Section 75-03-36-13 - [Effective 4/1/2024] Background checks and criminal conviction - Effect on licensure1. The department requires an initial fingerprint-based criminal background check for each child-placing agency owner, employee, or nonemployee with direct contact with clients. An initial fingerprint-based criminal background check is also required for each prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home. Subsequent fingerprint-based background checks are not required for an employee, nonemployee, prospective adoptive parent, foster care provider, or any adult household member who maintains continuous employment, licensure, or affiliation with the child-placing agency unless the child-placing agency or the department determines a need exists to conduct a subsequent investigation.2. The department requires a child abuse and neglect index check as part of the initial fingerprint-based criminal background check. An annual child abuse and neglect index check must be completed and placed in the personnel file for each employee and nonemployee or in the client file for each prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home.3. A prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home may not be licensed, certified, or approved, or a child-placing agency owner, employee, or nonemployee may not be known to have been found guilty of, pled guilty to, or pled no contest to: a. An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter, or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson;12.1-22-01, robbery, if a class A or B felony under section 2 of that section; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of child or 14-09-22.1, neglect of child;b. An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; orc. An offense, other than an offense identified in subdivision a or b, if the department determines that the individual has not been sufficiently rehabilitated. (1) The department will not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions has elapsed.(2) An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.4. The department has determined that the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on the individual's ability to serve the public in a capacity as an adoptive home placement, a foster care provider, and as an owner, employee, or nonemployee of a child-placing agency.5. In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C felony; or 12.1-31-07.1, exploitation of an eligible adult - penalty, if a class B felony under subdivision c of subsection 2 of that section or a class B felony under subdivision d of subsection 2 of that section; or chapter 19-03.1, Uniform Controlled Substance Act, if a class A, B, or C felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions. The department may not be compelled to make such determination.6. The department may deny a request for a criminal background check for any individual who provides false or misleading information about the individual's criminal history.7. An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is: a. Common knowledge in the community;b. Acknowledged by the individual; orc. Discovered by the child-placing agency, authorized agent, or department as a result of a background check.8. The department may request a fingerprint-based criminal background check whenever an owner, employee, or nonemployee of the child-placing agency, a prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home is known to have been involved in, charged with, or convicted of an offense.9. The department shall review fingerprint-based criminal background check results as follows: a. If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.b. The department shall assign the individual's request for review to a department review panel.c. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.d. The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.e. The final decision of the review panel may not be appealed.10. The child-placing agency shall make an offer of employment to an employee or an offer of placement to a nonemployee conditioned upon the individual's consent to complete required background checks. While awaiting the results of the required background check, the child-placing agency may choose to provide training and orientation to an employee. However, until the completed and approved required background check results are placed in the employee file, the employee may have only supervised interaction with clients.11. The department may excuse an owner, employee, or nonemployee of a child-placing agency, prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an owner, employee, or nonemployee of a child-placing agency, prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home is excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the individual lived during the eleven years preceding the signed authorization for the background check.12. A child-placing agency shall establish written policies and engage in practices that conform to those policies to effectively implement this section, and North Dakota Century Code sections 50-11.3-02 and 50-12-03.2.13. A child-placing agency shall establish written policies specific to how the child-placing agency will proceed if a current employee or nonemployee is known to have been found guilty of, pled guilty to, or pled no contest to an offense.N.D. Admin Code 75-03-36-13
Amended by Administrative Rules Supplement 2016-360, April 2016, effective 4/1/2016.Amended by Administrative Rules Supplement 2020-377, July 2020, effective 7/1/2020.Amended by Administrative Rules Supplement 2024-392, April 2024, effective 4/1/2024.General Authority: NDCC 50-11-03, 50-11.3-01, 50-12-05
Law Implemented: NDCC 50-11-06.8, 50-11.3-01, 50-12-03.2