criminal records checks november 26, 2012. criminal records checks disclaimer: this presentation...

Criminal Records Checks

November 26, 2012

DISCLAIMER: This presentation reflects the insight of the presenter. Please do not view the presentation as a replacement to following the statutes and rules on criminal records checks.

The presentation will answer:

1. Why change?

2. What reforms?

1. Why change?

2. What reforms?

3. How does it work?

Why change?

Criminal Records ChecksWhy Change?

A letter initiated this round of reform.

OHT quickly convened a multi-agency team.

The team developed a strategy to close loopholes that reduce protections.

The Kasich Administration and Ohio legislators enacted this strategy through House Bill 487.

Meanwhile...

The Kasich Administration and legislators developed a strategy to help 2 million Ohioans who have criminal records obtain jobs if they no longer pose a danger to the public.

The Kasich Administration and legislators enacted this strategy through Senate Bill 337.

This added another goal for our reform effort.

Additionally, at the beginning of the year, a new law took effect.

The Kasich Administration and legislators enacted S.B.2 to eliminate unnecessary adverse impacts upon Ohio businesses.

This required the OHT team to work with the CSI Office to minimize adverse impacts upon the businesses that state law requires to conduct criminal records checks.

Together, these three pieces of legislation steered the development of the rules.

Together, these three pieces of legislation steered the development of the rules. H.B.487: Close loopholes to increase safety.

Together, these three pieces of legislation steered the development of the rules. H.B.487: Close loopholes to increase safety. S.B.337: Let Ohioans with criminal records

work again if they are no longer a danger.

Together, these three pieces of legislation steered the development of the rules. H.B.487: Close loopholes to increase safety. S.B.337: Let Ohioans with criminal records

work again if they are no longer a danger. S.B.2: Minimize adverse impacts upon the

businesses that conduct criminal records checks.

What reforms?

What reforms?Effective Dates

Criminal Records ChecksWhat Reforms? Effective Dates

The reformed statutes and rules

take effect on the same day:

January 1, 2013

What reforms?Uniform List of Disqualifying Offenses

Criminal Records ChecksWhat Reforms? Uniform List of Disqualifying Offenses

The 2012 statutes on criminal records checks created a realm of uniform disqualifying offenses.

The realm unified requirements for HCBS and facilities for two state agencies.

The 2013 statutes will create a new realm of uniform disqualifying offenses.

The new realm will unify most HCBS, but not facilities, for four state agencies.

2012 UNIFORMITY 2013 UNIFORMITY

ODA: ombudsmanODA: RCFs in ALODA: all other providers

ODH: home health careODH: RCFsODH: nursing facilitiesODH: hospiceODH: residential facilities

DoDD: state employeesDoDD: county boardsDoDD: all providers

JFS: all providers

ODH: home health care

JFS: all providers

ODH: RCFsODH: nursing facilitiesODH: hospice

MH: residential facilities

JFS: all providers

ODA is the only state

agency that experiences no change in this new realm of

uniformity.

JFS: all providers

This round of reform makes

DoDD and JFS uniform with

JFS: all providers

It would require another

round of reform to make

nursing facilities,RCFs,

hospice, and residential facilities uniform.

JFS: all providers

RCF requirements are only uniform for an RCF that

participates in the Assisted Living Program.

In 2012, the lists of disqualifying offenses appeared in many statutes.

The lists appeared to have divergence from the outset that increased over the years as the General Assembly amended one statute at a time.

The 2013 statutes will create one list of disqualifying offenses that will appear in one statute that will regulate the Attorney General’s Bureau of Criminal Information and Investigation.

This development means that future amendments to this list will affect all programs uniformly.

How will this uniform list help?

How will this uniform list help? It closes loopholes that have allowed

people with certain criminal records to work serve consumers in one program, but have prevented them from helping consumers in another.

It reduces the adverse impact upon a business that serves consumers in more than one program.

It reduces the adverse impact upon a business that serves consumers in more than one program. More...

Case studies indicate that HCBS providers often work with more than one state program that requires criminal records checks.

Case studies indicate that HCBS providers often work with more than one state program that requires criminal records checks, so the 2013 uniformity will make working with the State of Ohio simpler for most providers.

Case Study: Home Care by Black Stone

Black Stone provides personal care and home health care to 4,220 consumers. Their employees are regulated by ODA and ODH.

STATE AGENCY

H.B.487 AMENDED

PROGRAMS/PROVIDERSCONSUMERS

SERVEDODA §173.27 Ombudsman NA

ODA §173.394

Any programs using ODA-administered funds (Medicaid and non-Medicaid)

ODH §3701.881Medicare-certified home health care

JFS §5111.033Any JFS-admin. Medicaid-waiver program (agency provider).

JFS §5111.034Any JFS-admin. Medicaid-waiver program (independent provider).

DoDD §5123.081DoDD, county boards, and providers.

ODA and ODH’s home health statutes have already been uniform, so the 2013 uniformity won’ making with ODA or ODH easier.

STATE AGENCY

H.B.487 AMENDED

ODA §173.394

ODA and ODH’s home health statutes have already been uniform, so the 2013 uniformity won’ making with ODA or ODH easier, but...

STATE AGENCY

H.B.487 AMENDED

ODA §173.394

It could encourage Black Stone to help consumers in DoDD’s and JFS’ programs.

STATE AGENCY

H.B.487 AMENDED

ODA §173.394

Case Study: Senior Resource Connection

SRC provides adult day services, congregate meals, home-delivered meals, personal care, personal emergency response systems, Alzheimer’s respite, and more to 3,212 consumers.

Although, SRC almost exclusively provides services to consumers in ODA’s programs, SRC’s employees are subject to the criminal records checks of four state agencies.

STATE AGENCY

H.B.487 AMENDED

ODA §173.394Any programs using ODA-administered funds (Medicaid and non-Medicaid)

ODH §3701.881 Medicare-certified home health care 3

DoDD §5123.081 DoDD, county boards, and providers. 20

The 2013 uniformity will make it easier for SRC to work with the State of Ohio.

STATE AGENCY

H.B.487 AMENDED

ODA §173.394Any programs using ODA-administered funds (Medicaid and non-Medicaid)

ODH §3701.881 Medicare-certified home health care 3

DoDD §5123.081 DoDD, county boards, and providers. 20

Case Study: Valued Relationships, Inc.

VRI provides personal emergency response systems to 9,950 Ohio consumers enrolled in state-administered programs.

STATE AGENCY

H.B.487 AMENDED

ODA §173.394

Although VRI’s consumers are mostly in ODA’s programs, their employees are subject to the criminal records checks of three state agencies.

STATE AGENCY

H.B.487 AMENDED

ODA §173.394

The 2013 uniformity will make it easier for VRI to work with the State of Ohio.

STATE AGENCY

H.B.487 AMENDED

ODA §173.394

What reforms?Expanded List of Disqualifying Offenses

Criminal Records ChecksWhat Reforms? Expanded List of Disqualifying Offenses

The 2013 statutes won’t only make a uniform list of disqualifying offenses.

The 2013 statutes will also make an expanded list of disqualifying offenses.

In 2013, H.B.487 and S.B.337 will expand the list of disqualifying offenses for ODA’s programs from...

55 to 130

The expanded list of offenses for 2013 will include offenses regarding animal cruelty, terrorism, human trafficking, and drug offenses. These offenses were created after the passage of the original criminal records check laws in the 1990s.

It will also include offenses, like arson, that were not previously disqualifying.

Criminal Records ChecksWhat Reforms? Disqualifying Offenses

Animal cruelty

Patient endangerment

Human trafficking

Prostitution offenses

Arson and terrorism offenses

Perjury, etc.

Offenses against family

Drug offenses

Riot, etc.

What reforms?Free Database Reviews

Criminal Records ChecksWhat Reforms? Free Database Reviews

The 2013 rules will require responsible entities to review 6 free databases.

If an applicant’s or employee’s name appears on one of the databases unfavorably, the responsible entity may not hire or continue to employ the person.

The free databases to review are:

1. SAM: System for Award Management

1. SAM

2. OIG: Office of Inspector General’s list of excluded individuals

1. SAM

2. OIGThese databases contain names of people who have defrauded the federal government.

1. SAM

2. OIG

3. Abuser registry: Dept. of Developmental Disabilities Abuser Registry

1. SAM

2. OIG

3. Abuser registry

4. Sex offender search: Ohio Attorney General’s sex offender and child-victim offender database

1. SAM

2. OIG

3. Abuser registry

4. Sex offender search

5. Offender search: Dept. of Rehabilitation and Correction’s offender search

1. SAM

2. OIG

3. Abuser registry

5. Offender search: Dept. of Rehabilitation and Correction’s offender search

This database contains names of people who in community corrections.

1. SAM

2. OIG

3. Abuser registry

5. Offender search

6. Nurse aide registry

1. SAM

2. OIG

3. Abuser registry

5. Offender search

6. Nurse aide registryThis database contains names of nurse aides in good and bad standing with the Dept. of Health

In 2013, the rules will require the responsible entity to check these 6 free databases before conducting any criminal records check required by the rules.

If an applicant or employee is disqualified by the free database reviews, there is no reason for the responsible entity to pay for a criminal records check.

Requiring responsible entities to check these databases is an entirely new requirement in the ODA’s rules.

In 2013, all four state agencies’ rules will have the same standards regarding these databases.

What reforms?Who checks records?

Criminal Records ChecksWhat Reforms? Who Checks Records?

ODA borrowed an idea from DoDD that will simplify a complex matter in the rules.

DoDD’s rules require DoDD, county boards of DD, and providers to check the criminal records of their employees.

To simplify their rules, DoDD calls all three groups: “responsible entities.”

With exceptions, ODA’s 2012 and 2013 rules require the state long-term care ombudsman; agency providers; non-agency or self-employed providers; assisted living facilities; PACE organizations; consumers who direct providers; and ODA’s designees to check criminal records.

That’s a lot of groups.

ODA’s 2013 rules will refer to all these groups singularly as “responsible entities.”

What reforms?Conditional Employment

Criminal Records ChecksWhat Reforms? Conditional Employment

The 2013 rules will prevent a responsible entity from conditionally employing an applicant...

The 2013 rules will prevent a responsible entity from conditionally employing an applicant... Until after the responsible entity has

checked the free databases.

The 2013 rules will prevent a responsible entity from conditionally employing an applicant... Until after the responsible entity has

checked the free databases. Only if the databases don’t disqualify the

applicant.

The 2012 statutes and rules differed for different state agencies. Some allowed responsible entities to conditionally hire for a period of only 30 days, while others could do so for up to 60 days.

The 2013 statutes and rules are the same for all four state agencies. All responsible entities may conditionally hire for a period of up to 60 days.

What reforms?Check whose records?

Criminal Records ChecksWhat Reforms? Check Whose Records?

The 2013 statutes and rules for each state agency will be clear that there is no state requirement for responsible entities to check the criminal records of volunteers.

If a responsible entity does check the criminal records of volunteers, the statutes and rules will not apply.

Instead, the 2013 statutes and rules for each state agency will require responsible entities to check the the criminal records of applicants and employees for paid positions.

The 2013 statutes and rules differ on determining which paid positions require checks.

It will require another round of reforms to create uniform statutes and rules that describe whose records a responsible entity must check.

Responsible entities whose employees serve consumers enrolled in more than one state agency’s programs should carefully review each state agency’s rules to see which applicants and employees require criminal records checks.

The 2013 laws will require the responsible entity to check the criminal records of each applicant under final consideration for employment in a direct-care position.

The 2013 statutes and rule will require the responsible entity to check the criminal records of each applicant under final consideration for employment in a direct-care position.

Therefore, the 2013 statutes and rules will require checking no fewer people than the 2012 statutes and rules.

What is new is that the 2013 rules will also require the responsible entity to check the criminal records of each current employee.

The 2013 rules will require checking the criminal records of every current employee who provides ombudsman services or direct care every 5 years.

The 2013 rules will phase in the 5-year checks so that responsible entities don’t need to check all employees on January 1, 2013.

However...

However, the 2013 rules won’t require every current employee to have these 5-year checks.

Responsible entities will only be required to check the criminal records of certain persons when they are applicants (vs., employees).

The types of employees who will be exempt from requirements for ongoing criminal records checks will be:

1. An employee who only delivers meals.

2. An employee who only has access to records.

For example, office staff, administrators, and employees in a central monitoring station for a personal emergency response system.

3. An employee who provides a service to a consumer in an ODA program once ever.

This table appears in the rules.

What reforms?No grandfathering.

Criminal Records ChecksWhat Reforms? No Grandfathering

H.B.487 eliminated all previously enacted hiring standards effective January 1, 2013.

Criminal Records ChecksWhat Reforms? No Grandfathering

That means, beginning January 1, 2013, an applicant or current employee may only provide ombudsman services or direct care if the 2013 rules do not disqualify him or her.

What reforms?New circumstances under which a

responsible entity may hire an applicant or retain an employee with a

disqualifying offense on his or her criminal record.

Criminal Records ChecksWhat Reforms? New Circumstances

First, let’s review what are no longer circumstances under which a responsible entity may hire an applicant or retain an employee with a disqualifying offense on his or her criminal record:

1. Previously-enacted legislation or previously-adopted rules.

2. Personal character standards.

Here are the 2013 circumstances under which a responsible entity may hire an applicant or retain an employee with a disqualifying offense on his or her criminal record:

1. Exclusionary periods

2. Limited grandfathering

3. Certificates

4. Pardons

1. Exclusionary periods?

3. Certificates

4. Pardons

What is an exclusionary period?

It is a period of time during which a person who has committed a specified offense is disqualified from providing ombudsman services or direct care.

After an exclusionary period is over for a person, a responsible entity is permitted to hire the person to provide ombudsman services or direct care.

The 2013 rules will establish five tiers of exclusionary periods:

The 2013 rules will establish five tiers of exclusionary periods:1. Permanently excluded

2. 10 years of exclusion

5. 0 years of exclusion Minor drug possession now has zero years of exclusion.

The assignment of a disqualifying offense to each tier was influenced by the research of Blumstein and Nakamura. “Redemption in the Presence of Widespread Criminal Background Checks.” Criminology. Vol., 47. © May, 2009. Pp., 327-359. See also, http://www.nij.gov/journals/263/redemption.htm.

Their research showed that, at a measurable length of time after an offense, the offender is only as likely to commit another offense as the general public.

Therefore, after the period of time, the person is of no greater danger to consumers than the general public.

Therefore, the state has no interest in excluding the person from employment helping a consumer.

This, more or less, creates a point of redemption for each crime.

For example, because the research showed that the point of redemption for a robber was 7.7 years, the four state agencies placed a robbery conviction in the 7-year exclusionary tier.

2. Limited grandfathering?

3. Certificates

4. Pardons

What is limited grandfathering?

First, let’s remind ourselves what is not limited grandfathering.

As previously mentioned, no previously-enacted statute or rule will apply in 2013.

Instead, limited grandfathering is a 3-month window in the 2013 rules that a responsible entity may use to retain an employee based upon a new written attestation of the employee’s work performance.

If the employee was convicted of, or pleaded guilty to, an offense(s) listed in the 5-year exclusionary period, the responsible entity may retain the employee, but only if:

1. The responsible entity hired the employee before January 1, 2013.

2. The employee’s conviction or guilty plea occurred before January 1, 2013.

2. The employee’s conviction or guilty plea occurred before January 1, 2013; and,

3. The responsible entity has considered the nature and seriousness of the offense(s), and attests in writing before April 1, 2013, to the character and fitness of the employee based upon the employee’s demonstrated work performance.

3. Certificates?

4. Pardons

What are certificates?

Through H.B.86 and S.B.337, the Kasich Administration and legislators enacted a new opportunity for Ohioans with criminal records to obtain jobs.

What are certificates?

H.B.86 and S.B.337 authorize DRC or a county court to grant a limited order of relief against hiring prohibitions in the rules.

3. Certificates

4. Pardons?

What are pardons?

Ohio law allows the governor to pardon a person from his or her criminal conviction.

What are pardons?

Ohio law allows the governor to pardon a person from his or her criminal conviction.

Sometimes, the only reason a person asks the governor for this is to obtain a job.

What are pardons?

S.B.337 now requires the destruction of any criminal records for persons with pardons.

What reforms?Records

Criminal Records ChecksWhat Reforms? Records

Statute says that criminal records are not public records. Therefore, a responsible entity need statutory authority to view them.

Government entities also need authority to view them—even the Attorney General’s Office.

The 2012 rules did not allow ODH or the Attorney General’s office to monitor for compliance by reviewing the actual criminal records.

The 2013 rules will give all four state agencies, plus the Attorney General’s Office, the authority to review the records.

Because the government entities have the authority to monitor the actual records, the four state agencies no longer require keeping applicant logs.

Instead, the rules will require a lesser document called the “roster.”

How does it work?

Criminal Records ChecksHow does it work?

Review rules 173-9-01 to 173-9-10 of the Administrative Code on:http://aging.ohio.gov/information/rules/jcarrproposed.aspx

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