(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 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 IPS-SE when medicaid is billed for this
service.
(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 January 1,
2021) and 42 U.S.C. part 1320c-5 (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 long-term 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 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).
