S2105

SENATE, No. 2105

STATE OF NEW JERSEY

INTRODUCED MAY 22, 1997

By Senators BUBBA and CONNORS

An Act concerning criminal history record background checks for certain persons who care for the elderly.

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

1. For the purposes of sections 2 through 6 of P.L. , c. (C. ) (pending before the Legislature as this bill):

"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, rehabilitation centers, residential health care facilities, general hospitals, special hospitals, chronic disease hospitals, psychiatric hospitals, developmental disabilities centers or facilities, day care facilities for the elderly, and medical day care centers. Licensed home health agencies are not facilities for the purposes of this act.

"Patient, resident or client" means any person, 60 years of age or older, who receives treatment, care or other services in a facility including, but not limited to, services such as admission, retention, confinement, commitment, residence, transfer and discharge.

2. a. A facility shall not hire any unlicensed person to serve in a position which involves regular contact with a patient, resident or client as the case may be, except on a conditional basis as provided for in subsection d. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), unless the Commissioner of Health and Senior Services first determines, consistent with the requirements of sections 1 through 6 of P.L. , c. (C. ) (pending before the Legislature as this bill), 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 that capacity or position. A person shall be disqualified from employment under P.L. , c. (C. ) (pending before the Legislature as this bill) 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:24-4 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 P.L. , c. (C. ) (pending before the Legislature as this bill) on the basis of any conviction disclosed by a criminal history record background check performed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) 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 P.L. , c. (C. ) (pending before the Legislature as this bill) 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.

3. a. An applicant for employment at a facility 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 P.L. , c. (C. ) (pending before the Legislature as this bill).

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 the applicant and the applicant's employer or prospective employer, in writing, of the person's qualification or disqualification for employment under P.L. , c . (C. ) (pending before the Legislature as this bill). 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. , c. (C. ) (pending before the Legislature as this bill). 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.

d. A facility may employ a person conditionally, for a period not to exceed 180 days, pending completion of a criminal history record background check required under P.L. , c. (C. ) (pending before the Legislature as this bill), 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. , c. (C. ) (pending before the Legislature as this bill). 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, and shall not have an opportunity to establish rehabilitation pursuant to subsection b. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill). 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 until the commissioner rules on the applicant’s petition but, pending the commissioner's ruling, the facility shall not permit the applicant to have unsupervised contact with elderly patients, residents or clients, as the case may be. e. 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. , c. (C. ) (pending before the Legislature as this bill) may use that qualification to obtain employment with a simultaneous or subsequent employer without having to undergo another check required by P.L. , c. (C. ) (pending before the Legislature as this bill) 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.

4. The prospective employer may assume the cost of all criminal history record background checks conducted on prospective employees pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill); or the prospective employer may require the prospective employee to pay the cost of the criminal history record background check.

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 sections 1 through 4 and section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).

6. Any employer subject to the provisions of sections 1 through 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) who fails to comply with those provisions or any person submitting a false sworn statement pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be subject to a fine of not more than $1,000.

7. a. The New Jersey Board of Nursing in the Division of Consumer Affairs in the Department of Law and Public Safety, shall not issue a homemaker-home health aide certification to any applicant except on a conditional basis as provided for in section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), unless the Board of Nursing first determines, consistent with the requirements of P.L. , c. (C. ) (pending before the Legislature as this bill) , 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, that would disqualify that person from being certified. A person shall be disqualified from certification under P.L. , c. (C. ) (pending before the Legislature as this bill) 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:

(b) against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-4 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 certification under P.L. , c. (C. ) (pending before the Legislature as this bill) on the basis of any conviction disclosed by a criminal history record background check performed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) if the person has affirmatively demonstrated to the 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

c. If a person subject to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) refuses to consent to, or cooperate in, the securing of a criminal history record background check, the New Jersey Board of Nursing shall not issue a homemaker-home health aide certification and shall notify the applicant of that denial.

8. a. An applicant for homemaker-home health aide certification shall submit to the New Jersey Board of Nursing the applicant's name, address and fingerprints taken on standard fingerprint cards by the State or municipal law enforcement agency. The New Jersey Board of Nursing is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation, Information Division, and the Division of State Police for use in making the determinations required by P.L. , c. (C. ) (pending before the Legislature as this bill).

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 Board of Nursing shall immediately notify the applicant and the applicant's employer or prospective employer, in writing, of the person's qualification or disqualification for homemaker-home health aide certification under P.L. , c. (C. ) (pending before the Legislature as this bill). 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 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. , c. (C. ) (pending before the Legislature as this bill). The Board of Nursing 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.

d. An applicant 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 P.L. , c. (C. ) (pending before the legislature as this bill), if the person submits to the 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. , c. (C. ) (pending before the Legislature as this bill). A person who submits a false sworn statement shall be disqualified from 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. , c. (C. ) (pending before the Legislature as this bill). 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 until the New Jersey Board of Nursing rules on the applicant's petition but, pending the board's ruling, the employing agency shall not permit the applicant to have unsupervised contact with patients or clients who are 60 years of age or older.

e. 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 homemaker-home health aide certification.

9. The home health agency or health care service firm may assume the cost of all criminal history record background checks conducted on applicants for homemaker-home health aide certification pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill); or it may require the applicant to pay the cost of the criminal history record background checks.

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 agency or health care service firm that the home health aide is currently employed and regularly supervised by a registered professional nurse.

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 a certified homemaker-home health aide is employed by a home health agency or health care service firm and is performing nursing regimen or nursing tasks delegated through the authority of a duly licensed registered professional nurse."

12. In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the 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 of P.L. , c. (C. ) (pending before the Legislature as this bill).

13. 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. , c. (C. ) (pending before the Legislature as this bill) or 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 or an applicant 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, and to the Board of Nursing in the Division of Consumer Affairs in the Department of Law and Public Safety, in the case of an applicant for homemaker-home health aide certification.

14. 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 facilities that provide care for the elderly. The bill defines "facility" to mean any facility or institution offering health or health related services for the institutionalized elderly, and which is subject to regulation, visitation, inspection, or supervision by any government agency, As defined in the bill, "facility" does not mean a licensed home health agency. The bill also bars the New Jersey Board of Nursing from issuing any applicant for homemaker-home health aide certification a certificate unless that applicant first passes a criminal background check.

Under the provisions of the bill, a person could not: (1) be hired by a facility for a position which involves regular contact with patients or clients 60 years of age or older; or (2) receive a homemaker-home health aide certificate or provide home health care services to such elderly individuals, until the Commissioner of Health and Senior Services (in the case of a facility), or the New Jersey Board of Nursing in the Division of Consumer Affairs in the Department of Law and Public Safety (in the case of homemaker-home health aides), determines that the person has not been convicted of any of the crimes or offenses set forth in the bill.

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