§14 - Repealer






P.L. 1997, CHAPTER 284, approved January 6, 1998

Assembly Committee Substitute (First Reprint) for

Assembly, No. 2962

 

 

 

 

 

An Act concerning criminal history record background checks of applicants for certain certifications, amending the title and body of P.L.1997, c.100, and repealing section 1 thereof.

 

      Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

      1. The title of P.L.1997, c.100 is amended to read as follows:

An Act concerning criminal history record background checks for certain persons [who care for the elderly] and supplementing Title 26, Title 45, and Title 53 of the Revised Statutes.

(cf: P.L.1997, c.100, title)

 

      2. Section 2 of P.L.1997, c.100 (C.26:2H-83) is amended to read as follows:

      2. a. [A facility for the institutionalized elderly, as defined in section 1 of P.L.1997, c.100 (C.26:2H-82), shall not hire any unlicensed person serving in a position which involves regular contact with a patient, resident or client as the case may be,] The Department of Health and Senior Services shall not issue a nurse aide or personal care assistant certification to any applicant, except on a conditional basis as provided for in subsection d. of section 3 of P.L.1997, c.100 (C.26:2H-84), unless the Commissioner of Health and Senior Services first determines, consistent with the requirements of sections 2 through 6 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.26:2H-83 through 87), that no criminal history record information exists on file in the Federal


Bureau of Investigation, Identification Division, or in the State Bureau of Identification in the Division of State Police, which would disqualify that person from being [employed or utilized in such capacity or position] certified. A person shall be disqualified from [employment under P.L.1997, c.100 (C.26:2H-82 et al.)] certification if that person's criminal history record background check reveals a record of conviction of any of the following crimes and offenses:

      (1) In New Jersey, any crime or disorderly persons offense:

      (a) involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.; or

      (b) against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-1 et seq.; or

      (c) involving theft as set forth in chapter 20 of Title 2C of the New Jersey Statutes; or

      (d) involving any controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10.

      (2) In any other state or jurisdiction, of conduct which, if committed in New Jersey, would constitute any of the crimes or disorderly persons offenses described in paragraph (1) of this subsection.

      b. Notwithstanding the provisions of subsection a. of this section, no person shall be disqualified from [employment under P.L.1997, c.100 (C.26:2H-82 et al.)] certification on the basis of any conviction disclosed by a criminal history record background check performed pursuant to sections 2 through 6 and section 14 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.26:2H-83 through 87 and C.53:1-20.9a) if the person has affirmatively demonstrated to the Commissioner of Health and Senior Services clear and convincing evidence of the person's rehabilitation. In determining whether a person has affirmatively demonstrated rehabilitation, the following factors shall be considered:

      (1) the nature and responsibility of the position which the convicted person would hold or has held, as the case may be;

      (2) the nature and seriousness of the offense;

      (3) the circumstances under which the offense occurred;

      (4) the date of the offense;

      (5) the age of the person when the offense was committed;

      (6) whether the offense was an isolated or repeated incident;

      (7) any social conditions which may have contributed to the offense; and

      (8) 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 person under their supervision.

      c. If a person subject to the provisions of sections 2 through 6 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.26:2H-83 through 87) refuses to consent to, or cooperate in, the securing of a criminal history record background check, the commissioner shall [direct the principal administrator of the facility not to consider the person for employment] not issue a nurse aide or personal care assistant certification and shall notify the applicant, and the applicant's employer if the applicant is conditionally employed as provided in subsection d. of section 3 of P.L.1997, c.100 (C.26:2H-84) or the applicant's prospective employer if known, of that denial.

(cf: P.L.1997, c.100, s.2)

 

      3. Section 3 of P.L.1977, c.100 (C.26:2H-84) is amended to read as follows:

      3. a. An applicant for [employment at a facility] certification shall submit to the Commissioner of Health and Senior Services the applicant's name, address and fingerprints taken on standard fingerprint cards by a State or municipal law enforcement agency. The commissioner is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the Division of State Police for use in making the determinations required by sections 2 through 6 of P.L.1997,c.100 ([C.26:2H-82 et al.] C.26:2H-83 through 87).

       b. Upon receipt of the criminal history record information for a person from the Federal Bureau of Investigation or the Division of State Police, the commissioner shall immediately notify, in writing, the applicant, and the applicant's employer if the applicant is conditionally employed as provided in subsection d. of this section or the applicant's prospective employer[, in writing,] if known, of the person's qualification or disqualification for [employment] certification under sections 2 through 6 of P.L.1997,c.100 ([C.26:2H-82 et al.] C.26:2H-83 through 87). If the applicant is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the notice to the applicant, but shall not be identified in the notice to the applicant's employer or prospective employer.

      c. The applicant shall have 30 days from the date of the written notice of disqualification to petition the commissioner for a hearing on the accuracy of the applicant's criminal history record information or to establish the applicant's rehabilitation under subsection b. of section 2 of P.L. 1997, c.100 (C.26:2H-83). The commissioner shall notify the applicant's employer or prospective employer of the applicant's petition for a hearing within five days following the receipt of the petition from the applicant. Upon the issuance of a final decision upon a petition to the commissioner pursuant to this subsection, the commissioner shall notify the applicant and the applicant's employer or prospective employer as to whether the applicant remains disqualified from certification under sections 2 through 6 of P.L.1997, c. 100 (C.26:2H-83 through 87).

      d. [A facility may employ a person] An applicant may be issued conditional certification and may be employed as a nurse aide or a personal care assistant conditionally for a period not to exceed 180 days, pending completion of a criminal history record background check required under sections 2 through 6 of P.L.1997,c.100 ([C.26:2H-82 et al.] C.26:2H-83 through 87), if the person submits to the commissioner a sworn statement attesting that the person has not been convicted of any crime or disorderly persons offense as described in section 2 of P.L.1997, c.100 (C.26:2H-83). A person who submits a false sworn statement shall be disqualified from [employment by any facility, home health care agency, nurses' registry, employment agency, or temporary help agency,] certification as a nurse aide or a personal care assistant, as the case may be, and shall not have an opportunity to establish rehabilitation pursuant to subsection b. of section 2 of P.L.1997, c.100 (C.26:2H-83). A conditionally employed person who disputes the accuracy of the criminal history record information and who files a petition requesting a hearing pursuant to subsection c. of this section may remain employed [at the facility] by the employer until the commissioner rules on the applicant's petition but, pending the commissioner's ruling, the [facility] employer shall not permit the applicant to have unsupervised contact with [elderly] patients, residents or clients, as the case may be, who are 60 years of age or older.

      [A person who is to be employed in any substitute capacity or position, who is rehired annually, shall only be required to undergo a criminal history record check upon initial employment. A person who has been qualified for employment as a result of a criminal history record background check pursuant to P.L.1997, c.100 (C.26:2H-82 et al.) may use that qualification to obtain employment with a simultaneous or subsequent employer without having to undergo another check required by P.L.1997,c.100 (C.26:2H-82 et al.) for a period of 12 months from the date of the initial notice of qualification from the commissioner. The person may request and the commissioner shall send a notice of qualification upon request to simultaneous or subsequent employers within 12 months following the date of the initial qualification notice.

      Prospective and conditionally employed persons shall retain any available right of review provided to applicants under Title 11A of the New Jersey Statutes.]

(cf: P.L.1997, c.100, s.3)

 

      4. Section 4 of P.L.1997, c.100 (C.26:2H-85) is amended to read as follows:

      4. [The] An applicant's employer if the applicant is conditionally employed as provided in subsection d. of section 3 of P.L.1997, c.100 (C.26:2H-84) or an applicant's prospective employer may assume the cost of [all] the criminal history record background [checks] check conducted on [prospective employees] an applicant for nurse aide or personal care assistant certification, as the case may be, pursuant to sections 2 through 6 and section 14 of P.L.1997,c.100 ([C.26:2H-82 et al.] C.26:2H-83 through 87 and C.53:1-20.9a); or the employer or prospective employer may require the [prospective employee] applicant to pay the cost of the criminal history record background [checks] check.

(cf: P.L.1997,c.100,s.4)

 

      5. Section 6 of P.L.1997, c.100 (C.26:2H-87) is amended to read as follows:

      6. Any [employer subject to the provisions of sections 1 through 5 of P.L.1997, c.100 (C.26:2H-82 through C.26:2H-86) who fails to comply with those provisions or any] person submitting a false sworn statement pursuant to section 3 of P.L.1997, c.100 (C.26:2H-84) shall be subject to a fine of not more than $1,000, which may be assessed by the Commissioner of Health and Senior Services.

(cf: P.L.1997,c.100,s.6)

 

      6. Section 7 of P.L.1997, c.100 (C.45:11-24.3) is amended to read as follows:

      7. a. [A home health care agency, nurses' registry, employment agency, or temporary help agency which is licensed or regulated by] The New Jersey Board of Nursing in the Division of Consumer Affairs in the Department of Law and Public Safety[,] shall not [hire a home health aide or other health care employee to serve in a position which involves regular contact with a patient or client who is 60 years of age or older,] issue a homemaker-home health aide certification to any applicant, except on a conditional basis as provided for in subsection d. of section 8 of P.L.1997, c.100 (C.45:11-24.4), unless the [director] board first determines, consistent with the requirements of sections 7 through 13 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.45:11-24.3 through 24.9), that no criminal history record information exists on file in the Federal Bureau of Investigation, Identification Division, or in the State Bureau of Identification in the Division of State Police, which would disqualify that person from being [employed or utilized in such capacity or position] certified. A person shall be disqualified from [employment under P.L.1997, c.100 (C.26:2H-82 et al.)] certification if that person's criminal history record background check reveals a record of conviction of any of the following crimes and offenses:

      (1) In New Jersey, any crime or disorderly persons offense:

      (a) involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.; or

      (b) against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-1 et seq.; or

      (c) involving theft as set forth in chapter 20 of Title 2C of the New Jersey Statutes; or

      (d) involving any controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10.

      (2) In any other state or jurisdiction, of conduct which, if committed in New Jersey, would constitute any of the crimes or disorderly persons offenses described in paragraph (1) of this subsection.

      b. Notwithstanding the provisions of subsection a. of this section, no person shall be disqualified from [employment under P.L.1997, c.100 (C.26:2H-82 et al.)] certification on the basis of any conviction disclosed by a criminal history record background check performed pursuant to sections 7 through 13 and section 14 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.45:11-24.3 through 24.9 and C.53:1-20.9a) if the person has affirmatively demonstrated to the [Director of] New Jersey Board of Nursing in the Division of Consumer Affairs clear and convincing evidence of the person's rehabilitation. In determining whether a person has affirmatively demonstrated rehabilitation, the following factors shall be considered:

      (1) the nature and responsibility of the position which the convicted person would hold or has held, as the case may be;

      (2) the nature and seriousness of the offense;

      (3) the circumstances under which the offense occurred;

      (4) the date of the offense;

      (5) the age of the person when the offense was committed;

      (6) whether the offense was an isolated or repeated incident;

      (7) any social conditions which may have contributed to the offense; and

      (8) 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 person under their supervision.

      c. If a person subject to the provisions of sections 7 through 13 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.45:11-24.3 through 24.9) refuses to consent to, or cooperate in, the securing of a criminal history record background check, the [director] New Jersey Board of Nursing shall [direct the home health care agency, nurses' registry, employment agency, or temporary help agency not to consider the person for employment] not issue a homemaker-home health aide certification and shall notify the applicant, and the applicant's employer if the applicant is conditionally employed as provided in subsection d. of section 8 of P.L.1997, c.100 (C.45:11-24.4) or the applicant's prospective employer if known, of that denial.

(cf: P.L.1977, c.100, s.7)

 

      7. Section 8 of P.L.1997, c.100 (C.45:11-24.4) is amended to read as follows:

      8. a. [A home health aide or other health care employee who is an] An applicant for [employment with a home health care agency, nurses' registry, employment agency, or temporary help agency which is licensed or regulated by the Division of Consumer Affairs] homemaker-home health aide certification shall submit to the [Director of the Division of Consumer Affairs] New Jersey Board of Nursing the applicant's name, address and fingerprints taken on standard fingerprint cards by [the] a State or municipal law enforcement agency. The [director] board is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the Division of State Police for use in making the determinations required by sections 7 through 13 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.45:11-24.3 through 24.9).

      b. Upon receipt of the criminal history record information for a person from the Federal Bureau of Investigation or the Division of State Police, the [director] New Jersey Board of Nursing shall immediately notify, in writing, the applicant, and the applicant's employer if the applicant is conditionally employed as provided in subsection d. of this section or the applicant's prospective employer[, in writing,] if known, of the person's qualification or disqualification for [employment] homemaker-home health aide certification under sections 7 through 13 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.45:11-24.3 through 24.9). If the applicant is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the notice to the applicant, but shall not be identified in the notice to the applicant's employer or prospective employer.

      c. The applicant shall have 30 days from the date of the written notice of disqualification to petition the [director] New Jersey Board of Nursing for a hearing on the accuracy of the applicant's criminal history record information or to establish the applicant's rehabilitation under subsection b. of section 7 of P.L.1997, c.100 (C.45:11-24.3). The [director] board shall notify the applicant's employer or prospective employer of the applicant's petition for a hearing within five days following the receipt of the petition from the applicant. Upon the issuance of a final decision upon a petition to the board pursuant to this subsection, the board shall notify the applicant and the applicant's employer or prospective employer as to whether the applicant remains disqualified from certification under sections 7 through 13 of P.L.1997, c.100 (C.45:11-24.3 through 24.9).

      d. [A home health care agency, nurses' registry, employment agency, or temporary help agency] An applicant may [employ a home health aide or other health care employee] be issued conditional certification and may be employed as a homemaker-home health aide conditionally for a period not to exceed 180 days, pending completion of a criminal history record background check required under sections 7 through 13 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.45:11-24.3 through 24.9), if the person submits to the [director] New Jersey Board of Nursing a sworn statement attesting that the person has not been convicted of any crime or disorderly persons offense as described in section 7 of P.L.1997, c.100 (C.45:11-24.3). A person who submits a false sworn statement shall be disqualified from [employment by any facility as defined in section 1 of P.L.1997, c.100 (C.26:2H-82), agency or registry,] certification as a homemaker-home health aide and shall not have an opportunity to establish rehabilitation pursuant to subsection b. of section 7 of P.L.1997, c.100 (C.45:11-24.3). A conditionally employed person who disputes the accuracy of the criminal history record information and who files a petition requesting a hearing pursuant to subsection c. of this section may remain employed by the [employing agency or registry] employer until the [director] board rules on the applicant's petition but, pending the [director's] board's ruling, the [employing agency or registry] employer shall not permit the applicant to have unsupervised contact with patients or clients who are 60 years of age or older.

      [A person who is to be employed in any substitute capacity or position, who is rehired annually, shall only be required to undergo a criminal history record check upon initial employment. A home health aide or other health care employee who has been qualified for employment as a result of a criminal history record background check pursuant to P.L.1997, c.100 (C.26:2H-82 et al.) may use that qualification to obtain employment with a simultaneous or subsequent employer without having to undergo another check required by P.L.1997, c.100 (C.26:2H-82 et al.) for a period of 12 months from the date of the initial notice of qualification from the director. The aide or employee may request and the director shall send a notice of qualification upon request to simultaneous or subsequent employers within 12 months following the date of the initial qualification notice.]

(cf: P.L.1997, c.100, s.8)

 

      8. Section 9 of P.L.1997, c.100 (C.45:11-24.5) is amended to read as follows:

      9. [The] A home health [care] agency[, nurses' registry, employment agency, or temporary help agency] or a health care service firm, as defined in regulations of the Division of Consumer Affairs, may assume the cost of [all] the criminal history record background [checks] check conducted on [prospective employees] an applicant for homemaker-home health aide certification pursuant to sections 7 through 13 and section 14 of P.L.1997, c.100 ([C.26:2H-82 et al.] C.45:11-24.3 through 24.9 and C.53:1-20.9a); or it may require the [prospective employee] applicant to pay the cost of the criminal history record background [checks] check.

(cf: P.L.1997, c.100, s.9)

 

      9. Section 10 of P.L.1997, c.100 (C.45:11-24.6) is amended to read as follows:

      10. The Division of Consumer Affairs shall require that the New Jersey Board of Nursing issue biennial recertifications to homemaker-home health aides only upon receiving documented proof from a home health [care] agency or health care service firm that the homemaker-home health aide is currently employed and regularly supervised by a registered professional nurse.

(cf: P.L.1997, c.100, s.10)

 

      10. Section 11 of P.L.1997, c.100 (C.45:11-24.7) is amended to read as follows:

      11. The Division of Consumer Affairs shall require that a New Jersey Board of Nursing certificate issued to a homemaker-home health aide contain the following statement: "Valid only if certified homemaker-home health aide is employed by a home [care services] health agency or health care service firm and is performing delegated nursing regimen or nursing tasks delegated through the authority of a duly licensed registered professional nurse."

(cf: P.L.1997, c.100, s.11)

 

      11. Section 12 of P.L.1997, c.100 (C.45:11-24.8) is amended to read as follows:

      12. In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the [Director of] New Jersey Board of Nursing in the Division of Consumer Affairs shall adopt rules and regulations necessary to implement the provisions of sections 7 through 9 and section 13 of P.L.1997, c.100 (C.45:11-24.3 through 24.5 and C.45:11-24.9).

(cf: P.L.1997, c.100, s.12)

 

      12. Section 13 of P.L.1997, c.100 (C.45:11-24.9) is amended to read as follows:

      13. Any [employer subject to the provisions of sections 7 through 9 and section 12 of P.L.1997, c.100 (C.45:11-24.3 through C.45:11-24.5 and C.45:11-24.8) who fails to comply with those provisions or any] person submitting a false sworn statement pursuant to section 8 of P.L.1997, c.100 (C.45:11-24.4) shall be subject to a fine of not more than $1,000, which may be assessed by the New Jersey Board of Nursing.

(cf: P.L.1997,c.100,s.13)

 

      13. Section 14 of P.L.1997, c.100 (C.53:1-20.9a) is amended to read as follows:

      14. [The] In accordance with the provisions of sections 2 through 6 and sections 7 through 13 of P.L.1997, c.100 (C.26:2H-83 through 87; C.45:11-24.3 through 24.9), the Division of State Police in the Department of Law and Public Safety shall conduct a criminal history record background check, including a name and fingerprint identification check, of each [prospective employee of a facility as defined in section 1 of P.L.1997, c.100 (C.26:2H-82) or of a home health care agency, nurses' registry, employment agency, or temporary help agency licensed or regulated by the Director of ] applicant for nurse aide or personal care assistant certification submitted to the Department of Health and Senior Services and of each applicant for homemaker-home health aide certification submitted to the New Jersey Board of Nursing in the Division of Consumer Affairs. [The requirement of a criminal history record background check shall apply only to a prospective employee who is or would be serving in a position which involves regular contact with a patient, resident or client as the case may be, who is 60 years of age or older.]

      For the purpose of conducting the criminal history record background check, the Division of State Police shall examine its own files and arrange for a similar examination by federal authorities. The division shall immediately forward the information obtained as a result of conducting the check to the Commissioner of Health and Senior Services, in the case of [a facility] an applicant for nurse aide or personal care assistant certification, and to the [Director of] New Jersey Board of Nursing in the Division of Consumer Affairs in the Department of Law and Public Safety, in the case of [a home health care agency, nurses' registry, employment agency, or temporary help agency] an applicant for homemaker-home health aide certification.

(cf: P.L.1997, c.100, s.14)

 

      14. Section 1 of P.L.1997, c.100 (C.26:2H-82) is repealed.

 

      15. This act shall take effect1[on the first day of the sixth month after enactment]immediately1.

 

 

                              

 

Requires criminal background checks for nurse aide, personal care assistant, and homemaker-home health aide certification applicants.