334-010-0018 Criminal Background Checks, Fitness Determinations (1) The Board requires a criminal background check of all applicants for a massage therapist license to determine the professional fitness of an applicant. These must be provided on prescribed forms provided by the Board. Fingerprints shall be obtained at a fingerprinting site approved by the Board. The Board must submit fingerprints to the Oregon Department of State Police for checks against state law enforcement data systems and national data sources. Any electronic fingerprint records must subsequently be destroyed by the Oregon Department of State Police. (a) The Board requires a completed electronic fingerprint of all applicants for an initial license; licensees applying to reinstate a lapsed license or licensees applying to reactivate an inactive license; and licensees under investigation to determine the professional fitness of an applicant or licensee. (2) These rules are to be applied when evaluating the criminal background of all licensees and applicants for a massage therapist license and conducting professional fitness determinations based upon such history. The fact that the applicant has cleared the criminal background check does not guarantee the granting of a license. (3) The Board may require fingerprints of any Oregon licensed massage therapist who is the subject of a complaint or investigation for the purpose of requesting a state or nationwide criminal background check. (4) All criminal background checks must include, but not be limited to, all available state law enforcement data systems and national data sources, unless obtaining one or the other is an acceptable alternative. (5) Additional information required. In order to conduct the Oregon and National Criminal Background Check and professional fitness determination, the Board may require additional information from the licensee/applicant as necessary, including but not limited to, proof of identity; residential history; names used while living at each residence; or additional criminal, judicial or other background information. (6) Criminal offender information is confidential. Dissemination of information received under ORS 181.534 is only to people with a demonstrated and legitimate need to know the information. The information is part of the investigation of an applicant or licensee and as such is confidential pursuant to ORS 676.175(1). (7) The Board must determine whether an individual is professionally fit to be granted a license. If an individual is determined to be unfit, then the individual may not be granted a license. The Board may make professional fitness determinations conditional upon applicant's acceptance of probation, conditions, limitations, or other restrictions upon licensure. Except as otherwise provided in section (1), in making the professional fitness determination the Board must consider: (a) Criminal background check; (b) The nature of the crime; (c) The facts that support the conviction or pending indictment or that indicates the making of any false statement; (d) The relevancy, if any, of the crime or the false statement to the specific requirements of applicant's or licensee's present or proposed license, services, employment, position, or permit; (e) Any refusal to submit or consent to a criminal background check including, but not limited to, fingerprint identification; (f) Any other pertinent information requested or obtained as a part of an investigation; (g) Intervening circumstances relevant to the responsibilities and circumstances of the position, services, employment, license, or permit. Intervening circumstances include but are not limited to: (A) The passage of time since the commission of the crime; (B) The age of the subject individual at the time of the crime; (C) The likelihood of a repetition of offenses or of the commission of another crime: (D) The subsequent commission of another relevant crime; (E) Whether the conviction was set aside and the legal effect of setting aside the conviction; and (F) A recommendation of an employer. (8) The Board may consider any conviction of any violation of the law for which the court could impose a punishment and in compliance with ORS 670.280. The Board may also consider any arrests, court records, Department of Motor Vehicle records, or other information that may be indicative of a person's inability to perform as a licensee with care and safety to the public. (9) If an applicant or licensee is determined not to be professionally fit for a license, the applicant or licensee is entitled to a contested case process pursuant to ORS 183.413-470. Challenges to the accuracy of completeness of information provided by the Oregon Department of State Police, Federal Bureau of Investigation and agencies reporting information must be made through the Oregon Department of State Police, Federal Bureau of Investigation, or reporting agency and not through the contested case process pursuant to ORS 183. (a) If an individual successfully contests the accuracy or completeness of information provided by the Oregon State Police, the FBI or other reporting agency, the Board must conduct a new criminal background check upon submission of a new request. (10) If the applicant discontinues the application process or fails to cooperate with the criminal background check process, the application is considered incomplete. Statutory/Other Authority: ORS 687 & 676 Statutes/Other Implemented: ORS 181, 183, 687.041, 687.051, 687.081 & 670.280 History: BMT 1-2016, f. 5-23-16, cert. ef. 7-1-16 BMT 1-2015, f. 3-12-15, cert. ef. 7-1-15 BMT 1-2012, f. 6-19-12, cert. ef. 7-1-12 BMT 4-2011, f. 12-1-11, cert. ef. 1-1-12