Appendix A - Disqualifying
Offenses for Rule 5101:2-5-09 of the Administrative Code
(A)An agency, as
defined in rule 5101:2-1-01 of the Administrative Code, shall have written
descriptions specific for each position or group of positions within the
agency's certified function for all college interns, volunteers, and employees.
(B)Prior to hire,
an agency shall obtain, from persons not related to the subject of reference,
at least three written references or written notes on verbal references
regarding prospective college interns, volunteers, and employees who will have
direct contact with children.
(C)An agency
shall hire qualified employees to provide the services which it is certified to
provide.
(1)The person
employed as the administrator of the agency shall possess at least a bachelor's
degree from a college or university accredited by a nationally recognized
accrediting organization and other qualifications and experience as determined
by the governing body in writing.
(2)An agency
shall assure that all staff hired or who are under any personal service
contract who are required by law to possess any professional license or
certification are so licensed or certified.
(3)Persons
employed in positions responsible for the daily direct care or supervision of
children shall be at least twenty-one years of age and possess a high school
diploma or equivalency certificate. As an alternative to the educational
requirement such persons shall have at least one year of full-time equivalent
paid or volunteer experience in the direct provision of care to children.
(D)In those
instances when an employee is responsible for varied job responsibilities and,
as such, falls within more than one category of paragraph (C) of this rule,
such employee shall meet those qualifications which are the most rigorous among
the competing criteria.
(E)A residential
facility shall require a JFS 01390 "ODJFS Medical Statement for Child Care
Staff in Residential Facilities" (rev. 6/2001)
to be completed by a licensed physician, physician assistant, clinical nurse
specialist, certified nurse practitioner, or certified nurse-midwife within six
months prior to employing any person who will have direct contact with
children.
(F)An agency
shall, at its own discretion or at the request of the Ohio department of job
and family services (ODJFS), require an employee or prospective employee to
provide reports on the individual's physical or mental health from qualified
professionals when the individual exhibits signs of a physical or mental health
problem which might impair the individual's ability to ensure the health and
safety of children.
(G)Pursuant to section 5103.037 of the
Revised Code, prior to hiring or appointing a person as board president,
administrator or officer, an agency is to:
(1)Conduct an alleged perpetrator search
as described in paragraph (P) of this rule. The process can be found at:
http://jfs.ohio.gov/ocf/childprotectiveservices.stm.
(2)Request a certified search of the
findings for recovery database. The website is located at:
http://ffr.ohioauditor.gov/.
(3)Conduct a database review at the
federal website known as the system for award management. The website is
located at: https://www.sam.gov/SAM/pages/public/searchRecords/search.jsf.
(4)Conduct a search of the United States
department of justice national sex offender public website. The website is
located at: https://www.nsopw.gov/.
(5)Create a file for each board president,
administrator or officer to house the information required in this paragraph.
(H)The agency may refuse to hire or
appoint a person as a board president, administrator or officer as follows:
(1)Based solely on the findings of the
summary report as described in paragraph (G)(1) of this rule or the results of
the search described in paragraph (G)(4) of this rule.
(2)Based on the results of the certified
search or database review as described in paragraphs (G)(2) and (G)(3) of this
rule.
(G)(I) An agency shall document that any person
hired after October 29, 1993 as administrator, child care staff, caseworker, or
in any other position responsible for a child's care in out-of-home care shall
not have been convicted of or pleaded guilty to any of the offenses listed in paragraph (I)appendix A ofto this rule except as
provided in paragraph (H)(J)
of this rule.
(H)(J) AUnless specifically prohibited in appendix A to this rule, a
prospective employee convicted of or who has pleaded guilty to an offense
listed in paragraph (I)appendix
A ofto this
rule may be hired by an agency as an administrator, child care staff or
caseworker, or in any other position responsible for a child's care in out-of-home
care only if the following conditions haverehabilitative criteria has been met:
(1)Where the
offense was a misdemeanor, or would have been a misdemeanor if conviction had
occurred under the current criminal code, at least three years have elapsed from
the date the prospective employee was fully discharged from any imprisonment or
probation arising from the conviction. A prospective employee who has had a
misdemeanor record of conviction sealed by a court pursuant to section 2953.32
of the Revised Code shall be considered to have met this condition.
(2)Where the
offense was a felony, at least ten years have elapsed since the person was
fully discharged from imprisonment or probation.
(3)The victim of
the offense was not one of the following:
(a)A person under
the age of eighteen or person sixty years of age or older.
(b)A functionally
impaired person as defined in section 2903.10 of the Revised Code.
(c)A mentally retardedAn
intellectually disabled person as defined in section 5123.01 of the
Revised Code.
(d)A
developmentally disabled person as defined in section 5123.01 of the Revised
Code.
(e)A person with
a mental illness as defined in section 5122.01 of the Revised Code.
(4)Hiring the
prospective employee will not jeopardize in any way the health, safety or
welfare of the children the agency serves. The following factors shall be
considered in determining whether to hire the prospective employee:
(a)The person's
age at the time of the offense.
(b)The nature and
seriousness of the offense.
(c)The
circumstances under which the offense was committed.
(d)The degree to
which the person participated in the offense.
(e)The time
elapsed since the person was fully discharged from imprisonment or probation.
(f)The
likelihood that the circumstances leading to the offense will recur.
(g)Whether the
person is a repeat offender.
(h)The person's
employment record.
(i)The person's
efforts at rehabilitation and the results of those efforts.
(j)Whether any
criminal proceedings are pending against the person.
(k)Whether the
person has been convicted of or pleaded guilty to a felony contained in the Revised
Code that is not listed in paragraph (I)(K)(1) of this rule, if the felony bears a direct and
substantial relationship to the duties and responsibilities of the position
being filled.
(l)Any others
factors the agency considers relevant.
(I)(K) Except as provided in paragraph (H)(J) of this rule, an
agency shall not, as of October 29, 1993, hire a prospective employee as
administrator, child care staff, caseworker, or in any other position
responsible for a child's care in out-of-home-care if the person has been
convicted of or pleaded guilty to any of the following
offenses:
(1)A violation of section 959.13, 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.16, 2903.21, 2903.211,
2903.22, 2903.34, 2905.01, 2905.02, 2905.05, 2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22, 2907.23,
2907.25, 2907.31, 2907.32, 2907.321 (2907.32.1), 2907.322 (2907.32.2), 2907.323
(2907.32.3), 2909.02, 2909.03, 2909.22, 2909.23, 2909.24, 2911.01, 2911.02, 2911.11,
2911.12, 2913.49, 2919.12, 2917.01, 2917.02, 2919.22, 2919.24, 2919.25,
2923.12, 2923.13, 2923.161 (2923.16.1), 2925.02, 2925.03, 2925.04, 2925.05,
2925.06, 2927.12 or 3716.11 of the Revised CodeAny
offense listed in appendix A to this rule.
(2)A violation of
section 2905.04 of the Revised Code as it existed prior to July 1, 1996; a
violation of section 2919.23 of the Revised Code that would have been a
violation of section 2905.04 of the Revised Code as it existed prior to July 1,
1996, had the violation been committed prior to that date, a violation of
section 2925.11 of the Revised Code that is not a minor drug possession
offense, a violation of section 2923.01 of the Revised Code that involved an
attempt to commit aggravated murder or murder, a violation of section 4511.19
of the Revised Code if the person previously was convicted of or plead guilty
to two or more violations within the three years immediately preceding the
current violation, or felonious sexual penetration in violation of former section
2907.12 of the Revised Code as listed in appendix A of
this rule.
(3)A violation of
an existing or former law of this state or the United States that is
substantially equivalent to any of the offenses listed in paragraph (I)(1)appendix A ofto this rule.
(J)(L) It is the prospective employee's duty to
provide written verification that the conditions specified in paragraph (H)(J) of this rule are
met. If the prospective employee fails to provide such proof or if the agency
determines that the proof offered by the prospective employee is inconclusive
or insufficient, the person shall not be hired. Any doubt shall be resolved in
favor of protecting the children the agency serves.
(K)(M) To determine whether a prospective employee is
qualified to be hired pursuant to paragraph (I)(K) of this rule, a criminal records check shall be
conducted pursuant to rule 5101:2-5-09.1 of the Administrative Code.
(L)An agency may conditionally hire a
prospective employee until the criminal records check required by rule
5101:2-5-09.1 of the Administrative Code is completed and the agency receives
the results of the criminal record check, if the prospective employee submits
to the agency a signed statement attesting that the prospective employee has
not been convicted of or pleaded guilty to any offense listed in paragraph (I)
of this rule. If the results of the criminal record check indicate that the
person does not qualify for employment, the agency shall release the person
from employment.
(M)(N) The provisions of paragraph (H)(J) of this rule must
be considered for any prospective employee who has been convicted of, or
pleaded guilty to, one or more of the offenses listed in paragraph (I)appendix A ofto this rule even if
the person's record has been sealed by a court pursuant to section 2953.32 of
the Revised Code because the information contained in the sealed record bears a
direct and substantial relationship to the care of children who may be
entrusted to the person's care.
(N)(O) A conviction of, or plea of guilty to, an
offense listed in paragraph (I)appendix A ofto this rule shall not prevent a prospective employee's
hire if the person has been granted an unconditional pardon for the offense
pursuant to Chapter 2967. of the Revised Code or the conviction or guilty plea
has been set aside pursuant to law. "Unconditional pardon" includes a
conditional pardon with respect to which all conditions have been performed or
have transpired.
(P)If the agency has the ability to
complete the search in the statewide automated child welfare information system
(SACWIS), the agency is to complete an alleged perpetrator search of abuse and
neglect report history through the system for each prospective employee. If the
agency does not have the ability to complete the search in SACWIS, the agency
is to request a search of the system from ODJFS for each employee and
prospective employee.
(1)The agency is to request a check of the
child abuse and neglect registry of any other state a prospective employee has
resided in the five years immediately prior to the date of the criminal records
check as required by division (A) of section 2151.86 of the Revised Code. The
process can be found at:
http://centerforchildwelfare.fmhi.usf.edu/ChildProtective/AdamWalsh.pdf.
(2)A report with the results of the search
is to be placed in the applicant or employee's record.
(3)This report is to be used to determine
the suitability of the applicant or employee to provide care to children.
(Q)An agency is to conduct a search of the
United States department of justice national sex offender public website for
each employee and prospective employee. The website is located at:
https://www.nsopw.gov/.
(1)A report with the results of the search
is to be placed in the applicant or employee's record.
(2)This report is to be used to determine
the suitability of the applicant or employee to provide care to children.
(R)An agency may refuse to hire a
prospective employee based solely on the findings of the summary report
described in paragraph (P) of this rule or the results of the search described
in paragraph (Q) of this rule.
(S)An individual is not eligible for employment
or approval as an employee, board president, administrator or officer in a
residential setting if either of the following is true:
(1)The individual's alleged perpetrator
results show a finding of substantiated abuse or neglect within the past ten years.
(2)The individual is listed on the
national sex offender public website.
(O)(T) An agency shall have a separate personnel file
for each employee which shall include at a minimum:
(1)The employee's
application for employment.
(2)Copies of
references.
(3)A copy of the
employee's current job description.
(4)A copy of each
job evaluation performed.
(5)A copy of all
medical records obtained.
(6)Documentation
of all training received, including specific training for and an annual review
of acceptable methods of restraint, if applicable.
(7)Copies of all
professional credentials, licenses or certifications.
(8)Copies of all
disciplinary actions involving the employee.
(9)The employee's
date of hire and termination if applicable.
(10) The BCII and FBIbureau of criminal
investigation (BCI) and federal bureau of investigation (FBI) criminal
records check results required by rule
5101:2-5-09.1 of the Administrative Code and, if applicable, documentation that
the requirements of paragraph (H)(J) of this rule have been met.
(11) Any
notification of charges of any criminal offense brought against the employee
and any notification of conviction of any criminal offense.
(12) Copies of all
educational degrees, diplomas or equivalency certificates.
(13) Copies showing
proof of a valid driver's license and current automobile insurance, if the
staff member will be utilizing his or her own vehicle when transporting
children.
(P)(U) Personnel files for each employee shall be
maintained for at least five years after the date of employment ends.
(Q)(V) Nothing in this rule shall apply to a foster
caregiver who is subject to the provisions of Chapter 5101:2-7 of the
Administrative Code.
Effective: 6/15/2020
Five Year Review (FYR) Dates: 3/19/2020 and 06/15/2025
Certification: CERTIFIED ELECTRONICALLY
Date: 06/05/2020
Promulgated Under: 119.03
Statutory Authority: 2151.86, 5103.03, 5103.0310, 5103.037
Rule Amplifies: 109.572, 2151.86, 5103.02, 5103.03, 5103.0310, 5103.037
Prior Effective Dates: 12/30/1966, 10/01/1986, 07/02/1990
(Emer.), 10/01/1990, 01/01/1991, 09/18/1996, 05/01/1998, 07/01/2000,
08/22/2005, 08/14/2008, 12/01/2010, 09/01/2015