S3554

An Act concerning background checks and licensing of certain entities, amending P.L.1999, c.358, and supplementing Title 30 of the Revised Statutes.

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

1. Section 1 of P.L.1999, c.358 (C.30:6D-63) is amended to read as follows:

1. As used in this act:

a. "Commissioner" means the Commissioner of Human Services.

b. "Community agency employee" means any individual 18 years of age or older who is employed by a public or private agency under contract with or licensed by the department to provide services to department clients who have developmental disabilities or brain injuries and includes all personnel working or residing at an agency who may come into direct contact with clients.

c. "Community agency head" means the person responsible for the overall operation of the agency under contract with or licensed by the department.

d. "Department" means the Department of Human Services.

e. "Community agency" means a public or private agency under contract with or licensed by the department to provide services to department clients who have developmental disabilities or brain injuries.

f. "Community agency board" means the board of directors of a community agency.

g. “Community care residence” means a private house or apartment in which a person 18 years or older is under contract with or licensed by the department to provide individuals with developmental disabilities or persons with brain injury with care and a level of training and supervision that is based upon the documented needs of the individuals.

h. “Community care residence applicant” means a person age 18 or older who satisfactorily initiates and completes the application process in order to obtain a license to operate a community care residence.

i. “Community care residence alternate” means a person 18 years of age or older who has been selected by the applicant to provide care and supervision for individuals who require supervision at the community care residence.

j. “Community care residence household member” means a person 18 years of age or older who resides in a community care residence, but does not include the individual who is receiving services from the department.

(cf: P.L.2000, c.97, s.1)

2. Section 2 of P.L.1999, c.358 (C.30:6D-64) is amended to read as follows:

2. a. [The department shall not contract with any] Any community agency under contract with or licensed by the Department of Human Services shall not pay or contract for any employee or agency head for the provision of services unless it has first been determined, consistent with the requirement and standards of [this act] P.L.1999, c.358 (C.30:6D-63 et seq.), 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 the community agency head or the community agency employees from such employment. The determination shall be made by the [community agency board with regard to the agency head and the determination shall be made by the agency head with regard to all agency employees] State.

A community care residence shall not be qualified to house individuals unless it has first been determined, consistent with the requirement and standards of P.L.1999, c.358 (C.30:6D-63 et seq.), 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 the community care residence applicant, community care residence alternate, or community care residence household member. The determination shall be made by the State.

A criminal history record background check shall be conducted at least once every two years for a community agency head, community care residence applicant, community care residence alternate, community care residence household member, and community agency employees; except that the [department] State , in lieu of conducting criminal history record background checks every two years, may determine whether an individual has been convicted of a crime or disorderly persons offense which would disqualify that person [from employment] by an alternative means, including, but not limited to, a match of a person's Social Security number or other identifying information with records of criminal proceedings in this and other states. If the [department] State elects to implement an alternative means of determining whether an individual has been convicted of a crime or disorderly persons offense which would disqualify that individual [from employment], the [department] State shall report to the Governor and the Legislature prior to its implementation on the projected costs and procedures to be followed with respect to its implementation and setting forth the rationale therefor.

b. An individual shall be disqualified from employment under [this act] P.L.1999, c.358 (C.30:6D-63 et seq.) or the community care residence with whom the individual is associated with shall not be qualified to house individuals who receive department services if that individual'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

(c) A crime or offense involving the manufacture, transportation, sale, possession, or habitual use of a controlled dangerous substance as defined in the "New Jersey Controlled Dangerous Substances Act," P.L.1970, c.226 (C.24:21-1 et seq.).

(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.

c. If a prospective community agency employee or community agency head refuses to consent to, or cooperate in, securing of a criminal history record background check, the person shall not be considered for employment. If a prospective community care residence applicant, alternate, or household member refuses to consent to, or cooperate in, securing of a criminal history record background check, the community care residence shall not be qualified to house individuals who receive department services.

d. If [a current employee] an individual who is required pursuant to this section to undergo a criminal history background check refuses to consent to, or cooperate in, the securing of a criminal history record background check, the person shall be immediately removed from [his] the person’s position and the person's employment shall be terminated or, if the individual is affiliated with a community care residence, the community care residence shall not be qualified to house individuals who receive department services.

e. Notwithstanding the provisions of subsection b. of this section to the contrary, provisional employment of an individual is authorized for a period not to exceed six months if the individual submits to the appointing authority a sworn statement attesting that the individual has not been convicted of any crime or disorderly persons offense as described in this act, pending a determination that no criminal history record background information which would disqualify the individual exists on file in the State Bureau of Identification in the Division of State Police or in the Federal Bureau of Investigation, Identification Division. An individual who is provisionally employed pursuant to this subsection shall perform his duties under the supervision of a superior who acts in a supervisory capacity over that individual until the determination concerning the federal and State information is complete, where possible.

A community care residence shall not be qualified to house an individual with developmental disabilities while a community care residence applicant, alternate, or household member’s criminal history records check is pending.

f. Notwithstanding the provisions of subsection b. of this section to the contrary, no individual shall be disqualified from employment or from being qualified as a community care residence applicant, alternate, or household member on the basis of any conviction disclosed by a criminal history record background check performed pursuant to sections 2 through 7 of P.L.1999, c.358 (C.30:6D-64 through C.30:6D-69) if the individual has affirmatively demonstrated to the [community agency head, or the community agency board if the individual is the community agency head,] State, clear and convincing evidence of the individual's rehabilitation. In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered:

(1) the nature and responsibility of the position which the convicted individual would hold, has held or currently holds, 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 individual 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 individual under their supervision.

g. A conviction of a crime or disorderly persons offense against children as set forth in N.J.S.2C:24-4 adversely relates to a position in a community agency that involves or would involve working directly with a person under 18 years of age. Individuals convicted of such crimes or disorderly persons offenses are permanently disqualified from such employment at a community agency and from being qualified to be a community care residence applicant, alternate, or household member.

h. The individual shall have no longer than 14 days from the date of the written notice of disqualification pursuant to section 4 of P.L.1999, c. 358 (C.30:6D-66) to provide evidence of affirmatively demonstrated rehabilitation to the State as provided pursuant to this section.

i. The State shall have no longer than 60 days from the date of receipt of evidence of the individual's affirmatively developed rehabilitation to make a determination on the individual’s qualification. The State shall notify the individual in writing of the determination of the individual’s qualification or disqualification. The written notice may be transmitted electronically if the individual authorizes the State to transmit the information electronically..

(cf: P.L.2009, c.254, s.2)

3. Section 3 of P.L.1999, c.358 (C.30:6D-65) is amended to read as follows:

3. An individual who is a current, or prospective, community agency head, community agency employee, community care residence applicant, community care residence alternate, or community care residence household member shall submit to the Commissioner of Human Services his or her name, address, and fingerprints taken in accordance with procedures established by the commissioner. 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. The Division of State Police shall also promptly notify the department in the event an individual who was the subject of a criminal history record background check conducted pursuant to sections 2 through 7 of P.L.1999, c.358 (C.30:6D-64 through C.30:6D-69), is convicted of a crime or offense in this State after the date that the criminal history record background check was performed. Upon receipt of such notification, the [community agency head, or community agency board if the individual is the community agency head,] State shall make a determination regarding the employment or qualification of the individual. No criminal history record check shall be performed pursuant to this act unless the [applicant or employee] individual shall have furnished his written consent to the check. All [applicants or current employees] individuals shall have their fingerprints taken on standard fingerprint cards by a State or municipal law enforcement agency, a personnel unit of the department or State or a community agency designated by the department.

(cf: P.L.2000, c.97, s.3)

4. Section 4 of P.L.1999, c.358 (C.30:6D-66) is amended to read as follows:

4. Upon receipt of the criminal history record information from the Federal Bureau of Investigation and the Division of State Police, [written notice shall be provided to the applicant or employee as follows:

a. In the case of a community agency head, the community agency board shall notify the person in writing of his qualification or disqualification for employment under this act; and

b. In the case of a community agency applicant or employee, the community agency head shall notify the person of his qualification or disqualification for employment under this act. If the applicant or employee is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the written notice] the State shall notify the individual in writing of qualification or disqualification. If the individual is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the written notice. The written notice may be transmitted electronically if the individual authorizes the State to transmit the information electronically.

(cf: P.L.2000, c.97, s.4)

5. Section 5 of P.L.1999, c.358 (C.30:6D-67) is amended to read as follows:

5. a. The [applicant or employee] individual shall have 30 days from the date of receipt of the written notice of disqualification as provided in section 4 of P.L.1999, c.358 (C.30:6D-66) to petition for a hearing on the accuracy of the criminal history record information. [In the case of a community agency head, the petition shall be to the community agency board and the agency board shall make the determination. The community agency board shall provide notice to the community agency head that appeal of the determination is to the New Jersey Superior Court. In the case of a community agency applicant or employee, the petition shall be to the community agency head and the agency head shall make the determination. The community agency head]

b. The State shall have no longer than 60 days from the date of receipt of the petition for a hearing on the accuracy of the criminal history record information to make a determination. The State shall provide notice that further appeal is to the New Jersey Superior Court.

(cf: P.L.2000, c.97, s.5)

6. Section 6 of P.L.1999, c.358 (C.30:6D-68) is amended to read as follows:

6. The [community agency board] State shall maintain all criminal history record information submitted under this act in accordance with rules and regulations which the commissioner shall adopt to implement the provisions of this act.

(cf: P.L.2000, c.97, s.6)

7. Section 7 of P.L.1999, c.358 (C.30:6D-69) is amended to read as follows:

7. In accordance with this act, the [community agency boards and community agency heads] State shall initiate a criminal history record background check on all [applicants and current employees] community agency heads, community agency employees, community care residence applicants, community care residence alternates, or community care residence household members who have not had a criminal history record background check completed in the previous two years from the date of enactment of P.L. c. (C. )(pending before the Legislature as this bill).

(cf: P.L.2000, c.97, s.7)

8. (New section) a. The department that is responsible for licensing the residences as provided in section 4 of P.L.1977. c.448 (C.30:11B-4) shall require that all residences are subject to an on-site inspection prior to the issuance of an initial license, and an on-site annual inspection shall be performed at a minimum of one time per year in each year the residence is licensed.

b. The department shall not provide the residence or the ownership of the residence prior notice of the annual inspection, but shall provide notice of any subsequent inspections.

c. If deficiencies are identified in the annual inspection, the department shall require that a corrective action plan is developed by the residence to explain the steps that will be taken to correct the deficiencies. If the identified deficiencies pose a risk to the life and safety of the residents, then the department shall conduct an on-site subsequent inspection to verify that corrective action has been taken by the residency to correct the deficiencies.

d. The department shall identify the type of deficiencies that pose a risk to the life and safety of the residents and require a subsequent on-site inspection.

e. The department may adopt a system to address multiple inspections which may be necessary to address multiple deficiencies noted in the annual inspection.

9. (New section) The Commissioners of Children and Families and Human Services, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations as the commissioners determine necessary to effectuate the purposes of this act.

10. This act shall take effect immediately.

STATEMENT

This bill would expand the current federal and State background check requirement for agencies who serve individuals with developmental disabilities. The bill expressly requires federal and State background checks for individuals who operate agencies that serve individuals with brain injuries, community care residences, any household members of the community care residences, and any alternates for the community care residences. The bill establishes a timeline for challenging the findings of these background checks for both the individuals and the State. Additionally, the bill shifts the onus of responsibility for reviewing the background checks from the agency to the State.

Furthermore, the bill clarifies in statute that all residences for individuals with developmental disabilities which are licensed by the Department of Human Services or the Department of Children and Families are required to have an un-announced annual inspection. If deficiencies are identified during this inspection that would endanger the life or safety of the residents, this bill would require a follow-up on-site inspection to ascertain if the corrective plan to address the deficiencies was implemented.

These changes were proposed as a result of recommendations included in an audit report issued by the Office of the State Auditor following its audit of licensed residential programs serving individuals with developmental disabilities.