Current through Register Vol. 56, No. 6, March 18, 2024
(a) Homes may conduct searches for weapons or contraband, provided that they maintain on file in the home written policies and procedures that are consistent with the requirements of this manual.
1. The home shall define contraband to include illegal drugs, unauthorized property, stolen property or items otherwise obtained illegally.
2. The home shall explain the policy and distribute copies of the written policy to children and their parents upon admission and at least annually thereafter.
3. The home shall specify the actions that it will take when weapons or contraband are found.
(b) The home shall prohibit all staff members, consultants and volunteers from strip searching a child for any reason.
(c) The home shall permit frisk searches (surface searches of the outer clothing) of a child where there is reasonable suspicion that the child is in possession of a weapon or illegal drugs.
1. The home shall prohibit staff members from reaching into a child's pockets unless the frisk search confirms the reasonable belief that the child is in possession of a weapon.
2. The home shall not permit reaching into a child's pockets, but may permit frisk search of a child who is suspected of possessing illegal drugs when:
i. The home has met the requirements as specified in (d) below;
ii. The child refuses to empty his or her pockets or belongings; and
iii. The police refuse to respond to the home's request to conduct a lawful search.
3. The home shall not permit frisk searching a child who is suspected of possessing contraband other than a weapon or illegal drugs.
4. The home shall ensure that any frisk search is conducted:
i. In the presence of two staff members, one of whom has supervisory or administrative responsibilities in the home; and
ii. Only by staff members of the same sex as the child. If same sex staff members are not available, staff members shall provide one-to-one supervision of the child, until the search can be properly conducted.
5. The home may choose to use an electronic wand or other similar noncontact device on a child who is suspected of possessing a weapon.
i. The home shall obtain written approval from the Office of Licensing for the use of an electronic wand or other similar noncontact device prior to its use with children, which approval shall be based on the fact that the device is safe and presents no harm to the children;
ii. The home shall maintain on file a written policy that outlines the use of an electronic wand or other similar noncontact device;
iii. The home shall inform children and parent(s) that an electronic wand or other similar noncontact device may be used to search for a weapon; and
iv. All staff members who use an electronic wand or other similar noncontact device shall be instructed in its use.
(d) When the home has reasonable suspicion that a child is carrying illegal drugs or other contraband in a garment, pocket, purse, or other possession within the child's immediate control, the home shall ensure that the staff member:
1. Asks the child voluntarily to empty any garment, pocket, purse, or other possession, while in the presence of a second staff member;
2. Inspects all such items that are in plain view; and
3. Summons a law enforcement officer to conduct a lawful search of the possessions within the child's immediate control whenever the child refuses a voluntary search by the home staff member.
(e) The home may choose to conduct searches for weapons and illegal drugs as a part of the home's general practice, when residents return from a home visit or unsupervised trip into the community, provided that:
1. The home establishes and maintains on file a written policy that outlines the conditions/circumstances under which these searches may be conducted. Such searches shall be predicated upon reasonable suspicion and shall be limited to the reasons justifying the intrusion;
2. Children are informed that these searches may be conducted as a part of the home's general practice and parents are notified in writing that these searches may be conducted as a part of the home's general practice;
3. Only staff members who receive instruction in such search practices are permitted to conduct searches of a child's garment, pocket, purse, or other possession within the child's immediate control;
4. Such searches are conducted in the presence of two or more staff members;
5. Staff members document such searches in an incident report, when weapons, illegal drugs or other contraband are uncovered. The home shall document such searches that do not result in the discovery of weapons, illegal drugs or other contraband in a log, or may choose to document such incidents in an incident report;
6. The home establishes and maintains on file a written policy that addresses the safeguarding and disposal of weapons that are discovered as a part of a search or surface search, as specified in (c) above and, if appropriate, submission of weapons that are recovered to the local police; and
7. The home establishes and maintains on file a written policy that addresses the safeguarding and disposal of drugs that are discovered as a part of a search or surface search, as specified in (c) above and, if appropriate, submission of drugs that are recovered to the local police.
(f) If a home has reasonable suspicion that a child's room or other possessions not within a child's immediate possession or control, contain contraband, stolen property, or weapons, the home may conduct an unannounced search if:
1. The home has explained and documented this practice to the child and his or her parents, as specified in 3A:56-3.3 and 3.6;
2. The search is conducted in the presence of two staff members, one of whom has supervisory or administrative responsibility;
3. The home allows the child, if the child is present in the home at the time of a search, an opportunity to observe the search. If the child declines the opportunity, the staff members may conduct the search in the child's absence; and
4. Staff members document such searches in an incident report, when weapons, illegal drugs, or other contraband are uncovered. The home shall document such searches that do not result in the discovery of weapons, illegal drugs, or other contraband in a log, or may choose to document such incidents in an incident report.
(g) When unannounced room searches occur, as specified in (f) above, the home shall verify which child is responsible for any weapon or contraband brought into the home before imposing a disciplinary action or sanction on the child.
(h) Before a home conducts a blood or urine screening on a child to determine substance abuse, the home shall ensure that:
1. Substance abuse screenings are conducted only under the following limited circumstances:
i. When screening is ordered by the court;
ii. When the home is specifically designated as a drug treatment facility; or
iii. When ordered by a physician who has determined that such screening is necessary; and
2. Substance abuse screening are conducted only if:
i. The home has informed the child and parents, if available, beforehand about the screening;
ii. The home uses a licensed laboratory, clinic or an FDA-approved home drug screening/testing kit to conduct the screening, including drawing the sample and completing the analysis. The home may use its own medical staff members to draw the sample that will be submitted to a licensed laboratory or clinic, provided that:
(1) Such medical staff members receive training in the drawing, labeling and storage of samples; and
(2) The home develops a written policy and procedures that specifies the chain of custody of the sample prior to the sample being sent and/or picked up for analysis;
iii. The home ensures that the child has privacy when a urine sample is collected, unless the home documents that the child has a history of falsifying samples. If the child has such a history, the home shall request appropriate medical staff or a staff member from the home of the same sex as the child to witness or verify that the child is not falsifying samples; and
iv. The home verifies the accuracy of all positive tests through a second screening; and
3. Substance abuse screenings are discontinued whenever previous screenings result in three consecutive negative readings after the initial positive reading was documented, unless a court order requires continued screenings.
(i) The home shall maintain on file an incident report for every instance involving a frisk search, the use of an electronic wand or other similar noncontact device, a general practice search as specified in (e) above when weapons, illegal drugs or other contraband are discovered, a staff member's request for a child to empty a possession within the child's immediate control, a room search resulting in the discovery of weapons, illegal drugs or other contraband, and a blood or urine screening.
