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

Ohio Administrative Code

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Rule

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

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

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(A) Introduction: Chapter 173-9 of the Administrative Code implements sections 173.38 and 173.381 of the Revised Code, which require responsible parties to review databases and check criminal records when hiring an applicant for, or retaining an employee in, a paid direct-care position.

(B) Definitions for Chapter 173-9 of the Administrative Code:

(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 goods or services to consumers or individuals through an ODA-administered program, even if an employment service refers the person to the responsible party. "Applicant" includes a person that a consumer or individual 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 that does not require provider certification.

(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 that rules 173-9-03 and 173-9-03.1 of the Administrative Code requires.

(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 or individuals.

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

(b) "Direct-care position" does not include a position that solely involves transporting people 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 goods or services to consumers or individuals 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) "Individual" means a person who receives community-based long-term care services through a program that ODA administers that requires provider certification.

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

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

(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 or individual.

(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 the 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 or individual 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 goods or services to a consumer or individual on behalf of another responsible party. "Sub-contractor" does not include a party that indirectly supplies goods or services to a consumer or individual by directly providing the goods or 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.

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

Supplemental Information

Authorized By: 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; Sections 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2016 edition).
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68(a), 460.71(b)(1), 460.71(b)(2) (November 15, 2016).
Five Year Review Date: 7/26/2023
Prior Effective Dates: 3/4/1997 (Emer.), 8/11/2011, 4/1/2014

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

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

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(A) Applicability: Chapter 173-9 of the Administrative Code (the chapter) applies to every every paid direct-care position unless this rule states otherwise. (ODA defined "direct-care position" in rule 173-9-01 of the Administrative Code.)

(B) Limited applicability: Although the chapter applies to any a person who is an applicant (pre-hire) for a paid direct-care position, a person who is an employee in one of the following paid direct-care positions is not required to undergo subsequent (post-hire) database reviews and criminal records checks:

(1) A direct-care position that only delivers home-delivered meals.

(2) A direct-care position that only has access to one or more consumers' (or individuals') personal records (e.g., a position in an office, kitchen, or central monitoring station).

(3) A direct-care position that only provides a one-time chore service, home maintenance, home modification, home repair, or pest control. If the person provides a subsequent episode of service to the same consumer (or individual) or to another consumer (or individual) who is enrolled in an ODA-administered program, the person shall undergo subsequent (post-hire) database reviews and criminal records checks.

(1) A volunteer position.

(2) A position that solely involves transporting consumers or individuals while working for a county transit system, regional transit authority, or regional transit commission.

(3) A position that involves providing legal services.

(4) A position in a residential care facility.

(5) A position providing medicare-certified home health services.

(6) A position that only serves individuals who are enrolled in an ODM-administered medicaid waiver program.

(D) No implied factors: Whether a position is supervised or unsupervised, alone or never alone, enters a home or never enters a home, regulated elsewhere or not regulated elsewhere is not a factor that determines if the chapter applies to the position.

(E) Chief administrators: Requirements in the chapter for responsible parties of area agencies on aging, PASSPORT administrative agencies, agency providers, consumers, individuals, and agency sub-contractors to request, review, or retain criminal records are requirements of each responsible party's chief administrator or any person that the chief administrator designates for these tasks.

Supplemental Information

Rule 173-9-03 | Background checks for paid direct-care positions: reviewing databases (except for the self-employed).

Effective:

March 1, 2019

Promulgated Under:

119.03

PDF:

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(A) Databases to review: Any time this rule requires a responsible party to review an applicant's (pre-hire) or employee's (post-hire) status in databases, the responsible party shall review the databases listed in paragraphs (A)(1) to (A)(7) of this rule. In the following table, ODA listed the web address (URL) on which each database was accessible to the public at the time of this rule's adoption. If a URL listed in the table becomes obsolete, please consult with the government entity publishing the database for an updated URL.

DATABASES TO REVIEW
SAM	https://www.sam.gov/
OIG	https://exclusions.oig.hhs.gov/
Abuser Registry	https://its.prodapps.dodd.ohio.gov/ABR_Default.aspx
Medicaid	http://medicaid.ohio.gov/provider/EnrollmentandSupport/ProviderExclusionandSuspensionList
Sex-Offender Search	http://www.icrimewatch.net/index.php?AgencyID=55149&disc=
Offender Search	https://appgateway.drc.ohio.gov/OffenderSearch
Nurse-Aide Registry	https://odhgateway.odh.ohio.gov/nar/nar_registry_search.aspx

(1) The United States general services administration's system for award management, 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, 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, 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.

(5) The Ohio attorney general's sex offender and child-victim offender database, established under division (A)(1) of section 2950.13 of the Revised Code.

(6) The department of rehabilitation and correction's database of inmates, established under section 5120.66 of the Revised Code.

(7) The department of health's state nurse aide registry, established under section 3721.32 of the Revised Code. If the applicant or employee does not present proof that he or she has been a resident of Ohio for the five-year period immediately preceding the date of the database review, the responsible party shall conduct a database review of the nurse aide registry in the state or states in which the applicant or employee lived.

(B) When to review databases:

WHEN TO REVIEW DATABASES
POSITIONS	APPLICANTS (PRE-HIRE)	EMPLOYEES (POST-HIRE)
Direct-care position: Only delivers meals	Required	Not required
Direct-care position: Only has access to consumers' or individuals' personal records	Required	Not required
Direct-care position: Only provides a specified once-ever service	Required	Not required
Transportation position: If applying for, or employed by, a county transit system, regional transit authority, or regional transit commission	Not required	Not required
Transportation position: If applying for, or employed by, a provider other than a county transit system, regional transit authority, or regional transit commission, the position is a direct-care position	Required	Required
All direct-care positions not listed above	Required	Required

(1) Applicants (pre-hire): The responsible party shall review each applicant's (pre-hire) status in the databases before conducting the criminal records check that rule 173-9-04 of the Administrative Code requires for applicants.

(2) Employees (post-hire): The responsible party shall review each employee's (post-hire) status in the databases before conducting the criminal records check that rule 173-9-04 of the Administrative Code requires for employees. Because rule 173-9-02 of the Administrative Code does not require criminal records checks on employees (post-hire) in three types of direct-care positions, the responsible party is not required to review databases on employees (post-hire) in the same three types of direct-care positions.

(1) No responsible party shall hire an applicant or retain an employee if the applicant's or employee's status in the databases reveals the following that one or more of the databases in paragraphs (A)(1) to (A)(6) of this rule lists the applicant or employee or the database in paragraph (A)(7) of this rule lists the applicant or employee as a person who neglected or abused a long-term care facility resident or residential care facility resident or misappropriated such a resident's property.

(2) If the responsible party's database reviews reveal that the applicant or employee is disqualified, the responsible party shall inform the applicant or employee of the disqualifying information.

(D) Referrals from employment services: A responsible party is not required to review the databases if the applicant, or employee of a direct-care position was referred to the responsible party by an employment service that refers applicants to responsible parties to fill full-time, part-time, or temporary direct-care positions if the responsible party obtains copies of records from the employment service that verify that the applicant's or employee's status in the databases does not disqualify him or her.

Supplemental Information

Authorized By: 173.01, 173.02, 173.38, 173.391, 173.392; 42 U.S.C. 3025(a)(1)(C); 45 C.F.R. 1321.11
Amplifies: 173.38; 42 C.F.R. 460.68(a), 460.71(b), 460.71(b)(1)
Five Year Review Date: 3/1/2024
Prior Effective Dates: 1/1/2013, 4/1/2018

Rule 173-9-03.1 | Background checks for paid direct-care positions: reviewing databases (for the self-employed).

Effective:

March 1, 2019

Promulgated Under:

119.03

PDF:

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(A) Databases to review: Any time this rule requires a responsible party to review a self-employed provider's status in databases, the responsible party shall review the databases listed in paragraphs (A)(1) to (A)(7) of this rule. In the following table, ODA listed the web address (URL) on which each database was accessible to the public at the time of this rule's adoption. If a URL listed in the table becomes obsolete, please consult with the government entity publishing the database for an updated URL.

DATABASES TO REVIEW
SAM	https://www.sam.gov/
OIG	https://exclusions.oig.hhs.gov/
Abuser Registry	https://its.prodapps.dodd.ohio.gov/ABR_Default.aspx
Medicaid	http://medicaid.ohio.gov/provider/EnrollmentandSupport/ProviderExclusionandSuspensionList
Sex-Offender Search	http://www.icrimewatch.net/index.php?AgencyID=55149&disc=
Offender Search	https://appgateway.drc.ohio.gov/OffenderSearch
Nurse-Aide Registry	https://odhgateway.odh.ohio.gov/nar/nar_registry_search.aspx

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

(3) The department of developmental disabilities' online abuser registry, 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.

(5) The Ohio attorney general's sex offender and child-victim offender database, established under division (A)(1) of section 2950.13 of the Revised Code.

(6) The department of rehabilitation and correction's database of inmates, established under section 5120.66 of the Revised Code.

(B) When to review databases:

WHEN TO REVIEW DATABASES
SELF-EMPLOYED DIRECT-CARE POSITIONS	WHEN APPLYING TO BECOME ODA-CERTIFIED OR WHEN BIDDING FOR AN AAA-PROVIDER AGREEMENT	AFTER BECOMING ODA-CERTIFIED OR WHEN ENTERING INTO AN AAA-PROVIDER AGREEMENT
Only delivers meals	Required	Not required
Only has access to consumers' or individuals' personal records	Required	Not required
Only provides a specified once-ever service	Required	Not required
All other self-employed direct-care positions not listed above	Required	Required

(1) When the self-employed provider applies to become ODA-certified or bids for an AAA-provider agreement, the responsible party shall review the self-employed provider's status in the databases before checking the self-employed provider's criminal records.

(2) After the self-employed provider is ODA-certified or has entered into an AAA-provider agreement, the responsible party may review the self-employed provider's status in the databases at any time. But, the responsible party shall review the self-employed provider's status in the databases no less often than each time that the responsible party conducts a criminal records check according to one of the schedules in rule 173-9-04.1 of the Administrative Code. If the self-employed provider provides services equivalent to one of the direct-care positions under paragraph (B) of rule 173-9-02 of the Administrative Code, the responsible party is not required to conduct subsequent databased reviews and criminal records checks after the self-employed provider becomes ODA-certified or has entered into an AAA-provider agreement.

(C) Disqualifying status: No responsible party shall certify a self-employed provider to provide a direct-care service, enter into an AAA-provider agreement with a self-employed provider, fail to terminate an AAA-provider agreement with a self-employed provider, or fail to revoke a self-employed provider's certification, if the self-employed person's status in the databases reveals that one or more of the databases in paragraphs (A)(1) to (A)(6) of this rule lists the self-employed provider or the database in paragraph (A)(7) of this rule lists the self-employed provider as a person who neglected or abused a long-term care facility resident or residential care facility resident or misappropriated such a resident's property.

Supplemental Information

Authorized By: 173.01, 173.02, 173.381, 173.391, 173.392; 42 U.S.C. 3025(a)(1)(C), 45 C.F.R. 1321.11
Amplifies: 173.381
Five Year Review Date: 3/1/2024
Prior Effective Dates: 8/1/2017

Rule 173-9-04 | Background checks: paid direct-care positions: when to check criminal records, inform applicants, charge fees, and use forms (except for the self-employed).

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

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(A) Database reviews first: The responsible party shall conduct database reviews on each applicant (pre-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)

Direct-care position: Only delivers meals	Required	Not required
Direct-care position: Only has access to consumers' or individuals' 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): 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) Direct-care 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:

(a) 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.

(b) 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.

(c) 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. If a responsible party complies with the requirements for rapback, the responsible party is conducting criminal records checks on a daily basis, which is a less-than-five-year schedule.

(3) Reverification: If any person has requested a criminal records check on an applicant or employee in the past year that, according to division (B)(1) of section 109.572 of the Revised Code, requires BCII to include sealed criminal records in the criminal records it returns to the person making the request, 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 received during the past year.

(C) Sealed records: Division (B)(1) of section 109.572 of the Revised Code requires BCII to include sealed criminal records in the criminal records that it returns to responsible parties.

(D) 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.

(E) Inform applicant: When an applicant initially applies for 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 fingerprints as part of 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 the fees divisions (C)(2) and (C)(3) of section 109.572 of the Revised Code authorize, the responsible party shall inform the applicant of the fees at the time of application.

(F) 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.

(G) Forms: Unless the applicant or employee follows the procedures that BCII established in rule 109:5-1-01 of the Administrative Code for providing fingerprints 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.

(H) 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 receives 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 received 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.

Supplemental Information

Authorized By: 173.01, 173.02, 173.38, 173.391, 173.392; Sections 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2016 edition).
Amplifies: 109.572, 173.38; 42 C.F.R. 460.68(a), 460.71(b)(1), 460.71(b)(2) (November 15, 2016).
Five Year Review Date: 7/26/2023
Prior Effective Dates: 12/27/2001, 1/1/2008, 8/11/2011, 4/1/2014

Rule 173-9-04.1 | Background checks: paid direct-care positions: When to check criminal records, pay fees, and use forms (for the self-employed).

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

Download Authenticated PDF

(A) Database reviews first: The responsible party shall review databases on a self-employed provider before checking the self-employed provider's criminal records. If the database reviews disqualify the self-employed provider, the responsible party shall not conduct a criminal records check. If the database reviews did not disqualify the self-employed provider, the responsible party shall conduct a criminal records check.

(B) When to check criminal records:

WHEN TO CHECK CRIMINAL RECORDS
SELF-EMPLOYED DIRECT-CARE POSITIONS	CHECK WHEN THE SELF-EMPLOYED PROVIDER APPLIES TO BECOME ODA-CERTIFIED OR BIDS FOR AN AAA-PROVIDER AGREEMENT (AGREEMENT)	CHECK AFTER THE SELF-EMPLOYED PROVIDER BECOMES ODA-CERTIFIED OR HAS ENTERED INTO AN AGREEMENT
Only delivers meals	Required	Not required
Only has access to consumers' or individuals' personal records	Required	Not required
Only provides a specified once-ever service	Required	Not required
All other self-employed 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
Before the self-employed provider applied to become an ODA-certified provider or before the self-employed provider bid for an agreement	Before the self-employed provider applied to become an ODA-certified provider or before the self-employed provider bid for an agreement	Fingerprinting before ODA certifies the self-employed provider or before an AAA enters into an agreement with the self-employed provider	Not applicable (See rows below)
Five-year schedule if the self-employed provider became an ODA-certified provider or entered into an agreement before 2008	Any time, but only if the database reviews don't disqualify the self-employed provider	2013 anniversary of certification or agreement + 30 days	Every 5th-year anniversary of certification or agreement + 30 days
Five-year schedule if the self-employed provider became an ODA-certified provider or entered into an agreement in 2008 or a later date	Any time, but only if the database reviews don't disqualify the self-employed provider	First 5th-year anniversary of certification or agreement + 30 days	Every 5th-year anniversary of certification or agreement + 30 days
Less-than five-year schedule	Any time, but only if the database reviews don't disqualify the self-employed provider	No deadline, so long as more frequent than every 5 years	No deadline, so long as more frequent than every 5 years

(1) When a self-employed provider applies to become ODA-certified, or before bidding for an agreement, the responsible party shall check the self-employed provider's criminal records.

(2) After becoming ODA-certified, or after entering into an agreement, the responsible party shall check the self-employed provider's criminal records at least once every five years, unless the self-employed provider's direct-care position is listed under paragraph (B) of rule 173-9-02 of the Administrative Code:

(a) Five-year schedule (pre-2008): If the self-employed provider became ODA-certified provider or entered into an agreement with ODA (or an area agency on aging) before January 1, 2008, the responsible party shall conduct a criminal records check on the self-employed provider no later than thirty days after the 2013 anniversary of the self-employed provider's certification or agreement, and no later than thirty days after each anniversary every five years after 2013. If the self-employed provider serves consumers and individuals both as an ODA-certified provider and through an agreement, the anniversary date is the anniversary of whichever occurred first: the certification or the agreement. A responsible party that follows this schedule is not required to wait until the self-employed provider's anniversary to conduct a criminal records check.

(b) Five-year schedule (2008-present): If the self-employed provider became an ODA-certified provider or entered into an agreement with ODA (or an area agency on aging) on or after January 1, 2008, the responsible party shall conduct a criminal records check on the self-employed provider no later than thirty days after the fifth anniversary of the self-employed provider's certification or agreement and no later than thirty days after each five-year anniversary. If the self-employed provider serves consumers and individuals both as an ODA-certified provider and through an agreement, the anniversary date is the anniversary of whichever occurred first: the certification or the agreement. A responsible party that follows this schedule is not required to wait until the self-employed provider's five-year anniversary to conduct a criminal records check.

(c) Less-than-five-year schedule: The responsible party may conduct criminal records checks on a self-employed provider more frequently than every five years. If the responsible party checks more frequently than every five years, the responsible party is not responsible for conducting criminal records checks according to the five-year schedules. If a responsible party complies with the requirements for rapback, the responsible party is conducting criminal records checks on a daily basis, which is a less-than-five-year schedule.

(3) Reverification: If a responsible party received criminal records on the self-employed provider during 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 received during the past year.

(C) Sealed records: Division (B)(1) of section 109.572 of the Revised Code requires BCII to include sealed criminal records in its criminal records reports for criminal records checks conducted under section 173.381 of the Revised Code.

(D) When to check the FBI's criminal records: If a self-employed provider has not been a resident of Ohio for the five-year period immediately preceding the date the responsible party must check criminal records, the responsible party shall request that BCII also obtain the FBI's criminal records.

(E) Investigation fees:

(1) The responsible party shall pay to 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 self-employed provider a fee for checking criminal records so long as the fee does not exceed the amount the responsible party pays to BCII.

(F) Forms: Unless the procedures that BCII established in rule 109:5-1-01 of the Administrative Code require providing fingerprints electronically and requesting criminal records electronically, the responsible party shall complete the following two tasks:

(1) The responsible party shall use the form(s) that BCII requires in division (C)(1) of section 109.572 of the Revised Code.

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

Supplemental Information

Authorized By: 173.01, 173.02, 173.381, 173.391, 173.392; Sections 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2016 edition).
Amplifies: 109.572, 173.381.
Five Year Review Date: 7/26/2023
Prior Effective Dates: 12/28/2006, 2/15/2009, 8/11/2011, 4/1/2014

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

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

Download Authenticated PDF

(A) Applicability:

(1) This rule addresses the conditional hiring of applicants for paid direct-care positions with agency providers or with consumers or individuals through participant-directed arrangements; the reasons to release conditionally-hired applicants; and the hiring of released applicants.

(2) This rule does not require employees who hold paid direct-care positions to enter a conditional status when they undergo post-hire criminal records checks.

(3) This rule does not authorize a responsible party to offer a conditional status to self-employed applicants for ODA certification or self-employed bidders on AAA-provider agreements.

(B) Sixty-day period (no referral from an employment service): A responsible party may conditionally hire an applicant for up to sixty days while it waits for the applicant's criminal records, but only if the responsible party complies with the following requirements:

(1) Database reviews: The responsible party shall not conditionally hire an applicant unless the responsible party conducted database reviews and the applicant's status in the databases was not disqualifying.

(2) Criminal records check: The responsible party shall not conditionally hire an applicant unless the responsible party requests a criminal records check before the following deadlines:

(a) "WebCheck": If the responsible party requires the applicant to provide his or her fingerprints directly to BCII by using "WebCheck," the responsible party shall not conditionally hire the applicant until the applicant provides his or her fingerprints to a "WebCheck" vendor.

(b) Fingerprint impression sheet: If the responsible party does not require the applicant to provide his or her fingerprints directly to BCII by using "WebCheck," the responsible party shall not conditionally hire the applicant until the responsible party receives the applicant's fingerprints on a completed fingerprint impression sheet. If the responsible party conditionally hires the applicant after obtaining the fingerprint impression sheet, the responsible party shall provide the sheet to BCII no later than five business days after the responsible party conditionally hires the applicant.

(1) Forward letter to responsible party: If an employment service refers an applicant to the responsible party, the responsible party may conditionally hire an applicant into a paid direct-care position for up to sixty days, but only if the employment service (or the applicant) forwards a letter to the responsible party that the employment service printed on its letterhead, that a designated official of the employment service dated and signed, and that verifies the following five items:

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

(b) The employment service requested the applicant's criminal record from BCII.

(c) The requested criminal records check is to include a determination of whether the applicant has been convicted of, or pleaded guilty to, a disqualifying offense.

(d) The employment service has not, as of the date of the letter, received the applicant's criminal record from BCII.

(e) The employment service will promptly forward a copy of the criminal record to the responsible party when the employment service receives it.

(2) Forward criminal records to responsible party: If a responsible party conditionally hires an applicant that an employment service referred to the responsible party, the employment service shall promptly forward the criminal records to the responsible party when the employment service receives the criminal records.

(D) Three reasons to release an applicant:

(1) Sixty-day period ends:

(a) Only BCII check required: The responsible party shall release the conditionally-hired applicant from a paid direct-care position if more than sixty days passed since the day the responsible party requested a criminal records and the responsible party has not yet received the criminal records.

(b) BCII and FBI checks required: The responsible party is not required to release the conditionally-hired applicant if more than sixty days passed since the responsible party requested criminal records from the FBI and the responsible party has not yet received the FBI's criminal records, but only if section 173.38 of the Revised Code required the responsible party to request criminal records from the FBI, and one of the following two conditions exist:

(i) The responsible party received criminal records from BCII before the sixty-day period ended and the criminal records from BCII did not list a disqualifying offense.

(ii) The responsible party received criminal records from BCII before the sixty-day period ended and the criminal records from BCII listed a disqualifying offense, but the terms of rule 173-9-07 of the Administrative Code would allow the responsible party to hire the applicant, and the responsible party would be willing to hire the applicant under the terms of rule 173-9-07 of the Administrative Code if the forthcoming criminal records from the FBI would not prohibit the responsible party from doing so.

(2) Disqualifying offense on record: The responsible party shall release the conditionally-hired applicant if the applicant's criminal record lists a disqualifying offense, unless the responsible party is able and willing to hire the applicant under the terms of rule 173-9-07 of the Administrative Code. If the responsible party is unable or unwilling to hire an applicant with a disqualifying offense on his or her criminal record, the responsible party shall release the conditionally-hired applicant regardless of the day during the sixty-day period that the responsible party received the criminal records.

(3) Deception: If a conditionally-hired applicant made any attempt to deceive the responsible party about his or her criminal record, the attempt is just cause for the responsible party to release the conditionally-hired applicant.

(E) Hiring released applicants: If a responsible party released a conditionally-hired applicant to comply with the sixty-day limit in paragraph (D)(1)(a) of this rule, the responsible party may resume hiring the released applicant after the responsible party receives the criminal records if either one of the following two conditions exist:

(1) The applicant's criminal record does not list a disqualifying offense.

(2) The applicant's criminal record lists a disqualifying offense, but the responsible party is able and willing to hire the applicant under the terms of rule 173-9-07 of the Administrative Code.

Supplemental Information

Authorized By: 173.01, 173.02, 173.38, 173.391, 173.392; Sections 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2016 edition).
Amplifies: 173.38; 42 C.F.R. 460.68(a), 460.71(b)(1), 460.71(b)(2) (November 15, 2016).
Five Year Review Date: 7/26/2023
Prior Effective Dates: 3/4/1997 (Emer.)

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

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

Download Authenticated PDF

(A) Except as established in rule 173-9-07 or 173-9-07.1 of the Administrative Code, no responsible party shall hire an applicant, retain an employee, 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, or pleaded guilty to, a violation of any of the following sections of the Revised 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 (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 and 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 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

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

(39) 2907.25 (prostitution);

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

(41) 2907.32 (pandering obscenity);

(42) 2907.321 (pandering obscenity involving a minor);

(43) 2907.322 (pandering sexually-oriented matter involving a minor);

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

(45) 2907.33 (deception to obtain matter harmless 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 act of terrorism);

(50) 2909.23 (making terroristic threat);

(51) 2909.24 (terrorism);

(52) 2911.01 (aggravated robbery);

(53) 2911.02 (robbery);

(54) 2911.11 (aggravated burglary);

(55) 2911.12 (burglary);

(56) 2911.13 (breaking and entering);

(57) 2913.02 (theft);

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

(59) 2913.04 (unauthorized use of computer, cable, or telecommunication property);

(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);

(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 law enforcement emblem);

(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 (identify 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) 2919.22 (endangering children);

(85) 2919.23 (interference with custody);

(86) 2919.24 (contributing to unruliness or delinquency of child);

(87) 2919.25 (domestic violence);

(88) 2921.03 (intimidation);

(89) 2921.11 (perjury);

(90) 2921.12 (tampering with evidence);

(91) 2921.13 (falsification, falsification in a theft offense, falsification to purchase a firearm, or falsification to obtain a concealed handgun license);

(92) 2921.21 (compounding a crime);

(93) 2921.24 (disclosure of confidential information);

(94) 2921.32 (obstructing justice);

(95) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(96) 2921.34 (escape);

(97) 2921.35 (aiding escape or resistance to lawful authority);

(98) 2921.36 (illegal conveyance of weapons, drugs or other prohibited items onto grounds of detention facility or institution);

(99) 2921.51 (impersonation of peace officer);

(100) 2923.01 (conspiracy, related to another disqualifying offense);

(101) 2923.02 (attempt to commit an offense, related to another disqualifying offense);

(102) 2923.03 (complicity, related to another disqualifying offense);

(103) 2923.12 (carrying concealed weapons);

(104) 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);

(105) 2923.123 (illegal conveyance, possession, or control of deadly weapon or ordnance into a courthouse);

(106) 2923.13 (having weapons while under disability);

(107) 2923.161 (improperly discharging a firearm at or into a habitation or school);

(108) 2923.162 (discharge of firearm on or near prohibited premises);

(109) 2923.21 (improperly furnishing firearms to minor);

(110) 2923.32 (engaging in a pattern of corrupt activity);

(111) 2923.42 (participating in criminal gang);

(112) 2925.02 (corrupting another with drugs);

(113) 2925.03 (trafficking in drugs);

(114) 2925.04 (illegal manufacture of drugs or cultivation of marijuana);

(115) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs);

(116) 2925.05 (funding of drug or marijuana trafficking);

(117) 2925.06 (illegal administration or distribution of anabolic steroids);

(118) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(119) 2925.11 (possession of drugs);

(120) 2925.13 (permitting drug abuse);

(121) 2925.14 (illegal use, possession, dealing, selling, or advertising of drug paraphernalia);

(122) 2925.141 (illegal use or possession of marihuana drug paraphernalia);

(123) 2925.22 (deception to obtain dangerous drugs);

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

(125) 2925.24 (tampering with drugs);

(126) 2925.36 (dispensing drug samples);

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

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

(129) 2927.12 (ethnic intimidation); or,

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

(B) Except as established in rule 173-9-07 or 173-9-07.1 of the Administrative Code, no responsible party shall hire an applicant, retain an employee, 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 a violation of 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 or violations described in paragraph (A) of this rule.

Supplemental Information

Rule 173-9-07 | Background checks: paid direct-care positions: hiring an applicant, or retaining an employee, who has a disqualifying offense on criminal record.

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

Download Authenticated PDF

There are four possible ways to hire an applicant, or retain an employee, if the applicant's or employee's criminal record contains a disqualifying offense: not being in an exclusionary period under paragraph (A) of this rule, limited grandfathering under paragraph (B) of this rule, obtaining a certificate under paragraph (C) of this rule, or obtaining a pardon under paragraph (D) of this rule.

(A) Disqualifying offense exclusionary periods: A responsible party may hire an applicant or retain an employee who was convicted of, or pleaded guilty to, an offense listed in rule 173-9-06 of the Administrative Code unless an exclusionary period in paragraph (A)(1), (A)(2), (A)(3), or (A)(4) of this rule prohibits hiring the applicant or retaining the employee.

(1) Tier I: permanent exclusion: No responsible party shall hire an applicant or retain an employee if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2903.01 (aggravated murder);

(b) 2903.02 (murder);

(d) 2903.11 (felonious assault);

(e) 2903.15 (permitting child abuse);

(f) 2903.16 (failing to provide for a functionally-impaired person);

(g) 2903.34 (patient abuse or neglect);

(h) 2903.341 (patient endangerment);

(i) 2905.01 (kidnapping);

(j) 2905.02 (abduction);

(k) 2905.32 (human trafficking);

(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);

(x) 2907.322 (pandering sexually-oriented matter involving a minor);

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

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

(aa) 2909.23 (making terroristic threats);

(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) A conviction related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program, excluding the disqualifying offenses listed in section 2913.46 (illegal use of SNAP or WIC program benefits) and paragraph (A)(2)(a)(xiii) of this rule; or,

(ff) A violation of 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 or violations described in paragraphs (A)(1)(a) to (A)(1)(ee) of this rule.

(2) Tier II: ten-year exclusionary period:

(a) No responsible party shall hire an applicant or retain an employee for a period of ten years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty 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 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

(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, 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 or school);

(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 (trafficking in drugs);

(xxviii) 2925.04 (illegal manufacture of drugs or 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); or,

(xxxii) A violation of 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 or violations described under paragraphs (A)(2)(a)(i) to (A)(2)(a)(xxxi) of this rule.

(b) An applicant or employee is subject to a fifteen-year exclusionary period if the applicant, or employee was convicted of multiple disqualifying offenses, including an offense listed in paragraph (A)(2)(a) of this rule, and another offense or offenses listed in 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 exclusionary period:

(a) No responsible party shall hire an applicant or retain an employee for a period of seven years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty to, any 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);

(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);

(xix) 2921.34 (escape);

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

(xxi) 2921.36 (illegal conveyance of weapons, drugs, or other prohibited items onto the grounds of a detention facility or institution);

(xxii) 2925.05 (funding drug 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); or,

(xxvii) A violation of 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 or violations described under paragraphs (A)(3)(a)(i) to (A)(3)(a)(xxvii) of this rule.

(b) An applicant or employee is subject to a ten-year exclusionary period if the applicant or employee was convicted of multiple disqualifying offenses, including an offense listed in paragraph (A)(3)(a) of this rule, and another offense or offenses listed in 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 exclusionary period:

(a) No responsible party shall hire an applicant or retain an employee for a period of five years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty 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);

(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 computer, cable, or telecommunication property);

(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);

(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 law enforcement emblem);

(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) 2919.23 (interference with custody);

(xxvii) 2919.24 (contributing to the unruliness or delinquency of a child);

(xxviii) 2921.12 (tampering with evidence);

(xxix) 2921.21 (compounding a crime);

(xxx) 2921.24 (disclosure of confidential information);

(xxxi) 2921.32 (obstructing justice);

(xxxii) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(xxxiii) 2921.51 (impersonation of peace officer);

(xxxiv) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(xxxv) 2925.11 (drug possession), unless a minor drug possession offense;

(xxxvi) 2925.13 (permitting drug abuse);

(xxxvii) 2925.22 (deception to obtain a dangerous drug);

(xxxviii) 2925.23 (illegal processing of drug documents);

(xxxix) 2925.36 (illegal dispensing of drug samples);

(xl) 2925.55 (unlawful purchase of a pseudoephedrine product, underage purchase of a pseudoephedrine product, using false information to purchase a pseudoephedrine product, improper purchase of a pseudoephedrine product);

(xli) 2925.56 (unlawfully selling a pseudoephedrine product; unlawfully selling a pseudoephedrine product to a minor; improper sale of a pseudoephedrine product); or,

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

(xliii) A violation of 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 or violations described under paragraph (A)(4)(a)(i) to (A)(4)(a)(xli) of this rule.

(b) An applicant, or employee is subject to a seven-year exclusionary period if the applicant or employee was convicted of multiple disqualifying offenses listed in 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 exclusionary period: A responsible party may hire an applicant or retain an employee if the applicant or employee was convicted of, or pleaded guilty 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, or advertising of drug paraphernalia);

(d) A violation of 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 or violations described under paragraph (A)(5) of this rule.

(B) Limited grandfathering: A responsible party may have chosen to retain an employee if the employee would otherwise have been excluded from a paid direct-care position because the employee was convicted of, or pleaded guilty to, an offense(s) listed under paragraph (A)(4) of this rule, but only if:

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

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

(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) Certificates: A responsible party may hire an applicant or retain an employee with a disqualifying offense that is not one of the offenses listed under paragraph (A)(1) of this rule if the applicant or employee was issued either a:

(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/); or,

(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) Pardons: A responsible party may hire an applicant or retain an employee if the applicant or employee has a conviction or a plea of guilty to an 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; or,

(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.

Supplemental Information

Rule 173-9-07.1 | Background checks: paid direct-care positions: Certifying or entering into an AAA-provider agreement with a self-employed provider who has a disqualifying offense on his or her criminal record.

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

Download Authenticated PDF

A responsible party shall not reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an AAA-provider agreement (agreement), or terminate that agreement solely because the self-employed provider has a disqualifying offense on his or her criminal record if no exclusionary period under paragraph (A) of this rule prohibits certification or an agreement, the limited grandfathering under paragraph (B) of this rule applies, the self-employed provider attained a certificate under paragraph (C) of this rule, or the self-employed provider attained a pardon under paragraph (D) of this rule.

(A) Disqualifying offense exclusionary periods: A responsible party shall not reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement solely because the self-employed provider has a disqualifying offense on his or her criminal record, unless an exclusionary period in paragraph (A)(1), (A)(2), (A)(3), or (A)(4) of this rule prohibits ODA certification or an agreement.

(1) Tier I: permanent exclusion: A responsible party shall reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement if the self-employed provider was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2903.01 (aggravated murder);

(b) 2903.02 (murder);

(d) 2903.11 (felonious assault);

(e) 2903.15 (permitting child abuse);

(f) 2903.16 (failing to provide for a functionally-impaired person);

(g) 2903.34 (patient abuse or neglect);

(h) 2903.341 (patient endangerment);

(i) 2905.01 (kidnapping);

(j) 2905.02 (abduction);

(k) 2905.32 (human trafficking);

(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);

(x) 2907.322 (pandering sexually-oriented matter involving a minor);

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

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

(aa) 2909.23 (making terroristic threats);

(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);

(2) Tier II: ten-year exclusionary period:

(a) For ten years after the date that the self-employed provider was fully discharged from all imprisonment, probation, or parole, the responsible party shall reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement if self-employed provider was convicted of, or pleaded guilty 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 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

(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);

(xix) 2923.123 (illegal conveyance, 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 or school);

(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 (trafficking in drugs);

(xxviii) 2925.04 (illegal manufacture of drugs or 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); or,

(b) A self-employed provider is subject to a fifteen-year exclusionary period if the self-employed provider was convicted of multiple disqualifying offenses, including an offense listed in paragraph (A)(2)(a) of this rule, and another offense or offenses listed in 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 exclusionary period:

(a) For seven years after the date that the self-employed provider was fully discharged from all imprisonment, probation, or parole, the responsible party shall reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement if the self-employed provider was convicted of, or pleaded guilty 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);

(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);

(xix) 2921.34 (escape);

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

(xxi) 2921.36 (illegal conveyance of weapons, drugs, or other prohibited items onto the grounds of a detention facility or institution);

(xxii) 2925.05 (funding drug 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); or,

(b) A self-employed provider is subject to a ten-year exclusionary period if he or she was convicted of multiple disqualifying offenses, including an offense listed in paragraph (A)(3)(a) of this rule, and another offense or offenses listed in 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 exclusionary period:

(a) For five years after the date that the self-employed provider was fully discharged from all imprisonment, probation, or parole, the responsible party shall reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement if the self-employed provider was convicted of, or pleaded guilty 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);

(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 computer, cable, or telecommunication property);

(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);

(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 law enforcement emblem);

(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) 2919.23 (interference with custody);

(xxvii) 2919.24 (contributing to the unruliness or delinquency of a child);

(xxviii) 2921.12 (tampering with evidence);

(xxix) 2921.21 (compounding a crime);

(xxx) 2921.24 (disclosure of confidential information);

(xxxi) 2921.32 (obstructing justice);

(xxxii) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(xxxiii) 2921.51 (impersonation of peace officer);

(xxxiv) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(xxxv) 2925.11 (drug possession), unless a minor drug possession offense;

(xxxvi) 2925.13 (permitting drug abuse);

(xxxvii) 2925.22 (deception to obtain a dangerous drug);

(xxxviii) 2925.23 (illegal processing of drug documents);

(xxxix) 2925.36 (illegal dispensing of drug samples);

(xli) 2925.56 (unlawfully selling a pseudoephedrine product; unlawfully selling a pseudoephedrine product to a minor; improper sale of a pseudoephedrine product); or,

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

(b) A self-employed provider is subject to a seven-year exclusionary period if he or she was convicted of multiple disqualifying offenses listed in 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 exclusionary period: The responsible party shall not reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement solely because the self-employed provider was convicted of, or pleaded guilty 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, or advertising of drug paraphernalia);

(B) Limited grandfathering: The responsible party shall not reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement solely because the self-employed provider was convicted of, or pleaded guilty to, an offense listed under paragraph (A)(4) of this rule, but only if:

(1) The self-employed provider was certified or entered into an agreement before January 1, 2013;

(2) The self-employed provider's conviction or guilty plea occurred before January 1, 2013; and,

(3) The self-employed provider considered the nature and seriousness of his or her offense(s), and self-attested in writing before April 1, 2013, to his or her character and fitness based upon his or her demonstrated work performance.

(C) Certificates: The responsible party shall not reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement solely because the self-employed provider was convicted of, or pleaded guilty to, an offense listed in paragraph (A)(2), (A)(3), or (A)(4) of this rule if the self-employed provider was issued either a:

(D) Pardons: The responsible party shall not reject a self-employed provider's application for ODA certification, revoke a self-employed provider's certification, reject a bid from a self-employed provider for an agreement, or terminate that agreement solely because the self-employed provider was convicted of, or pleaded guilty to, any offense listed or described in rule 173-9-06 of the Administrative Code under any of the following circumstances:

(1) The self-employed provider was granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;

(2) The self-employed provider 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; or,

(4) The self-employed provider 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.

Supplemental Information

Authorized By: 173.01, 173.02, 173.381, 173.391, 173.392; Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2016 edition).
Amplifies: 173.381
Five Year Review Date: 7/26/2023
Prior Effective Dates: 7/11/1991

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

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

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(A) Confidentiality: Criminal records are not public records. The responsible party shall only make criminal records available to the following people:

(1) The applicant, employee, or self-employed provider who is the subject of the criminal records check or the applicant's, employee's, or self-employed provider's representative.

(2) The responsible party that conducted the criminal records check or the responsible party's representative.

(3) The administrator of any other facility, agency, or program that employs direct-care positions that is owned or operated by the same party that owns or operates the responsible party that conducted the criminal records check.

(4) The employment service that conducted the criminal records check, if an employment service conducted the criminal records check.

(5) ODA's director and any person that the director authorizes to monitor responsible parties' compliance with Chapter 173-9 of the Administrative Code.

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

(a) A responsible party that is also a waiver agency conducted a criminal records check on an applicant or employee.

(b) An employment service conducted a criminal records check on an applicant or employee that it referred to a responsible party that is also a waiver agency.

(c) A consumer or individual, acting as the responsible party, conducted a criminal records check on an applicant or employee for a participant-directed or self-directed arrangement.

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

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

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

(B) Records retention:

(1) Personnel files:

(a) What to retain: To verify compliance with Chapter 173-9 of the Administrative Code, for each applicant the responsible party hired, each employee the responsible party retained, each self-employed applicant the responsible party certified, each self-employed person that retained certification, each self-employed bidder for an AAA-provider agreement (agreement), or each self-employed person presently under an agreement, the responsible party shall retain electronic or paper copies of the following records:

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

(ii) Any criminal records including reverified records.

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

(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: To comply with paragraph (A) of this rule, the responsible party shall retain the records that paragraph (B)(1) of this rule requires the responsible party to retain 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 shall simply retain the records.

(i) The responsible party that is an ODA-certified provider shall retain records and make them available for monitoring purposes according to the timelines and other terms that rule 173-39-02 of the Administrative Code established.

(ii) The responsible party that is a non-certified provider shall retain records and make them available for monitoring purposes according to the timelines and other terms that rule 173-3-06 of the Administrative Code established.

(2) Roster:

(a) A responsible party shall maintain a roster of applicants and employees, 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 BCII.

(iv) The date the responsible party received criminal records from 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, 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 that ODA certified the self-employed provider.

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

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

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

Supplemental Information

Authorized By: 173.01, 173.02, 173.38, 173.381, 173.391, 173.392; Sections 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2016 edition).
Amplifies: 173.38, 173.381; 42 C.F.R. 460.68(a), 460.71(b)(1), 460.71(b)(2), 460.200 (November 15, 2016).
Five Year Review Date: 7/26/2023
Prior Effective Dates: 3/4/1997 (Emer.), 12/28/2006, 2/15/2009, 8/11/2011

Rule 173-9-09 | Background checks: paid direct-care positions: Immunity from negligent hiring, certification, or AAA-provider agreements.

Effective:

August 1, 2017

Promulgated Under:

119.03

PDF:

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(A) 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, all of the following apply:

(1) If the responsible party hired the applicant or retained the employee in good faith and reasonable reliance upon the applicant's or employee's criminal record, the responsible party shall not be found negligent solely because of its reliance on the criminal record, even if the criminal record is later determined to have been incomplete or inaccurate.

(2) If the responsible party conditionally hired the applicant in good faith and in compliance with rule 173-9-05 of the Administrative Code, the responsible party shall not be found negligent solely because it hired the applicant before receiving the applicant's criminal record.

(3) If the responsible party in good faith hired the applicant or retained the employee because rule 173-9-07 of the Administrative Code allowed the responsible party to hire an applicant or retain an employee with a disqualifying offense on his or her criminal record, the responsible party shall not be negligent solely because the applicant or employee has been convicted of, or pleaded guilty to, a disqualifying offense.

(B) 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 a self-employed provider, both of the following apply:

(1) If the responsible party certified or entered into an AAA-provider agreement (agreement) with the self-employed provider, or did not revoke or terminate the person's certification or agreement, in good faith and reasonable reliance upon the person's criminal record, the responsible party shall not be found negligent solely because of its reliance on the criminal record, even if the criminal record is later determined to have been incomplete or inaccurate.

(2) If the responsible party in good faith certified or entered into an agreement with the self-employed provider, or did not revoke or terminate the self-employed provider's certification or agreement, because the person met the standards in rule 173-9-07.1 of the Administrative Code that allow a responsible party to certify or enter into an agreement with a self-employed provider who has a disqualifying offense on his or her criminal record, the responsible party shall not be negligent solely because the self-employed provider has been convicted of, or pleaded guilty to, a disqualifying offense.

Supplemental Information

Rule 173-9-10 | Background checks for paid direct-care positions: consequences for failure to comply with this chapter.

Effective:

May 1, 2019

Promulgated Under:

119.03

PDF:

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(A) If an area agency on aging (AAA) fails to comply with this chapter, ODA may take whatever action against the AAA is appropriate under rule 173-2-07 of the Administrative Code.

(B) If a PASSPORT administrative agency (PAA) fails to comply with this chapter, ODA or the Ohio department of medicaid (ODM) may take whatever action against the PAA is appropriate under the terms of the three-party agreement entered into between ODA, ODM, and the PAA under sections 173.52 and 173.54 of the Revised Code.

(C) If a PACE organization fails to comply with this chapter, ODA or the centers for medicare and medicaid services (CMS) may take whatever action against the PACE organization is appropriate under the terms of the PACE organization agreement entered into by ODA, CMS, and the PACE organization under 42 C.F.R. Part 460, Subpart D.

(D) If a provider fails to comply with this chapter, ODA (or its designees) may take whatever action against the provider is appropriate under one or more of the following:

(1) Section 173.391 of the Revised Code and rule 173-39-05 of the Administrative Code when the provider is providing services to individuals through a program requiring ODA-certified providers.

(2) The AAA-provider agreement entered into between the provider and the AAA when the provider is providing services to consumers through a program not requiring ODA-certified providers.

Supplemental Information

Authorized By: 173.392; 42 U.S.C. 3025(a)(1)(C); 45 C.F.R. 1321.11, 173.391, 173.381, 173.38, 173.02, 173.01
Amplifies: 173.38, 460.194, 460.71(b), 173.381; 45 C.F.R. 460.68(a)
Five Year Review Date: 5/1/2024
Prior Effective Dates: 4/17/2003, 2/1/2015