New Jersey-2012-S1649-Introduced

An Act concerning criminal history record background checks for certain in-home care givers for children and supplementing Title 56 of the Revised Statutes and chapter 1 of Title 53 of the Revised Statutes.

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

1. As used in this act:

"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.

"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.

"In-home care giver" or "care giver" means an unrelated person over the age of 16 who, through the assistance of an in-home child care placement agency, is employed to provide in-home child care. The in-home care giver may live in the home of the employer and may perform, in addition to child care, housekeeping duties. The term shall include au pair and nanny, but shall not include a baby sitter, as defined in section 1 of P.L.1989, c.331 (C.34:8-43).

"In-home child care placement agency" or "agency" means a private entity engaged in the business of procuring, or assisting in the procuring of, in-home child care positions for in-home care givers for a fee, charge or commission, regardless of whether that fee, charge or commission is collected from the applicant for employment or the applicant for help.

2. a. The director, after consultation with the Attorney General, shall establish a registry for in-home child care placement agencies engaged in the business of procuring, or assisting in the procuring of, in-home child care positions for care givers within the State. An agency need not have an office located within the State in order to register with the division under the provisions of this section.

b. An application for registration shall include:

(1) The location, address and telephone number of the agency's principal place of business;

(2) The name, address and telephone number of the chief executive officer of the agency;

(3) The name, address and telephone number of the registered process agent for the agency;

(4) A disclosure form stating whether any principal officer of the agency has been convicted of any crime, which for the purposes of this act shall mean a violation of provisions of the "New Jersey Code of Criminal Justice," Title 2C of the New Jersey Statutes, or the equivalent under the laws of any other jurisdiction; and

(5) Such other information as the director shall deem necessary.

c. After review, the director may approve or deny an application. An agency whose application has been approved shall be registered with the division for a period of three years, unless the director shall remove, pursuant to rule and regulation, the agency for any violation of this act or good cause. An application for renewal shall be in the same manner and form as that initially required for registration.

An agency whose application for registration has been denied by the director may reapply.

d. The director may impose an application fee and an annual registration fee. The fees authorized under this subsection shall not exceed the actual cost to the division in processing agency applications and in establishing and maintaining the agency registry.

3. An agency registered in accordance with the provisions of this act may request a criminal history record background check on any care giver who is using that agency to procure an in-home child care position in this State.

The check shall determine whether 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 reveal that the care giver has been convicted of any crime.

4. a. No registered agency may request a criminal history record background check pursuant to the provisions of section 3 of this act without the written consent of that person. The consent required under this section shall be in a manner and form prescribed by the director and shall include, but not be limited to, the care giver's signature, name, address and fingerprints.

b. The division shall act as a clearinghouse for the collection and dissemination of information obtained as a result of conducting criminal history record background checks pursuant to this act. The dissemination of such information shall be consistent with the purposes of this act and in accordance with rules and regulations promulgated by the director.

c. The director is authorized to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation, consistent with applicable State and federal laws, rules and regulations, as may be necessary for the purposes of section 3 of this act.

5. a. Upon receipt of the information relating to a care giver's criminal history record background check, the director shall notify the registered agency of the names of those care givers who are determined not to have been convicted of a crime. Along with that notice, the director shall forward a certificate for each such person, certifying that the care giver identified thereon has been subject to a criminal history record background check and that the check has not revealed any record of the care giver being convicted of a crime. The certificate shall be in a form and shall contain such additional information as the director may by rule and regulation prescribe.

b. If the care giver's criminal history record background check does reveal a criminal conviction, the director shall so notify that person. The care giver shall have 30 days from the receipt of that notice to petition the director for a review, citing the reasons therefor. If, in that review, the care giver shall challenge successfully the accuracy of the criminal history record information indicating his criminal conviction or if the care giver shall demonstrate affirmatively to the director clear and convincing evidence of his rehabilitation, the director may issue a certificate, as provided in subsection a. of this section, indicating that the care giver has not been convicted of a crime.

When determining whether a person has affirmatively demonstrated his rehabilitation, the director shall consider:

(1) The nature and seriousness of the offense;

(2) The circumstances under which the offense occurred;

(3) The date of the offense;

(4) The age of the care giver when the offense was committed;

(5) Whether the offense was repeated;

(6) Social conditions which may have contributed to the offense; and

(7) Any evidence of rehabilitation, including good conduct in the community; counseling, psychological or psychiatric treatment; additional academic or vocational training; or personal recommendations.

6. The costs associated with the registration, collection and dissemination of information, criminal history record background checks, and other administrative expenses associated with the implementation of the provisions of this act shall be assumed by the agencies registered under this act and shall be assessed pursuant to a fee schedule promulgated by the director.

7. The division shall develop and undertake a public education program designed to inform the citizens of this State of the provisions of this act. The program shall publicize the availability of care givers who have undergone criminal background checks and shall encourage prospective employers of in-home care givers to hire those who have been certified by the division in accordance with the provisions of this act.

8. The director, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall promulgate rules and regulations to effectuate the purposes of this act.

9. The Division of State Police in the Department of Law and Public Safety, upon the request of the Director of the Division of Consumer Affairs in the Department of Law and Public Safety, shall conduct a criminal history record background check which includes a name and fingerprint identification check of a care giver in order to ascertain whether that person has a record of a criminal conviction. The request shall be in accordance with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) and the check shall be performed only upon certification by the director that the subject of the check has given written consent therefor.

For the purpose of conducting the criminal history record background check, the State Police shall examine its own files and arrange for a similar examination by federal authorities. The information obtained as a result of any such check shall be forwarded to the Director of the Division of Consumer Affairs, as provided in P.L. , c. (C. ) (pending before the Legislature as this bill).

10. This bill shall take effect on the first day of the seventh month following enactment, except that section 8 shall take effect immediately.

STATEMENT

This bill authorizes criminal background checks for individuals seeking employment as in-home child care givers. In-home child care givers are defined in the bill as unrelated persons who are over the age of 16 and provide in-home child care services. They may or may not live in their employer's home and may, as part of the conditions of their employment, perform housekeeping duties. They are commonly known as au pairs or nannies. For the purposes of this bill, babysitters are not considered in-home care givers.

Under the provisions of the bill, the Division of Consumer Affairs in the Department of Law and Public Safety is directed to establish a registry for agencies engaged in the business of placing in-home care givers in this State. The registry program is permissive; agencies are not required to participate. The bill provides, however, that if these agencies do register with the division, they may request criminal history record background checks for the care givers they are seeking to place in New Jersey homes. The bill authorizes the Director of the Division of Consumer Affairs to exchange fingerprint data with and receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation, consistent with applicable State and federal laws, rules and regulations.

The division is directed to provide the registered agency with a certificate for each care giver whose background check does not reveal a criminal past. The certificate, which would certify that the prospective care giver has never been convicted of a crime, would be used by the agency in procuring employment for that individual.

The bill provides an appeal procedure for individuals who question the accuracy of the information set forth on the records consulted by the investigatory agencies and for those who claim that although they have a criminal past, they have been rehabilitated.

The bill also directs the division to develop and undertake a public education program designed to publicize the bill's provisions. The program is to inform prospective employers of the availability of care givers who have undergone criminal history checks and to encourage them to hire individuals who have been certified by the division as not having criminal pasts.

Finally, the bill provides that the costs associated with the implementation of this program be assessed to the registered agencies through a fee schedule.