Or. Admin. R. 407-007-0290

Current through Register Vol. 63, No. 9, September 1, 2024

Section 407-007-0290 - Potentially Disqualifying Conditions

Pursuant to OAR 125-007-0270, the following are potentially disqualifying conditions, if they exist on the date of the final fitness determination unless otherwise noted. This rule does not apply to SIs subject to ORS 475A and OAR 333-333-4100.

(1) False statement is potentially disqualifying when all the following conditions are met:

(a) In a background check request, an SI has submitted the answer, "No" to the question regarding whether the SI has criminal history;

(b) The Department finds potentially disqualifying criminal history in the criminal records check; and

(c) The found potentially disqualifying criminal history occurred before the date of the SI's submission of the criminal records check request.

(2) The SI is a registered sex offender in any jurisdiction. There is a rebuttable presumption that an SI is likely to engage in conduct that would pose a significant risk to vulnerable individuals if the SI has been designated as a level three sex offender under ORS 163A.100(3), a predatory sex offender prior to January 1, 2014, or found to be a sexually violent dangerous offender under ORS 144.635 (or similar designations in other jurisdictions).

(3) The SI has an outstanding warrant for any permanent review crime in any jurisdiction.

(4) The SI has a deferred sentence, conditional discharge, or is participating in a diversion program for a permanent review crime in any jurisdiction.

(5) The SI is currently on probation, parole, or post-prison supervision for a potentially disqualifying crime in any jurisdiction.

(6) The SI has been found in violation of post-prison supervision, parole, or probation for a potentially disqualifying crime or condition in any jurisdiction within five years from the date of the final fitness determination.

(7) The SI has an unresolved arrest, charge, or a pending indictment for a permanent review crime in any jurisdiction.

(8) The SI has been arrested in any jurisdiction as a fugitive from another state or a fugitive from justice for a permanent review crime that results in a potentially disqualifying conviction or condition.

(9) The SI has an adjudication in a juvenile court in any jurisdiction, finding that the SI was responsible for a permanent review crime that would result in a conviction if committed by an adult. Subsequent adverse rulings from a juvenile court, such as probation violations, are also potentially disqualifying if within five years from the date of the final fitness determination.

(10) The SI has a finding of "guilty except for insanity," "guilty except by reason of insanity," "not guilty by reason of insanity," "responsible except for insanity," "not responsible by reason of mental disease or defect," or similarly worded disposition in any jurisdiction regarding a permanent review crime, unless the local statutes indicate that such an outcome is considered an acquittal.

(11) The SI has potentially disqualifying abuse as determined from abuse investigation reports which have an outcome of founded or substantiated, and in which the SI is determined to have been responsible for the abuse. For the following SIs, potentially disqualifying abuse includes:

(a) For an SI subject to 42 USC 671(a)(20) under the State Plan for Foster Care and Adoption Assistance (the Adam Walsh Act of 2006) or who is an employee of a QE subject to Section 471(a)(20)(D) of the federal 2018 Family First Prevention Services Act and which receives title IV-E funds:

(A) Child protective services history held or received by the Department or OTIS regardless of the date of the initial report;

(B) Child protective services history from any state or jurisdiction reviewed pursuant to the federal requirements and determined by BCU to be potentially disqualifying; and

(C) Adult protective services investigations of neglect, physical abuse, sexual abuse, or financial exploitation initiated on or after January 1, 2010, as provided to BCU by OTIS and APD programs based on severity.

(b) For an SI on the background check registry maintained under OAR 407-007-0600 to 407-007-0640; licensed, certified, or otherwise regulated by the Department; associated with any QE licensed, certified, or otherwise regulated by the Department (any QE licensed, certified, or regulated only with the Authority and not the Department are not included):

(A) Child protective services history held or received by the Department or OTIS regardless of the date of the initial report; and

(B) Adult protective services investigations of neglect, physical abuse, sexual abuse, or financial exploitation initiated on or after January 1, 2010, as provided to BCU by the OTIS and APD programs based on severity.

(c) For any other SI with direct contact with children:

(A) Child protective services history held or received by the Department or OTIS regardless of the date of the initial report; and

(d) For all other SIs, adult protective services investigations of neglect, physical abuse, sexual abuse, or financial exploitation initiated on or after January 1, 2010, as provided to the BCU by OTIS and APD programs based on severity.

(12) For an SI who is a proctor foster parent, the SI has any restraining order or protective order against the SI.

(13) For an SI who is SI who is a proctor foster parent, the SI makes a false statement to the QE or Department, including the provision of materially false information, regarding abuse, restraining orders, or protective orders; or failure to disclose information regarding abuse, restraining orders, or protective orders. Nondisclosure of unsubstantiated or inconclusive abuse or dismissed restraining orders or protective orders, may not be considered a false statement.

Or. Admin. R. 407-007-0290

OMAP 8-2004, f. 2-26-04, cert. ef. 3-1-04; OMAP 22-2005, f. & cert. ef. 3-29-05; Renumbered from 410-007-0290, DHSD 8-2007, f. 8-31-07, cert. ef. 9-1-07; DHSD 10-2008, f. 12-26-08, cert. ef. 1-1-09; DHSD 2-2009, f. & cert. ef. 4-1-09; DHSD 7-2009, f. & cert. ef. 10-1-09; DHSD 10-2009, f. 12-31-09, cert. ef. 1-1-10; DHSD 10-2010, f. 10-29-10, cert. ef. 10-31-10; DHSD 1-2011(Temp) f. & cert. ef. 4-15-11 thru 10-11-11; DHSD 7-2011(Temp), f. & cert. ef. 10-12-11 thru 11-1-11; DHSD 8-2011, f. 10-28-11, cert. ef. 11-1-11; DHSD 2-2012(Temp), f. & cert. ef. 2-27-12 thru 8-24-12; DHSD 4-2012, f. & cert. ef. 8-1-12; DHSD 1-2013(Temp), f. & cert. ef. 2-5-13 thru 8-2-13; DHSD 3-2013, f. & cert. ef. 8-1-13; DHSD 2-2014, f. & cert. ef. 12/1/2014; DHSD 1-2015(Temp), f. & cert. ef. 2-3-15 thru 8-1-15; DHSD 4-2015, f. 7-31-15, cert. ef. 8/1/2015; DHSD 1-2016(Temp), f. & cert. ef. 1-14-16 thru 7-11-16; DHSD 5-2016, f. 6-10-16, cert. ef. 6/15/2016; DHSD 6-2016(Temp), f. & cert. ef. 7-1-16 thru 12-27-16; DHSD 9-2016, f. & cert. ef. 12/1/2016; DHSD 10-2017, f. & cert. ef. 9/1/2017; DHSD 18-2019, temporary amend filed 09/26/2019, effective 9/27/2019 through 03/24/2020; DHSD 2-2020, amend filed 02/10/2020, effective 2/10/2020; DHS 7-2021, temporary amend filed 06/25/2021, effective 6/25/2021 through 12/21/2021; DHS 24-2021, amend filed 12/15/2021, effective 12/17/2021; DHS 1-2023, amend filed 01/27/2023, effective 2/1/2023

Statutory/Other Authority: ORS 181A.200, 409.027 & 409.050

Statutes/Other Implemented: ORS 181A.200, 409.027, ORS 181A.195, 409.010, 443.004 & 418.248