S206

SENATE, No. 206

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Senators CONNORS and BUBBA

An Act concerning the elderly and supplementing Title 26 and Title 53 of the Revised Statutes.

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

1. As used in this act:

"Facility" means any facility or institution, whether public or private, offering health or health related services for the institutionalized elderly, and which is subject to regulation, visitation, inspection, or supervision by any government agency. Facilities include, but are not limited to, nursing homes, skilled nursing homes, intermediate care facilities, extended care facilities, convalescent homes, rehabilitation centers, residential health care facilities, special hospitals, veterans' hospitals, chronic disease hospitals, psychiatric hospitals, mental hospitals, mental retardation centers or facilities, day care facilities for the elderly and medical day care centers.

"Patient, resident or client" means any person, 60 years of age or older, who is receiving treatment or care in any facility in all its aspects, including, but not limited to, admission, retention, confinement, commitment, period of residence, transfer, discharge and any instances directly related to such status.

2. a. A facility for the institutionalized elderly, as defined in section 1 of this act, or a provider of home health care services as determined by the Commissioner of Health, shall not hire any person serving in a non-professional position which involves regular contact with a patient, resident or client as the case may be, except on a provisional basis as provided for in section 3 of this act, unless the Commissioner of Health first determines, consistent with the requirements of this act, 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. A person shall be disqualified from employment under this act 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

(d) involving any controlled dangerous substance or 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 this act on the basis of any conviction disclosed by a criminal history record background check performed pursuant to this act if the person has affirmatively demonstrated to the Commissioner of Health clear and convincing evidence of his 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 this act 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 or the provider of home health care services not to consider the person for employment.

3. An applicant for employment at a facility or with a provider of home health care services shall submit to the Commissioner of Health, through the law enforcement agency of the municipality in which the facility or provider of home health care services is located, his name, address and fingerprints taken on standard fingerprint cards by the 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 this act.

Upon receipt of the criminal history record information for a person from the Federal Bureau of Investigation and the Division of State Police, the commissioner shall immediately notify the applicant and the municipal law enforcement agency, in writing, of the person's qualification or disqualification for employment under this act and shall forward to them a copy of the person's criminal history record. If the applicant is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified therein. A municipality may charge an applicant $2 for the cost of providing his prospective employer with a card or letter indicating whether the applicant is disqualified from employment.

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 his criminal history record information or to establish his rehabilitation under subsection b. of section 2 of this act.

The commissioner shall not maintain any person's criminal history record information or evidence of rehabilitation submitted under subsection b. of section 2 of this act for more than six months from the date of a final determination by the commissioner as to the person's qualification or disqualification to be an employee pursuant to this act.

A facility or a provider of home health care services may employ a person provisionally for a period not to exceed 120 days, pending completion of a criminal history record background check required under this act, if the person submits to the commissioner a sworn statement attesting that he has not been convicted of any crime or disorderly persons offense as described in section 2 of this act. 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.

4. The prospective employer shall assume the cost of all criminal history record background checks conducted on prospective employees pursuant to this act.

5. In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the Commissioner of Health shall adopt rules and regulations necessary to implement the provisions of this act.

6. 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 for the institutionalized elderly as defined in section 1 of this act or of a provider home health care services as determined by the Commissioner of Health. 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 shall, within two weeks after receiving a request therefor, 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.

7. Any employer subject to the provisions of this act who fails to comply with its provisions or any person submitting a false sworn statement pursuant to section 3 of this act shall be subject to a fine of not more than $1000.

8. This act shall take effect on the first day of the sixth month after enactment.

STATEMENT

This bill bars persons who have been convicted of certain disorderly persons offenses or crimes from employment with certain institutions and home health care providers which serve the elderly.

Law enforcement personnel in areas of the State with large senior citizen populations have had to devote more time in recent years to investigations of offenses against the elderly by employees of public and private agencies, nursing homes, and home health care providers. These offenses often involve individuals with prior criminal records.

Under the provisions of this bill, no person could (1) be hired in a non-professional capacity by a facility, whether public or private, offering health related services for the institutionalized elderly or (2) provide any home health care services to the elderly until the Commissioner of Health determines that person has not been convicted of any of the crimes or offenses set forth in the bill.

These include serious drug offenses as well as homicide, assault, kidnapping, robbery or theft. Record checks would be initiated by local police departments through the Department of Health and completed by the State Police and the Federal Bureau of Investigation upon payment by the prospective employer of the necessary fees. The applicant would have 30 days from the date of a disqualification notice to petition the Commissioner of Health for a hearing on the accuracy of the criminal records or to demonstrate his rehabilitation. Provisional employment for up to 120 days would be allowed during an applicant's record check if the applicant attests that he has not been convicted of any of the disqualifying offenses or crimes.

Requires criminal history record checks of certain persons applying for jobs to provide care for the elderly.