Or. Admin. Code § 407-007-0315 - Hired on a Preliminary Basis
(1)
A preliminary fitness determination is required to determine if an SI may
participate in training or orientation, work, volunteer, or otherwise perform
in the position listed on the background check request prior to a final fitness
determination. An SI may not be hired on a preliminary basis prior to the
completion of a preliminary fitness determination.
(2) An SI may be hired on a preliminary basis
only:
(a) During the period of time prior to a
final fitness determination;
(b)
For the position listed on the background check request; and
(c) If not prohibited by section (4) of this
rule.
(3) To be hired on
a preliminary basis, an SI and QED must provide minimum information required
for a background check request as indicated in OAR
407-007-0250.
(4) The QE may not hire a SI on a preliminary
basis under any of the following circumstances:
(a) Program rules, Oregon statutes, or
federal directives do not allow hiring on a preliminary basis.
(b) Once submitted in ORCHARDS, the
background check record indicates that preliminary hire is not allowed and the
QE does not subsequently request a review by BCU as indicated in section (5) of
this rule resulting in the QE being allowed to hire the SI on a preliminary
basis.
(c) The QE or BCU determines
that:
(A) More likely than not, the SI poses a
potential threat to vulnerable individuals, based on a preliminary fitness
determination and weighing test;
(B) The SI's most recent background check
under these rules or other Department or Authority criminal records check rules
or abuse check rules resulted in a denial; or
(C) The SI is currently involved in
contesting a background check under these or other Department or Authority
criminal records check rules or abuse check rules; or
(D) BCU has reason to believe hiring on a
preliminary basis is not appropriate based on circumstances or compliance with
the background check process of the SI, QED, or QE.
(d) An outcome of not hiring on a preliminary
basis may only be overturned by the BCU.
(5) If requested by the QED, BCU may review a
newly submitted background check request when hiring on a preliminary basis has
not been allowed. For example:
(a) BCU may
review the background check request for disclosed criminal history that caused
BCU's background check online system to not allow hiring on a preliminary
basis. If BCU does not find any potentially disqualifying convictions or
conditions in the SI's disclosures, BCU updates the SI's status accordingly.
The QE may hire the SI on a preliminary basis if nothing in section (4) of this
rule applies.
(b) If the SI has
disclosed potentially disqualifying convictions or conditions, BCU may conduct
a preliminary fitness determination pursuant to OAR
125-007-0250 with a weighing
test. If BCU makes a positive decision in the preliminary fitness
determination, BCU updates the SI's status accordingly and the QE may hire the
SI on a preliminary basis if nothing in section (4) of this rule applies. If
BCU makes a negative decision, BCU must revoke hiring of the SI on a
preliminary basis.
(6)
An SI hired on a preliminary basis must be actively supervised at all times
unless sections (7) or (8) of this rule apply.
(a) The individual providing active
supervision at all times must do the following:
(A) Be in the same building as the SI or, if
outdoors of QE buildings or any location off the QE property, be within
line-of-sight and -of-hearing, except as provided in section (6)(b)(B) of this
rule;
(B) Know where the SI is and
what the SI is doing; and
(C)
Periodically observe the actions of the SI.
(b) The individual providing the active
supervision may be either:
(A) An SI who has
been approved without restrictions pursuant to these rules or previous
Department or Authority criminal records check rules; or
(B) The adult client, an adult client's adult
relation, the client's legal representative, or a child's parent or guardian.
Active supervision by these individuals is appropriate in situations where care
is given directly to clients usually in a home such as but not limited to
in-home care, home health, or care by home care workers, or personal care
assistants.
(i) The adult client may actively
supervise a homecare worker, personal care services provider, independent
provider, or an employee of an in-home care agency or home health agency if the
client makes an informed decision to employ the provider. Someone related to
the client may also provide active supervision if the relative has been
approved by the Department, the Authority, the QED, or the private-pay client
receiving services through an in-home care or home health agency.
(ii) A child client's parent or guardian is
responsible for providing active supervision in the case of child care
providers. The supervision is not required to be performed by someone in the
same building as the child.
(7) An SI allowed to work on a preliminary
basis is exempt from active supervision if SI is working under an approved
background check and is currently going through a recheck required by program
rules or OAR 407-007-0600 to
407-007-0640 unless there is
evidence of potentially disqualifying convictions or conditions since the
previous background check. If BCU finds evidence of criminal activity or
potentially disqualifying abuse since the previous background check, BCU may
revoke working on a preliminary basis.
(8) An SI approved without restrictions
within the previous 24 months through a documented criminal records check or
abuse check pursuant to these rules or prior Department or Authority criminal
records check rules or abuse check rules may be hired on a preliminary basis
without active supervision. Twenty-four months is calculated from date of
previous approval to the date of hire in the new position. Exemption from
active supervision is not allowed in any of the following situations:
(a) If the SI cannot provide documented proof
that he or she worked continuously under the previous approval for at least one
year.
(b) If there is evidence of
potentially disqualifying convictions or conditions within the previous 24
months.
(c) If, as determined by
the QE or BCU, the job duties in the new position are so substantially
different from the previous position that the previous fitness determination is
inadequate for the current position.
(9) Revocation of hired on a preliminary
basis is not subject to hearing or appeal. The QE or BCU may immediately revoke
hired on a preliminary basis for either of the following reasons:
(a) There is any indication of falsification
of the background check application.
(b) The QE or BCU determines that allowing
the SI to be hired on a preliminary basis is not appropriate, based on the
application, criminal record, position duties, preliminary fitness
determination by the Department, or Department program rules.
(10) Nothing in this rule is
intended to require that an SI who is eligible to be hired on a preliminary
basis be allowed to work, volunteer, be employed, or otherwise perform in the
position listed on the background check request prior to a final fitness
determination.
(11) Preliminary
fitness determinations must be documented in writing, including any details
regarding a weighing test, if required.
Notes
Statutory/Other Authority: ORS 181A.200, ORS 409.027 & 409.050
Statutes/Other Implemented: ORS 181A.200, ORS 409.027, ORS 181A.195, 409.010 & 443.004
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