An Oregon Medicaid Agency Supporting Individuals with Intellectual and Developmental Disabilities

Orchards-BCU

Required-Oregon Background Check Unit

Department of Human Services

Chapter 407

Division 7

CRIMINAL HISTORY AND ABUSE CHECKS

OAR 407-007-035

Hired on a Preliminary Basis

(1) A preliminary fitness determination is required to determine if an SI may participate in training or orientation, work, volunteer, or otherwise perform in the position listed on the background check request prior to a final fitness determination. An SI may not be hired on a preliminary basis prior to the completion of a preliminary fitness determination.

(2) An SI may be hired on a preliminary basis only:

(a) During the period of time prior to a final fitness determination;

(b) For the position listed on the background check request; and

(c) If not prohibited by section (4) of this rule.

(3) To be hired on a preliminary basis, an SI and QED must provide minimum information required for a background check request as indicated in OAR 407-007-0250.

(4) The QE may not hire a SI on a preliminary basis under any of the following circumstances:

(a) Program rules, Oregon statutes, or federal directives do not allow hiring on a preliminary basis.

(b) Once submitted in ORCHARDS, the background check record indicates that preliminary hire is not allowed and the QE does not subsequently request a review by BCU as indicated in section (5) of this rule resulting in the QE being allowed to hire the SI on a preliminary basis.

(c) The QE or BCU determines that:

(A) More likely than not, the SI poses a potential threat to vulnerable individuals, based on a preliminary fitness determination and weighing test;

(B) The SI’s most recent background check under these rules or other Department or Authority criminal records check rules or abuse check rules resulted in a denial; or

(C) The SI is currently involved in contesting a background check under these or other Department or Authority criminal records check rules or abuse check rules; or

(D) BCU has reason to believe hiring on a preliminary basis is not appropriate based on circumstances or compliance with the background check process of the SI, QED, or QE.

(d) An outcome of not hiring on a preliminary basis may only be overturned by the BCU.

(5) If requested by the QED, BCU may review a newly submitted background check request when hiring on a preliminary basis has not been allowed.  For example:

(a) BCU may review the background check request for disclosed criminal history that caused BCU’s background check online system to not allow hiring on a preliminary basis. If BCU does not find any potentially disqualifying convictions or conditions in the SI’s disclosures, BCU updates the SI’s status accordingly.  The QE may hire the SI on a preliminary basis if nothing in section (4) of this rule applies.

(b) If the SI has disclosed potentially disqualifying convictions or conditions, BCU may conduct a preliminary fitness determination pursuant to OAR 125-007-0250 with a weighing test.  If BCU makes a positive decision in the preliminary fitness determination, BCU updates the SI’s status accordingly and the QE may hire the SI on a preliminary basis if nothing in section (4) of this rule applies. If BCU makes a negative decision, BCU must revoke hiring of the SI on a preliminary basis.

(6) An SI hired on a preliminary basis must be actively supervised at all times unless sections (7) or (8) of this rule apply.

(a) The individual providing active supervision at all times must do the following:

(A) Be in the same building as the SI or, if outdoors of QE buildings or any location off the QE property, be within line-of-sight and -of-hearing, except as provided in section (6)(b)(B) of this rule;

(B) Know where the SI is and what the SI is doing; and

(C) Periodically observe the actions of the SI.

(b) The individual providing the active supervision may be either:

(A) An SI who has been approved without restrictions pursuant to these rules or previous Department or Authority criminal records check rules; or

(B) The adult client, an adult client’s adult relation, the client’s legal representative, or a child’s parent or guardian. Active supervision by these individuals is appropriate in situations where care is given directly to clients usually in a home such as but not limited to in-home care, home health, or care by home care workers, or personal care assistants.

(i) The adult client may actively supervise a homecare worker, personal care services provider, independent provider, or an employee of an in-home care agency or home health agency if the client makes an informed decision to employ the provider.  Someone related to the client may also provide active supervision if the relative has been approved by the Department, the Authority, the QED, or the private-pay client receiving services through an in-home care or home health agency.

(ii)  A child client’s parent or guardian is responsible for providing active supervision in the case of child care providers. The supervision is not required to be performed by someone in the same building as the child.

(7) An SI allowed to work on a preliminary basis is exempt from active supervision if SI is working under an approved background check and is currently going through a recheck required by program rules or OAR 407-007-0600 to 407-007-0640 unless there is evidence of potentially disqualifying convictions or conditions since the previous background check.  If BCU finds evidence of criminal activity or potentially disqualifying abuse since the previous background check, BCU may revoke working on a preliminary basis.

(8) An SI approved without restrictions within the previous 24 months through a documented criminal records check or abuse check pursuant to these rules or prior Department or Authority criminal records check rules or abuse check rules may be hired on a preliminary basis without active supervision. Twenty-four months is calculated from date of previous approval to the date of hire in the new position. Exemption from active supervision is not allowed in any of the following situations:

(a) If the SI cannot provide documented proof that he or she worked continuously under the previous approval for at least one year.

(b) If there is evidence of potentially disqualifying convictions or conditions within the previous 24 months.

(c) If, as determined by the QE or BCU, the job duties in the new position are so substantially different from the previous position that the previous fitness determination is inadequate for the current position.

(9) Revocation of hired on a preliminary basis is not subject to hearing or appeal. The QE or BCU may immediately revoke hired on a preliminary basis for either of the following reasons:

(a) There is any indication of falsification of the background check application.

(b) The QE or BCU determines that allowing the SI to be hired on a preliminary basis is not appropriate, based on the application, criminal record, position duties, preliminary fitness determination by the Department, or Department program rules.

(10) Nothing in this rule is intended to require that an SI who is eligible to be hired on a preliminary basis be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request prior to a final fitness determination.

(11) Preliminary fitness determinations must be documented in writing, including any details regarding a weighing test, if required.

Statutory/Other Authority: ORS 181A.200, ORS 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.200, ORS 409.027, ORS 181A.195, 409.010 & 443.004
History:
DHS 1-2023, amend filed 01/27/2023, effective 02/01/2023
DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021
DHS 7-2021, temporary amend filed 06/25/2021, effective 06/25/2021 through 12/21/2021
DHSD 2-2020, amend filed 02/10/2020, effective 02/10/2020
DHSD 18-2019, temporary amend filed 09/26/2019, effective 09/27/2019 through 03/24/2020
DHSD 10-2017, f. & cert. ef. 9-1-17
DHSD 5-2016, f. 6-10-16, cert. ef. 6-15-16
DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16
DHSD 2-2014, f. & cert. ef. 12-1-14
DHSD 4-2012, f. & cert. ef. 8-1-12
DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12
DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11
DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11
DHSD 1-2011(Temp), f. & cert. ef. 4-15-11 thru 10-11-11
DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10
DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10

 

How ORS 443.004 impacts background checks

According to this statute, public funds for employment can’t be used for subject individuals in certain positions if they have been convicted of specific crimes. People who are not eligible for employment under ORS 443.004 don’t have hearing rights to appeal this determination from the Background Check Unit.​

Details and specific crimes​​​

For ODHS ​Aging a​​nd People with Disabilities programs (APD) and Developmental Disabilities programs (DD):
  • See the list of disqualifying crimes for APD and DD​.
  • The length of ineligibility depends on the age of the person ​being served.
  • This applies to:
    • Employees and contractors of residential facilities including assisted living facilities, residential care facilities, residential treatment homes, residential treatment facilities and residential training facilities.
    • Employees of staffing agencies, unless they work exclusively in nursing facilities.
    • Staff at adult foster homes, including licensed adult foster homes for developmental disability, seniors or adults with physical disabilities.
    • Employees of in-home care agencies licensed through OHA who have contracts with ODHS to provide care for clients of Aging and People with Disabilities programs.
    • Home care workers, Independent Choices providers, and personal care assistants.
    • Anyone employed or contracted by programs for individuals with developmental disabilities.
  • ​ORS 443.004 does not cover nursing facilities, hospitals, or any non-paid positions such as volunteers or adult foster home household members.
For OHA Behavioral Health programs:
  • See the list of disqualifying crimes for Behavioral Health​.
  • This applies to:
    • Paid mental health treatment providers (including peer support specialists) who work in residential facilities licensed to provide these services.​
    • Paid alcohol and drug treatment providers who work in residential facilities licensed to provide these services.
Exem​pti​ons

In 2019, ORS 443.004 was updated to allow employees to move to different positions within their company if:​

  • They have worked for the same employer since before July 28, 2009, and
  • They stay with this same employer.

This exemption does not apply to licensees, for example adult foster home providers.

 

Who needs a background check?

  • People who work or volunteer where services are provided to children, seniors, and people with disabilities or a mental illness.
    • ​In some cases, people who live where these services are provided need a background check.
  • ​Employees and volunteers of ODHS and OHA
  • Certain employees of organizations that contract with ODHS or OHA.

Note: Oregon administrative rules use the term “subject individual” (SI)for the person whose background is being checked.

 

How and what we (Oregon BCU) check

  • Criminal records checks are generally done through the State of Oregon Law Enforcement Data System (LEDS). If necessary, criminal records checks can be done through the Federal Bureau of Investigation (FBI).
  • Information can also come from the Driver and Motor Vehicle Servi​ces Division (DMV), court records, and other states’ data systems.​
  • Certain abuse records will be reviewed.
  • Fingerprints may be​ required as part of the check.

Policies and procedures

 
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