N.J. Admin. Code § 3A:56-5.6

Current through Register Vol. 56, No. 23, December 2, 2024

Section 3A:56-5.6 - Criminal History Record Information background checks

(a) As a condition of securing and maintaining a certificate, the home or agency shall ensure that a State and Federal Criminal History Record Information (CHRI) fingerprint background check, in keeping with P.L. 2003, c. 186, is completed for the director and each staff member, treatment home parent, teaching family home parent, alternative care home parent, supervised transitional living home parent, and household member at least 18 years old in a treatment home, teaching family home, alternative care home or supervised transitional living home.

(b) If the director, treatment home parent, teaching family home parent, alternative care home parent, supervised transitional living home parent, or household member refuses to consent to or cooperate in a CHRI background check, the Department shall deny, suspend, revoke or refuse to renew the certificate, as applicable.

1. The home or agency may appeal the denial, suspension, revocation or refusal to renew, as specified in 3A:56-2.4.

2. The treatment home parent, teaching family home parent, alternative care home parent, or supervised transitional living home parent may choose to remove the household member so refusing from the home before the action against the certificate takes effect.

(c) If a staff member refuses to consent to or cooperate in a CHRI background check, the home or agency shall immediately terminate the staff member's employment at the home or agency.

(d) If any person identified in (a) above has a record of criminal conviction, the Department of Children and Families shall review the record with respect to the type and date of the criminal offense and make a determination as to the suitability of the person to receive a certificate or to administer, work at or reside in the home or agency.

(e) A person shall be disqualified from receiving a certificate or administering, working at or residing in a home or agency if that person ever committed a crime which resulted in a conviction for:

1. A crime against a child, including endangering the welfare of a child and child pornography pursuant to 2C:24-4, or child molestation as set forth in 2C:14-1 et seq.;

2. Abuse, abandonment or neglect of a child pursuant to 9:6-3;

3. Endangering the welfare of an incompetent person pursuant to 2C:24-7;

4. Sexual assault, criminal sexual contact or lewdness pursuant to 2C:14-2 through 2C:14-4;

5. Murder pursuant to 2C:11-3 or manslaughter pursuant to 2C:11-4;

6. Stalking pursuant to section 1 of P.L. 1992, c.209 (2C:12-10 );

7. Kidnapping and related offenses including criminal restraint, false imprisonment, interference with custody, criminal coercion, or enticing a child into a motor vehicle, structure, or isolated area pursuant to 2C:13-1 through 2C:13-5 and section 1 of P.L. 1993, c.291 (2C:13-6 );

8. Arson pursuant to 2C:17-1, or causing or risking widespread injury or damage, which would constitute a crime of the second degree pursuant to 2C:17-2;

9. Aggravated assault, which would constitute a crime of the second or third degree pursuant to subsection b of 2C:12-1;

10. Robbery, which would constitute a crime of the first degree pursuant to 2C:15-1;

11. Burglary, which would constitute a crime of the second degree pursuant to 2C:18-2;

12. Domestic violence pursuant to P.L. 1991, c.261 (2C:25-17 et seq.);

13. Terroristic threats pursuant to 2C:12-3;

14. An attempt or conspiracy to commit any of the crimes or offenses listed in (e)1 through 13 above; or

15. In any other state or jurisdiction, conduct which, if committed in New Jersey, would constitute any of the crimes or offenses described in (e)1 through 14 above.

(f) As an exception to (e) above, the Department may approve the employment at, or administration of, a home or agency by an individual convicted of a crime specified in (e) above if all of the following conditions are met:

1. The Department determines that the crime does not relate adversely to the position the individual is employed in pursuant to the provisions of P.L. 1968, c.282 (2A:168A-1 et seq.);

2. The conviction is not related to a crime committed against a child, as specified in (e) above;

3. The home or agency documents that the individual's employment or administration of the home or agency does not create a risk to the safety or well-being of children due to the nature and requirements of the position. As necessary, the home or agency shall identify restrictions regarding the individual's contact with, care or supervision of children;

4. The home or agency documents that the individual is uniquely qualified for the position due to specific skills, qualifications, characteristics or prior employment experiences; and

5. The Department determines that the individual has affirmatively demonstrated rehabilitation, pursuant to the factors specified in (g) below.

(g) For crimes and offenses other than those cited in (e) above, an individual may be eligible to receive a certificate or to administer, work at or reside in a home or agency if the individual has affirmatively demonstrated to the Department clear and convincing evidence of rehabilitation.

1. In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered:

i. The nature and responsibility of the position at the facility that the convicted individual would hold, has held or currently holds, as the case may be;

ii. The nature and seriousness of the offense;

iii. The circumstances under which the offense occurred;

iv. The date of the offense;

v. The age of the individual when the offense was committed;

vi. Whether the offense was an isolated or repeated incident;

vii. Any social conditions that may have contributed to the offense; and

viii. 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 individual under their supervision.

2. Upon receipt of documentation submitted by the home or agency, indicating why the individual at issue should not be precluded from administering, working or residing at the home or agency, the Department, after assessing the facts on a case-by-case basis, shall make the final determination regarding the individual's rehabilitation, in keeping with the provisions of the State Rehabilitated Convicted Offenders Act, 2A:168A-1 et seq.

3. The Department shall make the final determination regarding the suitability of the director of a home or agency with a criminal conviction other than those cited in (e) above.

4. For a current or prospective staff member, treatment home parent, teaching family home parent, alternative care home parent, supervised transitional living home parent or household member with a criminal conviction other than those cited in (e) above, the director of the home or agency or the agency's board of directors shall make a determination regarding the individual's suitability upon the Department's determination that the individual has affirmatively demonstrated rehabilitation.

(h) If the director of a home or agency has knowledge that any individual specified in (a) above has criminal charges pending against the individual, the director shall promptly notify the Department to determine whether or not any action concerning the individual is necessary in order to ensure the safety of the children who are placed in the home.

(i) If the Department is notified that any individual specified in (a) above is convicted of a crime or offense after the CHRI has been completed, the Department shall make a determination whether to suspend or revoke the certificate or require the home or agency to terminate the individual's employment or service, as applicable.

(j) Upon completion of the CHRI for an individual specified in (a) above, the Department shall notify the individual, and the home or agency as applicable, in writing, of the individual's qualification or disqualification for employment or service under section 4 or 5 of P.L. 2003, c. 186 (N.J.S.A. 30:4C-27.19 or 30:4C-27.20).

1. If the individual is disqualified, the convictions that constitute the basis for the disqualification shall be identified in the written notice to the individual, as allowed by law.

2. The individual shall have 14 days from the date of the written notice of disqualification to challenge the accuracy of the CHRI.

3. If no challenge is filed or if the determination of the accuracy of the CHRI upholds the disqualification, the Department shall notify the home or agency that the individual has been disqualified.

4. The home or agency shall immediately terminate the disqualified individual's employment at the home or agency.

5. If the disqualified individual is a home or agency director, treatment home parent, teaching family home parent, alternative care home parent, supervised transitional living home parent or household member, the Department shall deny, suspend, revoke or refuse to renew the certificate, as applicable.

6. The treatment home parent, teaching family home parent, alternative care home parent, or supervised transitional living home parent may choose to remove the disqualified household member from the home before the action against the certificate takes effect.

(k) A home or agency that has received an employment application from an individual, or currently employs a director or staff member, shall be immune from liability for acting upon or disclosing information about the disqualification or termination of that individual to another home or agency seeking to employ that individual, if the home or agency has:

1. Received notice from the Department or the agency's board of directors, as applicable, that the applicant, director or staff member has been determined by the Department or the board of directors to be disqualified from employment or service at a home or agency pursuant to P.L. 1968, c.282 (2A:168A-1 et seq.); or

2. Terminated the employment of a staff member because the individual was disqualified from employment or service at the home or agency on the basis of a conviction of a crime pursuant to P.L. 1968, c.282 (2A:168A-1 et seq.) after commencing employment or service at the home or agency.

(l) A home or agency that acts upon or discloses information pursuant to (k) above shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the home or agency acted with actual malice toward the individual who is the subject of the information.

N.J. Admin. Code § 3A:56-5.6

Administrative Change, 49 N.J.R. 98a.

Amended by 50 N.J.R. 135(a), effective 1/2/2018