(1) As used in this section:

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(a) ‘Authorized agency’ means the Department of State Police or other governmental agency designated by the State of Oregon to report, receive or disseminate criminal offender information.

(b) ‘Qualified entity’ means a business or organization that:

(A) Provides care or placement services, or licenses or certifies others to provide care or placement services, for children, elderly persons or dependent persons;

(B) Is not governed by a state regulatory or licensing agency; and

(C) Has been determined by an authorized agency to meet the criteria established by the authorized agency by rule under subsection (9) of this section.

(c) ‘Subject individual’ means a person who is employed or seeks to be employed by a qualified entity or who is providing services or seeks to provide services to a qualified entity on a contractual or volunteer basis.

(2) An entity may request from an authorized agency a criminal records check for purposes of evaluating the fitness of a subject individual as an employee, contractor or volunteer. The authorized agency may access state and federal criminal records under this subsection only through use of the subject individual’s fingerprints.

(3) Before an authorized agency may conduct a criminal records check under this section:

(a) The authorized agency must determine whether the entity requesting the criminal records check is a qualified entity; and

(b) The qualified entity must have informed the subject individual that the qualified entity might request a fingerprint-based criminal records check and that the subject individual may obtain a copy of the record check report from, or challenge the accuracy or completeness of the record check report through, the authorized agency or the Federal Bureau of Investigation.

(4)(a) Upon receipt of a subject individual’s criminal offender information, the authorized agency shall submit the criminal offender information to the Department of Human Services. The Department of Human Services shall, subject to rules adopted by the Oregon Department of Administrative Services under ORS § 181A.215, make a fitness determination. After making a fitness determination under this subsection, the Department of Human Services shall inform the qualified entity of the results of the fitness determination.

(b) In making the fitness determination, the Department of Human Services shall consider:

(A) The nature of the crime;

(B) The facts that support the conviction or pending indictment or indicate the making of a false statement;

(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 or employment; and

(D) Intervening circumstances relevant to the responsibilities and circumstances of the position or employment, such as:

(i) The passage of time since the commission of the crime;

(ii) The age of the person at the time of the crime;

(iii) The likelihood of a repetition of offenses; and

(iv) The subsequent commission of another relevant crime and the recommendation of an employer.

(5) An authorized agency may not transfer a fingerprint card used to conduct the criminal records check unless the public agency or person receiving the fingerprint card agrees to destroy or return the fingerprint card to the authorized agency.

(6) Except as provided in ORS § 181A.205, if the public agency or person returns a fingerprint card to the authorized agency, the authorized agency:

(a) Shall destroy the fingerprint card; and

(b) May not keep a record of the fingerprints.

(7) The authorized agency or the Department of Human Services shall permit a subject individual to inspect the individual’s Oregon and Federal Bureau of Investigation criminal offender information after positive identification has been established based upon fingerprints.

(8) Challenges to the accuracy or completeness of information provided by the Federal Bureau of Investigation and agencies reporting information to the federal bureau must be made through the federal bureau.

(9) The authorized agency shall adopt rules to implement this section. The rules may include but are not limited to:

(a) Criteria to be used by the authorized agency to determine whether an entity is a qualified entity; and

(b) Fees to be charged for conducting criminal records checks under this section in amounts not to exceed the actual costs of acquiring and furnishing criminal offender information. [Formerly 181.533]

181A.190 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS Chapter 181A or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.