Current through Register Vol. 56, No. 18, September 16, 2024
(a) As a condition of
securing and maintaining a certificate, the facility shall ensure that a State and
Federal Criminal History Record Information (CHRI) fingerprint background check, in
keeping with P.L. 2003, c.
186, is completed for the director and each staff
member.
(b) If the director refuses to
consent to or cooperate in a CHRI background check, the Office of Licensing shall
deny, suspend, revoke, or refuse to renew the certificate, as applicable. The
facility may appeal the denial, suspension, revocation, or refusal to renew the
certificate, as specified in N.J.A.C. 3A:55-2.4
.
(c) If a staff member refuses
to consent to or cooperate in a CHRI background check, the facility shall
immediately terminate the staff member's employment at the facility.
(d) If any person identified in (a) above has a
record of criminal conviction, the Department shall review the record with respect
to the type and date of the criminal offense and make a determination as to the
suitability of the person to receive a certificate or to administer or work at the
facility.
(e) A person shall be
disqualified from receiving a certificate or administering or working at a facility
if that person ever committed a crime which resulted in a conviction for:
1. A crime against a child, including endangering
the welfare of a child and child pornography pursuant to
2C:24-4, or child molestation as set
forth in 2C:14-1 et seq.;
2. Abuse, abandonment or neglect of a child
pursuant to 9:6-3;
3. Endangering the welfare of an incompetent
person pursuant to
2C:24-7;
4. Sexual assault, criminal sexual contact or
lewdness pursuant to
2C:14-2 through 14-4;
5. Murder pursuant to
2C:11-3 or manslaughter pursuant to
2C:11-4;
6. Stalking pursuant to section 1 of P.L. 1992,
c.209 (2C:12-10);
7. Kidnapping and related offenses including
criminal restraint, false imprisonment, interference with custody, criminal
coercion, or enticing a child into a motor vehicle, structure, or isolated area
pursuant to 2C:13-1 through 13-5 and section 1 of
P.L. 1993, c.291 (N.J.S.A. 2C:13.6);
8.
Arson pursuant to
2C:17-1, or causing or risking
widespread injury or damage, which would constitute a crime of the second degree
pursuant to 2C:17-2;
9. Aggravated assault, which would constitute a
crime of the second or third degree pursuant to subsection b of
2C:12-1;
10. Robbery, which would constitute a crime of the
first degree pursuant to
2C:15-1;
11. Burglary, which would constitute a crime of
the second degree pursuant to
2C:18-2;
12. Domestic violence pursuant to P.L. 1991, c.261
(2C:25-17 et seq.);
13. Terroristic threats pursuant to
2C:12-3;
14. An attempt or conspiracy to commit any of the
crimes or offenses listed in (e)1 through 13 above; or
15. In any other state or jurisdiction, conduct
which, if committed in New Jersey, would constitute any of the crimes or offenses
described in (e)1 through 14 above.
(f) As an exception to (e) above, the Department
may approve the employment at, or administration of, a facility by an individual
convicted of a crime specified in (e) above if all of the following conditions are
met:
1. The Department determines that the crime
does not relate adversely to the position the individual is employed in pursuant to
the provisions of P.L. 1968, c.282 (
2A:168A-1 et seq.);
2. The conviction is not related to a crime
committed against a child, as specified in (e) above;
3. The facility documents that the individual's
employment or administration of the facility does not create a risk to the safety or
well-being of children due to the nature and requirements of the position. As
necessary, the facility shall identify restrictions regarding the individual's
contact with, care or supervision of children;
4. The facility documents that the individual is
uniquely qualified for the position due to specific skills, qualifications,
characteristics or prior employment experiences; and
5. The Department determines that the individual
has affirmatively demonstrated rehabilitation, pursuant to the factors specified in
(g) below.
(g) For crimes and
offenses other than those cited in (e) above, an individual may be eligible to
receive a certificate or to administer or work at a facility if the individual has
affirmatively demonstrated to the Department clear and convincing evidence of
rehabilitation.
1. In determining whether an
individual has affirmatively demonstrated rehabilitation, the following factors
shall be considered:
i. The nature and
responsibility of the position at the facility that the convicted individual would
hold, has held or currently holds, as the case may be;
ii. The nature and seriousness of the
offense;
iii. The circumstances under
which the offense occurred;
iv. The date
of the offense;
v. The age of the
individual when the offense was committed;
vi. Whether the offense was an isolated or
repeated incident;
vii. Any social
conditions that may have contributed to the offense; and
viii. Any evidence of rehabilitation, including
good conduct in prison or in the community, counseling or psychiatric treatment
received, acquisition of additional academic or vocational schooling, successful
participation in correctional work-release programs, or the recommendation of those
who have had the individual under their supervision.
2. Upon receipt of documentation submitted by the
facility, indicating why the individual at issue should not be precluded from
administering or working at the facility, the Department, after assessing the facts
on a case-by-case basis, shall make the final determination regarding the
individual's rehabilitation, in keeping with the provisions of the State
Rehabilitated Convicted Offenders Act,
2A:168A-1 et seq.
3. The Department shall make the final
determination regarding the suitability of the director of a facility with a
criminal conviction other than those cited in (e) above.
4. For a current or prospective staff member with
a criminal conviction other than those cited in (e) above, the facility director or
the agency's board of directors shall make a determination regarding the
individual's suitability upon the Department's determination that the individual has
affirmatively demonstrated rehabilitation.
(h) If the director of a facility has knowledge
that any individual specified in (a) above has criminal charges pending against the
individual, the director shall promptly notify the Department to determine whether
or not any action concerning the individual is necessary in order to ensure the
safety of the children who are placed in the facility.
(i) If the Department is notified that any
individual specified in (a) above is convicted of a crime or offense after the CHRI
has been completed, the Department shall make a determination whether to suspend or
revoke the certificate or require the facility to terminate the individual's
employment, as applicable.
(j) Upon
completion of the CHRI for an individual specified in (a) above, the Department
shall notify the individual, and the facility as applicable, in writing, of the
individual's qualification or disqualification for employment or service under
section 4 or 5 of
P.L.
2003, c. 186 (
30:4C-27.1 9 or 30:4C-27.20).
1. If the individual is disqualified, the
convictions that constitute the basis for the disqualification shall be identified
in the written notice to the individual.
2. The individual shall have 14 days from the date
of the written notice of disqualification to challenge the accuracy of the
CHRI.
3. If no challenge is filed or if
the determination of the accuracy of the CHRI upholds the disqualification, the
Department shall notify the facility that the individual has been
disqualified.
4. The facility shall
immediately terminate the disqualified individual's employment at the
facility.
5. If the disqualified
individual is a facility director, the Division shall deny, suspend, revoke or
refuse to renew the certificate, as applicable.
(k) A facility that has received an employment
application from an individual, or currently employs a director or staff member,
shall be immune from liability for acting upon or disclosing information about the
disqualification or termination of that individual to another facility seeking to
employ that individual, if the facility has:
1.
Received notice from the Department or the agency's board of directors, as
applicable, that the applicant, director or staff member has been determined by the
Department or the board of directors to be disqualified from employment or service
at a facility pursuant to P.L. 1968, c.282 (
2A:168A-1 et seq.); or
2. Terminated the employment of a staff member
because the individual was disqualified from employment or service at the facility
on the basis of a conviction of a crime pursuant to P.L. 1968, c.282 (
2A:168A-1 et seq.) after commencing
employment or service at the facility.
(l) A facility that acts upon or discloses
information pursuant to (k) above shall be presumed to be acting in good faith
unless it is shown by clear and convincing evidence that the facility acted with
actual malice toward the individual who is the subject of the information.
