5101:2-12-26 Statement of nonconviction and criminal records checks for licensed child care centers.

(A) Definitions.

(1) "Criminal records check" has the same meaning as in section 109.572 of the Revised Code.

(2) "Employee" has the same meaning as in section 5104.01 of the Revised Code.

(B) All persons who are employees in any capacity in a child care center, anyone who owns or operates a child care center, any administrator, and any person who, at any time, has care, custody or control of a child or is alone with a child or a group of children at the child care center shall follow the requirements of this rule.

(C) The JFS 01328 "Statement of Nonconviction for Child Care Centers and Type A Homes" (rev. 7/2010) shall be completed and kept on file at the center for the following persons at the following times:

(1) All administrators and owners of centers:

(a) Prior to the issuance of a provisional license.

(b) By the date of hire.

(c) Annually from the date of hire.

(2) All employees and persons designated as second adults of centers:

(a) By the date of hire or signing of second adult statement.

(b) Annually from the date of hire or signing of the second adult statement.

(D) Each owner, administrator and employee of the center shall sign a statement attesting that he or she has not had a child removed from his or her home pursuant to section 2151.353 of the Revised Code. This statement is included on the JFS 01328. If an owner, administrator or employee has had a child removed, he or she shall immediately be released from employment.

(E) No person who has been convicted of or pleaded guilty to a prohibited offense listed in division (A)(8) or (A)(9) of section 109.572 or division (A)(1) of section 5104.09 of the Revised Code shall be employed in any capacity in or own or operate a child care center unless the person meets the standards for rehabilitation in this rule.

(F) Criminal records check.

(1) Child care centers shall submit fingerprints according to the requirements of the bureau of criminal identification and investigation (BCII). Information on how to obtain a criminal records check can be found at http://www.ohioattorneygeneral.gov/Services/Business/WebCheck.

(2) All criminal records check results shall be dated, have an authentication number and the last four digits of the social security number of the person for whom the criminal records check was completed.

(3) Each center shall pay to BCII the prescribed fee for each requested criminal records check. If the center chooses to charge an employee, the center shall notify the employee in writing of the amount of the fee, and the procedure for reimbursement of the fee to the center.

(4) Criminal records check results are not public records and shall not be made available to any person other than the person who is the subject of the criminal records check or his or her representative, the center administrator, owner, the owner's designee or the Ohio department of job and family services (ODJFS).

(5) Section 109.572 of the Revised Code requires that this rule applies to records of convictions that have been sealed pursuant to section 2953.32 of the Revised Code.

(6) A conviction of or a plea of guilty to an offense listed in division (A)(8) or (A)(9) of section 109.572 or division (A)(1) of section 5104.09 of the Revised Code shall not prevent the hiring of an employee or the issuance of a provisional license if the owner, administrator or employee provides evidence that he or she has been granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code or the conviction or guilty plea has been set aside pursuant to law. For purposes of this rule, "unconditional pardon" includes a conditional pardon when all conditions have been performed or have transpired.

(7) If the result of a criminal record check for an employee indicates the possibility of a prohibited offense but does not include a conviction of or plea of guilty to the offense, the administrator shall secure the needed court documents to verify the final disposition. The administrator shall keep this documentation in the employee's file.

(8) If the employee fails to obtain a criminal records check he or she shall not be an employee of the child care center.

(G) Before the issuance of an initial provisional license, owners and administrators shall complete a criminal records check and ODJFS shall review and approve the results.

(1) ) The results of the BCII and Federal bureau of investigation (FBI) criminal records checks shall be sent to ODJFS. These criminal records checks shall be repeated and submitted to ODJFS every four years thereafter.

(2) A criminal records check shall not be required when an initial application is needed solely because the center has changed location.

(3) The initial license application shall be denied or the license revocation process shall begin, if ODJFS receives a criminal records report verifying that an owner or administrator has a conviction under division (A)(8) or (A)(9) of section 109.572 or division (A)(1) of section 5104.09 of the Revised Code unless ODJFS determines that the person meets the standards for rehabilitation in this rule.

(4) Owners and administrators shall provide ODJFS proof that the standards for rehabilitation have been met. If the owner or administrator fail to provide such proof or if the proof offered by the person is inconclusive, no license shall be issued.

(H) A person applying for employment at the center shall complete a criminal records check prior to the first day of employment and every four years thereafter.

(1) The center administrator shall assure that a person applying for employment has submitted his or her fingerprints for a BCII criminal records webcheck, including an FBI criminal records check, at a BCII authorized webcheck location. This includes all employees of the program who are present during any child care hours and all persons providing contracted services who care for children or are used in the staff/child ratio for the center. The results shall be on file within thirty calendar days from the date of hire and returned directly to the administrator or child care center.

(2) The administrator shall review and approve the results of the criminal records check before any applicant has sole responsibility for the care, custody, or control of a child.

(3) A center that uses the services of a student placed by a high school or college as part of a supervised field assignment or student teaching experience has complied with this rule if either the administrator, high school or college requested that the BCII or FBI criminal records check be completed and the results are on file at the center.

(4) A center that uses the services of, or contracts with individuals or agencies, such as but not limited to, agencies providing temporary employees, providers of speech therapy, computer training, dance or transportation drivers has complied with this rule if the center, the contracted entity or the person requested that the BCII or FBI criminal records check be completed and documentation of the results are on file at the center.

(5) The administrator of a center shall request updated BCII and FBI criminal records checks if an employee leaves the center's employment and is then rehired.

(6) Administrators may include an FBI criminal records check in addition to the BCII criminal records check every four years.

(I) If the criminal records check results indicate that an employee has a conviction under division (A)(8) or (A)(9) of section 109.572 or division (A)(1) of section 5104.09 of the Revised Code, the center administrator shall immediately release the person from employment until the administrator determines and documents that the person meets the standards for rehabilitation in this rule and the center chooses to employ the person. It is the employee's responsibility to provide all information to verify that he or she meets the standards for rehabilitation in this rule.

(J) An applicant, employee, owner or administrator of a child care center who has a prohibited offense shall meet the following standards for rehabilitation:

(1) Where the offense was a misdemeanor, at least three years have elapsed from the date the person was fully discharged from imprisonment, probation or parole in regard to the conviction. A person who has had his or her record of misdemeanor conviction sealed by a court pursuant to section 2953.32 of the Revised Code shall be considered to have met this condition. If the offense was a felony, at least ten years have elapsed since the person was fully discharged from imprisonment, probation or parole.

(2) The victim of the offense was not one of the following:

(a) A person under eighteen years of age.

(b) A functionally impaired person as defined in section 2903.10 of the Revised Code.

(c) A mentally retarded person as defined in section 5123.01 of the Revised Code.

(d) A developmentally disabled person as defined in section 5123.01 of the Revised Code.

(e) A person with a mental illness as defined in section 5122.01 of the Revised Code.

(f) A person sixty years of age or older.

(3) The prospective person's hiring will not jeopardize the health, safety, or welfare of the children served by the center. The following factors shall be considered:

(a) The age of the person at the time of the offense.

(b) The nature and seriousness of the offense.

(c) The circumstances under which the offense was committed.

(d) The degree to which the person participated in the offense.

(e) The time elapsed since discharge from imprisonment, probation or parole.

(f) The likelihood that the circumstances leading to the offense will recur.

(g) Whether the person is a repeat offender.

(h) The person's employment record.

(i) The efforts at rehabilitation and the results of those efforts.

(j) Whether any criminal proceedings are pending.

(k) Any other relevant factors.

(4) The JFS 01206 "Rehabilitation Criteria" (rev. 9/2011) shall be completed by the administrator or owner in conjunction with the individual who has the prohibited convictions. A copy of the complete disposition report shall be attached to the JFS 01206 for each prohibited conviction.

(5) If it is the administrator or owner who has the prohibited conviction, the completed JFS 01206 and a copy of the complete disposition report shall be reviewed and approved or disapproved by ODJFS if it is determined the rehabilitation requirements have been met.

Effective: 09/29/2011
R.C. 119.032 review dates: 07/01/2015
Promulgated Under: 119.03
Statutory Authority: 5104.011 , 5104.09
Rule Amplifies: 5104.011 , 5104.012 , 5104.013 , 5104.09
Prior Effective Dates: 3/1/81, 9/1/86, 1/2/92 (Emer.), 4/1/92, 7/1/03, 9/1/05, 1/1/07, 9/1/08, 7/1/10