173.38 Criminal records check.

(A) As used in this section:

(1) "Applicant" means a person who is under final consideration for employment with a responsible party in a full-time, part-time, or temporary direct-care position or is referred to a responsible party by an employment service for such a position. "Applicant" does not include a person being considered for a direct-care position as a volunteer.

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

(3) "Chief administrator of a responsible party" includes a consumer when the consumer is a responsible party.

(4) "Community-based long-term care services" means community-based long-term care services, as defined in section 173.14 of the Revised Code, that are provided under a program the department of aging administers.

(5) "Consumer" means an individual who receives community-based long-term care services.

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

(7)

(a) "Direct-care position" means an employment position in which an employee has either 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 person whose sole duties are transporting individuals under Chapter 306. of the Revised Code.

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

(9) "Employee" means a person employed by a responsible party in a full-time, part-time, or temporary direct-care position and a person who works in such a position due to being referred to a responsible party by an employment service. "Employee" does not include a person who works in a direct-care position as a volunteer.

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

(11) "Provider" has the same meaning as in section 173.39 of the Revised Code.

(12) "Responsible party" means the following:

(a) An area agency on aging in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for employment with the agency in a full-time, part-time, or temporary direct-care position or is referred to the agency by an employment service for such a position;

(ii) A person who is an employee because the person is employed by the agency in a full-time, part-time, or temporary direct-care position or works in such a position due to being referred to the agency by an employment service.

(b) A PASSPORT administrative agency in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for employment with the agency in a full-time, part-time, or temporary direct-care position or is referred to the agency by an employment service for such a position;

(ii) A person who is an employee because the person is employed by the agency in a full-time, part-time, or temporary direct-care position or works in such a position due to being referred to the agency by an employment service.

(c) A provider in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for employment with the provider in a full-time, part-time, or temporary direct-care position or is referred to the provider by an employment service for such a position;

(ii) A person who is an employee because the person is employed by the provider in a full-time, part-time, or temporary direct-care position or works in such a position due to being referred to the provider by an employment service.

(d) A subcontractor in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for employment with the subcontractor in a full-time, part-time, or temporary direct-care position or is referred to the subcontractor by an employment service for such a position;

(ii) A person who is an employee because the person is employed by the subcontractor in a full-time, part-time, or temporary direct-care position or works in such a position due to being referred to the subcontractor by an employment service.

(e) A consumer in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for employment with the consumer in a full-time, part-time, or temporary direct-care position for which the consumer, as the employer of record, is to direct the person in the provision of community-based long-term care services the person is to provide the consumer or is referred to the consumer by an employment service for such a position;

(ii) A person who is an employee because the person is employed by the consumer in a full-time, part-time, or temporary direct-care position for which the consumer, as the employer of record, directs the person in the provision of community-based long-term care services the person provides to the consumer or who works in such a position due to being referred to the consumer by an employment service.

(13) "Subcontractor" has the meaning specified in rules adopted under this section.

(14) "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.

(15) "Waiver agency" has the same meaning as in section 5164.342 of the Revised Code.

(B) This section does not apply to any individual who is subject to a database review or criminal records check under section 173.381 or 3701.881 of the Revised Code or to any individual who is subject to a criminal records check under section 3721.121 of the Revised Code. If a provider or subcontractor also is a waiver agency, the provider or subcontractor may provide for applicants and employees to undergo database reviews and criminal records checks in accordance with section 5164.342 of the Revised Code rather than this section.

(C) No responsible party shall employ an applicant or continue to employ an employee in a direct-care position if any of the following apply:

(1) A review of the databases listed in division (E) of this section reveals any of the following:

(a) That the applicant or employee is included in one or more of the databases listed in divisions (E)(1) to (5) of this section;

(b) That there is in the state nurse aide registry established under section 3721.32 of the Revised Code a statement detailing findings by the director of health that the applicant or employee neglected or abused a long-term care facility or residential care facility resident or misappropriated property of such a resident;

(c) That the applicant or employee is included in one or more of the databases, if any, specified in rules adopted under this section and the rules prohibit the responsible party from employing an applicant or continuing to employ an employee included in such a database in a direct-care position.

(2) After the applicant or employee is provided, pursuant to division (F)(2)(a) of this section, a copy of the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and the standard impression sheet prescribed pursuant to division (C)(2) of that section, the applicant or employee fails to complete the form or provide the applicant's or employee's fingerprint impressions on the standard impression sheet.

(3) Unless the applicant or employee meets standards specified in rules adopted under this section, the applicant or employee is found by a criminal records check required by this section to have been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense.

(D) Except as provided by division (G) of this section, the chief administrator of a responsible party shall inform each applicant of both of the following at the time of the applicant's initial application for employment or referral to the responsible party by an employment service for a direct-care position:

(1) That a review of the databases listed in division (E) of this section will be conducted to determine whether the responsible party is prohibited by division (C)(1) of this section from employing the applicant in the direct-care position;

(2) That, unless the database review reveals that the applicant may not be employed in the direct-care position, a criminal records check of the applicant will be conducted and the applicant is required to provide a set of the applicant's fingerprint impressions as part of the criminal records check.

(E) As a condition of employing any applicant in a direct-care position, the chief administrator of a responsible party shall conduct a database review of the applicant in accordance with rules adopted under this section. If rules adopted under this section so require, the chief administrator of a responsible party shall conduct a database review of an employee in accordance with the rules as a condition of continuing to employ the employee in a direct-care position. However, a chief administrator is not required to conduct a database review of an applicant or employee if division (G) of this section applies. A database review shall determine whether the applicant or employee is included in any of the following:

(1) The excluded parties list system that is maintained by the United States general services administration pursuant to subpart 9.4 of the federal acquisition regulation and available at the federal web site known as the system for award management;

(2) The list of excluded individuals and entities maintained by the office of inspector general in the United States department of health and human services pursuant to the "Social Security Act," sections 1128 and 1156, 42 U.S.C. 1320a-7 and 1320c-5;

(3) The registry of MR/DD employees established under section 5123.52 of the Revised Code;

(4) The internet-based sex offender and child-victim offender database established under division (A)(11) of section 2950.13 of the Revised Code;

(5) The internet-based database of inmates established under section 5120.66 of the Revised Code;

(6) The state nurse aide registry established under section 3721.32 of the Revised Code;

(7) Any other database, if any, specified in rules adopted under this section.

(F)

(1) As a condition of employing any applicant in a direct-care position, the chief administrator of a responsible party shall request that the superintendent of the bureau of criminal identification and investigation conduct a criminal records check of the applicant. If rules adopted under this section so require, the chief administrator of a responsible party shall request that the superintendent conduct a criminal records check of an employee at times specified in the rules as a condition of continuing to employ the employee in a direct-care position. However, the chief administrator is not required to request the criminal records check of the applicant or employee if division (G) of this section applies or the responsible party is prohibited by division (C)(1) of this section from employing the applicant or continuing to employ the employee in a direct-care position. If an applicant or employee for whom a criminal records check request is required by this section does not present proof of having been a resident of this state for the five-year period immediately prior to the date the criminal records check is requested or provide evidence that within that five-year period the superintendent has requested information about the applicant or employee from the federal bureau of investigation in a criminal records check, the chief administrator shall request that the superintendent obtain information from the federal bureau of investigation as part of the criminal records check. Even if an applicant or employee for whom a criminal records check request is required by this section presents proof of having been a resident of this state for the five-year period, the chief administrator may request that the superintendent include information from the federal bureau of investigation in the criminal records check.

(2) The chief administrator shall do all of the following:

(a) Provide to each applicant and employee for whom a criminal records check request is required by this section a copy of the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and a standard impression sheet prescribed pursuant to division (C)(2) of that section;

(b) Obtain the completed form and standard impression sheet from the applicant or employee;

(c) Forward the completed form and standard impression sheet to the superintendent.

(3) A responsible party shall pay to the bureau of criminal identification and investigation the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check the responsible party requests under this section. A responsible party may charge an applicant a fee not exceeding the amount the responsible party pays to the bureau under this section if both of the following apply:

(a) The responsible party notifies the applicant at the time of initial application for employment of the amount of the fee and that, unless the fee is paid, the applicant will not be considered for employment.

(b) The medicaid program does not pay the responsible party for the fee it pays to the bureau under this section.

(G) Divisions (D) to (F) of this section do not apply with regard to an applicant or employee if the applicant or employee is referred to a responsible party by an employment service that supplies full-time, part-time, or temporary staff for direct-care positions and both of the following apply:

(1) The chief administrator of the responsible party receives from the employment service confirmation that a review of the databases listed in division (E) of this section was conducted of the applicant or employee.

(2) The chief administrator of the responsible party receives from the employment service, applicant, or employee a report of the results of a criminal records check of the applicant or employee that has been conducted by the superintendent within the one-year period immediately preceding the following:

(a) In the case of an applicant, the date of the applicant's referral by the employment service to the responsible party;

(b) In the case of an employee, the date by which the responsible party would otherwise have to request a criminal records check of the employee under division (F) of this section.

(H)

(1) A responsible party may employ conditionally an applicant for whom a criminal records check request is required by this section prior to obtaining the results of the criminal records check if the responsible party is not prohibited by division (C)(1) of this section from employing the applicant in a direct-care position and either of the following applies:

(a) The chief administrator of the responsible party requests the criminal records check in accordance with division (F) of this section not later than five business days after the applicant begins conditional employment.

(b) The applicant is referred to the responsible party by an employment service, the employment service or the applicant provides the chief administrator of the responsible party a letter that is on the letterhead of the employment service, the letter is dated and signed by a supervisor or another designated official of the employment service, and the letter states all of the following:

(i) That the employment service has requested the superintendent to conduct a criminal records check regarding the applicant;

(ii) That the requested criminal records check is to include a determination of whether the applicant has been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense;

(iii) That the employment service has not received the results of the criminal records check as of the date set forth on the letter;

(iv) That the employment service promptly will send a copy of the results of the criminal records check to the chief administrator of the responsible party when the employment service receives the results.

(2) If a responsible party employs an applicant conditionally pursuant to division (H)(1)(b) of this section, the employment service, on its receipt of the results of the criminal records check, promptly shall send a copy of the results to the chief administrator of the responsible party.

(3) A responsible party that employs an applicant conditionally pursuant to division (H)(1)(a) or (b) of this section shall terminate the applicant's employment if the results of the criminal records check, other than the results of any request for information from the federal bureau of investigation, are not obtained within the period ending sixty days after the date the request for the criminal records check is made. Regardless of when the results of the criminal records check are obtained, if the results indicate that the applicant has been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense, the responsible party shall terminate the applicant's employment unless the applicant meets standards specified in rules adopted under this section that permit the responsible party to employ the applicant and the responsible party chooses to employ the applicant. 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 makes any attempt to deceive the responsible party about the applicant's criminal record.

(I) The report of any criminal records check conducted pursuant to a request made under this section 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 or employee who is the subject of the criminal records check or the applicant's or employee's representative;

(2) The chief administrator of the responsible party requesting the criminal records check or the administrator's representative;

(3) The administrator of any other facility, agency, or program that provides community-based long-term care services that is owned or operated by the same entity that owns or operates the responsible party that requested the criminal records check;

(4) The employment service that requested the criminal records check;

(5) The director of aging or a person authorized by the director to monitor a responsible party's compliance with this section;

(6) The medicaid director and the staff of the department of medicaid who are involved in the administration of the medicaid program if any of the following apply:

(a) In the case of a criminal records check requested by a provider or subcontractor, the provider or subcontractor also is a waiver agency;

(b) In the case of a criminal records check requested by an employment service, the employment service makes the request for an applicant or employee the employment service refers to a provider or subcontractor that also is a waiver agency;

(c) The criminal records check is requested by a consumer who is acting as a responsible party.

(7) A court, hearing officer, or other necessary individual involved in a case dealing with any of the following:

(a) A denial of employment of the applicant or employee;

(b) Employment or unemployment benefits of the applicant or employee;

(c) A civil or criminal action regarding the medicaid program or a program the department of aging administers.

(J) In a tort or other civil action for damages that is brought as the result of an injury, death, or loss to person or property caused by an applicant or employee who a responsible party employs in a direct-care position, all of the following shall apply:

(1) If the responsible party employed the applicant or employee in good faith and reasonable reliance on the report of a criminal records check requested under this section, the responsible party shall not be found negligent solely because of its reliance on the report, even if the information in the report is determined later to have been incomplete or inaccurate.

(2) If the responsible party employed the applicant in good faith on a conditional basis pursuant to division (H) of this section, the responsible party shall not be found negligent solely because it employed the applicant prior to receiving the report of a criminal records check requested under this section.

(3) If the responsible party in good faith employed the applicant or employee because the applicant or employee meets standards specified in rules adopted under this section, the responsible party shall not be found negligent solely because the applicant or employee has been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense.

(K) The director of aging shall adopt rules in accordance with Chapter 119. of the Revised Code to implement this section.

(1) The rules may do the following:

(a) Require employees to undergo database reviews and criminal records checks under this section;

(b) If the rules require employees to undergo database reviews and criminal records checks under this section, exempt one or more classes of employees from the requirements;

(c) For the purpose of division (E)(7) of this section, specify other databases that are to be checked as part of a database review conducted under this section.

(2) The rules shall specify all of the following:

(a) The meaning of the term "subcontractor";

(b) The procedures for conducting database reviews under this section;

(c) If the rules require employees to undergo database reviews and criminal records checks under this section, the times at which the database reviews and criminal records checks are to be conducted;

(d) If the rules specify other databases to be checked as part of the database reviews, the circumstances under which a responsible party is prohibited from employing an applicant or continuing to employ an employee who is found by a database review to be included in one or more of those databases;

(e) Standards that an applicant or employee must meet for a responsible party to be permitted to employ the applicant or continue to employ the employee in a direct-care position if the applicant or employee is found by a criminal records check required by this section to have been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Renumbered from § 173.394 and amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Effective Date: 06-30-2006

Related Legislative Provision: See 129th General AssemblyFile No.127, HB 487, §751.20.