(A)
Purpose
The purpose of this rule is to set
forth procedures to be used to determine whether the name of a DD employee
should be placed on the registry established under section
5123.52 of the Revised Code and
standards for determining whether such employee has been
rehabilitated.
(B)
Application
This rule shall apply to all DD
employees and any person or governmental entity employing, hiring, or
contracting with a DD employee.
(C)
Definitions
(1)
"DD employee"
means at the time of the incident any of the following:
(a)
An employee of
the department;
(b)
An employee of a county board of developmental
disabilities; or
(c)
A person who is employed in a position that includes
providing specialized services to an individual.
(2)
"Department"
means the Ohio department of developmental disabilities.
(3)
"Director" means
the director of the department, unless otherwise stated, or the director's
designee.
(4)
"Individual" means a person with a developmental
disability.
(5)
"Registry" means the registry established under section
5123.52 of the Revised Code of
DD employees found to have committed abuse, neglect, misappropriation, a
failure to report, or engaged in prohibited sexual relations.
(6)
"Registry
offense" means the acts set forth in division (C)(3)(a) of section
5123.51 of the Revised
Code.
(7)
"Specialized services" means any program or service
designed and operated to serve primarily individuals, including a program or
service provided by an entity licensed or certified by the department. A
program or service available to the general public is not a specialized
service.
(D)
Registry review committee
(1)
The department
shall establish a committee to review the facts of a case and make a
recommendation regarding whether there is a reasonable basis for believing that
a DD employee committed a registry offense.
(a)
The review
committee shall consist of at least five members who represent various
stakeholder groups.
(b)
The director shall appoint members of the review
committee for a term of four years, except that a member may be appointed for a
term of less than four years in order to stagger the members' terms, so that no
more than half of the members' terms expire in the same year. Members may be
reappointed or removed by the director.
(c)
Members shall
agree in writing to maintain the confidentiality of all information and
proceedings before the committee.
(2)
If the department
determines a case is appropriate for consideration by the review committee, the
department shall present the case to the review committee. If the DD employee
has been convicted of a criminal offense for the same incident, the case need
not be reviewed by the review committee. The department shall consider the
review committee's recommendation and determine whether there is a reasonable
basis for believing that a DD employee has committed a registry
offense.
(3)
If there is a reasonable basis for believing that a DD
employee has committed a registry offense, the department shall provide
notification to the DD employee of the charges against the DD employee and the
DD employee's right to a hearing if timely requested.
(E)
Hearing procedure
(1)
Before conducting a hearing, the department shall
determine whether any criminal proceeding or collective bargaining arbitration
arising from the same allegation has concluded. The department may conduct a
hearing before a criminal proceeding concerning the same allegation is
concluded if the department notifies the prosecutor responsible for the
criminal proceeding that the department proposes to conduct a hearing and the
prosecutor consents to the hearing.
(2)
Except as
otherwise provided by statute, all hearing and adjudication proceedings shall
be conducted in accordance with the requirements set forth in Chapter 119. of
the Revised Code. Nothing in this rule precludes a DD employee from waiving his
or her rights.
(3)
If the DD employee timely requests a hearing, the
director shall appoint an independent hearing officer to conduct the hearing.
If the DD employee is an employee of the department and is represented by a
union, the director and a representative of the union shall jointly select the
hearing officer.
(4)
At least fifteen days prior to the date set for
hearing, upon request by either party, the department and the DD employee whose
name is being considered for placement on the registry shall exchange witness
lists and lists of exhibits to be introduced at the hearing. The hearing
officer may extend the time for good cause shown.
(5)
The hearing
officer shall conduct a hearing for the purpose of determining whether the
department has established by clear and convincing evidence that the DD
employee has committed a registry offense.
(6)
If the director
or, if applicable, the director of the Ohio department of health or that
director's designee, determines that the DD employee's name should be placed on
the registry, the director shall sign an adjudication order directing that the
DD employee's name be placed on the registry and provide notice to the DD
employee.
(7)
The department shall send copies of the order to the
individual who was the subject of the report, the individual's guardian, the
attorney general, the prosecuting attorney or other law enforcement agency, and
to any person or governmental entity that employs or contracts with the DD
employee. Any notified person or entity employing or contracting with the DD
employee shall, within ten days of notification, inform the department of the
DD employee's employment status. If the DD employee holds a license,
certification, registration, or other authorization to engage in a profession
issued pursuant to Chapter 3319. of the Revised Code or Title 47 of the Revised
Code, the director shall notify the entity responsible for regulating the DD
employee's professional practice. If the department has issued to the DD
employee, a license, certification, registration, or other authorization to
provide services, the department shall initiate the process to revoke the
license, certification, registration, or authorization.
(F)
Check
of registry
(1)
The department shall maintain a process to be used to
determine whether a person's name has been placed on the registry. The process
shall ensure that parties submitting inquiries can accurately determine whether
the person about whom an inquiry is made is the person whose name is on the
registry, while also ensuring that confidential information about the person is
not made public.
The process shall specify both
electronic and non-electronic means by which inquiries may be
made.
(2)
The department shall maintain a procedure setting forth
the manner in which parties making inquiries shall be informed of the result.
The procedure shall ensure that parties making inquiries by electronic means
receive an immediate response and that parties making inquiries by
non-electronic means receive a response within three working
days.
(3)
Any person or governmental entity seeking to hire,
contract with, or employ a person as an employee of the department, county
board of developmental disabilities, or in a position that provides specialized
services to an individual shall make an inquiry to the department regarding
whether the person's name is on the registry. If the subject of the inquiry is
on the registry, the inquiring party shall not hire, contract with, or employ
the person in any of these capacities.
(G)
Petition for
removal from registry
(1)
A person whose name has been placed on the registry may
petition the director to have the person's name removed from the
registry.
(2)
Any petition for removal from the registry must be made
in writing to the director.
The petition shall include the name of
the person, the action for which the person's name was placed on the registry,
and any reasons demonstrating the appropriateness of removal of the person's
name.
(3)
Upon receipt of a petition for removal, the department
shall notify the individual who was the victim of the action for which the
person's name was placed on the registry, the individual's guardian, and any
other persons to whom the department determines notification should be given.
Any party receiving the notification shall have the right to send written
comments regarding the petition to the department.
(4)
The director
shall consider the petition, along with any comments received from any person
regarding the petition, and shall determine whether good cause exists to remove
the person's name from the registry.
(5)
A petition
claiming that good cause for removal exists because the person has satisfied
the rehabilitation standards set forth in paragraph (G)(6)(c) of this rule can
be filed no earlier than five years from the date the person's name was placed
on the registry. If the person has previously made a petition to have the
person's name removed from the registry based on the rehabilitation standards
set forth in paragraph (G)(6)(c) of this rule, the director shall not consider
any subsequent petition unless at least two years have passed since the
previous petition was filed. If good cause exists, the director may waive the
timelines set forth in this paragraph, except that the director may not remove
a person's name from the registry until one year after the date the person's
name was placed on the registry.
(6)
In determining
whether good cause exists, the director shall consider the following:
(a)
Whether a
criminal conviction arising from the act that resulted in the person's name
being placed on the registry has been subsequently reversed on appeal, and no
new conviction on the same charge has occurred.
(b)
Whether new,
substantial, and material evidence has been discovered which would indicate
that the person did not commit the act for which the person's name was placed
on the registry. The person claiming that such new evidence has been discovered
shall provide a detailed description of said evidence, along with a statement
of the reasons for the failure to discover the evidence prior to the
adjudication hearing.
(c)
Whether the person can demonstrate that the person has
been rehabilitated.
In determining whether a person has
been rehabilitated, the director shall consider the following
factors:
(i)
The nature and seriousness of the act for which the
person's name was placed on the registry, including whether the person was
criminally convicted for the act;
(ii)
Whether the
person has been convicted of any crimes other than those related to the act for
which the person's name was placed on the registry;
(iii)
Whether the
person, at the time of the incident, sought immediate medical attention for the
individual if necessary, timely reported the incident, and accurately related
the facts of the incident including the person's part in the
incident;
(iv)
The time elapsed since the person's name was placed on
the registry;
(v)
The person's efforts at rehabilitation and the result
of those efforts;
(vi)
Personal references provided by the
person;
(vii)
The person's employment history; and
(viii)
Any other
relevant factors.
(7)
The director
shall inform the person in writing of the outcome of the petition within ninety
days of receipt of the petition. The director's decision is final and may not
be appealed.
(8)
If the director determines that good cause exists to
remove a person's name from the registry, the director shall issue an order
directing that the person's name be removed from the registry. If a person's
name has been removed from the registry, the department shall respond to any
inquiries regarding whether the person's name is currently on the registry in
the negative, and shall not, unless the information is specifically requested,
disclose the fact that the person's name was previously on the registry. The
department will notify the parties set out in paragraph (E)(7) of this rule
that the person's name has been removed from the registry.
(H)
Information contained in the registry is a public
record for the purposes of section
149.43 of the Revised
Code.
Replaces: 5123:2-17-03
Notes
Ohio Admin. Code 5123-17-03
Effective:
6/18/2020
Five Year Review (FYR) Dates:
06/18/2025
Promulgated
Under: 119.03
Statutory
Authority: 5123.04,
5123.54
Rule
Amplifies: 5123.04,
5123.50 to
5123.542
Prior
Effective Dates: 08/05/2001, 09/01/2006,
04/05/2012