 (making a terroristic threat).

(51) 2909.24 (terrorism).

(52) 2911.01 (aggravated robbery).

(53) 2911.02 (robbery);.

(54) 2911.11 (aggravated burglary).

(55) 2911.12 (burglary, trespass in a habitation when a person is present or likely to be present).

(56) 2911.13 (breaking and entering).

(57) 2913.02 (theft).

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

(59) 2913.04 (unauthorized use of property; unauthorized use of computer, cable, or telecommunication property; unauthorized use of the law enforcement automated database system; unauthorized use of the Ohio law enforcement gateway).

(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 or selling or distributing forged 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 the emblem of a law enforcement agency or an organization of law enforcement officers).

(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 (identity 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) 2919.124 (unlawful performance of a drug-induced abortion).

(85) 2919.22 (endangering children).

(86) 2919.23 (interference with custody).

(87) 2919.24 (contributing to unruliness or delinquency of child).

(88) 2919.25 (domestic violence).

(89) 2921.03 (intimidation).

(90) 2921.11 (perjury).

(91) 2921.12 (tampering with evidence).

(92) 2921.13 (falsification, falsification in a theft offense, falsification to purchase a firearm, falsification to obtain a concealed handgun license, falsification regarding a removal proceeding).

(93) .2921.21 (compounding a crime).

(94) 2921.24 (disclosure of confidential information).

(95) 2921.32 (obstructing justice).

(96) 2921.321 (assaulting or harassing a police dog or horse assaulting or harassing an assistance dog).

(97) 2921.34 (escape).

(98) 2921.35 (aiding escape or resistance to lawful authority).

(99) 2921.36 (illegal conveyance of weapons, drugs, intoxicating liquor, or a communications device onto the grounds of specified government facility, illegal conveyance of cash onto the grounds of a detention facility).

(100) 2921.51 (impersonation of peace officer, private police officer, federal law enforcement officer, or BCII investigator).

(101) 2923.01 (conspiracy to commit a disqualifying offense).

(102) 2923.02 (attempt to commit a disqualifying offense).

(103) .2923.03 (complicity related to another disqualifying offense).

(104) 2923.12 (carrying concealed weapons).

(105) 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).

(106) 2923.123 (illegal conveyance of a deadly weapon into a courthouse illegal, possession, or control of deadly weapon or ordnance into a courthouse).

(107) 2923.13 (having weapons while under disability).

(108) 2923.161 (improperly discharging a firearm at or into a habitation, school safety zone, or with the intent to cause harm or panic to persons in a school, in a school building, or at a school function or the evacuation of a school function).

(109) 2923.162 (discharge of firearm on or near prohibited premises).

(110) 2923.21 (improperly furnishing firearms to minor).

(111) 2923.32 (engaging in a pattern of corrupt activity).

(112) 2923.42 (participating in criminal gang).

(113) 2925.02 (corrupting another with drugs).

(114) 2925.03 (aggravated trafficking in drugs, trafficking in drugs, trafficking in marihuana [marijuana], trafficking in cocaine, trafficking in LSD, trafficking in heroin, trafficking in hashish, trafficking in a controlled substance analog, trafficking in a fentanyl-related compound).

(115) 2925.04 (illegal manufacture of drugs, illegal cultivation of marijuana).

(116) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs).

(117) 2925.05 (aggravated funding of drug or marihuana [marijuana] trafficking, drug or marihuana [marijuana] trafficking).

(118) 2925.06 (illegal administration or distribution of anabolic steroids),

(119) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous drug to or for livestock or any animal that is generally used for food or in the production of food, unless the drug is prescribed by a licensed veterinarian).

(120) 2925.11 (aggravated possession of drugs, possession of drugs, possession of cocaine, possession of LSD, possession of heroin, possession of hashish, possession of a controlled substance analog, possession of marihuana [marijuana], possession of a fentanyl-related compound).

(121) 2925.13 (permitting drug abuse).

(122) 2925.14 (illegal use, possession, dealing, selling to a juvenile, or advertising of drug paraphernalia).

(123) 2925.22 (deception to obtain a dangerous drug).

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

(125) 2925.24 (tampering with drugs).

(126) 2925.36 (illegal dispensing of drug samples).

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

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

(129) 2927.12 (ethnic intimidation).

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

(B) No responsible party may hire an applicant or subcontract with a self-employed provider, retain an employee or subcontracted self-employed provider, certify a self-employed provider, fail to revoke a self-employed provider's certification, enter into an agreement with a self-employed provider, or fail to terminate that agreement, if the applicant, employee, or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to 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 described in paragraph (A) of this rule, unless allowed under rule 173-9-07 of the Administrative Code.

Last updated November 1, 2023 at 8:23 AM

Supplemental Information

Authorized By: 121.07, 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 109.572, 173.38, 173.381; 42 C.F.R. 460.68, 460.71
Five Year Review Date: 11/1/2028
Prior Effective Dates: 7/11/1991, 3/4/1997 (Emer.), 7/31/1997, 4/1/2014, 2/1/2015, 8/1/2017

Rule 173-9-07 | Background checks for paid direct-care positions: occasions when a disqualifying offense does not disqualify.

• Effective: November 1, 2023
• Promulgated Under: 119.03

Introduction: When the responsible party is an agency provider, PACE organization, ODA, AAA, or PAA, in the case of its applicants, employees, and subcontracted self-employed providers, there are four possible ways to hire an applicant or subcontract with a self-employed provider, or retain an employee or subcontracted self-employed provider, if the applicant's, employee's, or subcontracted self-employed provider's criminal record contains a disqualifying offense: not being in a period of disqualification under paragraph (A) of this rule, being grandfathered under paragraph (B) of this rule, having a certificate under paragraph (C) of this rule, or being pardoned under paragraph (D) of this rule. If 42 C.F.R. 460.68(a) permanently disqualifies an applicant, employee, or self-employed provider from employment in, or subcontracting by, a PACE organization or a subcontractor of a PACE organization, this rule does not establish an occasion when the disqualifying offense under 42 C.F.R. 460.68(a) does not disqualify under the PACE program.

When the responsible party is a consumer in the case of an applicant to be, or an employee who is, the consumer's participant-directed provider, there are four possible ways to hire an applicant, or retain an employee, as the consumer's participant-directed provider: not being in a period of disqualification under paragraph (A) of this rule, being grandfathered under paragraph (B) of this rule, having a certificate under paragraph (C) of this rule, or being pardoned under paragraph (D) of this rule.

When the responsible party is ODA in the case of a self-employed provider's application to become an ODA-certified non-agency provider under Chapter 173-39 of the Administrative Code and in the case of an ODA-certified non-agency provider, the responsible party shall not reject a self-employed provider's application for ODA certification or revoke a self-employed provider's certification solely because the self-employed provider has a disqualifying offense on his or her criminal record in the following four situations: the self-employed provider is not in a period of disqualification under paragraph (A) of this rule, being grandfathered under paragraph (B) of this rule, having a certificate under paragraph (C) of this rule, or being pardoned under paragraph (D) of this rule.

When the responsible party is an AAA in the case of a self-employed provider who bids for an AAA-provider agreement or is in an existing AAA-provider agreement, the responsible party shall not reject a bid from a self-employed provider for an AAA-provider agreement (agreement) or to terminate an existing agreement solely because the self-employed provider has a disqualifying offense on the self-employed provider's criminal record in the following four situations: the self-employed provider is not in a period of disqualification under paragraph (A) of this rule, being grandfathered under paragraph (B) of this rule, having a certificate under paragraph (C) of this rule, or being pardoned under paragraph (D) of this rule.

(A) Periods of disqualification:

(1) Tier I: permanent disqualification: An applicant, employee, or self-employed provider is in a permanent period of disqualification if the applicant, employee, or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to, an offense in any of the following sections of the Revised Code or an offense of any existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent 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 (knowingly or recklessly failing to provide for a functionally-impaired person).

(g) 2903.34 (patient abuse, gross patient abuse, patient neglect).

(h) 2903.341 (patient endangerment).

(i) 2905.01 (kidnapping).

(j) 2905.02 (abduction).

(k) 2905.32 (trafficking in persons)

(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 or impaired person).

(x) 2907.322 (pandering sexually-oriented matter involving a minor or impaired person).

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

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

(aa) 2909.23 (making a terroristic threat).

(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) Any other section of the Revised Code related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program other than section 2913.46 of the Revised Code (illegal use of SNAP or WIC program benefits).

(2) Tier II: ten-year period of disqualification:

(a) An applicant, employee, or self-employed provider is subject to a ten-year period of disqualification which ends ten years after the date the applicant, employee, or self-employed provider was fully discharged from all imprisonment, probation, or parole if the applicant, employee, or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to, an offense in any of the following sections of the Revised Code or an offense of any existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent 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 (enticing or soliciting another person to patronize a prostitute; procurement of a prostitute for another person to patronize).

(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 of a deadly weapon into a courthouse, 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, a school safety zone, or with the intent to cause harm or panic to persons in a school, in a school building, or at a school function or the evacuation of a school function).

(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 (aggravated trafficking in drugs, trafficking in drugs, trafficking in marihuana [marijuana], trafficking in cocaine, trafficking in LSD, trafficking in heroin, trafficking in hashish, trafficking in a controlled substance analog, trafficking in a fentanyl-related compound).

(xxviii) 2925.04 (illegal manufacture of drugs, illegal 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).

(b) An applicant, employee, or self-employed provider is subject to a fifteen-year period of disqualification (which ends fifteen years after the date the applicant, employee, or self-employed provider was fully discharged from all imprisonment, probation, or parole) if the applicant, employee, or self-employed provider was convicted of multiple disqualifying offenses, including an offense listed under paragraph (A)(2)(a) of this rule, and another offense or offenses listed under 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.

(3) Tier III: seven-year period of disqualification:

(a) An applicant, employee, or self-employed provider is subject to a seven-year period of disqualification which ends seven years after the date of full discharge from all imprisonment, probation, or parole if the applicant, employee, or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to an offense in any of the following sections of the Revised Code or an offense of any existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to an 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, trespass in a habitation when a person is present or likely to be present).

(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, falsification regarding a removal proceeding).

(xix) 2921.34 (escape).

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

(xxi) 2921.36 (illegal conveyance of weapons, drugs, intoxicating liquor, or a communications device onto the grounds of a specified government facility, illegal conveyance of cash onto the grounds of a detention facility).

(xxii) 2925.05 (aggravated funding of drug or marihuana [marijuana] trafficking, drug or marihuana [marijuana] 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).

(b) An applicant, employee, or self-employed provider is subject to a ten-year period of disqualification (which ends ten years after the date of full discharge from all imprisonment, probation, or parole) if the applicant, employee, or self-employed provider was convicted of multiple disqualifying offenses, including an offense listed under paragraph (A)(3)(a) of this rule, and another offense or offenses listed under 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.

(4) Tier IV: five-year period of disqualification:

(a) An applicant, employee, or self-employed provider is subject to a five-year period of disqualification which ends five years after the date of full discharge from all imprisonment, probation, or parole if the applicant, employee, or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to, an offense in any of the following sections of the Revised Code or an offense of any existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent 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, engaging in prostitution after a positive HIV test).

(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 property; unauthorized use of computer, cable, or telecommunication property; unauthorized use of the law enforcement automated database system; unauthorized use of the Ohio law enforcement gateway).

(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 or selling or distributing forged 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 the emblem of a law enforcement agency or an organization of law enforcement officers).

(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) 2919.124 (unlawful performance of a drug-induced abortion).

(xxvii) 2919.23 (interference with custody).

(xxviii) 2919.24 (contributing to the unruliness or delinquency of a child).

(xxix) 2921.12 (tampering with evidence).

(xxx) 2921.21 (compounding a crime).

(xxxi) 2921.24 (disclosure of confidential information).

(xxxii) 2921.32 (obstructing justice).

(xxxiii) 2921.321 (assaulting or harassing a police dog or horse, assaulting or harassing an assistance dog).

(xxxiv) 2921.51 (impersonation of peace officer, private police officer, federal law enforcement officer, or BCII investigator).

(xxxv) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous drug to or for livestock or any animal that is generally used for food or in the production of food, unless the drug is prescribed by a licensed veterinarian).

(xxxvi) 2925.11 (aggravated possession of drugs, possession of drugs, possession of cocaine, possession of LSD, possession of heroin, possession of hashish, possession of a controlled substance analog, possession of marihuana, [marijuana] possession of a fentanyl-related compound), unless a minor drug possession offense.

(xxxvii) 2925.13 (permitting drug abuse).

(xxxviii) 2925.22 (deception to obtain a dangerous drug).

(xxxix) 2925.23 (illegal processing of drug documents).

(xl) 2925.36 (illegal dispensing of drug samples).

(xli) 2925.55 (unlawful purchase of a pseudoephedrine product or ephedrine product, underage purchase of a pseudoephedrine product or ephedrine product, using false information to purchase a pseudoephedrine product or ephedrine product, improper purchase of a pseudoephedrine product or ephedrine product).

(xlii) 2925.56 (unlawfully selling a pseudoephedrine product or ephedrine product; unlawfully selling a pseudoephedrine product or ephedrine product to a minor; improper sale of a pseudoephedrine product or ephedrine product).

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

(b) An applicant, employee, or self-employed provider is subject to a seven-year period of disqualification beginning on the date of full discharge from all imprisonment, probation, or parole if the applicant, employee, or self-employed provider was convicted of multiple disqualifying offenses listed under paragraph (A)(4)(a) of this rule, and if the multiple disqualifying offenses are not the result of, or connected to, the same act.

(5) Tier V: no period of disqualification: An applicant, employee, or self-employed provider is subject to no period of disqualification if the applicant, employee, or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to, an offense in any of the following sections of the Revised Code or an offense of any existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent 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 to a juvenile, or advertising of drug paraphernalia).

(B) Grandfathered: For the purposes of this rule, an employee or subcontracted self-employed provider is grandfathered if the employee or self-employed provider would otherwise have been disqualified from a paid direct-care position because the employee or self-employed provider was convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction to, an offense(s) listed under paragraph (A)(4) of this rule, but only if all of the following have occurred:

(1) The responsible party hired the employee before January 1, 2013.

(2) The employee's conviction or guilty plea occurred before January 1, 2013.

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

(C) Certified: For the purposes of this rule, an applicant, employee, or subcontracted self-employed provider is certified if applicant's, employee's, or subcontracted self-employed provider's conviction of, plea of guilty to, or eligibility for intervention in lieu of conviction to, a disqualifying offense is not one of the disqualifying offenses listed under paragraph (A)(1) of this rule and if the applicant, employee, or subcontracted self-employed provider was issued either of the following:

(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 (A person may petition for a certificate of qualification for employment on "The Ohio Certificate of Qualification for Employment Online Petition Website" or https://www.drccqe.com/).

(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) Pardoned: An applicant, employee, or self-employed provider is pardoned from any disqualifying offense listed or described in rule 173-9-06 of the Administrative Code 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.

(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.

Last updated November 1, 2023 at 8:23 AM

Supplemental Information

Authorized By: 121.07, 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68, 460.71
Five Year Review Date: 11/1/2028
Prior Effective Dates: 7/31/1997, 12/27/2001, 4/17/2003, 12/28/2006, 1/1/2013, 2/1/2015, 8/1/2017

Rule 173-9-08 | Background checks for paid direct-care positions: confidentiality and retention of records.

• Effective: November 1, 2023
• Promulgated Under: 119.03

(A) Confidentiality: Criminal records are not public records. The responsible party may make criminal records available only to the people or entities listed under division (I) of section 173.38 of the Revised Code or division (G) of section 173.381 of the Revised Code.

(B) Records retention:

(1) Personnel files:

(a) What to retain: To verify compliance with this chapter, the responsible party shall retain the following records:

(i) The result of each of the database reviews.

(ii) Any criminal records including reverified records.

(iii) The attestation to the character and fitness of the employee, if the responsible party completed an attestation before April 1, 2013 to comply with paragraph (B)(3) of rule 173-9-07 of the Administrative Code, or the attestation to the character and fitness of the self-employed provider, if the self-employed provider completed an attestation before April 1, 2013 to comply with paragraph (B)(3) of rule 173-9-07.1 of the Administrative Code as that rule existed before its rescission.

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

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

(vi) A pardon, if a governor pardoned the employee.

(vii) The date the responsible party hired the employee. Regarding a self-employed person, the responsible party shall retain the date that it certified the self-employed person or entered into an agreement with the self-employed person.

(b) Sealed files: The responsible party shall retain the records listed under paragraph (B)(1)(a) of this rule by sealing the records within the each applicant's or each employee's personnel files or by retaining the records in separate files from the personnel files. Regarding a self-employed person, the responsible party may simply retain the records.

(c) Retention period: 2 C.F.R. 200.334, 42 C.F.R. 441.352 and 460.200, 45 C.F.R. 75.361, and rules 173-3-06 and 173-39-02 of the Administrative Code (as applicable) establish timelines and other requirements for the responsible party to retain the records required under paragraph (B)(1)(a) of this rule.

(2) Roster for criminal records requested from the FBI:

(a) A responsible party shall maintain a roster of applicants and employees for whom section 173.38 of the Revised Code requires obtaining criminal records from the FBI through BCII, accessible by ODA's director (or the director's designees), that includes, but is not limited to:

(i) The name of each applicant and employee.

(ii) The date the responsible party hired the employee.

(iii) The date the responsible party requested criminal records from the FBI through BCII.

(iv) The date the responsible party received criminal records from the FBI through BCII.

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

(b) Regarding the self-employed, if section 173.381 of the Revised Code requires obtaining criminal records from the FBI through BCII, then the responsible party shall retain the following information, accessible by ODA's director (or the director's designees), that includes, but is not limited to:

(i) The date ODA certified the self-employed provider or the date the AAA entered into an AAA-provider agreement with the self-employed provider.

(ii) The date the responsible party requested criminal records from the FBI through BCII.

(iii) The date the responsible party received criminal records from the FBI through BCII.

(iv) A determination of whether the criminal records revealed the self-employed provider committed a disqualifying offense(s).

Last updated November 1, 2023 at 8:23 AM

Supplemental Information

Authorized By: 121.07, 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; 42 U.S.C. 3025; 45 C.F.R. 1321.11
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68, 460.71
Five Year Review Date: 11/1/2028
Prior Effective Dates: 7/31/1997, 12/28/2006, 2/15/2009, 8/1/2017