| On May 12, 1997, Governor
Whitman signed legislation requiring criminal history background checks for persons who
regularly care for the elderly. The legislation becomes effective November 1, 1997 and
does not apply to any employee hired prior to that date. While the statute is primarily
directed at long term care facilities, it also covers, among others, general, special and
psychiatric hospitals, as well as licensed home health care agencies. The elderly are
defined as persons 60 years or older receiving treatment or care in a covered facility.
The term "receiving treatment or care" is defined broadly to include admission,
discharge, transfer and "instances related to such status". The legislation prohibits the hiring
of any unlicensed person serving in a position involving regular contact with elderly
patients for whom a background check with the Federal Bureau of Investigation,
Identification Division or the State Bureau of Identification in the Division of State
Police discloses certain criminal convictions. The pertinent convictions include a crime
or disorderly persons offense involving danger to a person, against the family, children
or incompetents; involving theft or involving a controlled dangerous substance.
Additionally, convictions of crimes in any other jurisdiction which, if committed in New
Jersey, would constitute any of the above mentioned offenses, similarly disqualifies the
person from such employment.
An applicant for employment
is required to submit to the Commissioner of Health and Senior Services his or her name,
address and fingerprints on a standard fingerprint card taken by a law enforcement agency.
Upon receipt of the background check from either the FBI or the State Police, the
Commissioner will immediately notify the applicant and prospective employer, in writing,
of the persons qualification or disqualification. In the event of disqualification, the
conviction which is the basis for the disqualification must be contained in the notice to
the applicant but not to the employer.
Thereafter, the applicant
has 30 days from the date of the notice to petition the Commissioner for a hearing on the
accuracy of the information or to affirmatively demonstrate through clear and convincing
evidence that they have been rehabilitated. The statute contains criteria to be applied by
the Commissioner when determining if rehabilitation has occurred. The Commissioner will
notify the prospective employer that the applicant has requested a hearing.
The statute allows a
facility to conditionally employ a person without supervision for a period not to exceed
180 days pending the completion of a background check, provided the applicant submits to
the Commissioner, a sworn statement attesting that he or she has not been convicted of any
of the included offenses. The submission of a false statement not only disqualifies the
person from employment or the ability to prove rehabilitation but may also subject them to
a fine of $1000.00. A conditionally employed person who disputes the accuracy of the
information and requests a hearing may remain employed pending the Commissioner's
determination but the facility cannot permit the employee to have regular contact with the
elderly unless supervision is provided.
It is important to note that
the statute makes no provisions for the immunity of an employer who conditionally hires an
employee whose sworn statement proves false and during the course of their employment
cause injury to a patient or to themselves. This could have an impact on the employers
general liability insurance as well as workers' compensation. In light of the absence of
an immunity provision you should be aware that the statute does not require you to
conditionally hire an employee pending the background check. The language is permissive
and therefore you may opt to wait for the completion of the background check.
If a person refuses to
consent to or cooperate in securing a background check, the Commissioner shall direct the
administrator of the employing facility not to consider the person for employment.
Employers who fail to comply with the provisions of the statute may be subject to a fine
of $1000.00. A further provision indicates that the prospective employer will assume the
cost of the background check but they may require the employee to pay.
Identical provisions are
contained in a statute which applies to any home health agency, nurses registry,
employment agency or temporary help agency licensed or regulated by the Division of
Consumer Affairs.
Regulations to implement
these various statutes are being drafted by the involved agencies. If we can be of
assistance to you regarding compliance with the statute, please do not hesitate to contact
Kathleen O. Curley.
WBRH&B Health Law News
is a service of the firm's Healthcare Practice Group. It is not intended as a substitute
for legal advice.
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