Ohio Admin. Code 5160-43-09 - Specialized recovery services program criminal records checks for providers
(A) This rule sets
forth the process and requirements for the criminal records checks of providers
of home and community-based services (HCBS) to individuals enrolled in the
specialized recovery services program. HCBS include recovery management, peer recovery support and
individualized placement and support-supported employment (IPS-SE). This rule
only applies to all persons under final consideration for employment with an
agency and existing employees in a full-time, part-time or temporary position
who are providing HCBS and billing medicaid for these services.
(B) For the purposes of this rule:
(1) "Agency" means an entity certified by the
Ohio department of mental health and addiction services under section
5119.36
of the Revised Code.
(2) "Chief
administrator" means the head of an agency, or his or her designee.
(3) "Criminal records check" has the same
meaning as in section
109.572 of
the Revised Code.
(4)
"Disqualifying offense" means any of the following:
(a) A violation of one or more Revised Code
section(s) set forth in the appendix to this rule;
(b) A violation of section
2923.01,
2923.02,
or
2923.03 of the Revised
Code when the underlying offense that is the object of the conspiracy, attempt,
or complicity is a violation of one of the sections set forth in the appendix
to this rule; or
(c) A violation of
an existing or former municipal ordinance or law of the state of Ohio, any
other state or the United States that is substantially equivalent to any of the
disqualifying offenses as set forth in paragraphs (B)(4)(a) and (B)(4)(b) of
this rule.
(5) "Employ"
means to hire a provider applicant to be an employee as defined in paragraph
(B)(6) of this rule.
(6) "Employee"
means a person employed by an agency in a full-time, part-time or temporary
position, including conditional employment as described in paragraph (D)(4) of
this rule, that involves providing HCBS services including peer recovery support and IPS-SE
when medicaid is billed for these services.
(7) "Provider applicant" means a person who
is under final consideration for employment with an agency in a full-time,
part-time or temporary position, when the position provides HCBS when medicaid
is billed for these services.
(C) No agency shall employ a provider
applicant or continue to employ an employee in a position that involves
providing HCBS if the provider applicant or employee:
(1) Is included in one or more of the
following databases:
(a) The system for award
management (SAM) maintained by the United States general services
administration;
(b) The list of
excluded individuals and entities maintained by the office of inspector general
in the United States department of health and human services pursuant to 42
U.S.C. part 1320a-7 (as in effect on February 1,
2016)
(as in effect on January 1, 2021)
and 42 U.S.C. part 1320c-5 (as in effect on February
1, 2016)
(as in effect on January 1,
2021) .
(c) The Ohio
department of developmental disabilities (DODD) online abuser registry
established under section
5123.52
of the Revised Code;
(d) The
internet-based sex offender and child-victim offender database established
under division (A)(11) of section
2950.13
of the Revised Code;
(e) The
internet-based database of inmates established under section
5120.66
of the Revised Code; or
(f) The
state nurse aide registry established under section
3721.32
of the Revised Code, and there is a statement detailing findings by the
director of health that the provider applicant or employee neglected or abused
a longterm care facility or residential care facility resident or
misappropriated property of such a resident.
(2) Fails to:
(a) Submit to a criminal records check
conducted by the bureau of criminal identification and investigation (BCII),
including failing to access, complete and forward to the superintendent the
form or the standard fingerprint impression sheet; or
(b) Instruct the superintendent of BCII to
submit the completed report of the criminal records check directly to the chief
administrator of the agency.
(3) Except as provided for in paragraphs (F)
and (G) of this rule, the provider applicant or employee has been convicted of,
or pleaded guilty to, a disqualifying offense, regardless of the date of the
conviction or data of entry of the guilty plea.
(D) Process for conducting criminal records
checks.
(1) At the time of each provider
applicant's initial application for employment in a position that involves
providing HCBS for an individual enrolled in the specialized recovery services
program, the chief administrator of the agency shall conduct a review of the
databases listed in paragraph (C)(1) of this rule to determine whether the
agency is prohibited from employing the provider applicant in that position.
The chief administrator of the agency shall provide the provider applicant with
a copy of any disqualifying information disclosed in the review of the
databases.
(2) Except as otherwise
noted in paragraph (C)(1) of this rule, the chief administrator of an agency
shall require each provider applicant to request that the BCII superintendent
conduct a criminal records check with respect to the provider applicant, and
pursuant to section
109.572 of
the Revised Code. The provider applicant must provide a set of fingerprint
impressions as part of the criminal records check.
(a) If a provider applicant does not present
proof of having been a resident of the state of Ohio 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 provider applicant from the federal bureau of
investigation (FBI) in a criminal records check, the chief administrator shall
require the provider applicant to request that the superintendent obtain
information from the FBI as part of the criminal records check.
(b) Even if a provider applicant presents
proof of having been a resident of the state of Ohio for the five-year period,
the chief administrator may require the provider applicant to request that the
superintendent obtain information from the FBI in the criminal records
check.
(3) The chief
administrator of an agency shall provide the following to each provider
applicant for whom a criminal records check is required by this rule:
(a) Information about accessing, completing
and forwarding to the superintendent the form prescribed pursuant to division
(C)(1) of section
109.572 of
the Revised Code and the standard fingerprint impression sheet presented
pursuant to division (C)(2) of that section; and
(b) Written notification that the provider
applicant is to instruct the superintendent to submit the completed report of
the criminal records check directly to the chief administrator of the
agency.
(4) Conditional
employment.
(a) An agency may conditionally
employ a provider applicant for whom a criminal records check is required by
this rule prior to obtaining the results of that check, provided that the
agency has conducted a review of the databases listed in paragraph (C)(1) of
this rule and has determined the agency is not prohibited from employing the
provider applicant in that position. The chief administrator must require the
provider applicant to request a criminal records check no later than five
business days after he or she begins conditional employment.
(b) The agency shall terminate conditional
employment if the results of the criminal records check, other than the results
of any request for information from the FBI, are not obtained within sixty days
of the criminal records check request.
(5) If the results of the criminal records
check indicate that the provider applicant has been convicted of, or has
pleaded guilty to any of the disqualifying offenses set forth in paragraph
(B)(4) of this rule, and regardless of the date of conviction or the date of
entry of the guilty plea, then the agency shall either:
(a) Terminate his or her employment;
or
(b) Choose to employ the
provider applicant because he or she meets the conditions set forth in
paragraph (F) of this rule.
(6) If the agency determines that two or more
convictions or guilty pleas result from or are connected with the same act or
result from offenses committed at the same time, they shall be counted as one
conviction or guilty plea.
(7)
Termination of employment shall be considered just cause for discharge for the
purposes of division (D)(2) of section
4141.29
of the Revised Code if the employee makes any attempt to deceive the agency
about his or her criminal record.
(8) An agency shall pay to BCII the fee
prescribed pursuant to division (C)(3) of section
109.572 of
the Revised Code for any criminal records check required by this rule. However,
an agency may require a provider applicant to pay to BCII the fee for a
criminal records check for the applicant. If the agency pays the fee for a
provider applicant, it may charge the provider applicant a fee not exceeding
the amount the agency pays to BCII if the agency notifies the provider
applicant at the time of application for employment of the amount of the fee
and that, unless the fee is paid, he or she will not be considered for
employment.
(9) Reports of any
criminal records checks conducted by BCII in accordance with this rule are not
public records for the purposes of section
149.43
of the Revised Code and shall not be made available to any person other than
the following:
(a) The person who is the
subject of the criminal records check or their representative;
(b) The chief administrator of the agency
that requires the provider applicant or employee to request the criminal
records check or the administrator's representative;
(c) The director and staff of the Ohio
department of medicaid (ODM) who are involved in the administration of the Ohio
medicaid program;
(d) An individual
enrolled in the specialized recovery services program who receives, or may
receive, HCBS from the person who is the subject of the criminal records check
provided that the social security number, address and telephone number have
been redacted from the record; and
(e) Any court, hearing officer or other
necessary individual involved in a case dealing with a denial of employment of
the provider applicant or termination of the employee; employment or
unemployment benefits of the provider applicant or employee; or a civil or
criminal action regarding the Ohio medicaid program.
(E) As a condition of continuing
to employ an employee in a position that involves providing HCBS, the chief
administrator of the agency shall follow the same process set forth in
paragraphs (D)(1) to (D)(9) of this rule. The chief administrator:
(1) Shall conduct a criminal records check of
an employee who does not currently have a criminal records check on file with
the agency no later than ninety days after July 1,
2016
August 1, 2021 ;
(2) Shall conduct a criminal records check no
later than thirty days after each employee anniversary date every five
years;
(3) May conduct a criminal
records check on any employee more frequently than every five years without any
need to conduct a criminal records check according to the schedules set forth
in paragraphs (E)(1) and (E)(2) of this rule.
(F) An agency may choose to employ a provider
applicant or continue to employ an employee who has been convicted of, or has
pleaded guilty to, a disqualifying offense set forth in paragraph (B)(4) of
this rule when the provider applicant or employee has:
(1) Satisfied the conditions associated with
the exclusionary periods set forth in paragraph (G) of this rule; or
(2) Obtained a certificate of qualification
for employment issued by a court of common pleas with competent jurisdiction
pursuant to section
2953.25
of the Revised Code, except when the provider applicant or employee has been
convicted of or pleaded guilty to a tier I offense as described in paragraph
(G) (1) of this rule; or
(3)
Obtained a certificate of achievement and employability in an HCBS-related
field, issued by the Ohio department of rehabilitation and corrections pursuant
to section
2961.22
of the Revised Code, except when the provider applicant or employee has been
convicted of or pleaded guilty to a tier I offense as described in paragraph
(G)(1) of this rule; and
(4)
Agreed, in writing, to have the agency inform each individual enrolled in the
specialized recovery services program who may receive services from the
provider applicant or employee of the disqualifying offense, and has
acknowledged, in writing, that the individual has the right to select or reject
to receive services from the provider applicant or employee, prior to
commencing service delivery.
(G) An agency may employ a provider applicant
or continue to employ an employee who has been convicted of or pleaded guilty
to an offense listed in paragraph (B)(4) of this rule in a position providing
HCBS to an individual enrolled in the specialized recovery services program
pursuant to the following timeframes:
(1)
Tier I, permanent exclusion.
(a) No agency
shall employ a provider applicant or continue to employ an employee in a
position that involves providing HCBS to an individual enrolled in the
specialized recovery services program, when any of the following applies:
(i) The provider applicant or employee has
been convicted of or pleaded guilty to any tier I offense as listed in the
appendix to this rule; or
(ii) The
provider applicant or employee has been convicted of or pleaded guilty to an
offense in section
2923.01(conspiracy),
2923.02(attempt),
or 2923.03 (complicity) of the Revised Code in relation to any other tier I
offense; or
(iii) The provider
applicant or employee has 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 tier I offenses or violations as
described in the appendix to this rule.
(b) Tier I permanent exclusion applies when
the provider applicant or employee has 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 set forth in section
2913.46
of the Revised Code (illegal use of supplemental nutrition assistance program
(SNAP) or women, infants, and children (WIC) program benefits) and paragraph
(G)(2) of this rule.
(2)
Tier II, ten-year exclusionary period.
(a) No
agency shall employ a provider applicant or continue to employ an employee in a
position that provides HCBS to an individual enrolled in the specialized
recovery services program for a period of ten years from the date the provider
applicant or employee was fully discharged from all imprisonment, probation or
parole, when the following applies:
(i) The
provider applicant or employee has been convicted of or pleaded guilty to any
tier II offense as listed in the appendix to this rule; or
(ii) The provider applicant or employee has
been convicted of or pleaded guilty to an offense in section 2923.01
(conspiracy),
2923.02(attempt),
or
2923.03(complicity)
of the Revised Code in relation to any other
tier II offense; or
(iii) The
provider applicant or employee has 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 tier II offenses or violations
as described in the appendix to this rule.
(b) If a provider applicant or employee has
been convicted of multiple disqualifying offenses, including a tier II offense,
and another tier II, tier III or tier IV offense or offenses, the provider
applicant or employee is subject to a fifteen-year exclusionary period
beginning on the date the provider applicant or employee was fully discharged
from all imprisonment, probation or parole for the most recent
offense.
(3) Tier III,
seven-year exclusionary period.
(a) No agency
shall employ a provider applicant or continue to employ an employee in a
position that provides HCBS to an individual enrolled in the specialized
recovery services program for a period of seven years from the date the
provider applicant or employee was fully discharged from all imprisonment,
probation or parole, when the following applies:
(i) The provider applicant or employee has
been convicted of or pleaded guilty to any tier III offense as listed in the
appendix to this rule; or
(ii) The
provider applicant or employee has been convicted of or pleaded guilty to an
offense in section
2923.01(conspiracy))
,
2923.02(attempt),
or 2923.03 (complicity) of the Revised Code in relation to any other tier III
offense; or
(iii) The provider
applicant or employee has 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 tier III offenses or violations as
described in the appendix to this rule.
(b) If a provider applicant or employee has
been convicted of multiple disqualifying offenses, including a tier III
offense, and another tier III or tier IV offense or offenses, the provider
applicant or employee is subject to a ten-year exclusionary period beginning on
the date the provider applicant or employee was fully discharged from all
imprisonment, probation or parole for the most recent offense.
(4) Tier IV, five-year
exclusionary period.
(a) No agency shall
employ a provider applicant or continue to employ an employee in a position
that provides HCBS to an individual enrolled in the specialized recovery
services program for a period of five years from the date the provider
applicant or employee was fully discharged from all imprisonment, probation or
parole, when the following applies:
(i) The
provider applicant or employee has been convicted of or pleaded guilty to any
tier IV offense as listed in the appendix to this rule; or
(ii) The provider applicant or employee has
been convicted of or pleaded guilty to an offense in section 2923.01
(conspiracy),
2923.02(attempt),
or
2923.03(complicity)
of the Revised Code in relation to any other
tier IV offense;
(iii) The provider
applicant or employee has 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 tier IV offenses or violations as
described in the appendix to this rule.
(b) If a provider applicant or employee has
been convicted of multiple disqualifying tier IV offenses, the provider
applicant or employee is subject to a seven-year exclusionary period beginning
on the date the provider applicant or employee was fully discharged from all
imprisonment, probation or parole for the most recent offense.
(5) Tier V, no exclusionary
period.
(a) An agency may employ a provider
applicant or continue to employ an employee in in a position that provides HCBS
to an individual enrolled in the specialized recovery services program if the
provider applicant or employee has been convicted of or pleaded guilty to any
tier V offense as listed in the appendix to this rule.
(b) No exclusionary period applies when the
provider applicant or employee has 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 tier V offenses or violations as
described in the appendix to this rule.
(H) Pardons.
(1) A conviction of, or a plea of guilty to
an offense as set forth in paragraph (B)(4) of this rule shall not prevent any
agency from considering a provider applicant for employment or an employee for
continued employment if the provider applicant or employee has been granted any
of the following:
(a) An unconditional pardon
for the offense pursuant to Chapter 2967. of the Revised Code;
(b) An unconditional pardon for the offense
pursuant to an existing or former law of the state of Ohio, any other state, or
the United States, if the law is substantially equivalent to Chapter 2967. of
the Revised Code; or
(c) A
conditional pardon for the offense pursuant to Chapter 2967. of the Revised
Code, and the condition(s) under which the pardon was granted have been
satisfied.
(2) A
conviction of, or plea of guilty to an offense as set forth in paragraph (B)(4)
of this rule shall not prevent any agency from considering a provider applicant
for employment or an employee for continued employment if the provider
applicant's or employee's conviction or guilty plea has been set aside pursuant
to law.
(I)
Documentation of compliance. Each agency shall maintain a roster of provider
applicants and employees, accessible by the ODM director or designee, which
includes but is not limited to:
(1) The name
of each provider applicant and employee;
(2) The date the employee started
work;
(3) The date the criminal
records check request is submitted to BCII;
(4) The date the criminal records check is
received by the agency; and
(5) A
determination of whether the results of the check revealed that the provider
applicant or employee committed a disqualifying offense(s).
Notes
Promulgated Under: 119.03
Statutory Authority: 5164.02
Rule Amplifies: 5164.02, 5164.03
Prior Effective Dates: 08/01/2016
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