173-9-04 When to check criminal records, inform applicants, charge fees, and use forms (for all responsible parties except the self-employed).

(A) Database reviews first: The responsible party shall conduct database reviews on each applicant (re-hire) and each employee (post-hire) before conducting a criminal records check. If the database reviews disqualify the applicant or employee, the responsible party shall not conduct a criminal records check. If the database reviews did not disqualify the applicant or employee, the responsible party shall conduct a criminal records check.

(B) When to check criminal records:

WHEN TO CHECK CRIMINAL RECORDS

POSITION

CHECK WHEN APPLICANTS (PRE-HIRE)

CHECK WHEN EMPLOYEES (POST-HIRE)

Ombudsman position

Required

Required

Direct-care position: Only delivers meals

Required

Not required

Direct-care position: Only has access to consumers' personal records

Required

Not required

Direct-care position: Only provides a specified once-ever service

Required

Not required

Transportation position with a county transit system, regional transit authority, or regional transit commission.

Not required

Not required

Transportation position other than a position with a county transit system, regional transit authority, or regional transit commission

Required

Required

All direct-care positions not listed above

Required

Required

START DATES & DEADLINES FOR CHECKING CRIMINAL RECORDS

  

START DATE

FIRST DEADLINE AFTER JANUARY 1, 2013

SUBSEQUENT DEADLINES

Applicants (pre-hire)

When applicant is under final consideration for paid employment, but only if the database reviews don't disqualify the applicant

Fingerprinting before hiring the applicant and before the end of the sixty-day period of conditional hiring (if the responsible party utilized the conditional-hiring option in rule 173-9-05 of the Administrative Code)

Not applicable. (See rows for employees.)

Employees (post-hire): Five-year schedule for pre-2008 hire dates

Any time, but only if the database reviews don't disqualify the employee

2013 hiring anniversary + 30 days

Every 5th-year hiring anniversary + 30 days

Employees (post-hire): Five-year schedule for 2008-present hire dates

Any time, but only if the database reviews don't disqualify the employee

First 5th-year hiring anniversary + 30 days

Every 5th-year hiring anniversary + 30 days

Employees (post-hire): Less-than five-year schedule

Any time, but only if the database reviews don't disqualify the employee

No deadline, so long as more frequent than every 5 years

No deadline, so long as more frequent than every 5 years

(1) Applicants (pre-hire):

(a) Ombudsman position: The responsible party shall conduct a criminal records check on each applicant.

(b) Direct-care position: The responsible party shall conduct a criminal records check on each applicant. The responsible party shall do so even if paragraph (B) of rule 173-9-02 of the Administrative Code would not require the responsible party to check the person again after the responsible party hired the applicant.

(2) Employees (post-hire):

(a) Ombudsman position: According to one of the following three schedules, the responsible party shall conduct a criminal records check on each employee at least once every five years:

(i) Five-year schedule for pre-2008 hire dates: If the responsible party hired the employee before January 1, 2008, the responsible party shall conduct a criminal records check on the employee no later than thirty days after the 2013 anniversary of the employee's date of hire and no later than thirty days after each five-year anniversary after 2013. A responsible party that follows this schedule is not required to wait until the employee's anniversary to conduct a criminal records check. The responsible party has five years, plus thirty days, to conduct the next check.

(ii) Five-year schedule for 2008-present hire dates: If the responsible party hired the employee on or after January 1, 2008, the responsible party shall conduct a criminal records check on the employee no later than thirty days after the fifth anniversary of the employee's date of hire and no later than thirty days after each five-year anniversary. A responsible party that follows this schedule is not required to wait until the employee's five-year anniversary to conduct a criminal records check. The responsible party has five years, plus thirty days, to conduct the next check.

(iii) Less-than-five-year schedule: The responsible party may conduct criminal records checks on an employee more frequently than every five years. If the responsible party checks more frequently than every five years, the responsible party is not required to conduct criminal records checks according to the five-year schedules.

(b) Direct-care position: According to one of the following three schedules, the responsible party shall conduct a post-hire criminal records check on each employee at least once every five years, unless the employee's direct-care position is listed under paragraph (B) of rule 173-9-02 of the Administrative Code:

(i) Five-year schedule for pre-2008 hire dates: If the responsible party hired the employee before January 1, 2008, the responsible party shall conduct a criminal records check on the employee no later than thirty days after the 2013 anniversary of the employee's date of hire and no later than thirty days after each five-year anniversary. A responsible party that follows this schedule is not required to wait until the employee's anniversary to conduct a criminal records check. The responsible party has five years, plus thirty days, to conduct the next check.

(ii) Five-year schedule for 2008-present hire dates: If the responsible party hired the employee on or after January 1, 2008, the responsible party shall conduct a criminal records check on the employee no later than thirty days after the fifth anniversary of the employee's date of hire and no later than thirty days after each five-year anniversary. A responsible party that follows this schedule is not required to wait until the employee's five-year anniversary to conduct a criminal records check. The responsible party has five years, plus thirty days, to conduct the next check.

(iii) Less-than-five-year schedule: The responsible party may conduct criminal records checks on an employee more frequently than every five years. If the responsible party checks more frequently than every five years, the responsible party is not required to conduct criminal records checks according to the five-year schedules.

(3) Reverification: If any person has requested a criminal records check on an applicant or employee in the past year, the responsible party may request a reverification of the criminal record from BCII. The reverification of the criminal record has the same validity as the criminal records obtained during the past year.

(C) When to check the FBI's criminal records:

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

(2) Will of the responsible party: If an applicant or employee provides the responsible party with evidence that he or she has been a resident of Ohio for the five-year period immediately preceding the date the responsible party requests the criminal records check, the responsible party may request that BCII obtain criminal records from the FBI as part of the criminal records check.

(D) Inform applicant: When an applicant initially applies for a paid ombudsman position or a paid direct-care position (or when an employment service initially refers an applicant to a responsible party), the responsible party shall inform the applicant of the following:

(1) If the responsible party gives the applicant final consideration for hiring into the position, the following shall happen:

(a) The responsible party shall review the applicant's status in the databases listed in rule 173-9-03 of the Administrative Code.

(b) Unless the database reviews reveal that the responsible party shall not hire the applicant, the responsible party shall conduct a criminal records check and the applicant shall provide a set of his or her fingerprint impressions as part of the the criminal records check.

(2) If the responsible party hires the applicant, as a condition to retain the position, the responsible party shall conduct post-hire database reviews and criminal records checks according to one of the three schedules listed under paragraph (B)(2) of this rule.

(3) If the responsible party intends to charge the applicant fees for checking criminal records, the responsible party shall inform the applicant of the fees that divisions (C)(2) and (C)(3) of section 109.572 of the Revised Code authorize for checking criminal records.

(E) Investigation fees:

(1) The responsible party shall pay BCII the fees that divisions (C)(2) and (C)(3) of section 109.572 of the Revised Code authorize for each criminal records check.

(2) The responsible party may charge the applicant a fee for checking criminal records so long as the fee does not exceed the amount the responsible party pays to BCII, but only if both of the following apply:

(a) At the time of initial application, the responsible party informed the applicant of the fee's amount and that the responsible party would not hire the applicant if the applicant did not pay the fee.

(b) The medicaid program does not pay the responsible party for the fee it pays to BCII.

(F) Forms: Unless the applicant or employee follows the procedures that BCII established in rule 109:5-1-01 of the Administrative Code for providing fingerprint impressions electronically and requesting criminal records electronically, the responsible party shall complete the following two tasks:

(1) The responsible party shall provide each applicant or employee with the form(s) that BCII requires in division (C)(1) of section 109.572 of the Revised Code.

(2) The responsible party shall obtain the completed fingerprints and forms, then forward them to BCII for processing.

(G) Referrals from employment services: A responsible party is not required to request a criminal records check on an applicant or employee that an employment service refers to the responsible party to fill a full-time, part-time, or temporary direct-care position if the employment service satisfies one of the two following criteria:

(1) The responsible party obtains copies of records from the employment service that verify the following two items:

(a) The employment service reviewed databases and the applicant's or employee's status in the databases and the status did not did not disqualify him or her.

(b) The employment service obtained the applicant's criminal record less than a year before the employment service referred the applicant or employee to the responsible party and the applicant's criminal record did not list a disqualifying offense.

(2) The responsible party conditionally hires a referred applicant according to the requirements for conditionally hiring referred applicants in rule 173-9-05 of the Administrative Code.

Replaces: 173-9-04

Effective: 04/01/2014
R.C. 119.032 review dates: 04/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.27 , 173.38 , 173.391 , 173.392 ; Sections 305(a)(1)(C) and 712(a)(5)(D) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001 , as amended in 2006; 45 C.F.R. 1321.11 (10-01-2013 edition)
Rule Amplifies: 109.572 , 173.27 , 173.38 ; 42 C.F.R. 460.68(a) , 460.71(a)(1) , and 460.71(a)(2) (10-01-2013 edition)
Prior Effective Dates: 173-9-04: 01/01/2013. 173-9-01: 03/04/1997 (Emer.), 07/31/1997, 04/17/2003, 01/01/2008, 02/15/2009, 08/11/2011. 173-14-14: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009