335-005-0026 Determination of Fitness; State and Nationwide Criminal Background Checks (1) The purpose of these rules is to provide for the reasonable screening of applicants and licensees to determine if they have a history of criminal behavior such that they are not fit to be granted or hold a license that is issued by the Board. (2) These rules are to be applied when evaluating the criminal history of an applicant or licensee and conducting fitness determinations based upon such history. The fact that an applicant or licensee has cleared the criminal history check does not guarantee the granting or renewal of a license. (3) The Board may request applicants and licensees to undergo a state criminal history check and a national criminal history check, using fingerprint identification of applicants or licensees. State criminal records checks using the Law Enforcement Data System maintained by the Department of State Police and national checks using the Federal Bureau of Investigation system will be conducted in accordance with ORS Chapter 181 and applicable rules adopted and procedures established by the Department of State Police. Applicants and licenses are required to: (a) Comply with Board requirements in completing these checks; (b) Pay relevant fees as outlined in OAR 335-060-0010(1)(f). (4) The Board will determine if an applicant or licensee is fit to practice, or whether they are subject to denial, suspension, or revocation or a license under ORS 681.350. If an applicant is determined to be unfit, the applicant may not be granted a license. If a licensee is determined to be unfit the licensee's license may not be renewed or it may be suspended or revoked. The Board may make a fitness determination conditional upon applicant's or licensee's acceptance of probation, conditions, limitations, or other restrictions upon licensure. To make this determination, the Board may consider: (a) A criminal records background check; (b) Any false statements made by the applicant or licensee regarding their criminal history or other background; (c) Any refusal to submit or consent to a criminal records check including fingerprint identification; (d) Any other pertinent information provided by the applicant or licensee or obtained as part of an investigation. (5) Except as otherwise provided in section (2), in making the fitness determination the Board shall consider: (a) The nature of the crime; (b) The facts that support the conviction or pending indictment or that 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 applicant's or licensee's present or proposed license; and (d) Intervening circumstances relevant to the responsibilities and circumstances of the license. Intervening circumstances include but are not limited to: (A) The passage of time since the commission of the crime; (B) The age of the applicant or licensee 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. (e) Any other relevant information. (6) All background checks shall be requested to include available state and national data, unless obtaining one or the other is an acceptable alternative. (7) In order to conduct the Oregon and National Criminal Records Check and fitness determination, the Board may require additional information from the licensee or applicant as necessary, such as but not limited to, proof of identity; residential and employment history; names used while living at each residence; or additional criminal, judicial or other background information. (8) Criminal offender information is confidential. Dissemination of information received under this rule is part of the investigation of an applicant or licensee and as such is confidential pursuant to ORS 676.175. (9) The Board will permit the individual for whom a fingerprint-based criminal records check was conducted to inspect the individual's own state and national criminal offender records and, if requested by the subject individual, provide the individual with a copy of the individual's own state and national criminal offender records. (10) 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 681.490. The Board may also consider any arrests and court records that may be indicative of an individual's inability to perform as a licensee with care and safety to the public. (11) If an applicant or licensee is determined not to be fit for a license, the applicant or licensee is entitled to a contested case process pursuant to ORS 183.414–183.470. Challenges to the accuracy or 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. (12) If the applicant discontinues the application process or fails to cooperate with the criminal records check process, the application is considered incomplete. (13) The Board may require current or prospective employees, Board members, volunteers, vendors or other contractors to undergo a criminal background check as described in this rule as a condition of employment or Board service. Statutory/Other Authority: ORS 181.534, 676.303, 681.330 & 681.350 Statutes/Other Implemented: ORS 181.534, 676.175, 676.303, 681.260, 681.264, 681.320, 681.325, 681.350 & 681.360 History: SPA 3-2014, f. & cert. ef. 11-17-14 SPA 2-2014(Temp), f. 5-6-14, cert. ef. 5-19-14 thru 11-15-14