71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 935
 
                         Senate Bill 393
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Governor John A. Kitzhaber,
  M.D., for Department of Human Services)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Specifies when Department of Human Services is required to
conduct fingerprint identification check on certain persons.
 
                        A BILL FOR AN ACT
Relating to criminal records checks; amending ORS 181.537.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 181.537 is amended to read:
  181.537. (1) The Department of Human Services or the Employment
Department may request from the Department of State Police
criminal offender information on subject individuals if the
information is required in order to protect vulnerable
Oregonians:
  (a) To implement a federal or state statute, executive order or
rule that expressly refers to criminal conduct and contains
requirements or exclusions expressly based on such conduct;
  (b) For departmental employment purposes;
  (c) For the purposes of licensing, certifying, registering or
otherwise regulating or administering programs, subject
individuals or qualified entities that provide care, treatment,
education, training, instruction, supervision, placement
services, recreation or support to children, the elderly or
persons with disabilities;
  (d) For the purposes of employment decisions by qualified
entities that are regulated or otherwise subject to oversight by
the Department of Human Services or the Employment Department and
that provide care, treatment, education, training, instruction,
supervision, placement services, recreation or support to
children, the elderly or persons with disabilities; or
  (e) For the purposes of employment decisions made by a mass
transit district or transportation district for qualified
entities that, under contracts with the district or the Office of
Medical Assistance Programs, employ individuals to operate motor
vehicles for the transportation of medical assistance program
clients.
  (2) The Department of Human Services and the Employment
Department may conduct criminal records checks on subject
individuals through the Law Enforcement Data System maintained by
the Department of State Police or a qualified vendor, if deemed
necessary by the Department of Human Services or the Employment
Department.
   { +  (3) The Department of Human Services shall conduct a
fingerprint identification check when a preliminary background
check on a subject individual indicates the following:
  (a) The subject individual has lived out of the State of Oregon
for any period in the three years prior to signing the
application;
  (b) The subject individual has engaged in out-of-state criminal
activity;
  (c) Information submitted by the subject individual is
incomplete or conflicts with other known information; or
  (d) The Department of Human Services has other reason to
require a fingerprint identification check. + }
    { - (3) - }  { +  (4) + } If a nationwide criminal records
check is necessary for a subject individual, the Department of
Human Services or the Employment Department shall request the
Department of State Police to conduct the check, including
fingerprint identification, through the Federal Bureau of
Investigation. The Department of State Police shall report the
results to the Department of Human Services or the Employment
Department. The Department of State Police shall also furnish
such information as the Department of State Police may have in
its possession from its central bureau of criminal
identification, including but not limited to manual or
computerized information.
    { - (4) - }  { +  (5) + } The Federal Bureau of Investigation
shall either return or destroy the fingerprint cards used to
conduct the criminal records check and shall not keep any record
of the fingerprints. However, if the federal bureau policy
authorizing return or destruction of the fingerprint cards is
changed, the Department of Human Services or the Employment
Department shall cease to send the cards to the federal bureau
but shall continue to process the information through other
available resources.
    { - (5) - }  { +  (6) + } If the Federal Bureau of
Investigation returns the fingerprint cards to the Department of
State Police, the department shall return the fingerprint cards
to the Department of Human Services or the Employment Department.
The Department of Human Services or the Employment Department
shall destroy the fingerprint cards and shall retain no
facsimiles or other material from which a fingerprint can be
reproduced.
    { - (6) - }  { +  (7) + } The Department of Human Services
and the Employment Department may furnish to qualified entities,
in accordance with the respective department's rules and the
rules of the Department of State Police, information received
from the Law Enforcement Data System or a qualified vendor. In
addition, the Department of Human Services, the Employment
Department and the Department of State Police shall permit a
subject individual to inspect the individual's own Oregon
criminal offender record. However, any criminal offender records
and information furnished to the Department of Human Services and
the Employment Department by the Federal Bureau of Investigation
through the Department of State Police may not be disseminated to
other qualified entities or subject individuals.
    { - (7)(a) - }  { +  (8)(a) + } A qualified entity, using
rules adopted by the Department of Human Services and the
Employment Department, shall determine under this section whether
a subject individual is fit to hold a position, provide services,
be employed or, if the qualified entity has authority to make
such a determination, be licensed, certified or registered, based
on the criminal offender information obtained pursuant to this
section, any false statements made by the individual regarding
the criminal history of the individual and any refusal to
 { + complete the appropriate forms or to + } submit or consent
to a criminal records check including fingerprint identification.
If a subject individual is determined to be unfit, then that
person shall not hold the position, provide services or be
employed, licensed, certified or registered.
  (b) In making the fitness determination, the qualified entity
shall consider:
  (A) The nature of the crime;
  (B) The facts that support the conviction or pending indictment
or indicate the making of the false statement;
  (C) The relevancy, if any, of the crime or the false statement
to the specific requirements of the subject individual's present
or proposed position, services, employment, license,
certification or registration; and
  (D) Intervening circumstances relevant to the responsibilities
and circumstances of the position, services, employment, license,
certification or registration. Intervening circumstances include
but are not limited to the passage of time since the commission
of the crime, the age of the person at the time of the crime, the
likelihood of a repetition of offenses, the subsequent commission
of another relevant crime and a recommendation of an employer.
  (c) The Department of Human Services and the Employment
Department are the only qualified entities that may make fitness
determinations based on criminal offender records and information
furnished by the Federal Bureau of Investigation through the
Department of State Police.
  (d) A qualified entity shall have immunity from any civil
liability that might otherwise be incurred or imposed for
determining pursuant to this subsection that a subject individual
is not fit to hold a position, provide services or be employed,
licensed, certified or registered. A qualified entity and an
employer or employer's agent who in good faith comply with this
section and the decision of the qualified entity are not liable
for the failure to hire a prospective employee or the decision to
discharge an employee on the basis of the qualified entity's
decision. No employee of the state, a business or an organization
is liable for defamation, invasion of privacy, negligence or any
other civil claim in connection with the lawful dissemination of
information lawfully obtained under this section.
   { +  (e) Nothing in this subsection limits a qualified entity
or employer from considering other information or circumstances
in making a hiring decision. + }
    { - (8)(a) - }  { +  (9)(a) + } The Department of Human
Services and the Employment Department shall each establish by
rule a contested case process by which a subject individual may
appeal the determination that the subject individual is
disqualified for a position, services, employment, license,
certification or registration pursuant to this section.
Challenges to the accuracy or completeness of information
provided by the Department of State Police, the Federal Bureau of
Investigation and agencies reporting information to the
department or bureau must be made through the department, bureau
or agency and not through the contested case process required by
this paragraph.
  (b) A subject individual who is also employed by the Department
of Human Services or the Employment Department and who is
determined disqualified for a position may appeal the
determination through either the contested case process adopted
under this subsection or applicable personnel rules, policies and
collective bargaining provisions. A subject individual's decision
to appeal a determination through personnel rules, policies and
collective bargaining provisions shall constitute an election of
remedies as to the rights of the subject individual with respect
to the disqualification determination, and shall constitute
waiver of the contested case process.
 
    { - (9) - }  { +  (10) + } The Department of Human Services
shall develop a system that maintains information regarding
criminal records checks in order to minimize the administrative
burden that criminal records check requirements impose upon
subject individuals and providers. Records maintained under this
subsection for subject individuals are confidential and shall not
be disseminated except for the purposes of this section and in
accordance with the rules of the Department of Human Services and
the Department of State Police. Nothing in this subsection
permits the Department of Human Services to retain fingerprint
cards of subject individuals.
    { - (10) - }  { +  (11) + } The Department of Human Services
and the Employment Department, in consultation with the
Department of State Police and affected provider, beneficiary and
employee groups, shall adopt rules to implement this section and
other statutes relating to criminal offender information. The
rules may include but are not limited to:
  (a) Specifying which employees are authorized to make criminal
record inquiries;
  (b) Specifying categories of subject individuals who are
subject to criminal records checks;
  (c) Specifying the information, including fingerprints, that
may be required from a subject individual to permit a criminal
records check;
  (d) Specifying which programs, services or qualified entities
are subject to this section;
  (e) Specifying which qualified entities may request criminal
offender information;
  (f) Specifying which qualified entities are responsible for
deciding whether a subject individual is not fit for a position,
service, license, certification, registration or employment;
  (g) Specifying which crimes may be considered in reviewing
criminal offender information for a subject individual;
  (h) Specifying when a nationwide criminal records check shall
be conducted on a subject individual through the Department of
State Police. The additional cost of obtaining a nationwide
criminal records check and the risk to vulnerable Oregonians
should be taken into consideration when adopting rules under this
paragraph;
  (i) Specifying when a qualified entity, in lieu of conducting a
completely new criminal records check, may proceed to make a
fitness determination under this section using the information
maintained by the Department of Human Services pursuant to
subsection   { - (9) - }  { +  (10) + } of this section;
  (j) Determining when a subject individual may be hired on a
probationary basis pending  { + completion of + } a criminal
records check.  At a minimum, if there is any indication of
 { + potentially disqualifying + } criminal behavior by the
subject individual, the rules must require that, if the
individual is hired, the individual can be hired only on a
probationary basis and must be actively supervised at all times
when the individual is in contact with children, the elderly or
persons with disabilities; and
  (k) Establishing fees in an amount not to exceed the actual
cost of acquiring and furnishing criminal offender information.
   { +  (12) The Department of Human Services and the Employment
Department shall include in the rules adopted under subsection
(11) of this section a rule that prohibits a subject individual
from being hired prior to completion of the criminal record check
if it is discovered that the subject individual failed to
disclose a potentially disqualifying crime or any out-of-state
criminal history. + }
    { - (11) - }  { +  (13) + } The Department of Human Services
shall appoint a criminal records check rules coordinator who
shall be responsible for ensuring that the department's divisions
and offices adopt appropriately consistent criminal records check
processes that minimize adverse impacts to subject individuals
and providers while accomplishing protection for children, the
elderly and persons with disabilities.
    { - (12) - }  { +  (14) + } Criminal offender information is
confidential.  The Department of State Police shall adopt rules
to restrict dissemination of information received under this
section to persons with a demonstrated and legitimate need to
know the information. Any qualified entity receiving information
pursuant to this section is bound by the rules of disclosure
adopted by the department.
    { - (13) - }  { +  (15) + } For purposes of receiving the
information described in this section, the Department of Human
Services and the Employment Department are each considered to be
a 'designated agency' under ORS 181.010 to 181.560 and 181.715 to
181.730 and the rules adopted under ORS 181.555.
    { - (14) - }  { +  (16) + } If a subject individual refuses
to consent to the criminal records check or refuses to
 { + complete the appropriate forms or to + } be fingerprinted,
the qualified entity shall deny or terminate the employment of
the individual, or revoke or deny any applicable position,
service, employment, license, certification or registration.
    { - (15) - }  { +  (17) + } The Department of Human Services
and Employment Department shall define by rule the conditions
under which subject individuals may participate in training,
orientation and work activities pending completion of a criminal
records check through the Law Enforcement Data System, qualified
vendor or nationwide criminal records check. At a minimum,
subject individuals shall be actively supervised at all times
that they are in contact with children, the elderly and persons
with disabilities during such periods of training, orientation
and work. Subject individuals may continue probationary
employment while awaiting the nationwide criminal records check
as long as the individual's criminal records check through the
Law Enforcement Data System or qualified vendor did not result in
disqualification and there are no other indications of criminal
behavior.
    { - (16) - }  { +  (18) + } If the qualified entity requires
a criminal records check of employees or other persons, the
application forms of the qualified entity must contain a notice
that employment is subject to fingerprinting and a criminal
records check as required by this section and ORS 181.539.
    { - (17) - }  { +  (19) + } As used in this section:
  (a) 'Care' means the provision of care, treatment, education,
training, instruction, supervision, placement services,
recreation or support to children, the elderly or persons with
disabilities and developmental disabilities.
  (b) 'Qualified entity' means the Department of Human Services,
the Employment Department, community mental health and
developmental disability program, local health department or an
individual or business or organization, whether public, private,
for-profit, nonprofit or voluntary, that provides care, including
a business or organization that licenses, certifies or registers
others to provide care.
  (c) 'Qualified vendor' means a supplier of criminal history
backgrounds who is certified by the Department of Human Services
or the Employment Department as having substantially the same
criminal offender information as the Law Enforcement Data System.
  (d) 'Subject individual' means a person subject to a criminal
records check as specified by rule of the Department of Human
Services or the Employment Department.
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