Current through Register Vol. 56, No. 18, September 16, 2024
(a) As a condition of
securing and maintaining a certificate, the home or agency 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, treatment home parent, teaching family home parent, alternative care home
parent, supervised transitional living home parent, and household member at least 18
years old in a treatment home, teaching family home, alternative care home or
supervised transitional living home.
(b)
If the director, treatment home parent, teaching family home parent, alternative
care home parent, supervised transitional living home parent, or household member
refuses to consent to or cooperate in a CHRI background check, the Department shall
deny, suspend, revoke or refuse to renew the certificate, as applicable.
1. The home or agency may appeal the denial,
suspension, revocation or refusal to renew, as specified in 3A:56-2.4.
2. The treatment home parent, teaching family home
parent, alternative care home parent, or supervised transitional living home parent
may choose to remove the household member so refusing from the home before the
action against the certificate takes effect.
(c) If a staff member refuses to consent to or
cooperate in a CHRI background check, the home or agency shall immediately terminate
the staff member's employment at the home or agency.
(d) If any person identified in (a) above has a
record of criminal conviction, the Department of Children and Families 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, work at or reside in the home or agency.
(e) A person shall be disqualified from receiving
a certificate or administering, working at or residing in a home or agency 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
2C: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
2C:13-5 and section 1 of P.L. 1993,
c.291 (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 home or agency 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 home or agency documents that the
individual's employment or administration of the home or agency 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 home or agency shall identify restrictions regarding
the individual's contact with, care or supervision of children;
4. The home or agency 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, work at or reside in a home or agency 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
home or agency, indicating why the individual at issue should not be precluded from
administering, working or residing at the home or agency, 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 home or agency with a
criminal conviction other than those cited in (e) above.
4. For a current or prospective staff member,
treatment home parent, teaching family home parent, alternative care home parent,
supervised transitional living home parent or household member with a criminal
conviction other than those cited in (e) above, the director of the home or agency
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 home or agency 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 home.
(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 home or agency to terminate the individual's
employment or service, as applicable.
(j) Upon completion of the CHRI for an individual
specified in (a) above, the Department shall notify the individual, and the home or
agency 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
(N.J.S.A. 30:4C-27
.19 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, as allowed by law.
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 home or agency that the individual has been
disqualified.
4. The home or agency
shall immediately terminate the disqualified individual's employment at the home or
agency.
5. If the disqualified
individual is a home or agency director, treatment home parent, teaching family home
parent, alternative care home parent, supervised transitional living home parent or
household member, the Department shall deny, suspend, revoke or refuse to renew the
certificate, as applicable.
6. The
treatment home parent, teaching family home parent, alternative care home parent, or
supervised transitional living home parent may choose to remove the disqualified
household member from the home before the action against the certificate takes
effect.
(k) A home or agency
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 home or agency seeking to employ that individual, if the home or agency
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 home or agency 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 home or
agency 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 home or agency.
(l) A home or agency 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 home or
agency acted with actual malice toward the individual who is the subject of the
information.
