Or. Admin. Code § 407-007-0430 - Applicants to the Department
(1)
Subject to any applicable collective bargaining agreements, this rule applies
to any SI who is:
(a) Offered employment or
volunteer placement with the Department;
(b) Offered a change in employment or
volunteer placement within the Department.
(c) An employee of any contractor in any of
the following:
(A) A State-operated or
Authority-contracted secure residential treatment facility;
(B) A State-operated residential training
home within SACU;
(C) Oregon State
Hospital.
(2)
The Department requires an SI to have an abuse check, along with a criminal
records check under OAR
407-007-0000 to
407-007-0100 resulting in one
final fitness determination, in the following circumstances:
(a) An SI is offered employment, volunteer
placement, or work under a contract with the Department.
(b) An SI is currently employed by or
volunteering with the Department and is offered a new position within the
Department. A change in a position requiring an abuse check may be due to but
not limited to promotion, transfer, demotion, re-employment, job rotation,
developmental assignment, restoration, bumping, or recall. For the abuse check
to be required, there must be, as determined by the Office of Human Resources:
(A) A significant change in position duties
or responsibilities; or
(B) A
change in position classification.
(3) Using identifying information submitted
to the Department, the Department shall conduct an abuse check to determine if
the SI has potentially disqualifying abuse.
(a) In order to complete an abuse check and
fitness determination, the Department may require additional information from
the SI including but not limited to additional background information or
documentation regarding circumstances since the abuse occurred.
(b) If an SI is a represented Department
employee, the process for obtaining additional information through
investigatory interviews shall adhere to collective bargaining agreements on
investigatory interviews.
(4) The Department shall determine whether a
start date for an SI may be set based on the SI's disclosures, a preliminary
review of Oregon criminal history and an abuse check.
(5) If an SI has potentially disqualifying
abuse, the Department shall conduct a weighing test in order to make a fitness
determination. Factors to consider in a weighing test include but are not
limited to:
(a) The details regarding the
abuse including but not limited to:
(A)
Circumstances leading to the incident of abuse;
(B) The nature or type of abuse;
and
(C) Other information gathered
during the scope of the abuse investigation.
(b) The date of abuse incident and abuse
investigation, and the age of the SI at the time of the abuse.
(c) If there are more than one incident of
potentially disqualifying abuse (or there is potentially disqualifying abuse
and also potentially disqualifying criminal history as described in OAR
407-007-0041 and
407-007-0050), the timeline,
frequency and relation between potentially disqualifying history.
(d) The quality of the abuse investigation
including, if applicable, any exhibits and related documents with consideration
to completeness, objectivity, and sufficiency.
(e) Due process provided to the SI after the
abuse investigation.
(f) Required
conditions and action resulting from the founded or substantiated abuse that
would allow for reinstatement of the SI in the position including but not
limited to training, counseling, corrective or disciplinary action, and the
SI's compliance.
(g) The impact of
cultural or societal forces such as structural racism or poverty and other
impacts to marginalized communities, upon the subject individual and whether
those forces contributed to the circumstances leading to potentially
disqualifying abuse.
(h)
Circumstances related to the SI including but not limited to work history,
education history, and other personal information provided by the SI.
(i) Changes in circumstances subsequent to
the potentially disqualifying abuse.
(j) The relevancy of the abuse to the
position the SI is seeking.
(6) Following an abuse check, the Department
shall complete the fitness determination.
(a)
The Department may approve an SI if:
(A) The
SI has no potentially disqualifying abuse; or
(B) The SI has potentially disqualifying
abuse but, after a weighing test, the Department determines that more likely
than not the SI poses no risk to the Department, its clients, or vulnerable
persons; or
(C) The SI is applying
for employment, volunteer placement, or contract placement when applicable,
with the Department's Child Welfare division and has potentially disqualifying
abuse where the victim is a child, when:
(i)
After a weighing test, the Department determines that more likely than not the
SI poses no risk to the Department, its clients, or vulnerable persons;
and
(ii) BCU has consulted with
Child Welfare executive staff regarding the child abuse considered in the
weighing test and the final fitness determination outcome.
(b) The Department shall deny an
SI who has potentially disqualifying abuse and, after a weighing test, the
Department determines that more likely than not the SI poses a risk to the
Department, its clients, or vulnerable individuals.
(7) When the application is closed without a
final fitness determination, the SI does not have a right to contest the closed
case. The Department shall close the case if an SI:
(a) Discontinues the abuse check
application;
(b) Fails to cooperate
with the abuse check process; or
(c) Is subject to OAR
407-007-0445 and is found
ineligible.
(8) Upon
completion of a fitness determination, the Department shall provide written
notice to the SI. The notice shall:
(a) Be in
a Department approved format; and
(b) Include an effective date of
action.
(c) For an outcome of
denied:
(A) Include the reasons for the
denial;
(B) Include information
regarding appeal rights; and
(C)
Include a statement that the notice becomes a final order in the event of a
withdrawal during the contested case hearing process or a failure to appear at
the contested case hearing.
(9) When an SI is denied or a case is closed,
the individual may not work, volunteer, be employed, or otherwise perform in
the position that the SI is seeking. If a current Department employee or
volunteer is denied, the Office of Human Resources shall determine if the SI
may continue in the current position that the SI is seeking to change.
(a) For Department employees, if disciplinary
action up to and including dismissal is appropriate, the action shall be taken
in accordance with:
(A) Relevant collective
bargaining contractual provisions;
(B) Statutory provisions for unrepresented or
management services employees; or
(C) Relevant Department or statewide policies
or procedures.
(b) For
an SI who is a current volunteer or Work Experience client, a denial or closed
case shall result in immediate dismissal.
(10) The Department shall document fitness
determinations in writing and include all necessary details including but not
limited to the potentially disqualifying abuse, the weighing test, or the
reasons for a closed case.
(11) The
Department shall make new fitness determinations for each application. The
outcome of previous fitness determinations does not ensure the same outcome of
a new fitness determination.
(12)
Only an SI subject to this rule may contest the fitness determination with the
following exceptions. The following SIs do not have the right to contest the
fitness determination:
(a) SIs offered
volunteer placement with the Department; or
(b) SIs offered a change in volunteer
placement within the Department.
(13) The appeal process, pursuant to ORS
chapter 183 and OAR 407-007-0080, shall proceed if
the SI requests a contested case hearing.
(a)
SIs must request a hearing within 30 calendar days after the effective date of
action listed on the notice of fitness determination.
(b) The SI may not challenge a finding of
substantiated abuse that was a basis for the adverse outcome under this rule.
The SI has the right to contest the weight the Department has given to:
(A) The evidence;
(B) The factors used in the weighing test;
or
(C) Any other information used
in making the fitness determination.
(c) The only remedy that may be awarded is a
fitness determination that the SI is approved or denied. Under no circumstances
shall the Department be required to place an SI in any position, nor shall the
Department be required to accept services or enter into a contractual agreement
with an SI.
(d) An SI may not have
access to confidential information contained in abuse investigation reports or
other records collected or developed during the abuse check process without a
protective order limiting further disclosure of the information.
(A) A protective order issued pursuant to
this section must be issued by an administrative law judge as provided in OAR
137-003-0570(8)
or by a court of law.
(B) In
conjunction with a protective order issued pursuant to this section,
individually identifying information relating to clients, witnesses, and other
persons identified in abuse investigation reports or other records collected,
or developed during the abuse check process shall be redacted prior to
disclosure, except for the information identifying the SI.
(14) An SI in volunteer or Work
Experience placements must have a new abuse check every three years from the
date of placement.
Notes
Statutory/Other Authority: 409.027, 413.036 & 409.050
Statutes/Other Implemented: 409.027, 413.036 & 409.010
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