Oregon State Archives

Oregon Bulletin

October 1, 2011

Oregon Health Insurance Exchange
Chapter 945

Rule Caption: To adopt Model Rules of Procedure for ORHIX

Adm. Order No.: OHIE 1-2011(Temp)

Filed with Sec. of State: 8-24-2011

Certified to be Effective: 8-24-11 thru 2-20-12

Notice Publication Date:

Rules Adopted: 945-001-0000, 945-001-0005, 945-001-0010

Subject: The Oregon Health Insurance Exchange Corporation is temporarily adopting new rules to address the need for model rules for procedure. This rule is developed in compliance with statutory requirement included in SB 99 (2011) Section 3 (15).

Rules Coordinator: Brandi Aston—(503) 378-8284

945-001-0000

Model Rules of Procedure

The Oregon Health Insurance Exchange Corporation adopts the Attorney General Model Rules applicable to rulemaking, effective August 19, 2011, with the exception of OAR 137-001-0080.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or the Oregon Health Insurance Exchange.]

Stat. Auth.: ORS 183.341, Ch. 415, OL 2011, Sec. 3(5)

Stats. Implemented: ORS 183.341 & 413.042

Hist.: OHIE 1-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-001-0005

Notice of Proposed Rulemaking and Adoption of Temporary Rules

(1) Except as provided in ORS 183.335(7) or (12) or 183.341, before permanently adopting, amending, or repealing an administrative rule, the Oregon Health Insurance Exchange Corporation (Exchange) shall give notice of the intended action:

(a) To legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule;

(b) To persons on the interested parties lists described in section (2) of this rule for the pertinent OAR chapter or pertinent subtopics or programs within an OAR chapter at least 28 days before the effective date of the rule;

(c) In the Secretary of State’s Bulletin referred to in ORS 183.360 at least 21 days before the effective date of the rule;

(d) To other persons, agencies, or organizations that the Exchange is required to provide an opportunity to comment pursuant to state statute or federal law or as a requirement of receiving federal funding, at least 28 days before the effective date of the rule; and

 (f) In addition to the above, the Exchange may send notice of intended action to other persons, agencies, or organizations that the Exchange, in its discretion, believes to have an interest in the subject matter of the proposed rule at least 28 days before the effective date of the rule.

(2) Pursuant to ORS 183.335(8), the Exchange shall maintain an interested parties list for each OAR chapter of rules for which the Exchange has administrative responsibility, and an interested parties list for subtopics or programs within those chapters. A person, group, or entity that desires to be placed on the list to receive notices regarding proposed permanent adoption, amendment, or repeal of a rule must make the request in writing or by electronic mail to the rules coordinator for the chapter. The request must include either a mailing address or an electronic mail address to which notices may be sent.

(3) Notices under this rule may be sent by hand delivery, state shuttle, postal mail, electronic mail, or facsimile. The Exchange recognizes state shuttle as “mail” and may use this means to notify other state agencies.

(a) An email notification under section (1) of this rule may consist of any of the following:

(A) An email that attaches the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact.

(B) An email that includes a link within the body of the email, allowing direct access online to the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact.

(C) An email with specific instructions within the body of the email, usually including an electronic Universal Resource Locator (URL) address, to find the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact.

(b) The Exchange may use facsimile as an added means of notification, if necessary. Notification by facsimile under section (1) of this rule shall include the Notice of Proposed Rulemaking or Notice of Proposed Rulemaking Hearing and Statement of Need and Fiscal Impact, or specific instructions to locate these documents online.

(c) The Exchange shall honor all written requests that notification be sent by postal mail instead of electronically if a mailing address is provided.

(4) If the Exchange adopts or suspends a temporary rule, the Authority shall notify:

(a) Legislators specified in ORS 183.335(15);

(b) Persons on the interested parties list described in section (2) of this rule for the pertinent OAR chapter, subtopics, or programs within an OAR chapter;

(c) Other persons, agencies, or organizations that the Exchange is required to notify pursuant to state statute or federal law or as a requirement of receiving federal funding; and

(d) In addition to the above, the Exchange may send notice to other persons, agencies, or organizations that the Exchange, in its discretion, believes to have an interest in the subject matter of the temporary rulemaking.

(5) In lieu of providing a copy of the rule or rules as proposed with the notice of intended action or notice concerning the adoption of a temporary rule, the Exchange may state how and where a copy may be obtained on paper, by electronic mail, or from a specified web site.

Stat. Auth.: ORS 183.341, Ch. 415, OL 2011, Sec. 3(5)

Stats. Implemented: ORS 183.330, 183.335, & 183.341

Hist.: OHIE 1-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-001-0010

Delegation of Rulemaking Authority

Any officer or employee of the Oregon Health Insurance Exchange Corporation who is identified on a completed Delegation of Authority form signed by the Director or Deputy Director of the Exchange and filed with the Secretary of State, Administrative Rules Unit, is vested with the authority to adopt, amend, repeal, or suspend administrative rules as provided on that form until the delegation is revoked by the Director or Deputy Director of the Exchange, or the person leaves employment with the Exchange.

Stat. Auth.: ORS 183.341, Ch. 415, OL 2011, Sec. 3(5)

Stats. Implemented: ORS 183.330, 183.335, & 183.341

Hist.: OHIE 1-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

Rule Caption: To adopt Employee Criminal Records Check and Fitness Determination for ORHIX

Adm. Order No.: OHIE 2-2011(Temp)

Filed with Sec. of State: 8-24-2011

Certified to be Effective: 8-24-11 thru 2-20-12

Notice Publication Date:

Rules Adopted: 945-010-0000, 945-010-0005, 945-010-0010, 945-010-0020, 945-010-0030, 945-010-0040, 945-010-0050, 945-010-0060, 945-010-0070, 945-010-0080, 945-010-0090, 945-010-0100

Subject: The Oregon Health Insurance Exchange Corporation is temporarily adopting new rules to address the need for criminal background and fitness determination checks for persons employed or applying for employment to the corporation. This rule is developed in compliance with statutory requirements included in SB 99 (2011) Section 20.

Rules Coordinator: Brandi Aston—(503) 378-8284

945-010-0000

Employee Criminal Records Check and Fitness Determination Rule

Statement of Purpose: These rules provide for the reasonable screening of subject individuals to determine if they have a history of criminal behavior such that they are not fit to be employed or volunteer in positions covered by OAR xxx-xxx-xxxx. A determination by the Corporation that a subject individual is fit does not guarantee the individual a position with the corporation in any capacity.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0005

Definitions

As used in OAR chapter ___, division ____, unless the context of the rule requires otherwise, the following definitions apply:

(1) Conviction: A final judgment on a verdict or finding of guilty, a plea of guilty, a plea of nolo contendere (no contest); or any determination of guilt entered by a court of law against a subject individual in a criminal case unless that judgment has been reversed or set aside by a subsequent court decision.

(2) Corporation: The Oregon Health Insurance Exchange Corporation.

(3) Criminal Offender Information: Records and related data as to physical description and vital statistics; fingerprints received and compiled by the Oregon Department of State Police, Bureau of Criminal Identification, for purposes of identifying criminal offenders and alleged offenders; and records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole, and release.

(4) Criminal Records Check: One or more of the following three processes used by the Corporation to check the criminal history of a subject individual:

(a) A name-based check of criminal offender information conducted through use of the Law Enforcement Data System (LEDS) maintained by the Oregon Department of State Police, in accordance with the rules adopted and procedures established by the Oregon Department of State Police (LEDS Criminal Records Check);

(b) A check of Oregon criminal offender information through fingerprint identification, conducted by the Oregon Department of State Police at the Corporation’s request (Oregon Criminal Records Check); or

(c) A nationwide check of federal criminal offender information through fingerprint identification, conducted by the Oregon Department of State Police through the Federal Bureau of Investigation at the Corporation’s request (Nationwide Criminal Records Check).

(5) Criminal records request form: A Corporation-approved form, completed by a subject individual, requesting the Corporation to conduct a criminal records check.

(6) False Statement: In association with an activity governed by these rules, a subject individual either:

(a) Provided the corporation with materially false information about his or her criminal history, such as, but not limited to, materially false information about his or her identity or conviction record; or

(b) Failed to provide to the corporation information material to determining his or her criminal history.

(7) Fitness Determination: A determination made by the corporation pursuant to the process established in OAR xxx-xxx-xxxx that a subject individual is or is not fit to be a corporation employee or to provide services in a position covered by OAR xxx-xxx-xxxx.

(8) Subject Individual: An individual identified in OAR xxx-xxx-xxxx as someone from whom the corporation may require a criminal records check.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0010

Subject Individual

The Health Insurance Exchange Corporation may require an individual to complete a criminal records check pursuant to these rules because the person:

(1) Works or has applied to work for the corporation; or

(2) Is or will be providing services to the corporation in the areas of:

(a) Information technology services;

(b) Payroll functions or financial transactions;

(c) Mailroom duties;

(d) Auditing responsibilities;

(e) Personnel or human resources functions;

(f) Tax or financial information; or

(g) Working with information that is confidential, including access to Social Security numbers, dates of birth or criminal background information.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0020

Criminal Records Check Required

The corporation may conduct, or request the Oregon Department of State Police to conduct, a criminal records check when:

(1) An individual meets the definition of a subject individual; or

(2) Required by federal law or regulation, by state or federal administrative rule or by contract or written agreement with the corporation.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0030

Criminal Records Check Process

(1) Disclosure of information by Subject Individual

(a) Preliminary to a criminal records check, a subject individual must complete and sign the corporation’s criminal records request form and, if requested by the corporation, a fingerprint card. The corporation’s criminal records request form will require the following information: name, birth date, social security number, physical characteristics, driver’s license or identification card number and current address, prior residency in other states and any other identifying information deemed necessary by the corporation.

(b) A subject individual must complete and submit to the corporation the Criminal Records Request form and, if requested, a fingerprint card within three business days of receiving the forms. The corporation may extend the deadline for good cause.

(c) The corporation may require additional information from the subject individual as necessary to complete the criminal records check and fitness determination, such as, but not limited to, proof of identity; or additional criminal, judicial, or other background information.

(d) The corporation shall not request a fingerprint card from a subject individual under the age of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550 et seq, or unless the corporation also requests the written consent of a parent or guardian. In such case, such parent or guardian and youth must be informed that they are not required to consent. Notwithstanding, failure to consent may be construed as a refusal to consent under OAR 863-003-0050(3).

(2) When the corporation determines under OAR xxx-xxx-xxxx that a criminal records check is required, the corporation may request or conduct a LEDS Criminal Records Check, an Oregon Criminal Records Check a Nationwide Criminal Records Check or any combination thereof.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0040

Potentially Disqualifying Crimes

(1) Crimes relevant to a fitness determination:

(a) All felonies;

(b) All misdemeanors; or

(c) Any United States Military crime or international crime.

(2) The corporation shall evaluate a crime on the basis of Oregon laws and, if applicable, federal laws or the laws of any other jurisdiction that are valid and in effect at the time of the fitness determination.

(3) At no time will a subject individual be determined to be not fit under these rules because of a juvenile record that has been sealed or deleted in agreement with ORS 419A.260 and 419A.262.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0050

Final Fitness Determination

(1) If a criminal records check is conducted, the corporation shall make a fitness determination about a subject individual based on:

(a) Information given to the corporation by the subject individual;

(b) Information received as a result of the criminal records check; and

(c) Any false statements made by the subject individual and found during the fitness determination process.

(2) When considering these factors, the corporation may request additional information from the subject individual or any source inside or outside Oregon, including;

(a) Law enforcement;

(b) Criminal justice agencies; or

(c) Courts.

(3) To obtain other criminal offender information from the subject individual, the corporation may request:

(a) To meet with the person;

(b) Written materials from the person; or

(c) Authorization from the person to acquire relevant information from other sources.

(4) If requested, the subject individual must meet with or provide the requested information to the corporation within a reasonable period of time determined by the corporation.

(5) In making the final fitness determination, the corporation will consider:

(a) The nature of the crime;

(b) Facts that support the conviction or pending charge or that indicate the making of a false statement; and

(c) The relevancy, if any, of the crime or the false statement to the specific requirements of the subject individual’s present or proposed position, services, or employment.

(d) Intervening circumstances relevant to the responsibilities and circumstances of the position, services, or employment. 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.

(6) If a subject individual refuses to submit information or consent to a criminal records check, including fingerprint identification, the corporation shall deny the employment of the subject individual or deny any applicable position or authority to provide services. A person may not appeal any determination made based on a refusal to consent.

(7) If a subject individual is determined to be not fit, the subject individual may not be employed by the corporation or provide services as a volunteer, contractor or vendor to the corporation in a position covered by OAR xxx-xxx-xxxx.

(8) A completed final fitness determination is a final order of the corporation unless the affected subject individual appeals by requesting either a contested case hearing as provided by OAR xxx-xxx-xxxx or an alternative appeals process as provided by OAR xxx-xxx-xxxx.

(9) The corporation shall inform the subject individual who has been determined not to be fit on the basis of a criminal records check via personal service or registered or certified mail to the most current address provided by the subject individual.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0060

Hiring On a Preliminary Basis

(1) If the corporation conducts a criminal records check pursuant to these rules, the corporation, in its sole discretion, may hire, appoint or accept services from a subject individual on a preliminary basis pending completion of criminal records check when:

(a) The subject individual has provided all information (including a fingerprint card, if requested) as required by the corporation pursuant to OAR xxx-xxx-xxx; and

(b) The corporation, in its sole discretion, determines that it is in the corporation’s best interests to hire, appoint, or accept services from the subject individual on a preliminary basis.

(2) A subject individual hired, appointed, or otherwise engaged to perform services on a preliminary basis under this rule may provide services, or participate in training, orientation, or work activities as deemed appropriate by the corporation.

(3) Nothing in this rule shall be construed as requiring the corporation to hire, appoint, or accept services from a subject individual on a preliminary basis.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0070

Incomplete Fitness Determination

(1) The corporation will close a preliminary or final fitness determination as incomplete when:

(a) Circumstances change so that a person no longer meets the definition of a “subject individual” under OAR xxx-xxx-xxxx;

(b) The subject individual does not provide materials or information under OAR xxx-xxx-xxxx within the time frames established under that rule;

(c) The corporation cannot locate or contact the subject individual;

(d) The subject individual fails or refuses to cooperate with the corporation’s attempts to acquire other relevant information under OAR xxx-xxx-xxxx;

(e) The corporation determines that the subject individual is not eligible or not qualified for the position for a reason unrelated to the fitness determination process; or

(f)The position is no longer open.

(2) A subject individual does not have a right to a contested case hearing under OAR xxx-xxx-xxxx or a right to an alternate appeals process under OAR xxx-xxx-xxxx to challenge the closing of a fitness determination as incomplete.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0080

Contesting a Fitness Determination

(1) Purpose. Sections (2) – (5) of this rule set forth the contested case hearing process a subject individual must use to appeal a completed final fitness determination made under OAR xxx-xxx-xxxx that the individual is not fit to hold a position with, or provide services to the corporation as an employee, volunteer, contractor, or vendor. Section (6) of this rule identifies an alternative appeal process available only to current corporation employees, if applicable.

(2) Appeal Process

(a) To request a contested case hearing, the subject individual or the subject individual’s legal representative must submit a written request for a contested case hearing to the address specified in the notice provided under OAR xxx-xxx-xxxx. To be timely, the request must be received by the corporation at the specified address within 14 calendar days of the date stated on the notice. The corporation shall address a request received after expiration of the deadline as provided under OAR 137-003-0528.

(b) When a timely request is received by the corporation under subsection (a), a contested case hearing shall be conducted by an administrative law judge assigned by the Office of Administrative Hearings, pursuant to the Attorney General’s Uniform and Model Rules, “Procedural Rules, Office of Administrative Hearings” OAR 137-003-0501 to 137-003-0700, as supplemented by the provision of this rule.

(3) Discovery. The administrative law judge may protect information made confidential by ORS 181.534(15) or other applicable law as provided under OAR 137-003-0570(7) or (8).

(4) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants.

(5) Proposed and Final Order:

(a) Proposed Order. After a hearing, the administrative law judge will issue a proposed order.

(b) Exceptions. Exceptions, if any, shall be filed within fourteen (14) calendar days after service of the proposed order. The proposed order shall provide an address to which exceptions must be sent.

(c) Default. A completed final fitness determination made under OAR xxx-xxx-xxxx becomes final: (A) unless the subject individual makes a timely request for a hearing; or (B) when a party withdraws a hearing request, notifies the corporation or the administrative law judge that the party will not appear, or fails to appear at a hearing.

(6) Alternative Process. A subject individual currently employed by the corporation may choose to appeal a fitness determination either under the process made available by this rule or through a process made available by applicable personnel rules and policies, if any. A subject individuals decision to appeal a fitness determination through applicable personnel rules and policies is an election of remedies as to the rights of the individual with respect to the fitness determination and is a waiver of the contested case process made available by this rule.

(7) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit or not fit. Under no circumstances shall the corporation be required to place a subject individual in any position, nor shall the corporation be required to accept services or enter into a contractual agreement with a subject individual.

(8) Challenging Criminal Offender Information. A subject individual may not use the appeals process established by this rule to challenge the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or agencies reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation.

(a) To challenge information identified in this section of the rule, a subject individual may use any process made available by the agency that provided the information.

(b)If the subject individual successfully challenges the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or an agency reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation, the subject individual may request that the corporation conduct a new criminal records check and re-evaluate the original fitness determination made under OAR 863-003-0050 by submitting a new corporation criminal records request. This provision only applies if the position for which the original criminal history check is vacant and available.

(9) Appealing a fitness determination under section (2) or section (6) of this rule, challenging criminal offender information with the agency that provided the information, or requesting a new criminal records check and re-evaluation of the original fitness determination under section (8)(b) of this rule, will not delay or postpone the corporation’s hiring process or employment decisions.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0090

Record Keeping, Confidentiality

Any information obtained in the criminal records check is confidential. The corporation must restrict the dissemination of information obtained in the criminal records check. Only those persons, as identified by the corporation, with a demonstrated and legitimate need to know the information, may have access to criminal records check records.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

945-010-0100

Fees

(1) The corporation may charge a fee for acquiring criminal offender information for use in making a fitness determination. In any particular instance, the fee shall not exceed the fee(s) charged the corporation by the Oregon Department of State Police and the Federal Bureau of Investigation to obtain criminal offender information on the subject individual.

(2) The corporation may charge a fee to the subject individual on whom criminal offender information is sought, or, if the subject individual is an employee of a corporation contractor and is undergoing a fitness determination in that capacity, the corporation may charge a fee to the subject individual’s employer.

Stat. Auth.: SB 99 (2011)

Stats. Implemented:

Hist.: OHIE 2-2011(Temp), f. & cert. ef. 8-24-11 thru 2-20-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use