26:2H-7.18 Information provided for criminal history record background check; procedure.

4. a. An applicant for certification or a certified assisted living administrator, who is required to undergo a criminal history record background check pursuant to section 3 of this act, shall submit to the commissioner that individual's name, address and fingerprints taken on standard fingerprint cards by a State or municipal law enforcement agency. 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 in the Department of Law and Public Safety for use in making the determinations required by this act.

b. Upon receipt of the criminal history record information for a person from the Federal Bureau of Investigation or the Division of State Police, the commissioner shall immediately notify, in writing, the applicant, and the applicant's employer, if the applicant is conditionally employed as provided in subsection d. of this section, or the applicant's prospective employer, if known, or a certified assisted living administrator who is required to undergo a criminal history record background check pursuant to section 3 of this act and that person's employer, as applicable, of the person's qualification or disqualification for certification under this act. If the person is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the notice to the person, but shall not be identified in the notice to the person's employer or prospective employer.

c. The person who is the subject of the background check shall have 30 days from the date of the written notice of disqualification to petition the commissioner for a hearing on the accuracy of the person's criminal history record information or to establish the person's rehabilitation under subsection e. of section 3 of this act. The commissioner shall notify the person's employer or prospective employer of the person's petition for a hearing within five days following the receipt of the petition from the person. Upon the issuance of a final decision upon a petition to the commissioner pursuant to this subsection, the commissioner shall notify the person and the person's employer or prospective employer as to whether the person remains disqualified from certification under this act.

d. (1) An applicant for certification may be issued conditional certification and may be employed as an assisted living administrator conditionally for a period not to exceed 60 days, pending completion of a criminal history record background check required under this act by the Division of State Police based upon an examination of its own files, in accordance with section 7 of P.L.2002, c.25 (C.53:1-20.9c), and for an additional period not to exceed 60 days pending completion of a criminal history record background check by federal authorities as arranged for by the Division of State Police pursuant to section 7 of P.L.2002, c.25 (C.53:1-20.9c), if the person submits to the commissioner a sworn statement attesting that the person has not been convicted of any crime or disorderly persons offense as described in section 3 of this act. A person who submits a false sworn statement shall be disqualified from certification, and shall not have an opportunity to establish rehabilitation pursuant to subsection e. of section 3 of this act.

(2) A conditionally employed person or an employed certified assisted living administrator, who disputes the accuracy of the criminal history record information and who files a petition requesting a hearing pursuant to subsection c. of this section, may remain employed until the commissioner rules on the person's petition but, pending the commissioner's ruling, the person shall not have unsupervised contact with residents at the assisted living residence or program.

e. (1) A licensed assisted living residence or program, as applicable, that has received an application from or conditionally employs an applicant for assisted living administrator or employs a certified assisted living administrator, and:

(a) receives notice from the commissioner that the applicant or certified assisted living administrator has been determined by the commissioner to be disqualified from certification as an assisted living administrator pursuant to this act; or

(b) terminates its employment of a conditionally employed applicant for assisted living administrator or a certified assisted living administrator because the person was disqualified from employment at the assisted living residence or program on the basis of a conviction of a crime or disorderly persons offense as described in section 3 of this act after commencing employment at the assisted living residence or program;

shall be immune from liability for disclosing that disqualification or termination in good faith to another licensed health care facility or other entity that is qualified by statute or regulation to employ the person as a certified administrator.

(2) A licensed health care facility or other entity which discloses information pursuant to paragraph (1) of this subsection shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the health care facility or other entity acted with actual malice toward the person who is the subject of the information.

f. (1) An assisted living residence or program, as applicable, upon receiving notice from the commissioner that a person employed by it as an assisted living administrator, including a conditionally employed person, has been convicted of a crime or disorderly persons offense as described in section 3 of this act after commencing employment at the assisted living residence or program, shall:

(a) immediately terminate the person's employment as an assisted living administrator; and

(b) report information about the termination to the commissioner in a manner prescribed by the commissioner, who shall thereupon deem the person to be disqualified from certification as an assisted living administrator, subject to the provisions of subsection c. of this section.

(2) An assisted living residence or program shall be immune from liability for any actions taken in good faith pursuant to paragraph (1) of this subsection and shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the assisted living residence or program acted with actual malice toward the employee.

L.2002,c.25,s.4.