DISCLAIMER: Please do not view the responses to frequently asked questions as a replacement to following the statutes and rules on criminal records checks.
Criminal Records Checks
On whom is a criminal records check required?
Free databases
Deadlines for checking criminal records
Information on the criminal records report
Records retention
Miscellaneous
On whom is a criminal records check required?
How is "direct care" defined?
For ODA's rules, rule 173-9-01 defines "direct care" as follows:
"Direct care" means any in-person contact with one or more consumers who receive a community-based long-term care service or any access to a consumer's personal property or personal records. "Community-based long-term care service" has the same meaning as in section 173.14 of the Revised Code.
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Are there exemptions to the requirement to check employees' criminal records every five years?
Yes, there are 3 exemptions. However, the exemptions are not from the definition of "direct care" in rule 173-9-01. Instead, the exemptions are from the requirement in rule 173-9-04 to check direct-care employees after they are hired.
1. Office staff:
The definition of "direct care" in rule 173-9-01 considers office staff with access to consumers' personal records to be employees who provide direct care. That has been a long-standing definition in ODA's rules. ODA's old rules required a criminal records check on applicants under final consideration for employment in a direct-care position that involves access to consumers' personal records. ODA's new rules continue to do the same.
When ODA launched the new requirement to check the criminal records of direct-care employees at least once every five years, it exempted employees whose only direct care involved access to a consumer's personal records (e.g., office staff that does not enter a consumer's home). You may find this exemption in paragraph (B)(2)(b)(ii) of rule 173-9-04.
In summary, when it comes to office staff who have access to a consumer's personal records but do not enter a consumer's home, ODA's rules create no new requirement to check employees. The only requirement is the long-standing requirement to check applicants.
2. Home-delivered meals:
The definition of "direct care" in rule 173-9-01 considers employees who deliver meals to provide direct care. That has been a long-standing definition in ODA's rules. ODA's old rules required a criminal records check on applicants under final consideration for employment in a direct-care position that involves delivering meals. ODA's new rules continue to do the same.
When ODA launched the new requirement to check the criminal records of direct-care employees at least once every five years, it exempted employees whose only direct care is delivering meals. This is true even though the delivery of meals inherently involves in-person contact with consumers and their personal records. You may find this exemption in paragraph (B)(2)(b)(i) of rule 173-9-04. ODA also exempted employees whose only direct care involves access to consumer's records (e.g., an employee who does not enter a consumer's home). This applies to kitchen staff who may have access to consumers' plans of care. You may find this exemption in paragraph (B)(2)(b)(ii) of rule 173-9-04.
In summary, when it comes to employees who deliver meals and kitchen staff who have access to a consumer's personal records but do not enter a consumer's home, ODA's rules create no new requirement to check employees. The only requirement is the long-standing requirement to check applicants.
3. Once-ever service:
The definition of "direct care" in rule 173-9-01 considers employees who provide a chore service, home maintenance service, home modification service, home repair service, or pest control to provide direct care. That has been a long-standing definition in ODA's rules. ODA's old rules required a criminal records check on applicants under final consideration for employment in a direct-care position that involves delivering meals. ODA's new rules continue to do the same.
When ODA launched the new requirement to check the criminal records of direct-care employees at least once every five years, it exempted employees whose only direct care was providing a once-ever chore, home maintenance, home modification, home repair, or pest control service. There was no point in requiring more than one criminal records check on such a provider if he or she only served a consumer in an ODA program one time on one day. You may find this exemption in paragraph (B)(2)(b)(iii) of rule 173-9-04. Please note that if the provider changes his or her mind and provides another service to the same consumer or to another consumer, he or she will be required to undergo subsequent criminal records checks.
In summary, when it comes to employees who provide a once-ever chore, home maintenance, home modification, home repair, or pest control service, ODA's rules create no new requirement to check employees. The only requirement is the long-standing requirement to check applicants.
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What about assisted living facilities?
The definition of "direct care" in rule 173-9-01 considers employees of an assisted living facility who have in-person contact with one or more residents, their personal records, or their property to be employees who provide direct care. ODA's rules require criminal records checks on those employees, with two exceptions: (1) If the facility only allows certain direct-care employees to serve residents enrolled in the Assisted Living Program, ODA's rules do not apply to the facility's remaining direct-care employees who serve residents that are not enrolled in the Assisted Living Program. (2) ODA's rules do not apply to professionals who provide services that Medicare, Medicaid, or a private insurance reimburse, but that the Assisted Living Program does not reimburse (e.g., hair stylist, podiatrist, or occupational therapist).
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What about other job positions?
For clarification on whether certain job positions are "direct care" or for clarification on which direct-care positions require criminal records checks at least once every five years, please feel welcome to contact ODA.
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Do volunteers require checks?
No. Sections 173.27 and 173.394 of the Revised Code specifically exempt volunteers who provide ombudsman services or direct care from the criminal records check requirements.
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Which ODA programs require checks?
ODA's rules apply to the ombudsman program and all ODA-administered direct-care programs regardless of the source of funding, including the Alzheimer's Respite Program, Assisted Living Program, Choices Program, Older Americans Act programs, PACE, PASSPORT Program, and local programs funded (in part or in full) with Older Americans Act funds and Senior Community Services funds.
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Free databases
Where can I find the free databases?
See rule 173-9-03 of the Administrative Code.
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If a responsible entity conducts a criminal records check, can it skip reviewing the free databases?
No. Rules 173-9-03 and 173-9-04 of the Administrative Code require the responsible entity to review the free databases before it conducts any criminal records check done to satisfy the requirements of sections 173.27 or 173.394 of the Revised Code or Chapter 173-9 of the Administrative Code. Additionally, the free databases may list information that would disqualify a person from providing ombudsman services or direct care that would not appear in a criminal records report. For example, if a person abused an individual with developmental disabilities, the person's name may appear in the abuser registry even if there is no criminal conviction. Such a person is ineligible from providing ombudsman services or direct care.
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Do the rules require reviewing the six free databases before requesting a criminal records check on an existing employee?
Yes. Rules173-9-03 and 173-9-04 of the Administrative Code require checking the six free databases before requesting any criminal records check required by Chapter 173-9 of the Administrative Code, which includes criminal records checks on applicants and employees.
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Do I need the applicant's or employee's permission before searching for their names in the six free databases?
No. Unlike BCII's criminal records reports, the information retained in the six free databases are public records. Any member of the general public may review the databases without permission of the people referenced in the databases.
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Does a responsible entity need to create a user account with SAM in order to retrieve information on applicants and employees from SAM?
The FAQ page for the SAM website says, "You DO NOT need an account in SAM if you want to search publicly available information." Here is a step-by-step guide to using SAM adapted from a guide that the Ohio Department of Health developed:
On SAM homepage, click the "Search Records" button. There is no need to create a user account.
From there, enter the name of the individual in the search box provided. This will allow you to search excluded parties.
For example, a search for "John Anderson" returns numerous excluded individuals. Clicking the 'View Details' button gives you access to that individual's exclusion information.
If the individual seeking employment is on that list, print that screen and place it in the file. For example, this is part of the 'View Details' for "John Powell Anderson" from the search above.
One way to ensure the "John Anderson" you are checking is or is not on the list is to use the middle name of the individual. Verify the information against the information the applicant or employee submitted. So, for example, if John David Anderson is applying for a job with your company, and you enter "John David Anderson" in the search box, this screen appears.
To retain a record of this search, the responsible entity may simply print the screen and place it in the personnel files or make a .pdf document of the screen and store the .pdf document in an electronic personnel file.
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Isn't the SAM database only applicable for checking on owners and managers of agencies?
If the federal government has disqualified a person from entering into a contract that uses federal dollars because the person has defrauded the federal government, rule 173-9-03 of the Administrative Code says the person is also ineligible from providing ombudsman services or direct care to consumers who are enrolled in ODA's programs.
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Does the responsible entity need to check the nurse aide registry to see if an applicant or employee disqualified from providing direct care in a position that does not involve providing nurse aide services?
Yes. If an applicant or employee was listed in the registry as an abuser, neglector, or exploiter of residents of a nursing home, the applicant and employee is ineligible to provide ombudsman services to residents in the same or other nursing homes and ineligible to provide direct care to consumers in ODA's programs in assisted-living facilities, adult day centers, in-home settings, or any other settings.
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Deadlines for checking criminal records
What is the deadline for completing criminal records checks on applicants?
The responsible entity may not hire an applicant until the completion of a criminal records check. However, rule 173-9-05 of the Administrative Code allows the responsible entity to conditionally hire the applicant, but only if (1) the responsible entity reviews the free databases and the databases do not disqualify the applicant, (2) the responsible entity hires the applicant on a conditional basis, (3) the responsible entity initiates the process of obtaining a criminal records check no later than five business days after the applicant begins employment, and (4) the applicant provides the responsible entity with a completed fingerprint impression sheet before the commencement of the applicant's conditional employment. If the applicant provides fingerprint impressions through WebCheck, the responsible entity would, in practice, be initiating the criminal records check process before the commencement of the applicant's conditional employment. The only requirement in new rule 173-9-05 of the Administrative Code regarding conditional hiring that did not appear in the previous rule is the requirement to review the free databases before conditionally hiring the applicant.
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What is the deadline for completing criminal records checks on employees?
Rule 173-9-04 of the Administrative Code requires the responsible entity to conduct a criminal records check on employees no later than 30 days after every fifth anniversary date of hire for the employee (i.e., 5 years + 30 days). If the responsible entity hired an employee before 2008, the rule requires the responsible entity to conduct a criminal records check on the employee no later than 30 days after the anniversary date of hire in 2013. The rule does not prohibit a responsible entity from conducting a criminal records check before these deadlines nor does it require a provider to wait until a specified day to conduct a criminal records check. Instead, the rule requires completing a criminal records check before the deadlines the rule establishes. Also, division (D) of section 109.572 of the Revised Code says that the information that BCII lists on a criminal records report is good for one year. Therefore, if a responsible entity conducted a check of an employee in 2012, the responsible entity could use that information to review the employee according to the rules that take effect in 2013 so long as the responsibility entity does so before the employee's criminal records report expires.
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What if it takes longer than 60 days for BCII to process a criminal records check on an applicant?
Sections 173.27and 173.394 of the Revised Code do not provide any exception to the limit of hiring an applicant conditionally for no more than sixty days. If BCII takes longer to process a check than sixty days, rule 173-9-05 of the Administrative Code says that the responsible entity must terminate the conditionally-hired applicant's employment. If, after the responsible entity terminates the conditional employment, the responsible entity receives a criminal records report from BCII that does not disqualify the applicant from providing ombudsman services or direct care, the responsible entity may then hire the applicant.
The enactment of Senate Bill 337 has added an administrative burden to BCII regarding criminal records checks, resulting in a temporary backlog. BCII staff members are working diligently to reduce this temporary backlog and is in the process of upgrading its computerized criminal history system to ensure compliance with S.B.337. In the interim, agencies can help to expedite the processing of criminal records checks in instances where the applicant has disclosed a criminal conviction by forwarding a copy of the journal entry from the court to the following address:
Ohio Bureau of Criminal Identification and Investigation
ATTN: Criminal Dispositions for Pending Background Checks
P. O. Box 365
London, Ohio 43140
What if it takes longer than 60 days for BCII to process a criminal records check on a current employee?
The Revised Code has established a 60-day period of conditional hiring for applicants, but not employees. The Revised Code does not require the employer to terminate a current employee if it takes BCII longer than 60 days to provide the criminal records.
If a responsible entity waits until after March 31, 2013 to check the free database reviews and criminal records checks for a current employee will limited grandfathering still be available?
No. The limited grandfathering provision ends on March 31, 2013 even if the deadline for checking the databases and criminal records may be 5 years (plus 30 days) into the future. If a responsible entity is unaware that it currently employs a disqualified person until after the deadline passes, the person who is disqualified solely by a Tier IV offense is excluded from employment providing ombudsman services or direct care until the expiration of the Tier IV exclusionary period unless the person obtains one of the certificates mentioned in paragraph (C) of rule 173-9-07 of the Administrative Code or a pardon mentioned in paragraph (D) of the same rule.
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Information on the criminal records report
Must a responsible entity consider sealed records?
Yes. Division (B)(1) of section 109.572 of the Revised Code requires BCII to release any sealed offenses a person may have been convicted of, or pleaded guilty to, if the request is made pursuant to sections 173.27 or 173.394 of the Revised Code, which are the sections of the Revised Code that require criminal records checks for applicants and employees of paid ombudsman-services or direct-care positions. Sections 173.27 and 173.394 of the Revised Code, and rule 173-9-06 of the Administrative Code, require the responsible entity to consider the conviction information that appears on the criminal records report. Those sections make no exceptions for sealed records.
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What if the criminal records report lists an arrest, but no conviction?
Arrest records, by themselves, do not prohibit a responsible entity from employing a person to provide ombudsman services or direct care. Also, Senate Bill 337 now prohibits BCII from releasing arrest information on criminal records reports if BCII does not have a final disposition to release on the report. Therefore, a when a responsible entity requests a report, it should no longer receive a report from BCII that contains arrest information, but not a final disposition.
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Does the exclusionary period begin on the date of offense; conviction; or discharge from imprisonment, probation, or parole?
Paragraphs (A)(2)(a), (A)(3)(a), and (A)(4)(a), of rule 173-9-07 of the Administrative Code say, "No responsible entity shall employ an applicant or continue to employ an employee in a position providing ombudsman services or direct care for a period of ... 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...." Each of the paragraphs has an exclusionary period of a different length and is superseded by a different list of offenses. Also, by checking the offender search required under rule 173-9-03 of the Administrative Code, a responsible entity may avoid conducting a criminal records check if the applicant or employee is listed on the Ohio Dept. of Rehabilitation and Correction's website as being "incarcerated" or under "APA supervision."
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What about multiple offenses?
Rule 173-9-07 of the Administrative Code supplies details on how long a person with multiple criminal convictions may be excluded from providing ombudsman services or direct care. Paragraphs (A)(2)(b), (A)(3)(b), and (A)(4)(b) of the rule explain how multiple convictions in Tiers II, III, and IV will increase the length of time a person is excluded from providing ombudsman services or direct care.
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What about a drug possession offense?
Paragraph (A)(4) of rule 173-9-07 of the Administrative Code lists the offense of drug possession in Tier IV which would disqualify a person with such an offense from providing ombudsman services or direct care for a period of five years. If the person has been discharged from imprisonment, probation, or parole related to the offense for over five years, and the person has no other offense on his or her record, the responsible entity may employ the person to provide ombudsman services or direct care. If the person has been discharged from imprisonment, probation, or parole related to the offense for than less five years, and the person has no other offense on his or her record, the responsible entity may only employ the person to provide ombudsman services or direct care if the offense was a minor drug possession offense, which paragraph (A)(5) of the rule lists in Tier V. If BCII's criminal records report does not indicate that the offense was a minor drug possession offense, the responsible entity must obtain court records regarding its final disposition. The responsible entity must retain the court records in the personnel files.
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Records Retention
May responsible entities retain the roster electronically?
Yes.
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May responsible entities retain criminal records reports electronically?
Although rule 173-9-08 of the Administrative Code uses words like "official," "original," and "written" when referring to certain documents, the rule does not explicitly require retaining the documents in a paper format. ODA understands that, in this age of electronic medical records, an official or original document may be presented in an electronic format and that a responsible entity may write an attestation of the character and fitness of an employee and store the information electronically. ODA approves of retaining the database review results, original copies of criminal records check reports, original copies of reverified criminal records reports, written attestations of the character and fitness of employees, official copies of certificates of qualification for employment, official copies of certificates of achievement and employability, and official copies of pardons in an electronic format.
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Miscellaneous
Are FBI name searches sufficient?
No. A name search does not comply with sections 173.27 or 173.394 of the Revised Code or Chapter 173-9 of the Administrative Code, which require responsible entities to conduct fingerprint-based checks on applicants and employees who provide ombudsman services or direct care.
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Are criminal records checks by entities other than BCII sufficient?
No. Sections 173.27 or 173.394 of the Revised Code and Chapter 173-9 of the Administrative Code require responsible entities to conduct criminal records checks through BCII and, in some cases, also the FBI.
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Does ODA have a standard for what counts as evidence of Ohio residency?
ODA's rules do not require any particular form of evidence to determine if an applicant or employee has been a resident of Ohio for the five-year period immediately preceding the date the responsible entity requests the criminal records check to comply with rule 173-9-04 of the Administrative Code.
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What if an applicant or employee has not lived in the USA for the past five years?
Rule 173-9-04 says that if an applicant or employee does not provide the responsible entity with evidence that he or she has been a resident of Ohio for the five-year period immediately preceding the date the responsible entity requests the criminal records check, the responsible entity must request that BCII also obtain criminal records from the FBI. Not living in the USA includes not living in Ohio.
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For what acts of non-compliance with Chapter 173-9 of the Administrative Code could ODA (or its designees) issue disciplinary actions?
Non-compliance with any of the requirements in the chapter could lead to disciplinary action. (e.g., not checking free databases, not maintaining a roster, not checking records)
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