Or. Admin. Code § 407-007-0430

Current through Register Vol. 63, No. 11, November 1, 2024

Section 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.

Or. Admin. Code § 407-007-0430

DHSD 8-2009(Temp), f. & cert. ef. 10-1-09 thru 3-29-10; DHSD 2-2010, f. & cert. ef. 3-29-10; DHSD 15-2017, amend filed 11/29/2017, effective 12/1/2017; DHSD 16-2017, temporary amend filed 12/27/2017, effective 01/01/2018 through 06/29/2018; DHSD 10-2018, amend filed 06/29/2018, effective 6/29/2018; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020; DHS 5-2023, temporary amend filed 10/04/2023, effective 10/4/2023 through 3/30/2024; DHS 8-2024, amend filed 03/26/2024, effective 3/27/2024

Statutory/Other Authority: 409.027, 413.036 & 409.050

Statutes/Other Implemented: 409.027, 413.036 & 409.010