Bill Text: NJ S3740 | 2022-2023 | Regular Session | Introduced
Bill Title: Codifies and revises background check and other requirements for certain individuals working with children.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2023-03-30 - Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee [S3740 Detail]
Download: New_Jersey-2022-S3740-Introduced.html
Sponsored by:
Senator KRISTIN M. CORRADO
District 40 (Bergen, Essex, Morris and Passaic)
SYNOPSIS
Codifies and revises background check and other requirements for certain individuals working with children.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the requirements for certain individuals to work with children and supplementing Title 30 and 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:
"Behavioral assistance services" means concrete, outcome-oriented interventions that are components of a written, detailed plan of care prepared by a licensed behavioral healthcare practitioner, and authorized by the contracted system administrator or other agency designated by the Department of Human Services or the Department of Children and Families, which includes an evaluation of the identified behavior and recommendations for specific interventions with definable outcomes and strategies with the goal of restoring, rehabilitating, or maintaining the child's, youth's, or young adult's capacity to successfully function in the community and diminish the need for a more intensive level of care.
"Child, youth, or young adult" means a Medicaid beneficiary under 21 years of age, a NJ FamilyCare-Plan B or Plan C beneficiary under 19 years of age, or an individual receiving services under the Children's System of Care who is not eligible for Medicaid or NJ FamilyCare who is under 21 years of age.
"Children's System of Care" means the Children's System of Care in the Department of Children and Families.
"Contracted system administrator" means an administrative organization contracted by, and serving as an agent of, the Department of Children and Families to provide utilization management, care coordination, quality management, and information management for the Children's System of Care in its administration of the locally managed system of care providing mental and behavioral health services and supports to eligible children, youth, and young adults.
"Department" means the Department of Human Services.
"Division" means the Division of Medical Assistance and Health Services in the Department of Human Services.
"Intensive in-community mental health rehabilitation services" means an array of mental health rehabilitation services delivered in community-based settings, and not in provider offices or office settings, which services: address symptom reduction and are restorative and preventative in nature; target problem solving and strengthening adaptive and coping skills to restore or maintain the child's, youth's, or young adult's ability to function in the community; and are provided as part of an approved plan of care and encompass a variety of mental health services, including, but not limited to, group, individual, or family therapy, allied behavioral therapies and modalities, clinical consultation and evaluation, instruction in anger management, parenting skills, problem solving and stress reduction techniques, psycho-educational services, and counseling.
2. a. A behavioral assistance services program or an intensive in-community mental health rehabilitation services program shall, as a condition of securing or maintaining approval as a Medicaid provider, ensure that a fingerprint-based criminal history record background check is conducted on all current and prospective staff members of the program who provide or will provide direct services to children, youth, or young adults. The behavioral assistance services program or intensive in-community mental health rehabilitation services program may assume the cost of the fingerprint-based criminal history record background check required pursuant to this section, or may require that the staff member or applicant assume the cost of the fingerprint-based criminal history record background check.
b. The division is authorized to exchange fingerprint data with, and to receive information from, the Division of State Police in the Department of Law and Public Safety and the Federal Bureau of Investigation.
c. A current staff member or applicant for employment with a behavioral assistance services program or an intensive in-community mental health rehabilitation services program shall be permanently disqualified from employment at a behavioral assistance services program or intensive in-community mental health rehabilitation services program if the staff member or applicant:
(1) refuses to consent to, or cooperate in, the securing of a fingerprint-based criminal history record background check;
(2) knowingly makes a materially false statement in connection with a criminal history record background check;
(3) is registered, or is required to be registered, on a State sex offender registry or repository, or in the National Sex Offender Registry established under the "Adam Walsh Child Protection and Safety Act of 2006," 42 U.S.C. s.16901 et seq.; or
(4) is found by a criminal history record background check to have a record of conviction for any of the following crimes and offenses:
(a) a crime against a child, including endangering the welfare of a child and child pornography pursuant to N.J.S.2C:24-4, and child molestation as set forth in N.J.S.2C:14-1 et seq.;
(b) abuse, abandonment, or neglect of a child pursuant to R.S.9:6-3;
(c) endangering the welfare of an incompetent person pursuant to N.J.S.2C:24-7;
(d) sexual assault, criminal sexual contact, or lewdness pursuant to N.J.S.2C:14-2 through N.J.S.2C:14-4;
(e) murder pursuant to N.J.S.2C:11-3 or manslaughter pursuant to N.J.S.2C:11-4;
(f) stalking pursuant to P.L.1992, c.209 (C.2C:12-10);
(g) 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 N.J.S.2C:13-1 through C.2C:13-6;
(h) arson pursuant to N.J.S.2C:17-1, or causing or risking widespread injury or damage which would constitute a crime of the second degree pursuant to N.J.S.2C:17-2;
(i) terroristic threats pursuant to N.J.S.2C:12-3;
(j) aggravated assault, which would constitute a crime of the second or third degree pursuant to subsection b. of N.J.S.2C:12-1;
(k) robbery, which would constitute a crime of the first degree pursuant to N.J.S.2C:15-1;
(l) burglary, which would constitute a crime of the second degree pursuant to N.J.S.2C:18-2;
(m) domestic violence pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.);
(n) any drug related offense committed within the preceding five-year period; or
(o) an attempt or conspiracy to commit any of the crimes or offenses listed in subparagraphs (a) through (n) of this paragraph.
d. For the purposes of subsection c. of this section, a person shall be deemed to have a disqualifying record of conviction if the person has been convicted in New Jersey of any of the crimes listed in subsection c. of this section, or if the person has been convicted 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 that subsection.
e. Notwithstanding the provisions of this section to the contrary, a person shall not be disqualified from employment under this section on the basis of any conviction disclosed by a criminal history record background check without an opportunity to challenge the accuracy of the disqualifying criminal history record pursuant to the provisions of section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
f. For crimes and offenses other than those cited in subsection c. or subsection d. of this section, an applicant for employment with or a staff member of a behavioral assistance services program or an intensive in-community mental health rehabilitation services program may be eligible for employment at the program if the division determines that the person has affirmatively demonstrated to the division clear and convincing evidence of the person's rehabilitation pursuant to subsection g. of this section.
g. In determining whether a person has affirmatively demonstrated rehabilitation, the following factors shall be considered:
(1) the nature and responsibility of the position at the behavioral assistance services program or intensive in-community mental health rehabilitation services program which the convicted person 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 person 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 person under their supervision.
h. The division shall make the final determination regarding the employment of an applicant or staff member with a criminal conviction.
i. If a behavioral assistance services program or an intensive in-community mental health rehabilitation services program has knowledge that a staff member has criminal charges pending against the staff member, the owner or sponsor of the program shall promptly notify the division to determine whether any action concerning the staff member is necessary in order to ensure the safety of the children, youth, and young adults who attend the program.
j. A staff member shall not be left alone as the only adult caring for a child, youth, or young adult at a behavioral assistance services program or an intensive in-community mental health rehabilitation services program until the staff member has successfully completed the fingerprint-based criminal history record background check required pursuant to this section.
3. a. A behavioral assistance services program or intensive in-community mental health rehabilitation services program that has received an application from a person seeking employment with the program or that currently employs a staff member shall be immune from liability for acting upon or disclosing information about the applicant or employee's disqualification from employment with the program or termination of employment with the program to another behavioral assistance services program or intensive in-community mental health rehabilitation services program seeking to employ that person if the program has:
(1) received notice from the division that the applicant or staff member, as applicable, has been determined by the division to be disqualified from employment in a behavioral assistance services program or an intensive in-community mental health rehabilitation services program pursuant to section 2 of this act; or
(2) terminated the employment of a staff member because the person was disqualified from employment at the program on the basis of a conviction of a crime pursuant to section 2 of this act after commencing employment at the program.
b. A behavioral assistance services program or intensive in-community mental health rehabilitation services program which acts upon or discloses information pursuant to subsection a. of this section shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the program acted with actual malice toward the person who is the subject of the information.
4. a. A behavioral assistance services program or intensive in-community mental health rehabilitation services program shall, as a condition of securing or maintaining approval as a Medicaid provider, ensure and maintain documentation that each employee has a valid driver's license if the employee's job functions include the operation of a vehicle used in the transportation of children, youth, or young adults, or their family members or caregivers.
b. A behavioral assistance services program or intensive in-community mental health rehabilitation services program shall, as a condition of securing or maintaining approval as a Medicaid provider, ensure and maintain documentation that each employee has attained the minimum educational and other training and certification requirements for the staff member's role within the program.
5. Each behavioral assistance services program and intensive in-community mental health rehabilitation services program shall annually certify to the division, no later than March 1 of each year, that the program is in full compliance with the requirements of this act. The division shall conduct periodic reviews of the records of behavioral assistance services programs and intensive in-community mental health rehabilitation services programs to determine compliance with the requirements of this act. A behavioral assistance services program or intensive in-community mental health rehabilitation services program that submits a false certification pursuant to this section shall be liable to a civil penalty of up to $10,000, which penalty shall be collected by the division in summary proceedings before a court of competent jurisdiction pursuant to the provisions of the "Penalty Enforcement Law of 1999, P.L.1999, c.274 (C.2A:58-10 et seq.).
6. a. The Assistant Commissioner of the Division of Medical Assistance and Health Services in the Department of Human Services is authorized to exchange fingerprint data with, and to receive information from, the Division of State Police in the Department of Law and Public Safety and the Federal Bureau of Investigation.
Upon receipt of the criminal history record information for an applicant or staff member of a behavioral assistance services program or intensive in-community mental health rehabilitation services program from the Federal Bureau of Investigation and the Division of State Police, the Division of Medical Assistance and Health Services in the Department of Human Services shall notify the applicant or staff member, as applicable, and the behavioral assistance services program or intensive in-community mental health rehabilitation services program, in writing, of the applicant's or staff member's qualification or disqualification for employment or service under P.L. , c. (C. ) (pending before the Legislature as this bill). If the applicant or staff member is disqualified, the convictions that constitute the basis for the disqualification shall be identified in the written notice to the applicant or staff member. The applicant or staff member shall have 14 days from the date of the written notice of disqualification to challenge the accuracy of the criminal history record information. If no challenge is filed or if the determination of the accuracy of the criminal history record information upholds the disqualification, the Division of Medical Assistance and Health Services shall notify the program that the applicant or staff member has been disqualified from employment.
b. The Division of State Police shall promptly notify the Division of Medical Assistance and Health Services in the Department of Human Services in the event an applicant or staff member who was the subject of a criminal history record background check conducted pursuant to subsection a. of this section, is convicted of a crime or offense in this State after the date the background check was performed. Upon receipt of such notification, the Division of Medical Assistance and Health Services shall make a determination regarding the employment of the applicant or staff member.
7. The Assistant Commissioner of the Division of Medical Assistance and Health Services in the Department of Human Services shall adopt rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as shall be necessary to implement the provisions of this act.
8. This act shall take effect immediately.
STATEMENT
This bill requires behavioral assistance services programs and intensive in-community mental health rehabilitation services programs (programs) to ensure that all staff members who provide direct services to children, youth, or young adults have completed a fingerprint-based criminal history record background check, that each staff member who transports children, youth, young adults, or their family members or caregivers as part of the staff member's job functions, has a valid driver's license, and that staff members meet the minimum educational and other requirements for their roles within the program. Programs may assume the cost of the fingerprint-based criminal history record background check or may require that the staff member or applicant assume the cost of the background check.
The Division of Medical Assistance and Health Services (DMAHS) in the Department of Human Services will be authorized to exchange fingerprint data with, and to receive information from, the Division of State Police in the Department of Law and Public Safety and the Federal Bureau of Investigation.
A current staff member or person applying for employment with a program will be permanently disqualified from employment with a program if the staff member or person:
1) refuses to consent to, or cooperate in, the securing of a fingerprint-based criminal history record background check;
2) knowingly makes a materially false statement in connection with a criminal history record background check;
3) is registered, or is required to be registered, on a State sex offender registry or repository, or in the National Sex Offender Registry established under the "Adam Walsh Child Protection and Safety Act of 2006," 42 U.S.C. s.16901 et seq.; or
4) is found by a criminal history record background check to have a record of conviction for attempting to commit, conspiring to commit, or committing certain enumerated crimes and offenses, including: certain sexual offenses; abuse, abandonment, or neglect of a child; endangering the welfare of an incompetent person; murder or manslaughter; stalking; kidnapping and related offenses; arson or causing or risking widespread injury or damage; terroristic threats; certain aggravated assault offenses; first degree robbery; second degree burglary; domestic violence; and certain drug related offenses.
A person will similarly be disqualified from employment with a program if the person is convicted of any equivalent offense in any other state or jurisdiction.
The bill prohibits staff members from being left alone as the only adult caring for a child, youth, or young adult at a program until the staff member has successfully completed the fingerprint-based criminal history record background check. A person found to have a disqualifying conviction will have the opportunity to challenge the accuracy of the disqualifying criminal history record.
For convictions for crimes and offenses other than those expressly enumerated in the bill, the person may be eligible for employment at a program if the DMAHS determines that the person has affirmatively demonstrated clear and convincing evidence of the person's rehabilitation. In determining whether a person has affirmatively demonstrated rehabilitation, the following factors will be considered:
1) the nature and responsibility of the position at the program which the convicted person 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 person 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 person under their supervision.
The DMAHS will make the final determination regarding the employment of an applicant or staff member with a criminal conviction. If a program has knowledge that a staff member has pending criminal charges, the owner or sponsor of the program will be required to promptly notify the DMAHS to determine whether any action concerning the staff member is necessary in order to ensure the safety of the children, youth, and young adults who attend the program.
A program that has received an employment application or currently employs a staff member will be immune from liability for acting upon or disclosing information about the person's disqualification from or termination of employment to another program seeking to employ that person if the program has either: 1) received notice from the DMAHS that the applicant or staff member is disqualified from employment in a program; or 2) terminated the person's employment based on a disqualifying conviction. A program that acts upon or discloses information under these circumstances will be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the program acted with actual malice toward the person who is the subject of the information.
Program will be required, as a condition of securing or maintaining approval as a Medicaid provider, to ensure and maintain documentation that: 1) each employee has a valid driver's license if the employee's job functions include the operation of a vehicle used in the transportation of children, youth, or young adults, or their family members or caregivers; and 2) each employee has attained the minimum educational and other training and certification requirements for the staff member's role within the program.
Each program will be required to annually certify to the DMAHS, no later than March 1 of each year, that the program is in full compliance with the requirements of the bill. The DMAHS will be required to conduct periodic reviews of the records of programs to determine compliance. A program that submits a false certification will be liable to a civil penalty of up to $10,000.
