Section 5164.34. Criminal records check of provider personnel, owners and officers

(A) As used in this section:

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

(2) "Disqualifying offense" means any of the offenses listed or described in divisions (A)(3)(a) to (e) of section 109.572 of the Revised Code.

(3) "Owner" means a person who has an ownership interest in a medicaid provider in an amount designated in rules authorized by this section.

(4) "Person subject to the criminal records check requirement" means the following:

(a) A medicaid provider who is notified under division (E)(1) of this section that the provider is subject to a criminal records check;

(b) An owner or prospective owner, officer or prospective officer, or board member or prospective board member of a medicaid provider if, pursuant to division (E)(1)(a) of this section, the owner or prospective owner, officer or prospective officer, or board member or prospective board member is specified in information given to the provider under division (E)(1) of this section;

(c) An employee or prospective employee of a medicaid provider if both of the following apply:

(i) The employee or prospective employee is specified, pursuant to division (E)(1)(b) of this section, in information given to the provider under division (E)(1) of this section.

(ii) The provider is not prohibited by division (D)(3)(b) of this section from employing the employee or prospective employee.

(5) "Responsible entity" means the following:

(a) With respect to a criminal records check required under this section for a medicaid provider, the department of medicaid or the department's designee;

(b) With respect to a criminal records check required under this section for an owner or prospective owner, officer or prospective officer, board member or prospective board member, or employee or prospective employee of a medicaid provider, the provider.

(B) This section does not apply to any individual who is subject to a criminal records check under section 3712.09, 3721.121, 5123.081, 5123.169, or 5164.341 of the Revised Code or any individual who is subject to a database review or criminal records check under section 173.38, 173.381, 3701.881, or 5164.342 of the Revised Code.

(C) The department of medicaid may do any of the following:

(1) Require that any medicaid provider submit to a criminal records check as a condition of obtaining or maintaining a provider agreement;

(2) Require that any medicaid provider require an owner or prospective owner, officer or prospective officer, or board member or prospective board member of the provider submit to a criminal records check as a condition of being an owner, officer, or board member of the provider;

(3) Require that any medicaid provider do the following:

(a) If so required by rules authorized by this section, determine pursuant to a database review conducted under division (F)(1)(a) of this section whether any employee or prospective employee of the provider is included in a database;

(b) Unless the provider is prohibited by division (D)(3)(b) of this section from employing the employee or prospective employee, require the employee or prospective employee to submit to a criminal records check as a condition of being an employee of the provider.

(D)

(1) The department or the department's designee shall deny or terminate a medicaid provider's provider agreement if the provider is a person subject to the criminal records check requirement and either of the following applies:

(a) The provider fails to obtain the criminal records check after being given the information specified in division (G)(1) of this section.

(b) Except as provided in rules authorized by this section, the provider is found by the criminal records check to have been convicted of or have pleaded guilty to a disqualifying offense, regardless of the date of the conviction or the date of entry of the guilty plea.

(2) No medicaid provider shall permit a person to be an owner, officer, or board member of the provider if the person is a person subject to the criminal records check requirement and either of the following applies:

(a) The person fails to obtain the criminal records check after being given the information specified in division (G)(1) of this section.

(b) Except as provided in rules authorized by this section, the person is found by the criminal records check to have been convicted of or have pleaded guilty to a disqualifying offense, regardless of the date of the conviction or the date of entry of the guilty plea.

(3) No medicaid provider shall employ a person if any of the following apply:

(a) The person has been excluded from being a medicaid provider, a medicare provider, or provider for any other federal health care program.

(b) If the person is subject to a database review conducted under division (F)(1)(a) of this section, the person is found by the database review to be included in a database and the rules authorized by this section regarding the database review prohibit the provider from employing a person included in the database.

(c) If the person is a person subject to the criminal records check requirement, either of the following applies:

(i) The person fails to obtain the criminal records check after being given the information specified in division (G)(1) of this section.

(ii) Except as provided in rules authorized by this section, the person is found by the criminal records check to have been convicted of or have pleaded guilty to a disqualifying offense, regardless of the date of the conviction or the date of entry of the guilty plea.

(E)

(1) The department or the department's designee shall inform each medicaid provider whether the provider is subject to a criminal records check. For providers with valid provider agreements, the information shall be given at times designated in rules authorized by this section. For providers applying to be medicaid providers, the information shall be given at the time of initial application. When the information is given, the department or the department's designee shall specify the following:

(a) Which of the provider's owners or prospective owners, officers or prospective officers, or board members or prospective board members are subject to a criminal records check;

(b) Which of the provider's employees or prospective employees are subject to division (C)(3) of this section.

(2) At times designated in rules authorized by this section, a medicaid provider that is a person subject to the criminal records check requirement shall do the following:

(a) Inform each person specified under division (E)(1)(a) of this section that the person is required to submit to a criminal records check as a condition of being an owner, officer, or board member of the provider;

(b) Inform each person specified under division (E)(1)(b) of this section that the person is subject to division (C)(3) of this section.

(F)

(1) If a medicaid provider is a person subject to the criminal records check requirement, the department or the department's designee shall require the conduct of a criminal records check by the superintendent of the bureau of criminal identification and investigation. A medicaid provider shall require the conduct of a criminal records check by the superintendent with respect to each of the persons specified under division (E)(1)(a) of this section. With respect to each employee and prospective employee specified under division (E)(1)(b) of this section, a medicaid provider shall do the following:

(a) If rules authorized by this section require the provider to conduct a database review to determine whether the employee or prospective employee is included in a database, conduct the database review in accordance with the rules;

(b) Unless the provider is prohibited by division (D)(3)(b) of this section from employing the employee or prospective employee, require the conduct of a criminal records check of the employee or prospective employee by the superintendent.

(2) If a person subject to the criminal records check requirement does not present proof of having been a resident of this state for the five-year period immediately prior to the date the criminal records check is requested or provide evidence that within that five-year period the superintendent has requested information about the person from the federal bureau of investigation in a criminal records check, the responsible entity shall require the person to request that the superintendent obtain information from the federal bureau of investigation as part of the criminal records check of the person. Even if the person presents proof of having been a resident of this state for the five-year period, the responsible entity may require that the person request that the superintendent obtain information from the federal bureau of investigation and include it in the criminal records check of the person.

(G) Criminal records checks required by this section shall be obtained as follows:

(1) The responsible entity shall provide each person subject to the criminal records check requirement information about accessing and completing the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and the standard impression sheet prescribed pursuant to division (C)(2) of that section.

(2) The person subject to the criminal records check requirement shall submit the required form and one complete set of the person's fingerprint impressions directly to the superintendent for purposes of conducting the criminal records check using the applicable methods prescribed by division (C) of section 109.572 of the Revised Code. The person shall pay all fees associated with obtaining the criminal records check.

(3) The superintendent shall conduct the criminal records check in accordance with section 109.572 of the Revised Code. The person subject to the criminal records check requirement shall instruct the superintendent to submit the report of the criminal records check directly to the responsible entity. If the department or the department's designee is not the responsible entity, the department or designee may require the responsible entity to submit the report to the department or designee.

(H)

(1) A medicaid provider may employ conditionally a person for whom a criminal records check is required by this section prior to obtaining the results of the criminal records check if both of the following apply:

(a) The provider is not prohibited by division (D)(3)(b) of this section from employing the person.

(b) The person submits a request for the criminal records check not later than five business days after the person begins conditional employment.

(2) A medicaid provider that employs a person conditionally under division (H)(1) of this section shall terminate the person's employment if the results of the criminal records check request are not obtained within the period ending sixty days after the date the request is made. Regardless of when the results of the criminal records check are obtained, if the results indicate that the person has been convicted of or has pleaded guilty to a disqualifying offense, the provider shall terminate the person's employment unless circumstances specified in rules authorized by this section exist that permit the provider to employ the person and the provider chooses to employ the person.

(I) The report of a criminal records check conducted pursuant to this section is not a public record for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following:

(1) The person who is the subject of the criminal records check or the person's representative;

(2) The medicaid director and the staff of the department who are involved in the administration of the medicaid program;

(3) The department's designee;

(4) The medicaid provider who required the person who is the subject of the criminal records check to submit to the criminal records check;

(5) An individual receiving or deciding whether to receive, from the subject of the criminal records check, home and community-based services available under the medicaid state plan;

(6) A court, hearing officer, or other necessary individual involved in a case dealing with any of the following:

(a) The denial or termination of a provider agreement;

(b) A person's denial of employment, termination of employment, or employment or unemployment benefits;

(c) A civil or criminal action regarding the medicaid program.

(J) The medicaid director may adopt rules under section 5164.02 of the Revised Code to implement this section. If the director adopts such rules, the rules shall designate the times at which a criminal records check must be conducted under this section. The rules may do any of the following:

(1) Designate the categories of persons who are subject to a criminal records check under this section;

(2) Specify circumstances under which the department or the department's designee may continue a provider agreement or issue a provider agreement when the medicaid provider is found by a criminal records check to have been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense;

(3) Specify circumstances under which a medicaid provider may permit a person to be an employee, owner, officer, or board member of the provider when the person is found by a criminal records check conducted pursuant to this section to have been convicted of or have pleaded guilty to a disqualifying offense;

(4) Specify all of the following:

(a) The circumstances under which a database review must be conducted under division (F)(1)(a) of this section to determine whether an employee or prospective employee of a medicaid provider is included in a database;

(b) The procedures for conducting the database review;

(c) The databases that are to be checked;

(d) The circumstances under which a medicaid provider is prohibited from employing a person who is found by the database review to be included in a database.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Renumbered from § 5111.032 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 129th General AssemblyFile No.131, SB 337, §1, eff. 9/28/2012.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 2007 HB119 09-29-2007; 2008 HB562 09-22-2008