An employer who provides assisted living services to older adults (among various other services) called us recently about whether or not to hire an applicant for employment who had been convicted of a criminal offense. The employer had learned of the applicant’s conviction through a criminal background check.

The employer provides assisted living services through a Medicaid waiver administered by the Ohio Department of Aging (ODA). Thus, one of our first questions was whether the employer had done the electronic database check required under the new criminal background check rules applicable to providers of such services. The employer was not aware the new rules existed. Could this be you?

The ODA, along with the Ohio Department of Health (ODH) and the Ohio Department of Jobs and Family Services (ODJFS) issued new criminal background check rules, effective January 1, 2013. The new rules apply to home health agencies licensed by ODH and agencies providing services under a waiver program administered by the ODA or ODJFS (e.g., Ohio Home Care Waiver, Transitions MR/DD Waiver, Transitions Carve-Out Waiver, Assisted Living, Choices, PASSPORT). The new rules create more rigorous criminal background requirements for “direct care” applicants and employees of such agencies.

The most notable changes created by the new rules include:

  • Database check requirement: Prior to requesting a criminal background report from the Ohio Bureau of Criminal Identification and Investigation, covered employers must check whether a covered applicant is listed on any one of six different electronic databases identified in the new rules (e.g., Ohio Attorney General’s sex offender database, Ohio Nurses Registry, Ohio Department of Rehabilitation and Correction database of inmates, etc.).
  • Expanded list of disqualifying offenses: The new rules list 127 disqualifying criminal offenses (more than double the current list), with a tiered exclusionary period system based on the nature of the offense committed.
  • Five-year checks for current employees: Covered employers must conduct criminal background checks on all covered employees every five years. This is a significant change from prior rules, which only required background checks on applicants.
    • For employees hired before Jan. 1, 2008, the first check must occur within 30 days after the anniversary of the employee’s hire date.
    • For employees hired on or after Jan. 1, 2008, the check must occur within 30 days after the fifth anniversary of the employee’s date of hire.

Tracking the new rules can be challenging. They are published in the different sections of the Ohio Revised Code and Ohio Administrative Code applicable to the different departments at issue (e.g., ODA, ODH, ODJFS). Although the various departments' statutes and regulations are largely consistent, there are some notable differences and many employers may be covered by more than one set of requirements. What’s more, providers of home health and other covered services may also provide services that would require them to comply with Ohio's prior criminal background check rules, such as nursing home services.

If you are not sure whether you are subject to these new criminal background check rules, we recommend that you consult with legal counsel to discuss which of your applicants and/or employees are subject to the new rules. You should also discuss other changes your organization may need to implement to comply with Ohio’s new criminal background check requirements.