Or. Admin. R. 407-007-0320 - Final Fitness Determinations

(1) A final fitness determination pursuant to OAR 125-007-0260 and these rules will be made after all necessary background checks have been received and a weighing test, if necessary, has been completed. For the purpose of a final fitness determination as defined in OAR 407-007-0010(18), an authorized designee includes:

(a) A BCU staff trained to make a final fitness determination;

(b) A BCU hearing representative if a fitness determination is contested under OAR 407-007-0330 or 943-007-0501; or

(c) An administrative law judge if a contested fitness determination results under a contested case hearing through the Office of Administrative Hearings.

(2) The final fitness determination results in one of the following outcomes:

(a) The authorized designee may approve an SI if:

(A) The SI has no potentially disqualifying convictions or potentially disqualifying conditions; or

(B) The SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test, the authorized designee determines that more likely than not, the SI poses no risk to the physical, emotional, or financial well-being of vulnerable individuals.

(b) The authorized designee may approve an SI with restrictions if the SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test, the authorized designee determines that more likely than not the SI poses no risk to the physical, emotional, or financial well-being of vulnerable individuals if certain restrictions are placed on the SI. Restrictions may include but are not limited to restrictions to one or more specific clients, job duties, or environments. A new background check and fitness determination shall be completed on the SI before removing a restriction.

(c) The authorized designee shall deny an SI if the SI has potentially disqualifying convictions or potentially disqualifying conditions and, after a weighing test, the authorized designee determines more likely than not the SI poses a risk to the physical, emotional, or financial well-being of vulnerable individuals.

(d) In the following situations the SI shall have no hearing rights and the authorized designee shall consider a background check to have an outcome of incomplete fitness determination:

(A) The QE or SI discontinues the application or fails to cooperate with the background check or fitness determination process, including but not limited to failure to disclose all requested criminal, abuse or other information, refusal to be fingerprinted or failing to respond in a timely manner to written correspondence from BCU. The background check request is considered closed.

(B) BCU determines that the SI is ineligible due to ORS 443.004 in accordance with OAR 407-007-0275 or 407-007-0277. The background check request is considered completed.

(C) BCU or the QE withdraws or closes the background check request before a final fitness determination for any reason. The background check request is considered closed.

(D) The SI withdraws the application, leaves the position prior to completion of the background check, or the Department cannot locate or contact the SI. The background check request is considered closed.

(E) The QE determines that the SI ineligible for the position for reasons other than the background check. The background check request is considered closed.

(F) The SI who is a proctor foster parent and fails to provide a release of information, the background check request is considered closed.

(G) The authorized designee determines that the final fitness determination is Mandatory exclusion due to the SI being subject to OAR 407-007-0279 and having a conviction or condition listed in OAR 407-007-0279. The background check request is considered completed. The SI has hearing rights only if the determination of mandatory exclusion is made pursuant to OAR 407-007-0279(3)(c) or 407-007-0279(3)(d).

(H) The SI is a child care provider SI and BCU makes a finding of failed in accordance with OAR 461-165-0180. The background check request is considered completed.

(3) Upon completion of a final fitness determination, BCU or the QE shall provide notice to the SI.

(a) If approved, BCU shall provide notice to the QE through CRIMS. The QE shall provide the SI a copy of the notice or CRIMS documentation.

(b) If denied or approved with restrictions, BCU shall issue a notice of fitness determination to the SI which includes the potentially disqualifying convictions or conditions that the outcome was based upon, information regarding appeal rights, and the notice becoming a final order in the event of a withdrawal or failure to appear at the hearing.

(c) The effective date of action shall be recorded on the notice or CRIMS documentation.

(4) BCU shall provide the QED notification of the final fitness determination when the SI is being denied or approved with restrictions.

(a) The notice to the QED shall not contain any details regarding the potentially disqualifying convictions or conditions.

(b) If the final fitness determination is approved with restrictions, BCU shall inform the QED of the restrictions required on the SI and the SI's position.

(5) BCU shall provide the child care provider notification of the final fitness determination when an SI associated with the child care provider is being denied. If the child care provider has denied associated SIs and has not also been denied or mandatorily excluded, BCU shall fail the child care provider in accordance with OAR 461-165-0180.

(6) BCU shall provide the child care provider notification of the final decision when an SI associated with the child care provider has a determination of mandatory exclusion. If the child care provider has mandatorily excluded associated SIs and has not also been denied or mandatorily excluded, BCU shall fail the child care provider in accordance with OAR 461-165-0180.

(7) When an SI is denied or the background check results in an incomplete fitness determination, the SI shall not be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request. A denial applies only to the position and application in question. A denial or incomplete fitness determination shall result in immediate termination, dismissal, or removal of the SI.

(8) When an SI is approved with restrictions, the SI shall only be allowed to work, volunteer, be employed, or otherwise perform in the position listed on the background check request and only under the stated restrictions. A restricted approval applies only to the position and application in question. A restricted approval shall result in immediate implementation of the restrictions.

(9) BCU shall maintain any documents obtained or created during the background check process.

(10) BCU shall make new fitness determinations for each background check request. The outcome of previous fitness determinations does not set a precedent for subsequent fitness determinations.

Notes

Or. Admin. R. 407-007-0320

OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0320, DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef. 10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD 3-2013, f. & cert. ef. 8-1-13; DHSD 5-2016, f. 6-10-16, cert. ef. 6/15/2016; DHSD 9-2016, f. & cert. ef. 12/1/2016; DHSD 3-2017(Temp), f. & cert. ef. 3-15-17 thru 9-10-17; DHSD 6-2017, f. 6-30-17, cert. ef. 7/1/2017; DHSD 10-2017, f. & cert. ef. 9/1/2017; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050

Statutes/Other Implemented: ORS 181A.195, 181A.200, 409.010, 409.027, 443.004 & 418.248