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Oregon Bulletin

October 1, 2012

Oregon Department of Education, Chapter 581

Rule Caption: Clarifies that references to Superintendent in rules, policies and motions also refer to Deputy.

Adm. Order No.: ODE 24-2012(Temp)

Filed with Sec. of State: 9-13-2012

Certified to be Effective: 9-17-12 thru 3-15-13

Notice Publication Date:

Rules Adopted: 581-001-0016

Subject: Senate Bill 552 (2011) amended state law to make the Governor the Superintendent of Public Instruction at the end of Superintendent Castillo’s term of office or when there is a vacancy in the office. Superintendent Castillo resigned from office effective June 30, 2012. Therefore, the Governor became Superintendent on July 1, 2012. SB 552 also directed the Governor, acting as superintendent, to appoint a Deputy Superintendent of Public Instruction. The deputy “shall perform any act or duty of the office of Superintendent of Public Instruction that is designated by the Governor, and the Governor is responsible for any acts of the deputy superintendent.”

 The Governor appointed Rob Saxton as Acting Deputy Superintendent of Public Instruction effective July 31, 2012 pending confirmation by the Senate in September. The Governor has designated Mr. Saxton, as Deputy, to perform the duties of the Superintendent of Public Instruction including acting as administrative officer of the state board and executive head of the Department of Education.

 The stat board, by rule, policy and motion, has directed the superintendent to perform acts and duties as the executive head of the department. The rule clarifies that the state board’s intent is that these directions by rule also include the deputy.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-001-0016

Deputy Superintendent of Public Instruction

Except as otherwise designated or limited by the Governor pursuant to ORS 326.300:

(1) References to the “Superintendent of Public Instruction” in rules, policies or in motions adopted by the State Board of Education shall be considered references to the Superintendent of Public Instruction and the Deputy Superintendent of Public Instruction.

(2) The Deputy Superintendent shall perform any act or duty which the State Board of Education has designated by rule, policy or vote to the Superintendent of Public Instruction.

Stat. Auth.: ORS 326.051
Stats. Implemented: ORS 326.300 & 326.310
Hist.: ODE 24-2012(Temp), f. 9-13-12, cert. ef. 9-17-12 thru 3-15-13


 

Rule Caption: Changes fees charged by Department of Education for fingerprinting of public school employees.

Adm. Order No.: ODE 25-2012(Temp)

Filed with Sec. of State: 9-13-2012

Certified to be Effective: 9-17-12 thru 3-15-13

Notice Publication Date:

Rules Amended: 581-021-0500

Subject: Changes the fees charged by ODE for processing fingerprinting applications for public school employees based on FBI reduction of fees. We would like to reduce the rate we charge school districts to reflect this change from $62.00 to $59.00.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-021-0500

Fingerprinting of Subject Individuals in Positions Not Requiring Licensure as Teachers, Administrators, Personnel Specialists, School Nurses

(1) Definitions of terms shall be as follows:

(a) “Subject individual” means:

(A) Any person newly hired by a school district and not requiring licensure under ORS 342.223;

(B) Any person newly hired as or by a contractor into a position having direct, unsupervised contact with students and not requiring licensure under ORS 342.223;

(C) Any person included above unless the current employer has on file evidence from a previous employer documenting a successfully completed Oregon and FBI criminal records check. The Oregon Department of Education or the Teacher Standards and Practices Commission verification of a previous check shall be acceptable only in the event the employer can demonstrate records are not otherwise available. Additional evidence that the employee has not resided outside the state between the two periods of time working in the district shall be maintained;

(D) A person who is a community college faculty member providing instruction at a kindergarten through grade 12 school site during the regular school day; and

(E) A person who is an employee of a public charter school.

(b) “Direct, unsupervised contact with students” means contact with students that provides the person opportunity and probability for personal communication or touch when not under direct supervision;

(c) “Fee” means the total charges assessed the local school district’s State School Fund by the Department of Education for processing each fingerprint card submitted. The fee amount and distribution shall be as follows:

(A) Oregon State Police (OSP) — $28;

(B) Federal Bureau of Investigation (FBI) — $16.50;

(C) Oregon Department of Education — $14.50;

(D) TOTAL — $59.

(d) “Information to be required” means all information requested by the Oregon Department of Education for processing the fingerprint application, including the following:

(A) One properly completed FBI fingerprint cards #USGPO 1990-262-201-2000; and

(B) A properly completed Department of Education form #581-2283-M.

(e) For purposes of criminal background checks pursuant to ORS 326.603 and 326.607, conducted in relation to individuals subject to such criminal background verification, the following definitions of “conviction” of a crime applies:

(A) Any adjudication in any criminal court of law, in this state or in any other jurisdiction, finding the individual committed a crime. A crime is an offense for which a sentence of imprisonment is authorized.

(B) Any adjudication in a juvenile proceeding, in this state or in any other jurisdiction, determining that the individual committed an offense, which if done by an adult, would constitute a crime listed in ORS 342.143.

(C) Any conduct which resulted in mandatory registration reporting as a sex offender in this state or any other jurisdiction. A later court order or other action relieving the individual of the sex offender registration/reporting requirement does not affect the status of the conduct as a conviction for purposes of this rule.

(D) Any plea of guilty, no contest or nolo contendere in connection with a crime, in this state or in any other jurisdiction.

(E) A conviction exists for purposes of this rule, regardless of whether a dismissal was later entered into the record in connection with a diversion or on any sort of deferred adjudication or delayed entry of judgment.

(F) A conviction exists for purposes of this rule even if a crime was expunged or removed from the record of the individual under the laws of another jurisdiction if the crime would be ineligible under ORS 137.225 for expunction or removal from the record if the conviction had occurred in Oregon. A conviction does not exist where an Oregon court has expunged or otherwise removed a conviction from the record of an individual.

(G) A conviction does not exist, except as noted above, only where there was a judicial adjudication that the individual did not commit the offense in question, or when a conviction, adjudication or plea is overturned by an appellate court of record and no later conviction, adjudication or plea indicating the individual committed the offense in question is on the record.

(f) “Knowingly made a false statement” means that a subject individual has failed to disclose a crime on the Department of Education form #581-2283-M as part of the criminal background check process.

(g) “Applicant” means a subject individual for whom fingerprint cards and other required information have been submitted to the Oregon Department of Education for a criminal history check and review;

(h) “Newly hired” means the employment of a person after application or request for a position without regard to that person’s current or previous employer; and

(i) “School district” means:

(A) A taxing district providing public elementary or secondary education, or any combination thereof, within the state;

(B) An education service district;

(C) The Oregon School for the Deaf;

(D) An educational program under the Youth Corrections Education Program; and

(E) A public charter school.

(2) School districts shall adopt and implement local board policy related to fingerprint collection and processing which shall:

(a) Specify that subject individuals as defined by this rule are subject to fingerprinting and criminal record checks required by law;

(b) Specify which contractors will be considered to have unsupervised access to children and are subject to fingerprinting and criminal records checks required by law;

(c) Specify the format used to notify subject individuals that fingerprinting and criminal record checks are required by law and that any action resulting from those checks may be appealed as a contested case;

(d) Provide a clear statement that the district will terminate the employee, if it receives notification by the Superintendent of Public Instruction that the person has been convicted, of the crimes prohibiting employment that are listed in section (9) of this rule;

(e) Provide a clear statement that the district may terminate the employee, if it receives notification by the Superintendent of Public Instruction that the person has knowingly made a false statement as to the conviction of any crime;

(f) Specify that subject individuals may begin to carry out terms of a contract or employment on a probationary basis pending the return of criminal record checks by the FBI;

(g) Identify that employment shall be offered prior to collecting fingerprint cards for submission to the Department of Education and that fees may be collected from the applicant. The applicant may request that the amount of the fee be withheld from the amount otherwise due the individual, and the school district shall withhold the amount only upon the request of the subject individual; and

(h) Identify a procedure that ensures the integrity of fingerprint collection and will prevent any possible compromise of the process.

(3) Fingerprints may be collected by one of the following:

(a) Employing school district staff;

(b) Contracted agent of employing school district;

(c) Local or state law enforcement agency.

(4) School districts shall send to the Department of Education for purposes of a criminal records check any information, including fingerprints for each subject individual defined in this rule immediately following offer and acceptance of employment or contract.

(5) The Department of Education shall request criminal information from the Department of State Police in the manner prescribed by law and may charge the school district a fee not to exceed the actual cost of acquiring and furnishing the information.

(6) The Oregon Department of Education shall review the criminal records of subject individual upon the district’s submission of the required FBI and state forms and the State Superintendent of Public Instruction or designee shall issue a statement of criminal history status and related impact on employment or contract qualification. The Superintendent of Public Instruction or designee shall also notify the school district if the subject individual has knowingly made a false statement as to conviction of a crime.

(7) The Oregon Department of Education shall not provide copies of criminal records to anyone except as provided by law. The subject individual may inspect his or her personal criminal records under the supervision of properly certified LEDS (Law Enforcement Data Systems) personnel at the Department of Education.

(8) Subject individuals who refuse to consent to the criminal records check or refuse to be fingerprinted shall be terminated from employment or contract status by the district.

(9) Subject individuals who have been convicted of any of the crimes listed in ORS 342.143, or the substantial equivalent of any of those crimes if the conviction occurred in another jurisdiction or in Oregon under a different statutory name or number, shall be refused continued employment or have employment terminated upon notification from the Superintendent of Public Instruction. The crimes listed in ORS 342.143 are:

(a) ORS 163.095 — Aggravated Murder;

(b) ORS 163.115 — Murder;

(c) ORS 163.185 — Assault in the First Degree;

(d) ORS 163.235 — Kidnapping in the First Degree;

(e) ORS 163.355 — Rape in the Third Degree;

(f) ORS 163.365 — Rape in the Second Degree;

(g) ORS 163.375 — Rape in the First Degree;

(h) ORS 163.385 — Sodomy in the Third Degree;

(i) ORS 163.395 — Sodomy in the Second Degree;

(j) ORS 163.405 — Sodomy in the First Degree;

(k) ORS 163.408 — Unlawful Sexual Penetration in the Second Degree;

(l) ORS 163.411 — Unlawful Sexual Penetration in the First Degree;

(m) ORS 163.415 — Sexual Abuse in the Third Degree;

(n) ORS 163.425 — Sexual Abuse in the Second Degree;

(o) ORS 163.427 — Sexual Abuse in the First Degree;

(p) ORS 163.432 — Online sexual corruption of a child in the second degree;

(q) ORS 163.433 — Online sexual corruption of a child in the first degree;

(r) ORS 163.435 — Contributing to the Sexual Delinquency of a Minor;

(s) ORS 163.445 — Sexual Misconduct;

(t) ORS 163.465 — Public Indecency;

(u) ORS 163.515 — Bigamy;

(v) ORS 163.525 — Incest;

(w) ORS 163.547 — Child Neglect in the First Degree;

(x) ORS 163.575 — Endangering the Welfare of a Minor;

(y) ORS 163.670 — Using Child in Display of Sexually Explicit Conduct;

(z) ORS 163.675 (1985 Replacement Part) — Sale of Exhibition of Visual Reproduction of Sexual Conduct by Child;

(aa) ORS 163.680 (1993 Edition) — Paying for Viewing Sexual Conduct Involving a Child;

(bb) ORS 163.684 — Encouraging Child Sex Abuse in the First Degree;

(cc) ORS 163.686 — Encouraging Child Sex Abuse in the Second Degree;

(dd) ORS 163.687 — Encouraging Child Sex Abuse in the Third Degree;

(ee) ORS 163.688 — Possession of Materials Depicting Sexually Explicit Conduct of a Child in the First Degree;

(ff) ORS 163.689 — Possession of Materials Depicting Sexually Explicit Conduct of a Child in the Second Degree;

(gg) ORS 164.325 — Arson in the First Degree;

(hh) ORS 164.415 — Robbery in the First Degree;

(ii) ORS 166.005 — Treason;

(jj) ORS 166.087 — Abuse of Corpse in the First Degree;

(kk) ORS 167.007 — Prostitution;

(ll) ORS 167.008 — Patronizing a Prostitute;

(mm) ORS167.012 — Promoting Prostitution;

(nn) ORS 167.017 — Compelling Prostitution;

(oo) ORS 167.057 — Luring a minor;

(pp) ORS 167.062 — Sadomasochistic Abuse or Sexual Conduct in Live Show;

(qq) ORS 167.075 — Exhibiting an Obscene Performance to a Minor;

(rr) ORS 167.080 — Displaying Obscene Materials to Minors;

(ss) ORS 167.090 — Publicly Displaying Nudity or Sex for Advertising Purposes;

(tt) ORS 475.808 — Unlawful manufacture of hydrocodone within 1,000 feet of school;

(uu) ORS.475.810 — Unlawful delivery of hydrocodone;

(vv) ORS 475.812 — Unlawful delivery of hydrocodone within 1,000 feet of school;

(ww) ORS 457.818 — Unlawful manufacture of methadone within 1,000 feet of school;

(xx) ORS 475.820 — Unlawful delivery of methadone; and

(yy) ORS 475.822 — Unlawful delivery of methadone within 1,000 feet of school.

(zz) ORS 475.828 — Unlawful manufacture of oxycodone within 1,000 feet of school;

(aaa) ORS 475.830 — Unlawful delivery of oxycodone;

(bbb) ORS 475.832 — Unlawful delivery of oxycodone within 1,000 feet of school;

(ccc) ORS 475.848 — Unlawful manufacture of heroin within 1,000 feet of school;

(ddd) ORS 475.852 — Unlawful delivery of heroin within 1,000 feet of school;

(eee) ORS 475.858 — Unlawful manufacture of marijuana within 1,000 feet of school;

(fff) ORS 475.860 — Unlawful delivery of marijuana;

(ggg) ORS 475.862 — Unlawful delivery of marijuana within 1,000 feet of school;

(hhh) ORS 475.864(4) — Unlawful possession of marijuana within 1,000 feet of school;

(iii) ORS 475.868 — Unlawful manufacture of 3,4-methylenedioxymethamphetamine within 1,000 feet of school;

(jjj) ORS 475.872 — Unlawful delivery of 3,4-methylenedioxymethamphetamine within 1,000 feet of school;

(kkk) ORS 475.878 — Unlawful manufacture of cocaine within 1,000 feet of school;

(lll) ORS 475.880 — Unlawful delivery of cocaine;

(mmm) ORS 475.882 — Unlawful delivery of cocaine within 1,000 feet of school;

(nnn) ORS 475.888 — Unlawful manufacture of methamphetamine within 1,000 feet of school;

(ooo) ORS 475.890 — Unlawful delivery of methamphetamine;

(ppp) ORS 475.892 — Unlawful delivery of methamphetamine within 1,000 feet of school;

(qqq) ORS 475.904 — Unlawful manufacture or delivery of controlled substance within 1,000 feet of school;

(rrr) ORS 475.906 — Penalties for distribution to minors.

(10) Subject individuals who have been convicted of any of the crimes listed in ORS 161.405 or an attempt to commit any of the crimes listed in section (9) of this rule shall be refused continued employment or have employment terminated upon notification from the Superintendent of Public Instruction.

(11) A school district may terminate the employment of any subject individuals who knowingly makes a false statement as to the conviction of a crime upon notification of the false statement by the Superintendent of Public Instruction.

(12) Evaluations of crimes shall be based on Oregon laws in effect at the time of conviction, regardless of the jurisdiction in which the conviction occurred.

(13) Prior to making a determination that results in a notice and opportunity for hearing, the Superintendent of Public Instruction may cause an investigation to be undertaken. Subject individuals and districts shall cooperate with the investigation and may be required to furnish oral or written statements by affidavit or under oath. If the Superintendent of Public Instruction determines through investigation that a violation of this rule has not occurred, a written decision explaining the basis for the decision will be provided to the subject individual.

(14) Applicants may appeal a determination that prevents their employment or eligibility to contract with a school district as a contested case under ORS 183.413 to 183.470 to the Oregon Superintendent of Public Instruction.

(15) Only cards and forms approved by the Department of Education will be accepted. The Department of Education will return any incomplete or incorrectly completed fingerprint cards and associated forms without taking any other action.

(16) The Department of Education shall maintain a record of all properly submitted fingerprint cards. The record shall include at least the following:

(a) Card sequence number;

(b) District submitting the cards;

(c) Date cards and Department form received;

(d) Date completed card sent to Oregon State Police;

(e) Date denial or probationary approval sent to district;

(f) Date FBI card returned to Department; and

(g) Date denial or final approval sent to district.

Stat. Auth.: ORS 326.603
Stats. Implemented: ORS 326.603
Hist.: ODE 25-2008, f. & cert. ef. 9-26-08; ODE 12-2009, f. & cert. ef. 12-10-09; ODE 18-2009, f. & cert. ef. 12-10-09; ODE 2-2012, f. 2-1-12, cert. ef. 2-3-12; ODE 25-2012(Temp), f. 9-13-12, cert. ef. 9-17-12 thru 3-15-13


 

Rule Caption: Identifies factors for when Department will initiate audit of school district or education service district.

Adm. Order No.: ODE 26-2012

Filed with Sec. of State: 9-13-2012

Certified to be Effective: 9-17-12

Notice Publication Date: 8-1-2012

Rules Adopted: 581-023-0036

Subject: HB 2280 (2011) directed the State Board of Education to identify factors for when to initiate an audit. The proposed rule identifies factors to be used by the Department of Education when deciding to initiate a financial audit or a performance audit of a school district or education service district.

 HB 2280 also allows the Secretary of State to initiate a financial audit or performance audit of a district based on factors identified by the Secretary by rule. Additionally, the Department may contract with the Secretary of State to conduct an audit. Due to this, the Department worked with the Secretary of State to identify the factors identified in the rule so that there was consistency between the two agencies.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-023-0036

Factors for when audit initiated by Department

(1) Pursuant to ORS 327.141, the Department of Education shall use the following factors to determine whether to initiate a financial audit or a performance audit of a school district or an education service district:

(a) Total annual expenditures of district.

(b) Total full time equivalent employees of district.

(c) The district’s annual financial audit, including any findings it contains.

(d) Any other audits, reviews or reports indicating inappropriate, inefficient or ineffective operations or business practices at one or more school districts or education service districts.

(e) A request from the Governor.

(f) A request from a member or committee of the Oregon Legislature.

(g) A request from a school district or education service district.

(h) A request from a member of the public.

(2) The Department shall weigh these factors when determining whether to initiate an audit.

(3) The Department shall forward a copy of any audit conducted as provided in ORS 327.141 to:

(a) The school district or education service district that is the subject of the audit;

(b) The requestor of the audit; and

(c) Any other entity that either the Department determines would benefit from review of the audit or that has requested a copy of the audit.

Stat. Auth.: ORS 327.141
Stats. Implemented: ORS 327.141
Hist.: ODE 26-2012, f. 9-13-12, cert. ef. 9-17-12


 

Rule Caption: Modifies definitions that apply to private career schools.

Adm. Order No.: ODE 27-2012

Filed with Sec. of State: 9-13-2012

Certified to be Effective: 9-17-12

Notice Publication Date: 5-1-2012

Rules Amended: 581-045-0001

Subject: In response to changes at the federal level in the administration of federal student aid, and because of issues that have surfaced through student complaints received by this agency, these amendments update definitions applied to administrative rules that govern private career schools, and add new definitions to accommodate policies that address emergent issues in regulation of career school operations.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-045-0001

DefinitionsDefinitions

The following definitions apply to OAR 581-045-0001 through 581-045-0210, unless otherwise indicated by the context:

(1) “Ability to benefit” is a term used in reference to federal Title IV federal student aid regulations and the methods of determining whether a student has the requisite academic skills necessary to successfully complete a program of study, to be used only for the purposes of establishing eligibility for Title IV funding.

(2) “Addendum” used in reference to a school’s catalog means a separate document that contains revisions of policies or other information appearing in the school catalog. Information listed in an addendum to a catalog should be incorporated into the catalog at the next printing of the catalog. An addendum does not include errata, but errata can appear on the same page as addendum information, if properly labeled.

(3) “Advertising” means any form of public notice used in recruiting and promoting activities, however disseminated, including but not limited to print media, catalogs, and other school publications, signs, mailing pieces, radio or television ads, audiovisual material, and the internet on behalf of a licensed school.

(4) “Agent” has the meaning given in ORS 345.010(1).

(5) “Application for admission” or “admission application” means a form, separate from the enrollment agreement, which is submitted by an applicant prior to the signing of the enrollment agreement and evaluated by the school for admission purposes. Schools may charge a non-refundable application fee; however, the fee must be clearly identified on the application.

(6) “Application fee,” when used in reference to a school’s admissions process, or “admission fee” means the initial fee charged by a school to cover those expenses incurred by the school in establishing an admissions file for a prospective student. The application or admission fee is not inclusive of and does not preclude other fees necessary to assess the suitability of a student for the intended program, or that student’s appropriate level of placement in the program based on prior training, education, or experience. At the school’s option, the application fee may be non-refundable. The school shall not charge an application fee of more than $50.00.

(7) “Approved” means accepted by the State Board of Education or by the Superintendent in matters relating to school licensing requirements.

(8) “Assessment” or “Performance Assessment” when used in reference to the instructional program, as outlined in OAR 581-045-0009, means a performance-based evaluation of an applicant’s progress towards mastery of the stated competencies of the instructional program.

(9) “At-risk” means the school demonstrates a pattern or history of one or more of the following conditions that the Superintendent determines, may cause potential serious problems for the continued successful and profitable operation of the organization:

(a) Failure to meet the standards of financial responsibility or reporting;

(b) Misrepresentation;

(c) Frequent substantiated complaints filed with the Department;

(d) A decrease in enrollment from the previous reporting period of 50 percent or more or 25 students, whichever is greater;

(e) Staff turnover from the previous reporting period of 50 percent or more or three staff, whichever is greater; and

(f) If conditions listed in paragraphs (d) and (e) of this subsection can be shown to be caused by unusual circumstance or reason the school may request an exemption from an “at risk” designation. Exemption request will be evaluated by the Superintendent.

(10) “Auxiliary facility” means a facility that does not use or list its address as a school location and:

(a) Absorbs a temporary overload that the principal facility cannot accommodate; or

(b) Provides a specialized training facility away from the principal school location; or

(c) Provides training under contract that is not open to general enrollment; or

(d) Is a site approved by the Department of Education for teaching a short-term course that is taught by registered teachers from the principal facility.

(11) “Barbering” has the meaning given in ORS 690.005.

(12) “Board” means the State Board of Education.

(13) “Bona fide organization or group” means any body or entity that is nationally chartered or recognized by a national or state educational/occupational policy board that has operated or functioned in good faith without fraud or deceit for at least 25 years.

(14) “Capacity to complete” means that a student has the cognitive or physical capacity to complete a program of study, with or without reasonable accommodations, and become employment eligible in the specific field of training for which they are enrolling. A school has an obligation to determine whether applicants have capacity to complete during the admissions process, and to assess this capacity when information is obtained or received by the school through any means which suggests the student may not have capacity to complete the program. Any information obtained shall be treated as confidential and kept in a secure manner. Capacity to complete must be assessed before enrollment is completed; however, if information is received by the school after instruction has commenced that cognitive or physical circumstances exist that may impede a student’s satisfactory progress through their program of study, capacity to complete must be assessed immediately after receipt of such information, and appropriate adjustments, accommodations, or tuition refunds made.

(15) “Chairperson” means the person who is responsible for overseeing the business of the advisory committee.

(16) “Class” means a scheduled meeting of persons for instructional purposes.

(17) “Clinic lab” or “clinic floor” means a place where students perform assigned instructional tasks identified in the approved curriculum on models or the general public.

(18) “Completion” means the student has satisfactorily finished all the requirements of the program in which he or she is enrolled, has fulfilled the terms of the enrollment agreement, and has been awarded an appropriate certificate, diploma, or completion document.

(19) “Continuing education” means the enrollment in and completion of ongoing, Department-approved instruction, outside the normal teaching schedule, which upgrades a teacher’s skills and knowledge with the intent of making the teacher more proficient and current in subject matter taught, instructional methodology, or other skills and knowledge relevant to the teaching of adult learners.

(20) “Course” means an aggregation of classes to achieve a completed set of competencies.

(21) “Department” means the Oregon Department of Education.

(22) “Discount” means a specified amount of money to be deducted at the time of enrollment from the costs associated with an instructional program, according to a specified set of criteria. The criteria and details of any discounts offered by a school will be given to all persons eligible to receive the discount, and documented and maintained as part of a school’s approved advertising. A discount that is granted must be listed as a discount on the enrollment agreement, and is not revocable.

(23) “Discrimination” means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, race, color, marital status, religion, sex or sexual orientation, or any other protected class.

(24) “Distance learning instruction” means education provided by written correspondence or any electronic medium for students enrolled in a private career school in pursuit of an identified occupational objective, but not attending classes at an approved school site or training establishment.

(25) “Enrollment” means a student has agreed to the purchase of a course or program of instruction offered by a school and has signed an enrollment agreement, however named, that commits both the student and the school to a legal and binding obligation. Instruction in a program or course may not begin without a signed enrollment agreement in place.

(26) “Enrollment fee” means the fee a school charges that covers those expenses incurred by a school in processing the student enrollment agreement and establishing a student records system. The enrollment fee is limited to 15% of the total tuition cost, or $150, whichever is less, and is identified as an enrollment fee on the student enrollment agreement.

(27) “Errata” in reference to a school’s catalog means a listing of errors appearing in a school’s published catalog and the corrections of those errors. Errors do not include revisions to policies or other information in the catalog. Errata may be published only via electronic means, at the discretion of the school, in which case a reference in the school catalog must be included that specifies the URL or website where errata may be found. Errors included on the errata list should be corrected in the next printing of the school’s catalog.

(28) “Esthetics” has the meaning given in ORS 690.005.

(29) “Evaluation fee” means any fee, however named, covering those expenses incurred by a school in evaluating a prospective student’s prior training, education, experience, or other indicators of beginning level of mastery in technical program competencies before enrolling in a program of instruction at the school, or for other Department approved uses of an assessment for competency evaluation (e.g., licensing reciprocity). The evaluation fee shall not exceed the reasonable costs incurred by the school in administering and scoring the assessment, preparing official documentation, providing appropriate feedback to the applicant, and designing a program of study based on the assessment results (if applicable).

(30) “Fiscal reporting period” means the period of time for which the school provides financial information required by the department. The fiscal reporting period is identified by the school owner in the initial license application and must remain consistent unless a written request for a change is approved by the Superintendent. The fiscal reporting period may be the calendar year or another 12-month time period.

(31) “Fund” means the private career school Tuition Protection Fund (TPF).

(32) “Grant,” as used in reference to tuition assistance, means actual funds made available through any source to prospective or enrolled students through an application process whereby applicants must meet predetermined criteria and may or may not be required to maintain a certain status or performance criteria in order to retain the award. For in-house grants, funds in the amount of the full amount of the award for grants awarded on an annual basis will be deposited by the school in an account separate from the school’s operating funds at the time of the award, or at the beginning of each new year of an on-going award, and drawn out by the school as the tuition is earned. For third party grants, all monies received by the school on behalf of the student will be deposited into an account separate from the school’s operating funds and drawn out as the tuition is earned. In-house grants are revocable only in the amount that has not been earned by the student, according to the terms of the grant award, which are to be articulated to the recipient of the award and agreed upon by signature through an official award letter. The signed award letter will be kept in the student’s file, and a copy given to the student. Any grant awarded a student from any source will be documented on the enrollment agreement as a grant at the time of the award. If the award is made after the initial enrollment agreement has been signed, a rider to that agreement must be executed and attached.

(33) “Gross tuition income” means all direct tuition charges from programs for which the school is licensed under OAR 581-045-0001 through 581-045-0210, including any laboratory fee. Total gross tuition income does not include:

(a) Tuition refund;

(b) Enrollment and application fees; or

(c) Costs for books, supplies, tools, and equipment purchased by students.

(34) “Hair design” has the meaning given in ORS 690.005.

(35) “In default” is defined in ORS 345.115(5) as “when a course or program is discontinued or canceled or the school closes prior to completion of contracted services.”

(36) “Incentive,” as used in reference to tuition assistance, means a monetary reward or inducement offered by a school for the purpose of encouraging or motivating a student to perform a specific action, such as completing or course or instructional program within a certain period of time. Any terms or conditions that apply to an incentive must be published by the school, and maintained as part of the school’s approved advertising. Students who are working towards an incentive award will have in their file a copy of the terms and conditions of the incentive along with a record of the date each condition is satisfied. Once all conditions have been satisfied the incentive is considered earned and cannot be cancelled or revoked. A rider to the enrollment agreement must be prepared at the time of award detailing the application of the incentive to the student’s outstanding financial obligation.

(37) “License” means a license to operate a private career school.

(38) “Nail technology” has the meaning given in ORS 690.005.

(39) “On-site review” means a visit to the school by authorized Department staff who may review the facilities, classrooms, and school records; talk with students, staff, and administrators; and determine whether the school is in compliance with Oregon law.

(40) “Operating” or “operation” means any form of marketing, advertising, instruction, recruitment, or any other activity regulated under ORS Chapter 345 and OAR 581-045-0001 through 581-045-0210.

(41) “Placement” means the student has been employed in the occupation for which trained.

(42) “Post-secondary” for the purposes of recognizing private career schools in Oregon as institutions of post-secondary study means any school licensed under ORS Chapter 345 that:

(a) Admits as regular students, or maintains as a majority of its enrollment, those students who have earned a recognized high school diploma, the equivalent of a recognized high school diploma, or a GED certificate, or who are beyond the age of compulsory education in the State of Oregon, and

(b) Is authorized by the Department to offer one or more educational programs beyond secondary education.

(43) “Probation” means that a school has been officially notified by the Superintendent that it has deficiencies that must be corrected within a specified time.

(44) “Program” means an aggregation of courses to meet an identified occupational objective.

(45) “Program advisory committee” means a representative group appointed by the school, which advises the school ownership and administration.

(46) “Program improvement plan” or “school improvement plan” means a written plan that describes how the school will resolve or comply with violations of state rule or regulation assessed by the Superintendent or correct any deficiencies identified by the Superintendent, and usually includes interim outcome measures to track progress towards the overall improvement goals.

(47) “Pro rata” means in accordance with a fixed proportion.

(48) “Published Class Schedule” (for the purpose of calculating tuition charges) means the period of time between the commencement of classes and the student’s last date of attendance as offered by the school and scheduled by the student.

(49) “Recruiting” means personally soliciting or attracting a person or persons by a school or its agent(s) with the intention of actively pursuing enrollment in the school. Recruiting does not include leaving materials at or near an office or other site for a person to pick up of his or her own accord or handing a brochure or other materials to a person.

(50) “Registration” means the process by which directors, agents, or teachers either request registration by the Superintendent to teach at the school or notify the Superintendent of their appointment of an agent to represent the school.

(51) “Reporting period” means the period of time that corresponds with the school’s fiscal year on which the school bases all individual program student completion and placement reporting that must be submitted to the Department. The school’s fiscal year may be the calendar year or another 12-month time period.

(52) “Resident instruction” means education provided at an approved school site or training establishment for students enrolled in and attending classes at the school facility in pursuit of an identified occupational objective.

(53) “Revocation” as referenced in OAR 581-045-0012 means that the Superintendent has notified an employee of a licensed private career school that because of violations of OAR 581-045-0012(9)(a)–(c) the Department’s approval of the employee’s registration is permanently withdrawn. When notice of revocation is issued, the employee shall be notified and upon written request, shall be granted a contested case hearing under ORS 183.310(2).

(54) “Revoke” means the Superintendent terminates the school license. When the license is revoked, the school is not authorized to continue operating. Probation or suspension may, but is not required to, precede revocation.

(55) “Rider” means an attachment, schedule, amendment, or other writing that is added to the enrollment agreement that alters the terms, conditions, or financial obligation of the original instrument without altering the instrument in its entirety. The contents of a rider to the enrollment agreement are understood to be incorporated into the enrollment agreement.

(56) “Scholarship” means actual funds, from any source, made available to prospective or enrolled students through an application process whereby applicants must meet predetermined criteria and may or may not be required to maintain a certain status in order to retain the award. For in-house scholarships, funds in the amount of the full amount of the award for scholarships awarded on an annual basis will be deposited by the school in an account separate from the school’s operating funds at the time of the award, or at the beginning of each new year of an on-going award, and drawn out by the school as the tuition is earned. For third party scholarships, all monies received by the school on behalf of the student will be deposited into an account separate from the school’s operating funds and drawn out as the tuition is earned. In-house scholarships are revocable according to the terms of the scholarship award, which are to be articulated to the recipient of the award and agreed upon by signature through an official award letter. The signed award letter will be kept in the student’s file, and a copy given to the student. Any scholarship awarded a student from any source will be documented on the enrollment agreement as a scholarship at the time of the award. If the award is made after the initial enrollment agreement has been signed, a rider to that agreement must be executed and attached.

(57) “Self-directed instruction” means a course of instruction or an instructional program in which the instructional materials and curriculum are sufficient in design and scope to prepare a student for the program’s occupational objectives without the provision of direct instruction. These objectives can be achieved without regular or scheduled interaction either by mail, telephone, or in person between the student and faculty employed by the school and do not require the school to measure attendance or lesson completion for satisfactory progress.

(58) “School” or “career school” or “private career school” has the meaning given in ORS 345.010(4).

(59) “Short term course” means a course no longer than 16 clock hours in duration.

(60) “State advisory committee” means a representative, statutory advisory committee appointed by the Superintendent of Public Instruction, consisting of members who shall serve for terms of three years ending June 30.

(61) “Structured work experience” or “externship” means a worksite educational activity that correlates the value of classroom training and on-site job performance, is an integral part of the student’s training plan, and is supervised/evaluated by appropriate school personnel.

(62) “Superintendent” means the State Superintendent of Public Instruction or qualified designee.

(63) “Supplement” in reference to a school’s catalog means a document that is separate from the catalog and which contains new information not appearing in the catalog, or information that is related, but in addition, to information already appearing in the catalog. Information contained in a catalog supplement may or may not need to be incorporated into the catalog at the next regular revision and printing of the catalog.

(64) “Suspension” as referenced in OAR 581-045-0012 means that the Superintendent has notified an employee of a licensed private career school that because of violations of 581-045-0012(9)(a)–(c) the Department’s approval of the employee’s registration is temporarily withdrawn. When notice of suspension is issued, the employee shall be notified and upon written request, shall be granted a contested case hearing under ORS 183.310(2).

(65) “Suspend” means the Superintendent has notified a school that because of deficiencies, it may not advertise, recruit, enroll students, or begin instruction of new students, but may remain open to complete training of currently enrolled students. Probation may, but is not required to precede suspension.

(66) “Teachout” means a defaulting school or the Department makes provisions for students enrolled at the time of the default to complete a comparable program at no additional cost beyond the original enrollment agreement with the defaulting school. Teachout arrangements, if made by the defaulting school, shall be approved in advance by the Superintendent and, if ongoing, approved annually by the Superintendent.

(67) “Transcript” means a written record that shall include, but is not limited to, name and address of student, first and last date of attendance, all programs or courses undertaken, grades achieved, whether the courses or programs were successfully completed, and signature of a school official.

(68) “Tuition” means money or other compensation paid or credited to a school by a student or on behalf of a student that is applied to the costs of instruction and training actually received or to be received by the student.

(69) “Tuition aid” or “Tuition assistance” means any award of monetary value, including, but not limited, to scholarships, grants, discounts, or incentives offered by a career school or by a third party, that is received by a student who will enroll in, or is enrolled in, a specific program of instruction, and is:

(a) Provided directly to the student for the purposes of covering, in full or in part, the costs of tuition or other allowed educational expenses incurred by the student, or

(b) Paid or credited to a career school on behalf of the student by the school or a third party for the purpose of covering, in full or in part, the costs of tuition or other allowed educational expenses incurred by the student.

(70) “Withdrawal fee” means any fee, however named, covering those expenses incurred by a school in processing student paperwork relating to program changes (i.e., course additions/drops or transfers) or withdrawal from school and so identified on the student enrollment agreement.

Stat. Auth.: ORS 345.020
Stats. Implemented: ORS 345.030 & 345.325
Hist.: 1 EB 31-1986, f. & ef. 7-23-86; EB 11-1990, f. & cert. ef. 2-1-90; EB 13-1996, f. & cert. ef. 7-26-96; ODE 32-2000, f. 12-11-00 cert. ef. 1-1-01; ODE 21-2002, f. 9-26-02 cert. ef. 10-1-02; ODE 17-2003, f. 12-30-03, cert. ef. 1-1-04; ODE 15-2006, f. 12-11-06, cert. ef. 1-1-07; ODE 13-2008, f. & cert. ef. 5-23-08; ODE 13-2008, f. & cert. ef. 5-23-08; ODE 3-2010, f. & cert. ef. 2-8-10; ODE 27-2012, f. 9-13-12, cert. ef. 9-17-12


 

Rule Caption: Changes fees charged by Department of Education for fingerprinting of private school employees.

Adm. Order No.: ODE 28-2012(Temp)

Filed with Sec. of State: 9-13-2012

Certified to be Effective: 9-17-12 thru 3-15-13

Notice Publication Date:

Rules Amended: 581-045-0586

Subject: Changes the fees charged by ODE for processing fingerprinting applications for private school employees based on FBI reduction of fees. We would like to reduce the rate we charge private schools to reflect this change from $62.00 to $59.00.

Rules Coordinator: Cindy Hunt—(503) 947-5651

581-045-0586

Fingerprinting of Subject Individuals Employed by Private Schools in Positions Not Requiring Licensure as Teachers, Administrators, Personnel Specialists, School Nurses

(1) Definitions of terms shall be as follows:

(a) “Subject individual” means:

(A) A person employed by a Private School in a position not requiring licensure under ORS 342.223; and

(B) Any person newly hired as or by a contractor into a position having direct, unsupervised contact with students and not requiring licensure under ORS 342.223.

(b) “Direct, unsupervised contact with students” means contact with students that provides the person opportunity and probability for personal communication or touch when not under direct supervision;

(c) “Fee” means the total charges assessed. Fees shall be paid to the Oregon Department of Education with submission of fingerprint cards and associated form. The fee amount and distribution shall be as follows:

(A) Oregon State Police (OSP) — $28;

(B) Federal Bureau of Investigation (FBI) — $16.50;

(C) Oregon Department of Education — $14.50;

(D) TOTAL — $59.

(d) “Information to be required” means all information requested by the Oregon Department of Education for processing the fingerprint application, including the following:

(A) One properly completed FBI fingerprint cards #USGPO 1990-262-201-2000; and

(B) A properly completed Department of Education form #581-2283-M.

(e) “Convictions of crimes prohibiting employment, contract or assignment by a contractor” means, notwithstanding any other statutes or Oregon administrative rule, conviction of a crime listed in ORS 342.143, or making a false statement as to the conviction of a crime;

(f) “Applicant” means a subject individual for whom fingerprint cards and other required information have been submitted to the Oregon Department of Education for a criminal history check and review;

(g) “Knowingly made a false statement” means that a subject individual has failed to disclose a crime on the Department of Education form #581-2283-M as part of the criminal background check process.

(h) “Private School” means a school that:

(A) Offers education in prekindergarten, kindergarten or grades 1 through 12, or any combination of those grade levels; and

(B) Provides instructional programs that are not limited solely to dancing, drama, music, religious or athletic instruction.

(2) A private school may request that Department of Education conduct a criminal records check of a subject individual. Upon receipt of the information, the Department shall request criminal information from the Department of State Police in the manner prescribed by law and may charge the private school a fee not to exceed the actual cost of acquiring and furnishing the information.

(3) The Oregon Department of Education shall review the criminal records of subject individual upon the private school’s submission of the required FBI and state forms and the State Superintendent of Public Instruction or designee shall issue a statement of criminal history status. The Superintendent of Public Instruction or designee shall notify the private school if the subject individual has knowingly made a false statement as to conviction of a crime. A private school may choose to employ or contract with a person who has knowingly made a false statement as to conviction of a crime.

(4) The Oregon Department of Education shall not provide copies of criminal records to anyone except as provided by law. The subject individual may inspect his or her personal criminal records under the supervision of properly certified LEDS (Law Enforcement Data Systems) personnel at the Department of Education.

(5) The Superintendent of Public Instruction or designee shall notify the private school if the subject individual has been convicted of a crime listed in ORS 342.143, or the substantial equivalent of any of those crimes if the conviction occurred in another jurisdiction or in Oregon under a different statutory name or number. A private school may choose to employ or contract with a person who has been convicted of a crime listed in ORS 342.143 or the substantial equivalent. The crimes listed in ORS 342.143 are:

(a) ORS 163.095 — Aggravated Murder;

(b) ORS 163.115 — Murder;

(c) ORS 163.185 — Assault in the First Degree;

(d) ORS 163.235 — Kidnapping in the First Degree;

(e) ORS 163.355 — Rape in the Third Degree;

(f) ORS 163.365 — Rape in the Second Degree;

(g) ORS 163.375 — Rape in the First Degree;

(h) ORS 163.385 — Sodomy in the Third Degree;

(i) ORS 163.395 — Sodomy in the Second Degree;

(j) ORS 163.405 — Sodomy in the First Degree;

(k) ORS 163.408 — Unlawful Sexual Penetration in the Second Degree;

(l) ORS 163.411 — Unlawful Sexual Penetration in the First Degree;

(m) ORS 163.415 — Sexual Abuse in the Third Degree;

(n) ORS 163.425 — Sexual Abuse in the Second Degree;

(o) ORS 163.427 — Sexual Abuse in the First Degree;

(p) ORS 163.432 — Online sexual corruption of a child in the second degree;

(q) ORS 163.433 — Online sexual corruption of a child in the first degree;

(r) ORS 163.435 — Contributing to the Sexual Delinquency of a Minor;

(s) ORS 163.445 — Sexual Misconduct;

(t) ORS 163.465 — Public Indecency;

(u) ORS 163.515 — Bigamy;

(v) ORS 163.525 — Incest;

(w) ORS 163.547 — Child Neglect in the First Degree;

(x) ORS 163.575 — Endangering the Welfare of a Minor;

(y) ORS 163.670 — Using Child in Display of Sexually Explicit Conduct;

(z) ORS 163.675 (1985 Replacement Part) — Sale of Exhibition of Visual Reproduction of Sexual Conduct by Child;

(aa) ORS 163.680 (1993 Edition) — Paying for Viewing Sexual Conduct Involving a Child;

(bb) ORS 163.684 — Encouraging Child Sex Abuse in the First Degree;

(cc) ORS 163.686 — Encouraging Child Sex Abuse in the Second Degree;

(dd) ORS 163.687 — Encouraging Child Sex Abuse in the Third Degree;

(ee) ORS 163.688 — Possession of Materials Depicting Sexually Explicit Conduct of a Child in the First Degree;

(ff) ORS 163.689 — Possession of Materials Depicting Sexually Explicit Conduct of a child in the Second Degree;

(gg) ORS 164.325 — Arson in the First Degree;

(hh) ORS 164.415 — Robbery in the First Degree;

(ii) ORS 166.005 — Treason;

(jj) ORS 166.087 — Abuse of Corpse in the first Degree;

(kk) ORS 167.007 — Prostitution;

(ll) ORS 167.008 — Patronizing a Prostitute;

(mm) ORS 167.012 — Promoting Prostitution;

(nn) ORS 167.017 — Compelling Prostitution;

(oo) ORS 167.057 — Luring a minor;

(pp) ORS 167.062 — Sadomasochistic Abuse or Sexual Conduct in Live Show;

(qq) ORS 167.075 — Exhibiting an Obscene Performance to a Minor;

(rr) ORS 167.080 — Displaying Obscene Materials to Minors;

(ss) ORS 167.090 — Publicly Displaying Nudity or Sex for Advertising Purposes;

(tt) ORS 475.808 — Unlawful manufacture of hydrocodone within 1,000 feet of school;

(uu) ORS.475.810 — Unlawful delivery of hydrocodone;

(vv) ORS 475.812 — Unlawful delivery of hydrocodone within 1,000 feet of school;

(ww) ORS 457.818 — Unlawful manufacture of methadone within 1,000 feet of school;

(xx) ORS 475.820 — Unlawful delivery of methadone; and

(yy) ORS 475.822 — Unlawful delivery of methadone within 1,000 feet of school.

(zz) ORS 475.828 — Unlawful manufacture of oxycodone within 1,000 feet of school;

(aaa) ORS 475.830 — Unlawful delivery of oxycodone;

(bbb) ORS 475.832 — Unlawful delivery of oxycodone within 1,000 feet of school;

(ccc) ORS 475.848 — Unlawful manufacture of heroin within 1,000 feet of school;

(ddd) ORS 475.852 — Unlawful delivery of heroin within 1,000 feet of school;

(eee) ORS 475.858 — Unlawful manufacture of marijuana within 1,000 feet of school;

(fff) ORS 475.860 — Unlawful delivery of marijuana;

(ggg) ORS 475.862 — Unlawful delivery of marijuana within 1,000 feet of school;

(hhh) ORS 475.864 — Unlawful possession of marijuana;

(iii) ORS 475.868 — Unlawful manufacture of 3,4-methylenedioxymethamphetamine within 1,000 feet of school;

(jjj) ORS 475.872 — Unlawful delivery of 3,4-methylenedioxymethamphetamine within 1,000 feet of school;

(kkk) ORS 475.878 — Unlawful manufacture of cocaine within 1,000 feet of school;

(lll) ORS 475.880 — Unlawful delivery of cocaine;

(mmm) ORS 475.888 — Unlawful manufacture of methamphetamine within 1,000 feet of school;

(nnn) ORS 475.890 — Unlawful delivery of methamphetamine;

(ooo) ORS 475.892 — Unlawful delivery of methamphetamine within 1,000 feet of school;

(ppp) ORS 475.904 — Unlawful manufacture or delivery of controlled substance within 1,000 feet of school;

(qqq) ORS 475.906 — Penalties for distribution to minors.

(6) Only cards and forms approved by the Department of Education will be accepted. The Department of Education will return any incomplete or incorrectly completed fingerprint cards and associated forms without taking any other action. The Department of Education will return fingerprint cards and associated forms without appropriate fees without taking any other action.

(7) The Department of Education shall maintain a record of all properly submitted fingerprint cards. The record shall include at least the following:

(a) Card sequence number;

(b) Name of Private School submitting the cards;

(c) Date cards and Department form received;

(d) Date incomplete card returned to the school (only if applicable);

(e) Date completed card sent to Oregon State Police;

(f) Date private school was notified of state police record or lack of record;

(g) Date FBI card returned to Department;

(h) Date private school was notified of FBI record or lack of record.

Stat. Auth.: ORS 326.603
Stats. Implemented: ORS 326.603
Hist.: EB 16-1997, f. & cert. ef. 12-29-97; ODE 29-1999, f. 12-13-99, cert. ef. 12-14-99; ODE 13-2003(Temp), f. & cert. ef. 7-1-03 thru 12-15-03; Administrative correction 8-2-04; ODE 9-2006, f. & cert. ef. 2-21-06; Renumbered from 581-022-1732, ODE 25-2008, f. & cert. ef. 9-26-08; ODE 27-2009, f. & cert. ef. 12-10-09; ODE 7-2012, f. 2-1-12, cert. ef. 2-3-12; ODE 28-2012(Temp), f. 9-13-12, cert. ef. 9-17-12 thru 3-15-13

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, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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