5101:2-12-26 Statement of nonconviction and criminal records checks for licensed child care centers.

 

 

 

5101:2-12-26               Statements of Snonconviction, Statement of non-conviction and criminal records checks for licensed child care center staff.

 

 

 

(A)  Definitions for the purposes of this rule:

 

(1)    "Criminal records check" has the same meaning as in section 109.572 of the Revised Code.

 

(2)    "Employee" is a person who is, at any time at the center, responsible for the care, custody or control of a child or a group of children.

 

(3)    "Care, custody, or control of a child" means supervising a child or group of children, or being alone with a child or group of children. A person does not have care, custody or control of a child when the person is under the direction of and within sight and hearing of a child care staff member.

 

(B)   Nonconviction statement: before Before the first day of employment, all employees, as defined in rule 5101:2-12-01 of the Administrative Code, and administrators, owners and persons designated as second adults of a center shall sign statements on the prescribed form JFS 01313 "Statement of Nonconviction" (Rev. 7/2003), attesting that they have not been convicted of or pleaded guilty to any offense listed in section 5104.09, 5104.012, or 5104.013, of the Revised Code, and that no child has been removed from their home pursuant to section 2151.353 of the Revised Code. The prescribed form JFS 01313 shall document that the administrator has sent the fingerprint impression cards of all employees the employee to the Ohio bureau of criminal identification and investigation (BCII).

 

(C)    Before the issuance of a provisional license, owners and administrators of centers shall also sign the statement described in paragraph (B) of this rule JFS 01313.

 

(D)  These signed non-conviction statements shall be on file at the center and available for review by the director's representative department.

 

(E)    Owner, administrator criminal records checks: prior Prior to provisional licensure, owners and administrators shall initiate the state criminal records check process.

 

(1)   The department shall provide a fingerprint impression card to each prospective owner and administrator. The card, once completed with fingerprints and information, shall be sent, along with the fee and the prescribed form, owner and administrator shall send the fingerprint card and all required information and fees to the department by the owner and administrator.

 

(2)   The department shall forward the fingerprint card and all information to BCII

 

 

for processing. Once processed, the BCII criminal records check results shall be returned to the department where they will be kept in the center's licensing file.

(3) Any owner and administrator who cannot provide proof to the department of Ohio residency for the five year period immediately preceding the application for licensure shall request an federal bureau of investigation (FBI) fingerprint check in addition to the state criminal records check. The owner and administrator shall send the FBI fingerprint impression card and all required information to the department. The department shall forward the information to the FBI for processing. The results of the FBI check shall be returned to the department where they will be kept in the center's licensing file.

(3)(4) All criminal records checks results shall be dated with authentication numbers, owner and administrator names, and social security numbers.

(F)     The requirement for a criminal records check shall not apply when an initial application is needed because the center has changed location.

(G)   Employee criminal records checks: all All employees, as defined in paragraph (A)(2) of this rule, shall complete a criminal records check, and the center administrator shall submit the fingerprint impression card to BCII.

(1)     The administrator shall request a state criminal record records check for employees who provide proof of Ohio residency for the five year period preceding the request. The administrator shall request an FBI check, in addition to the state criminal record records check, when the employee does not provide proof of Ohio residency for the five year period immediately preceding the request. The verification used to determine the length of residency shall be kept on file at the center for review upon request.

(2)     If potential employees, upon request, fail to provide impressions of their fingerprints to BCII or complete the electronic criminal records check, they shall not be employees at the center.

(3)   Each center shall pay to BCII the prescribed fee for each criminal records check requested. If the center chooses to charge the employee for the cost of the criminal records check, the center shall notify the employee of the amount of the fee, and the procedure for reimbursement of the fee to the center. The center may charge employees no more than the actual cost of the fee prescribed by BCII. Employees must be informed of all costs in writing prior to request.

(4)   A center that uses the services of a student placed by a high school or college as part of a supervised field assignment or student teaching experience has complied with this rule if either the center, high school or college has requested the records check and the final report of the records check shall be available for review by the department's representative.

(5)   A center that uses the services of, or contracts with individuals or agencies, such as, but not limited to, speech therapy, computer training, dance, etc., has complied with this rule if the center or the contracted entity has requested the criminal records check. Verification of the final report of the criminal records check shall be is available for review by the department's representative.

(6)   If an employee leaves a particular center's employment and is then rehired, an updated criminal records check shall be required completed.

(H)    The records check final results shall be dated with an authentication number and employee name and social security number.

(I)   Records Criminal records check results are not public record and shall not be made available to any person other than the person who is the subject of the criminal records check or his representative, the center administrator, owner, owner's designee, or this the department.

(J)   Records Criminal records check results checks shall be on file for all employees hired on or after October 29, 1993.

(K)   Records checks verifying convictions: if If the department receives a criminal records report verifying conviction under section 5104.09 of the Revised Code, the department shall deny the initial license application to the owner and administrator or begin the license revocation process, unless it is determined that the person meets the criteria for rehabilitation as described in this rule.

(L)     If the results of the criminal records check indicate that an employee has been convicted, the center shall immediately release the person from employment until such time as the center determines that they meet the rehabilitation standards as described in this rule.

(M)   Pursuant to section 3319.39 of the Revised Code, this rule is applicable to records of convictions that have been sealed pursuant to section 2953.32 of the Revised Code because the information contained in sealed records bear a direct and substantial relationship to the position for which prospective owner, and administrator or employee is being considered.

(N)   A conviction of or a plea of guilty to an offense listed in section 5104.09, 5104.012 or 5104.013 of the Revised Code shall not prevent an employee's hiring or provisional licensure of a center if the owner or employee provides evidence that he or she has been granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code or the conviction or guilty plea has been set aside pursuant to law. For purposes of this rule, "unconditional pardon" includes a conditional pardon with respect to which all conditions have been performed or have transpired.

(O)    Employee rehabilitation: a A center may choose to employ a person who has been convicted of an offense listed in section 5104.09, 5104.012, or 5104.013 of the Revised Code only if the center determines the person meets the rehabilitation standards of this rule. The following constitutes the standards for determining rehabilitation. It is the employee's responsibility to provide information bearing on the following requirements:

(1)   The offense was misdemeanor; and

(2)   The victim of the offense was not one of the following:

(a)   A person under eighteen years of age;

(b)     A  functionally  impaired  person  as  defined  in  section  2903.10  of  the Revised Code;

(c)   A mentally retarded person as defined in section 5123.01 of the Revised Code;

(d)   A developmentally disabled person as defined in section 5123.01 of the Revised Code;

(e)     A  person  with  a  mental illness as defined in section 5122.01 of the Revised Code; or

(f)  A person sixty years of age or older.: and

(3)    Five years have elapsed since the prospective employee was fully discharged from imprisonment, probation, or parole; and

(4)    The prospective employee's hiring will not jeopardize the health, safety, or

welfare of the children served by the center. The following factors may be considered by the center:

(a)   The prospective employee's age at the time of the offense;

(b)   The nature and seriousness of the offense;

(c)   The circumstances under which the offense was committed;

(d)  The degree to which the prospective employee participated in the offense;

(e)   The time elapsed since discharge from imprisonment, probation or parole;

(f)  The likelihood that the circumstances leading to the offense will recur;

(g)   Whether the prospective employee is a repeat offender;

(h)   The extent to which the position applied for provides an opportunity for the commission of an offense listed in section 5104.09, 5104.012, or

5104.013 of the Revised Code;

(i)   The employment record;

(j)   The efforts at rehabilitation and the results of those efforts;

(k)   Whether any criminal proceedings are pending; and

(l)   Any other factors considered relevant by the center.

(P)     Owner/administrator rehabilitation: no A license may shall not be issued if the records check on either the owner or administrator shows a conviction or guilty plea for any offense listed in section 5104.09, 5104.12, or 5104.013 of the Revised Code unless all of the following requirements have been met:

(1)   The record of the conviction has been sealed pursuant to section 2953.32 of the Revised Code or any substantially equivalent provision under existing or former municipal ordinances or laws of this state, any other state, or the United States; and

(2)   The person is not a repeat offender; and

(3)    At least five years have elapsed since the person was fully discharged from imprisonment, probation or parole; and

(4)   The victim of the offense was not one of the following:

(a)   A person under eighteen years of age;

(b)     A  functionally  impaired  person  as  defined  in  section  2903.10  of  the Revised Code;

(c)   A mentally retarded person as defined in section 5123.01 of the Revised Code;

(d)   A developmentally disabled person as defined in section 5123.01 of the Revised Code;

(e)     A  person  with  a  mental illness as defined in section 5122.01 of the Revised Code; or

(f)  A person sixty years of age or older.

(5)   It is the duty of the owner and administrator to provide proof that the standards in regard to rehabilitation specified in paragraph (P) (O)of this rule have been met. If the person fails to provide such proof or if the proof offered by the person is inconclusive, no license shall be issued. A license shall not be issued if the owner or administrator petitioned the court to have a conviction record sealed and that petition was denied. If the record has not been sealed because of the nonexistence of a statute that would allow the person to petition the court to have the conviction record sealed, a license may be issued if all other rehabilitation requirements of paragraph (P) (O)of this rule have been met, the offense was a misdemeanor, and the owner or administrator is determined by the department not to be a threat to the health, safety, or welfare of children who are or would be served by the center, after consideration of the following factors:

(a)   The age of the owner or administrator at the time of the offense;

(b)   The nature and seriousness of the offense;

(c)   The circumstances under which the offense was committed;

(d)     The  degree  to  which  the  owner  or  administrator  participated  in  the offense;

(e)   The time elapsed since discharge from imprisonment, probation or parole;

(f)  The likelihood that the circumstances leading to the offense will recur;

(g)   The person's employment record;

(h)   The efforts at rehabilitation and the results of those efforts;

(i)   Whether any criminal proceedings are pending; and

(j)   Any other relevant factors.

Effective:                                                     09/01/2005

R.C. 119.032 review dates:                         03/31/2005 and 03/31/2006

CERTIFIED ELECTRONICALLY

Certification

07/25/2005

Date

Promulgated Under:                           119.03

Statutory Authority:                           5104.011, 5104.09

Rule Amplifies:                                  5104.011, 5104.012, 5104.013, 5104.09

Prior Effective Dates:                         3/1/81, 9/1/86, 1/2/92 (eMER.), 4/1/92, 7/1/03