5101:2-13-26 Statement of nonconviction and criminal records check for licensed type A homes.

(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 type A home, anyone who owns or operates a type A home, any administrator, anyone eighteen years of age or older residing in the type A home, and any person described in paragraph (I) of this rule 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 type A home for the following persons at the following times:

(1) All administrators and owners of type A homes.

(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.

(a) By the date of hire.

(b) Annually from the date of hire.

(3) All persons eighteen years of age or older who reside in a type A home.

(a) By the fifth day after moving into the type A home.

(b) By the fifth day after turning eighteen year of age.

(c) Annually from the date the form was signed.

(D) Each owner, administrator, employee, or person eighteen years of age or older residing in the type A home 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. Any person who has had a child removed from their home shall not own, be an administrator of, be an employee of, or reside in a type A home.

(E) The owner/administrator of a type A home shall indicate on the JFS 01328 that no one who resides in the type A home and who is under eighteen years of age has been adjudicated a delinquent child for committing a violation of any 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.

(F) Criminal records check.

(1) Type A homes 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 type A home shall pay to BCII the prescribed fee for each requested criminal records check. If the type A home chooses to charge an employee or anyone eighteen years of age or older residing in the type A home, the type A home administrator shall notify the employee or resident in writing of the amount of the fee and the procedure for reimbursement of the fee to the type A home.

(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 type A home administrator, owner, the owner's designee or the Ohio department of job and family services (ODJFS).

(5) Division (B)(1) of 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 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 anyone eighteen years of age or older who resides in the type A home, or an 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 or anyone eighteen years of age or older who resides in the type A home fails to obtain a criminal records check, he or she shall not be an employee or a resident of the type A home.

(G) Before the issuance of an initial provisional license, owners and administrators, and anyone eighteen years of age or older residing in a type A home shall complete a criminal records check and ODJFS shall review and approve the results.

(1) The owner and administrator shall have the results of the BCII and federal bureau of investigation (FBI) criminal records checks, including results of anyone eighteen years of age or older residing in the type A home, sent to ODJFS. These criminal records checks shall be repeated and submitted to ODJFS every four years thereafter.

(2) The requirement for a criminal records check shall not apply when an initial application is needed solely because the type A home 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 or anyone eighteen years of age or older residing in the type A home 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 and anyone eighteen years of age or older residing in the type A home shall provide ODJFS proof that the standards for rehabilitation have been met. If the owner or administrator or anyone eighteen years of age or older residing in the type A home 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 or 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 type A home shall complete a criminal records check prior to the first day of employment and every four years thereafter.

(1) The type A home administrator shall assure that a person applying for employment has submitted his or her fingerprints for a BCII electronic 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. The results shall be on file within thirty calendar days from the date of hire and returned directly to the administrator or type A home.

(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 type A home 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 type A home, high school or college requested that the BCII or FBI criminal records check be completed and the results are on file at the type A home.

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

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

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

(I) The administrator shall verify that a BCII criminal records check has been completed.

(1) A BCII criminal records check shall be repeated every four years for every employee.

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

(J) Any employee who has never had a BCII criminal records check shall obtain a BCII criminal records check and have the results on file at the type A home.

(K) 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 type A home 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 type A home 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.

(L) Unless the provisions of paragraph (M) of this rule are met, an individual 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 not:

(1) Own or operate a licensed type A home.

(2) Be employed in any capacity in a licensed type A home.

(3) Reside in the licensed type A home if eighteen years of age or older.

(M) An individual with a prohibited offense as listed in paragraph (L) of this rule may not be an owner, administrator, employee or resident eighteen years of age or older of a licensed type A home unless he or she meets 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 mental illness as defined in section 5122.01 of the Revised Code.

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

(3) The individual will not jeopardize the health, safety, or welfare of the children served by the type A home. 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 owner, administrator or resident of the home who is over eighteen years of age, who has the prohibited conviction, and it is determined by ODJFS that the criteria to be eligible for rehabilitation have been met, ODJFS shall review the completed JFS 01206 and a copy of the complete disposition report and approve or disapprove the individual.

Effective: 09/29/2011
R.C. 119.032 review dates: 07/14/2011 and 09/01/2016
Promulgated Under: 119.03
Statutory Authority: 5104.011
Rule Amplifies: 5104.011
Prior Effective Dates: 9/5/86, 7/1/03, 9/1/05, 1/1/07, 8/14/08, 3/1/09, 7/1/10