Much confusion ensued following the passage of House Bill 190 in 2007, which mandated background checks for “any person hired to work in school district, educational service center, or chartered nonpublic school … who is employed by a private company under contract with [organization] to provide such services.”  Ohio Revised Code §3319.391(A)(1).  Many districts questioned whether contractors who did not provide direct services to children – such as construction workers, repair personnel, delivery drivers or landscaping crews – were required to conduct background checks on their employees as a prerequisite of doing business with the district. 

The statute’s lack of clarity on this issue led to districts – as well as their legal advisors – reaching differing interpretations as to the actual scope of the law.  Some legal counsel advised that background checks were required of any and all individuals doing business with the district, regardless of whether those individuals came into contact with students, performed services while school was in session or even performed work on school grounds.  Other attorneys opined that background checks for contractors were mandatory only for those individuals who would have direct interaction or routine access to children, such as third-party school psychologists or outsourced monitors.

Substitute House Bill 428, which becomes effective September 10, 2008, makes clear that certain contractors are not required to conduct background checks on their employees.  Specifically, under the bill, any contractor who provides a service that does not involve “routine interaction with a child or regular responsibility for the care, custody or control of a child” does not need to conduct a background check.  Ohio Revised Code §3319.392(B).  In addition, the new law also exempts contractors who are not providing a district with “essential services,” defined as services that the superintendent has deemed “necessary for the operation of the district, [or] service center … and that would need to be provided by employees of the district, [or] service center … if the services were not provided by the private company.”  Ohio Revised Code §3319.392(A)(2). 

Finally, the new law also provides flexibility to the district to waive the mandatory background checks under certain circumstances.  Even if a contractor does not fall within one of the exceptions, the district would have the discretion to provide supervision over the contracted employee in lieu of requiring a background check.  Under Ohio Revised Code 3319.392(C)(2), a contractor may perform services to the district, in the absence of a background check, if a district employee remains present in the same room during any period of time the contractor interacts with or has regular responsibility for the child.  If the contractor is interacting with the child outdoors, the district employee must be within a thirty-yard radius of the child or have visual contact with the child.

  If you have any questions about the revised law or need further clarification, please contact any of Walter & Haverfield’s education law attorneys.