2006 Ohio Revised Code - [173.39.4] 173.394.Criminal records check for certain applicants for employment.

[§ 173.39.4] § 173.394. Criminal records check for certain applicants for employment.
 

(A)  As used in this section: 

(1) "Applicant" means a person who is under final consideration for employment with a community-based long-term care agency in a full-time, part-time, or temporary position that involves providing direct care to an individual. "Applicant" does not include a person who provides direct care as a volunteer without receiving or expecting to receive any form of remuneration other than reimbursement for actual expenses. 

(2) "Criminal records check" has the same meaning as in section 109.572 [109.57.2] of the Revised Code. 

(B) (1)  Except as provided in division (I) of this section, the chief administrator of a community-based long-term care agency shall request that the superintendent of the bureau of criminal identification and investigation conduct a criminal records check with respect to each applicant. If an applicant for whom a criminal records check request is required under this division does not present proof of having been a resident of this state for the five-year period immediately prior to the date the criminal records check is requested or provide evidence that within that five-year period the superintendent has requested information about the applicant from the federal bureau of investigation in a criminal records check, the chief administrator shall request that the superintendent obtain information from the federal bureau of investigation as part of the criminal records check of the applicant. Even if an applicant for whom a criminal records check request is required under this division presents proof of having been a resident of this state for the five-year period, the chief administrator may request that the superintendent include information from the federal bureau of investigation in the criminal records check. 

(2) A person required by division (B)(1) of this section to request a criminal records check shall do both of the following: 

(a) Provide to each applicant for whom a criminal records check request is required under that division a copy of the form prescribed pursuant to division (C)(1) of section 109.572 [109.57.2] of the Revised Code and a standard fingerprint impression sheet prescribed pursuant to division (C)(2) of that section, and obtain the completed form and impression sheet from the applicant; 

(b) Forward the completed form and impression sheet to the superintendent of the bureau of criminal identification and investigation. 

(3) An applicant provided the form and fingerprint impression sheet under division (B)(2)(a) of this section who fails to complete the form or provide fingerprint impressions shall not be employed in any position for which a criminal records check is required by this section. 

(C) (1)  Except as provided in rules adopted by the department of aging in accordance with division (F) of this section and subject to division (C)(2) of this section, no community-based long-term care agency shall employ a person in a position that involves providing direct care to an individual if the person has been convicted of or pleaded guilty to any of the following: 

(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34, 2905.01, 2905.02, 2905.11, 2905.12, 2907.02, 2907.03, 2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.12 /D, 2907.25, 2907.31, 2907.32, 2907.321 [2907.32.1], 2907.322 [2907.32.2], 2907.323 [2907.32.3], 2911.01, 2911.02, 2911.11, 2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.40, 2913.43, 2913.47, 2913.51, 2919.25, 2921.36, 2923.12, 2923.13, 2923.161 [2923.16.1], 2925.02, 2925.03, 2925.11, 2925.13, 2925.22, 2925.23, or 3716.11 of the Revised Code. 

(b) A violation of an existing or former law of this state, any other state, or the United States that is substantially equivalent to any of the offenses listed in division (C)(1)(a) of this section. 

(2) (a) A community-based long-term care agency may employ conditionally an applicant for whom a criminal records check request is required under division (B) of this section prior to obtaining the results of a criminal records check regarding the individual, provided that the agency shall request a criminal records check regarding the individual in accordance with division (B)(1) of this section not later than five business days after the individual begins conditional employment. In the circumstances described in division (I)(2) of this section, a community-based long-term care agency may employ conditionally an applicant who has been referred to the agency by an employment service that supplies full-time, part-time, or temporary staff for positions involving the direct care of individuals and for whom, pursuant to that division, a criminal records check is not required under division (B) of this section. 

(b) A community-based long-term care agency that employs an individual conditionally under authority of division (C)(2)(a) of this section shall terminate the individual's employment if the results of the criminal records check request under division (B) of this section or described in division (I)(2) of this section, other than the results of any request for information from the federal bureau of investigation, are not obtained within the period ending sixty days after the date the request is made. Regardless of when the results of the criminal records check are obtained, if the results indicate that the individual has been convicted of or pleaded guilty to any of the offenses listed or described in division (C)(1) of this section, the agency shall terminate the individual's employment unless the agency chooses to employ the individual pursuant to division (F) of this section. Termination of employment under this division shall be considered just cause for discharge for purposes of division (D)(2) of section 4141.29 of the Revised Code if the individual makes any attempt to deceive the agency about the individual's criminal record. 

(D) (1)  Each community-based long-term care agency shall pay to the bureau of criminal identification and investigation the fee prescribed pursuant to division (C)(3) of section 109.572 [109.57.2] of the Revised Code for each criminal records check conducted pursuant to a request made under division (B) of this section. 

(2) A community-based long-term care agency may charge an applicant a fee not exceeding the amount the agency pays under division (D)(1) of this section. An agency may collect a fee only if both of the following apply: 

(a) The agency notifies the person at the time of initial application for employment of the amount of the fee and that, unless the fee is paid, the person will not be considered for employment; 

(b) The medicaid program established under Chapter 5111. of the Revised Code does not reimburse the agency the fee it pays under division (D)(1) of this section. 

(E)  The report of any criminal records check conducted pursuant to a request made under this section is not a public record for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following: 

(1) The individual who is the subject of the criminal records check or the individual's representative; 

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

(3) The administrator of any other facility, agency, or program that provides direct care to individuals that is owned or operated by the same entity that owns or operates the community-based long-term care agency; 

(4) The director of aging or a person authorized by the director to monitor a community-based long-term care agency's compliance with this section; 

(5) A court, hearing officer, or other necessary individual involved in a case dealing with a denial of employment of the applicant or dealing with employment or unemployment benefits of the applicant; 

(6) Any person to whom the report is provided pursuant to, and in accordance with, division (I)(1) or (2) of this section. 

(F)  The department of aging shall adopt rules in accordance with Chapter 119. of the Revised Code to implement this section. The rules shall specify circumstances under which a community-based long-term care agency may employ a person who has been convicted of or pleaded guilty to an offense listed or described in division (C)(1) of this section but meets personal character standards set by the department. 

(G)  The chief administrator of a community-based long-term care agency shall inform each person, at the time of initial application for a position that involves providing direct care to an individual, that the person is required to provide a set of fingerprint impressions and that a criminal records check is required to be conducted if the person comes under final consideration for employment. 

(H)  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 individual who a community-based long-term care agency employs in a position that involves providing direct care to individuals, all of the following shall apply: 

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

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

(3) If the agency in good faith employed the individual according to the personal character standards established in rules adopted under division (F) of this section, the agency shall not be found negligent solely because the individual prior to being employed had been convicted of or pleaded guilty to an offense listed or described in division (C)(1) of this section. 

(I) (1)  The chief administrator of a community-based long-term care agency is not required to request that the superintendent of the bureau of criminal identification and investigation conduct a criminal records check of an applicant if the applicant has been referred to the PASSPORT agency by an employment service that supplies full-time, part-time, or temporary staff for positions involving the direct care of individuals and both of the following apply: 

(a) The chief administrator receives from the employment service or the applicant a report of the results of a criminal records check regarding the applicant that has been conducted by the superintendent within the one-year period immediately preceding the applicant's referral; 

(b) The report of the criminal records check demonstrates that the person has not been convicted of or pleaded guilty to an offense listed or described in division (C)(1) of this section, or the report demonstrates that the person has been convicted of or pleaded guilty to one or more of those offenses, but the community-based long-term care agency chooses to employ the individual pursuant to division (F) of this section. 

(2) The chief administrator of a community-based long-term care agency is not required to request that the superintendent of the bureau of criminal identification and investigation conduct a criminal records check of an applicant and may employ the applicant conditionally as described in this division, if the applicant has been referred to the agency by an employment service that supplies full-time, part-time, or temporary staff for positions involving the direct care of individuals and if the chief administrator receives from the employment service or the applicant a letter from the employment service that is on the letterhead of the employment service, dated, and signed by a supervisor or another designated official of the employment service and that states that the employment service has requested the superintendent to conduct a criminal records check regarding the applicant, that the requested criminal records check will include a determination of whether the applicant has been convicted of or pleaded guilty to any offense listed or described in division (C)(1) of this section, that, as of the date set forth on the letter, the employment service had not received the results of the criminal records check, and that, when the employment service receives the results of the criminal records check, it promptly will send a copy of the results to the community-based long-term care agency. If a community-based long-term care agency employs an applicant conditionally in accordance with this division, the employment service, upon its receipt of the results of the criminal records check, promptly shall send a copy of the results to the community-based long-term care agency, and division (C)(2)(b) of this section applies regarding the conditional employment. 
 

HISTORY: 146 v S 160 (Eff 1-27-97); 147 v S 96 (Eff 6-11-97); 147 v H 18. Eff. 1-30-98; 151 v H 530, § 101.01, eff. 6-30-06.
 

The effective date is set by § 812.03 of 151 v H 530. 

 

Effect of Amendments

151 v H 530, effective June 30, 2006, substituted "community-based long-term care" for "PASSPORT" throughout; substituted "individual" for "older adult" throughout; in (A)(2), substituted "has the same meaning" for "and 'older adult' have the same meanings"; deleted (A)(3), defining "PASSPORT agency"; in (D)(2)(b), substituted "medicaid" for "medical assistance"; and inserted (E)(4) and redesignated former (E)(4) as (5).