N.J. Admin. Code § 10:84-2.1

Current through Register Vol. 57, No. 1, January 6, 2025

Section 10:84-2.1 - Program participation

(a) The provisions of this subchapter were adopted and issued pursuant to Executive Order No. 34 (1976), and the authority vested in the Division of Family Development (DFD) to implement the programs by rules and regulations, as set forth in N.J.S.A. 30:1-9 and 30:4B-1 and 2.

(b) Suspension, debarment, and disqualification are measures that shall be invoked by DFD to exclude or render ineligible certain persons or entities from participation in contracts and subcontracts involving DFD programs, pilot projects, and initiatives, or contracts performed with the assistance of, and subject to the approval of, DFD on the basis of a lack of responsibility. These measures shall be used for the purpose of protecting the interests of DFD and not as punitive measures. To assure participants in DFD programs the benefits to be derived from full and free competition between and among such persons, and to maximize the opportunity for honest competition and performance among providers, these measures shall not be invoked for any period of time longer than deemed necessary to protect the interests of DFD.

1. Any person including, but not limited to, owners, officers, administrators, assistant administrators, employees, accountants, attorneys, and management services, who have been suspended, debarred, or disqualified from participation in DFD programs or initiatives for any reason shall not be involved in any activity relating to DFD programs or initiatives during the period of suspension, debarment, or disqualification.

2. Providers reimbursed on a cost-related basis may not claim as allowable costs any amounts paid or credited to such individuals, and such amounts shall not be reimbursed by DFD.

3. Providers may not submit claims, invoices, or bills, electronic or otherwise, and shall not be reimbursed for any goods supplied or services rendered by such individuals. This requirement shall apply only for the period during which such individuals are suspended, debarred, or disqualified from the DFD contracting process.

4. Claims, invoices, or bills, electronic or otherwise, shall not be submitted and shall not be reimbursable for any item or service furnished, at the direction of a person or other entity, during the period when such person or other entity is excluded from participation in DFD programs or initiatives, and when the person or other entity furnishing such item or service has received written notice from the Division that the person or other entity has been excluded from participation in DFD programs or initiatives.

(c) The following words and terms, as used in this section, shall have the following meanings:

"Affiliates" means persons having an overt or covert relationship, such that any one of them directly or indirectly controls or has the power to control another.

"Debarment" means an exclusion from State contracting, on the basis of a lack of responsibility evidenced by an offense, failure, or inadequacy of performance, for a reasonable period of time commensurate with the seriousness of the offense, failure, or inadequacy of performance.

"Disqualification" means a debarment or a suspension that denies or revokes a qualification to bid or otherwise engage in State contracting that has been granted or for which application has been made pursuant to laws, rules, or regulations.

"Exclusion" means the suspension, debarment, or disqualification of any individual or entity from participation in any capacity in any program administered in whole or in part by DFD.

"Person" means any natural person, company, firm, association, corporation, or other entity.

"State" means the State of New Jersey or any of the departments or agencies in the executive branch of government with the lawful authority to engage in contracting.

"State contracting" means any arrangement giving rise to an obligation to supply anything to or perform any service for the State, other than by virtue of State employment, or to supply anything to or perform any service for a private person when the State provides substantial financial assistance and retains the right to approve or disapprove the nature or quality of the goods or service or the persons who may supply or perform the same.

"Suspension" means an exclusion from State contracting for a temporary period of time, pending the completion of an investigation or legal proceedings.

(d) Any of the following, subject to the other conditions described in this subchapter, shall constitute good cause for exclusion of a person or other entity by DFD:

1. Commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract, or subcontract thereunder, or in the performance of such contract or subcontract;

2. Violation of the Federal Organized Crime Control Act of 1970, or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, perjury, false swearing, receiving stolen property, obstruction of justice, or any other offense indicating a lack of business integrity or honesty;

3. Violation of the Federal or State antitrust statutes, or of the anti-kickback provisions of the Social Security Act at 42 U.S.C. § 1320a-7b(b);

4. Violations of any of the laws governing the conduct or elections of the State of New Jersey or of its political subdivisions;

5. Violation of the Law Against Discrimination, N.J.S.A. 10:5-1 et seq., the Act Banning Discrimination in Public Works Employment, N.J.S.A. 10:2-1 et seq., or Act Prohibiting Discrimination by Industries Engaged in Defense Work in the Employment of Persons Therein, N.J.S.A. 10:1-10 et seq.;

6. Violations of any laws governing hours of labor, minimum wage standards, prevailing wage standards, discrimination in wages, or child labor;

7. Violations of any laws, regulations, or code of ethics governing the conduct of occupations or professions or regulated industries;

8. Willful failure to perform in accordance with contract specifications or within contractual time limits;

9. A record of failure to perform or a record of unsatisfactory performance in accordance with the terms of one or more contracts, provided that such failure or unsatisfactory performance has occurred within a reasonable time preceding the determination to debar and was caused by acts within the control of the person debarred;

10. Violations of contractual or statutory provisions regulating payments or fees;

11. Presentment for allowance or payment, to DFD or its authorized agent, any false or fraudulent claim, invoice, or bill, electronic or otherwise, for services or merchandise;

12. Submission of false information, to DFD or its authorized agent, for the purpose of obtaining greater compensation than that to which the person or entity is legally entitled;

13. Submission of false information, to DFD or its authorized agent, for the purpose of obtaining authorization for program services or payments;

14. Failure to disclose or make available to DFD or its authorized agent, records of services provided to, or payments made on behalf of, participants in DFD programs;

15. Failure to provide and maintain quality services to DFD program participants within accepted standards as determined in rule;

16. Engaging in a course of conduct or performing an act deemed improper or abusive of DFD programs or clients, following notification that said conduct shall cease;

17. Breach of the terms of the provider agreement entered into with DFD;

18. Violating any provision of the law including, but not limited to, Work First New Jersey General Public Assistance Act, N.J.S.A. 44:8-107 et seq., Work First New Jersey Act, N.J.S.A. 44:10-55 et seq., the Food and Nutrition Act of 2008, P.L. 110-246, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104-193, Child Care and Development Block Grant Act of 1990, P.L. 101-508, as amended or supplemented, or any rule or regulation promulgated by the Commissioner of Human Services pursuant thereto;

19. Conviction of any crime involving moral turpitude;

20. Submission of a false or fraudulent application for provider status to the DFD program or to its authorized agent;

21. Any other cause affecting responsibility as a State contractor of such serious and compelling nature as may be determined by DFD to warrant exclusion, including such conduct as may be proscribed by the laws or contracts enumerated in this subsection, even if such conduct has not been or may not be prosecuted as violations of such laws or contracts;

22. Suspension, debarment, or disqualification by an executive department or agency of another state or the Federal government;

23. Exclusion from participation in any state-funded assistance program of another state;

24. Exclusion from participation in the delivery of services under the Federal Social Security Act by the Secretary of the United States Department of Health and Human Services; or

25. Failure to comply with an administrative subpoena issued by the DFD.

(e) Conditions for debarment are as follows:

1. Debarment shall be made only upon approval of the Director of DFD, except as otherwise provided by law.

2. The existence of any of the causes set forth in (d) above, shall not necessarily require that a person be debarred. In each instance, the decision to debar shall be made within the discretion of the Director of DFD unless otherwise required by law, and shall be rendered in the best interest of the program.

3. All mitigating factors shall be considered in determining the seriousness of the offense, failure or inadequacy of performance, and in deciding whether debarment is warranted.

4. The existence of a cause set forth in (d)1 through 7 above shall be established upon the rendering of a final judgment or conviction by a court of competent jurisdiction or by an administrative agency empowered to render such judgment. In the event an appeal taken from such judgment or conviction results in reversal thereof, the debarment shall be removed upon the request of the debarred person unless other cause for debarment exists.

5. The existence of a cause set forth in (d)8, 9, 10, and 19 above shall be established by evidence that DFD determines to be clear and convincing in nature.

6. The existence of a cause set forth in (d)1 through 7, 11 through 20, and 22 above shall be established by a preponderance of the believable evidence.

7. Debarment for the cause set forth in (d)22 above shall be proper, provided that one of the causes set forth in (d)1 through 21 above was the basis for debarment by the original debarring agency. Such debarment may be based entirely on the record of facts obtained by the original debarring agency or upon a combination of such facts and additional facts.

(f) If DFD seeks to debar a person or his or her affiliates, DFD shall furnish such party with a written notice stating that debarment is being considered, setting forth the reasons for the proposed debarment and indicating that such party will be afforded an opportunity for a hearing if he or she so requests within a stated period of time. All such hearings shall be conducted in accordance with the provisions of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1. However, where one department or agency has imposed debarment upon a party, a second department or agency may also impose a similar debarment without affording an opportunity for a hearing, provided that the second agency furnishes notice of the proposed similar debarment to that party and affords that party an opportunity to present information in his or her behalf to explain why the proposed similar debarment should not be imposed in whole or in part.

(g) Debarment shall be a reasonable, definitely stated period of time which, as a general rule, shall not exceed five years. Debarment for an additional period shall be permitted provided that notice thereof is furnished and the party is accorded an opportunity to present information in his or her behalf to explain why the additional period of debarment should not be imposed.

(h) The scope of debarment rules is as follows:

1. Except as otherwise provided by law, a debarment may be removed or the period thereof may be reduced at the discretion of the debarring agency upon the submission of a good faith application under oath, supported by documentary evidence, setting forth substantial and appropriate grounds for the granting of relief, such as newly discovered material evidence, reversal of a conviction or judgment, actual change of ownership, management or control, or the elimination of the causes for which the debarment was imposed.

2. A debarment may include all known affiliates of a person, provided that each decision to include an affiliate is made on a case-by-case basis after giving due regard to all relevant facts and circumstances. The offense, failure, or inadequacy of performance of an individual may be imputed to a person with whom he or she is affiliated, where such conduct was accomplished within the course of his or her official duty or was affected by him or her with the knowledge or approval of such person.

3. Debarment by the Director of any provider of service shall preclude such provider from submitting claims, bills, or invoices, electronic or otherwise, for payment, either personally or through any individual, group, corporation, or other association to the program or its authorized agent for any services or supplies he or she has provided under DFD programs or initiatives, except for services or supplies provided prior to the debarment. No individual, group, corporation, or other association that is a provider of services shall submit claims, bills, or invoices, electronic or otherwise, for payment to the program or its authorized agent for any services or supplies provided by a person within such organization who has been debarred by the program, except for services or supplies provided prior to the debarment.

4. When the provisions of this section are violated by a provider of service that is an individual, group, corporation, or other association, the Director may debar such organization and/or any individual person within said organization who is responsible for such violation.

(i) DFD may suspend a person in the public interest for any cause specified in (d) above, or upon a reasonable suspicion that such cause exists or when, in the opinion of DFD, such action is necessary to protect the general public welfare, the welfare of clients or the interests of DFD.

(j) Conditions for suspension are as follows:

1. Suspension shall be imposed only upon approval of the Director of the Division and upon approval of the Attorney General, except as otherwise provided by law.

2. The existence of any cause for suspension shall not require that a suspension be imposed, and a decision to suspend shall be made at the discretion of the Director of DFD and of the Attorney General, and shall be rendered in the best interests of DFD programs or initiatives.

3. Suspension shall not be based upon unsupported accusation, but upon adequate evidence that cause exists or upon evidence adequate to create a reasonable suspicion that cause exists.

4. In assessing whether adequate evidence exists, consideration shall be given to the amount of credible evidence that is available, to the existence or absence of corroboration as to important allegations, and to inferences that may properly be drawn from the existence or absence of affirmative facts.

5. Reasonable suspicion of the existence of a cause described in (d) above may be established by a judgment or order of an administrative agency, or court of competent jurisdiction, or by a judgment of conviction, grand jury indictment, accusation, arrest, or by evidence that such violations of civil or criminal law did in fact occur.

6. A suspension invoked by DFD for any of the causes described in (d) above may be the basis for the imposition of a concurrent suspension by another agency, which may impose such suspension without the approval of the Attorney General.

(k) DFD may suspend a person or his or her affiliates provided that within 10 days after the effective date of the suspension, DFD provides such party with a written notice stating that a suspension has been imposed and its effective date; setting forth the reasons for the suspension to the extent that the Attorney General determines that such reasons may be properly disclosed; stating that the suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue; and indicating that, if such legal proceedings are not commenced or the suspension removed within 60 days of the date of such notice, the party shall be given either a statement of the reasons for the suspension and an opportunity for a hearing, if he or she so requests, or a statement declining to give such reasons and setting forth the agency's position regarding the continuation of the suspension. Where a suspension by DFD has been the basis for suspension by another agency, the latter shall note that fact as a reason for its suspension.

(l) A suspension shall not continue beyond 18 months from its effective date unless civil or criminal action regarding the alleged violation shall have been initiated within that period, or unless debarment action has been commenced. Whenever prosecution or debarment action has been initiated, the suspension may continue until the legal proceedings are completed.

(m) Scope of the suspension rules is as follows:

1. A suspension may include all known affiliates of a person, provided that each decision to include an affiliate is made on a case-by-case basis after giving due regard to all relevant facts and circumstances. The offense, failure, or inadequacy of performance of an individual may be imputed to a person with whom he or she is affiliated, where such conduct was accomplished within the course of his or her official duty or was effectuated by him or her with the knowledge or approval of such person.

2. Suspension by DFD of any provider of service shall preclude such provider from submitting claims, bills, or invoices, electronic or otherwise, for payment either personally or through claims, bills, or invoices submitted by any individual, group, corporation, or other association to DFD, its programs, or its authorized agent, for any services or supplies he or she has provided under DFD programs or initiatives, except for services or supplies provided prior to the suspension. No individual, group, corporation, or other association that is a provider of services shall submit claims, bills, or invoices for payment to DFD, its programs, or its authorized agent for any services or supplies provided by a person within such entity who has been suspended by DFD, except for services or supplies provided prior to the suspension.

3. When the provisions of this section are violated by a provider of service that is an individual, group, corporation, or other association, the Director may suspend such organization and/or any individual person within said organization who is responsible for such violation.

(n) Exclusion from State contracting by virtue of debarment, suspension, or disqualification shall extend to all State contracting and subcontracting within the control or jurisdiction of DFD. However, when it is determined essential to the public interest by the Director of DFD, and upon filing of a finding thereof with the Attorney General, an exception from total exclusion may be made with respect to a particular State contract.

(o) Insofar as practicable, prior notice shall be given to the Attorney General and the State Treasurer of any proposed debarment or suspension.

(p) DFD shall provide the State Treasurer with the names of all persons suspended or debarred and the effective date and term thereof, if any.

(q) This section shall be applicable to all persons, providers, contractors, agents, and their affiliates who engage in State contracting with DFD as defined in this section.

(r) A provider or other entity may be granted an administrative hearing because of a determination by the Division involving their contracting or subcontracting status, including termination, debarment, suspension, or exclusion from participation in any capacity in any program or initiative by the DFD.

N.J. Admin. Code § 10:84-2.1