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The Ohio Department of Aging

Ohio Department of Aging Frequently Asked Questions

DISCLAIMER: Please do not view the responses to FAQs as a replacement to following the statutes and rules on criminal records checks.

Criminal Records Checks

On whom is a criminal records check required?

Database reviews

Deadlines for checking criminal records

Information on the criminal records

Records retention

Miscellaneous

On whom is a criminal records check required?

What is a "direct-care position"?
Sections 173.38 of the Revised Code and rule 173-9-01 of the Administrative Code define "direct-care position" as follows:

"Direct-care position" means an employment position in which an employee has either or both of the following: (I) in-person contact with one or more consumers: (ii) access to one or more consumers' personal property or records. "Direct-care position" does not include a person whose sole duties are transporting people while working for a county transit system, regional transit authority, or regional transit commission.

 

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Which direct-care positions do not require database reviews and criminal records checks on employees (post-hire)?
Yes, there are 3 exemptions. However, the exemptions are not from the definition of "direct-care position" in rule 173-9-01. Instead, rules 173-9-02, 173-9-03, 173-9-03.1, 173-9-04, and 173-9-04.1 exempt responsible parties from the requirements to review databases and check criminal records of employees (post-hire).

1. Office staff:
 

The definition of "direct-care position" in rule 173-9-01 considers office staff with access to consumers' personal records to be employees in a paid direct-care position. That has been a long-standing position of ODA's rules. ODA's old rules required a criminal records check on applicants under final consideration for hiring into a paid direct-care position that involves access to consumers' personal records. ODA's new rules continue to do the same.
 

When ODA launched the requirement to check the criminal records of paid direct-care employees at least once every 5 years beginning on January 1, 2013, ODA exempted direct-care positions that only involved having 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 rules173-9-04 and 173-9-04.1.

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 January 1, 2013 rules created no new requirement to check employees. The only requirement has been the long-standing requirement to check applicants.

2. Home-delivered meals:
 

The definition of "direct-care position" in rule 173-9-01 considers employees who deliver meals to hold direct-care positions. 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 hiring into a paid direct-care position that involves delivering meals. ODA's new rules continue to do the same.
 

When ODA launched the requirement to check the criminal records of paid direct-care employees at least once every 5 years beginning on January 1, 2013, ODA exempted direct-care positions that only involve 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 rules173-9-04 and 173-9-04.1. ODA also exempted direct-care positions that only involve having 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 rules 173-9-04 and 173-9-04.1.
 

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 January 1, 2013 rules created no new requirement to check employees. The only requirement has been the long-standing requirement to check applicants.

3. Once-ever service:
 

The definition of "direct-care position" 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 hold direct-care positions. That has been a long-standing definition in ODA's rules. ODA's pre-2013 rules required a criminal records check on applicants under final consideration for hiring into a paid direct-care position that involves delivering meals. ODA's new rules continue to do the same.
 

When ODA launched the requirement to check the criminal records of paid direct-care employees at least once every 5 years beginning on January 2, 2013, ODA exempted direct-care positions that only provided a once-ever chore, home maintenance, home modification, home repair, or pest control. 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 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 January 1, 2013 rules created no new requirement to check employees. The only requirement has been the long-standing requirement to check applicants.

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What about assisted living facilities?
Beginning on September 29, 2013, ODA's rules no longer require criminal records checks on direct-care positions in assisted-living facilities. That is because the legislature granted a request of the assisted-living industry in House Bill 59 (130th General Assembly). However, those same employees may be subject to the Ohio Dept. of Health's rules that require criminal records check laws for employees residential care facilities.
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What about other job positions?
For clarification on whether certain job positions are "direct-care positions" or for clarification on which direct-care positions require criminal records checks at least once every 5 years, please feel welcome to contact ODA.
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Do volunteers require checks?
No. Sections 173.27 and 173.38 of the Revised Code specifically exempt volunteers.
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Which ODA programs require checks?
ODA's rules apply to the ombudsman program and all ODA-administered programs that involve paid direct-care positions regardless of the source of funding for the program, including the Alzheimer's Respite 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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Database reviews

Where can I find the databases?
See the helpful tables printed in rules 173-9-03 and 173-9-03.1 of the Administrative Code. Or, see the helpful links column on the right-hand of this page.
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If a responsible party checks criminal records, can it skip the database reviews?
No. Rules 173-9-03, 173-9-03.1, 173-9-04, and 173-9-04.1 require the responsible party to review the databases before it checks criminal records to satisfy the requirements of sections 173.27 or 173.38 of the Revised Code or Chapter 173-9 of the Administrative Code. Additionally, the databases may list information that would disqualify a person from paid ombudsman positions and paid direct-care positions that would not appear in criminal records. 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 paid ombudsman positions and paid direct-care positions.
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Do the rules require database reviews before requesting a criminal records check on an existing employee (post-hire)? 
Yes. Rules 173-9-03, 173-9-03.1, 173-9-04, and 173-9-04.1 of the Administrative Code require checking the 6 databases before requesting any criminal records check required by Chapter 173-9 of the Administrative Code, which includes criminal records checks on applicants (pre-hire) and employees (post-hire).
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Do responsible parties need to obtain applicants’ or employees’ permission before searching for their names in the 6 databases?
No. Unlike BCII's criminal records, the information retained in the 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 party 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.
On SAM homepage, click the

From there, enter the name of the individual in the search box provided. This will allow you to search excluded parties.
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.
For example, a search for

If the individual applying for a paid ombudsman position or paid direct-care position 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.
If the individual applying for a paid ombudsman position or paid direct-care position is on that list, print that screen and place it in the file. For example, this is part of the 'View Details' for

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.
One way to ensure the

To retain a record of this search, the responsible party 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, rules 173-9-03 and 173-9-03.1of the Administrative Code says the person is also ineligible for paid ombudsman positions or paid direct-care positions.
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Does the responsible party need to check the nurse aide registry to see if an applicant or employee disqualified from a paid direct-care position that does not involve providing nurse aide services?
Yes. If the nurse aide registry lists an applicant or employee as an abuser, neglector, or exploiter of nursing home residents, the applicant and employee would be ineligible for paid ombudsman positions or paid direct-care positions.
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Deadlines for checking criminal records

What is the deadline for completing criminal records checks on applicants?
The responsible party 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 party to conditionally hire the applicant, but only if (1) the databases do not disqualify the applicant, (2) the applicant provides the responsible party with fingerprints, and (3) the responsible party initiates the process of obtaining criminal records no later than 5 business days after the applicant begins the conditional-hiring period. (Please review the rule for more details, especially if an employment service referred the applicant to the responsible party.) If the applicant provides fingerprint impressions through WebCheck, the responsible party would, in practice, be initiating the criminal records check process before the commencement of the applicant's conditional hiring.

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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 party to check an employee's criminal records no later than 30 days after every fifth anniversary date of hire for the employee (i.e., no later than 5 years + 30 days). If the responsible party hired an employee before 2008, the rule requires the responsible party to check an employee's criminal records no later than 30 days after the anniversary date of hire in 2013. The rule does not prohibit a responsible party from checking criminal records before these deadlines nor does it require a provider to wait until a specified day to check criminal records. Instead, the rule requires checking criminal records before the rule's deadlines. Also, division (D) of section 109.572 of the Revised Code says that the information that BCII lists on a criminal record is good for one year. Therefore, if a responsible party checked the criminal records of an employee in 2012, the responsible party could use that information to review the employee according to the rules that take effect in 2013 so long as the responsible party does so before the employee's criminal record expires.
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What if BCII takes longer than 60 days to process a criminal records check on an applicant (pre-hire)?
Sections 173.27and 173.38 of the Revised Code do not provide any exception to the limit of hiring an applicant conditionally for no more than 60 days. If BCII takes longer to process a check than 60 days, rule 173-9-05 of the Administrative Code says that the responsible party must terminate the conditionally-hired applicant's employment. If, after the responsible party terminates the conditional employment, the responsible party receives a criminal record from BCII that does not disqualify the applicant from paid ombudsman positions or paid direct-care positions, the responsible party may then hire (vs., conditionally hire) the applicant.

The enactment of Senate Bill 337 in 2012 added an administrative burden to BCII regarding criminal records checks, resulting in a temporary backlog. BCII staff members have been 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, responsible parties 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 BCII takes longer than 60 days to process a criminal records check on a current employee (post-hire)?
The Revised Code has established a 60-day period of conditional hiring for applicants, but not employees. The Revised Code does not require the responsible party to terminate a current employee if it takes BCII longer than 60 days to provide the criminal records.
 

If a responsible party waited until after March 31, 2013 to check the database reviews and criminal records checks for a current employee, was limited grandfathering available?
No. The limited grandfathering provision was limited to dates that preceded 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 party was unaware that hired a disqualified person until after the deadline passed, the person who was disqualified solely by a Tier IV offense could still have been excluded from employment until the expiration of the Tier IV exclusionary period unless the person obtained 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 criminal records

Must a responsible party 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 173.38 of the Revised Code, which are the sections of the Revised Code that require criminal records checks for applicants (pre-hire) and employees (post-hire) of paid ombudsman positions or paid direct-care positions. Sections 173.27 and 173.38 of the Revised Code, and rule 173-9-06 of the Administrative Code, require the responsible party to consider the conviction information that appears on the criminal record. Those sections make no exceptions for sealed records.
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What if the criminal record lists an arrest, but no conviction?
Arrest records, by themselves, do not prohibit a responsible party from hiring or retaining a person in a paid ombudsman position or paid direct-care position. Also, Senate Bill 337 (129th General Assembly) prohibits BCII from releasing arrest information on criminal record if BCII does not have a final disposition to release on the criminal record. Therefore, a when a responsible party requests a record from BCII, it should no longer receive a record 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 party shall hire an applicant or retain an employee 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 rules 173-9-03 and 173-9-03.1of the Administrative Code, a responsible party may avoid checking criminal records 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 hiring into a paid ombudsman position or paid direct-care position. 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 a paid ombudsman position or paid direct-care position.
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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 being hired into, or being retained in, a paid ombudsman position or paid direct-care position for a period of 5 years. If the person has been discharged from imprisonment, probation, or parole related to the offense for over 5 years, and the person has no other offense on his or her record, the responsible party may employ the person in a paid ombudsman position or paid direct-care position. If the person has been discharged from imprisonment, probation, or parole related to the offense for than less 5 years, and the person has no other offense on his or her record, the responsible party may only employ the person in a paid ombudsman position or paid direct-care position 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 do not indicate that the offense was a minor drug possession offense, the responsible party must obtain court records regarding its final disposition. The responsible party must retain the court records in the personnel files.
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Records Retention

May responsible parties retain the roster electronically?
Yes.
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May responsible parties retain criminal records electronically?
Yes.

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Miscellaneous

Are criminal records checks based upon names, dates of birth, and social security numbers sufficient if BCII cannot obtain legible fingerprints?
Please review this letter from the Office of the Ohio Attorney General regarding alternatives for those with illegible fingerprint impressions.
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Are criminal records checks by entities other than BCII sufficient?
No. Sections 173.27 or 173.38 of the Revised Code and Chapter 173-9 of the Administrative Code require responsible parties to check criminal records 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 5-year period immediately preceding the date the responsible party 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 5 years?
Rule 173-9-04 says that 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 5-year period immediately preceding the date the responsible party requests the criminal records check, the responsible party 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 databases, not maintaining a roster, not checking records)
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Helpful Links

Databases to Review

Ohio Department of Rehabilitation and Corrections

Ohio Attorney General's Office

FBI