Rule Proposal

VOLUME 49, ISSUE 9
ISSUE DATE: MAY 1, 2017
RULE PROPOSALS

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF NURSING

Proposed Amendment: N.J.A.C. 13:37-14.9

Application for CHHA Certification
 
Authorized By: State Board of Nursing, Dorothy Smith Carolina, Executive Director.
 
Authority: N.J.S.A. 45:11-24.
 
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
 
Proposal Number: PRN 2017-073.
 
Submit written comments by June 30, 2017, to:
 
   Dorothy Smith Carolina, Executive Director
   State Board of Nursing
   PO Box 45010
   Newark, New Jersey 07101
   or electronically at: http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.
 
The agency proposal follows:
 
Summary

N.J.S.A. 45:11-24.4 permits the State Board of Nursing (Board) to issue a conditional certification to an individual who has applied to be a certified homemaker-home health aide (CHHA) while he or she undergoes a criminal history background check. A conditional certification authorizes an individual to be employed as a homemaker-home health aide for a period of up to 120 days while a criminal background check is pending. When N.J.S.A. 45:11-24.4 first became effective in 1998, the Board decided to issue conditional certifications due to the length of time it took for a criminal history background check to be processed, which could be up to 120 days. Recently, the Board adopted amendments to N.J.A.C. 13:37-14.9 that reflected this policy decision and the procedures the Board follows in issuing a conditional certification.

Processing time for criminal history background checks has decreased significantly since N.J.S.A. 45:11-24.4 became effective. With the advent of digital fingerprinting and computer processing of criminal history background checks, this processing time is often less than one week after an applicant has been fingerprinted. Given this reduced processing time, the burden of waiting for a certification to be issued prior to working as a CHHA is greatly reduced. In light of this, and concerns about permitting individuals to work in patients' homes without checking their criminal history, the Board no longer believes it is appropriate to issue conditional certifications. The Board proposes to amend N.J.A.C. 13:37-14.9 to delete subsections (d), (e), and (f), which address the issuance of conditional certifications.

The Board proposes new subsections to establish the procedures it will follow regarding the issuance of a certification when a criminal history background check indicates that an applicant has been convicted of a crime or disorderly persons offense. For the most part, these procedures are restatements of provisions in N.J.S.A. 45:11-24.3 and 24.4. These statutes provide that, when a background check indicates that an applicant has a criminal history, the Board will notify the applicant and his or her prospective employer that he or she is disqualified for certification and that the applicant has the right to contest the accuracy of the background check. The statutes also authorize the Board to deny certification or to issue certification to an applicant who has demonstrated rehabilitation for a criminal history identified in a background check. The proposed amendments go beyond the statutory provisions to allow applicants additional time beyond the 30 days authorized by statute to submit evidence of rehabilitation or to contest the accuracy of a criminal history background check.

The amendments also permit the Board to deny certification if an applicant has been convicted of a crime or offense that is not categorized by the statute as a disqualifying crime or offense. An application will be deemed abandoned if a criminal history background check indicates an applicant has been convicted of a disqualifying crime or offense and he or she fails to submit evidence of rehabilitation or to contest the accuracy of the criminal history background check within 30 days of notification. If an applicant submits a false statement about his or her criminal history, he or she would be disqualified for certification.

The Board has determined that the comment period for this notice of proposal will be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.
 
Social Impact

The Board anticipates that the proposed amendment will have a positive social impact on patients who receive CHHA services. Patients will be protected because all of the individuals providing CHHA services in their homes will have undergone a criminal history background check.
 
Economic Impact

The proposed amendment may have a minor economic impact on applicants for certification as these applicants will not be permitted to work as CHHAs prior to receiving the results of a criminal history background check. The Board does not believe that the proposed amendment will have any other economic impact.
 
Federal Standards Statement

A Federal standards analysis is not required because there are no Federal laws or standards applicable to the proposed amendment.
 
Jobs Impact

The proposed amendment may have a minor impact on jobs in that applicants for certification will not be permitted to work as CHHAs prior to completing a criminal history background check. The Board does not believe that the proposed amendment will increase or decrease the number of jobs in New Jersey in any other way.
 
Agriculture Industry Impact

The Board does not believe that the proposed amendment will have any impact on the agriculture industry of this State.
 
Regulatory Flexibility Statement

The Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposed amendment will apply. A regulatory flexibility analysis is not required because the proposed amendment only applies to applicants for certification who cannot be considered "small businesses" because they do not yet have a certification to practice as a CHHA.
 
Housing Affordability Impact Analysis

The proposed amendment will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the amendment would evoke a change in the average costs associated with housing because the proposed amendment concerns conditional certification for individuals who have applied for certification as CHHAs.
 
Smart Growth Development Impact Analysis

The proposed amendment will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rule would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed amendment concerns conditional certification for individuals who have applied for certification as CHHAs.
 
Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
 
SUBCHAPTER 14.  HOMEMAKER-HOME HEALTH AIDES
 
13:37-14.9 Application for CHHA certification
 
(a)-(c) (No change.)
 
[(d) Prior to receipt of the results of a criminal history background check pursuant to N.J.S.A. 45:11-24.4, the Board shall issue a conditional certification to an applicant upon receiving the items [page=994] required under (a) above, as long as the applicant attests in the application that he or she has not been convicted of a disqualifying crime or disorderly persons offense pursuant to N.J.S.A. 45:11-24.3. The conditional certification shall be valid for up to 120 days.
 
(e) An applicant who indicates on the application that he or she has been convicted of a disqualifying crime or disorderly persons offense pursuant to N.J.S.A. 45:11-24.3 shall not be eligible for a conditional certification. Once the criminal history background check has been completed for an applicant who has indicated that he or she has been convicted of a disqualifying crime or disorderly persons offense, the applicant shall have 30 days to submit information to the Board demonstrating that he or she has been rehabilitated. The Board shall determine if this information demonstrates that the applicant has been rehabilitated pursuant to N.J.S.A. 45:11-24.3 and if it should issue certification to the applicant.
 
(f) Once the Board receives the results of a criminal history background check for an applicant who has indicated that he or she has not been convicted of a crime or disorderly persons offense, it shall:
 
1. Issue a homemaker-home health aide certificate to the applicant, if the criminal history background check indicates that the applicant has never been convicted of a crime or disorderly persons offense;
 
2. Review the nature of the crime or disorderly persons offense and determine if it should issue a CHHA certificate to the applicant, if the criminal history background check indicates that the applicant has been convicted of a crime or disorderly persons offense that is not categorized as a disqualifying crime or disorderly persons offense pursuant to N.J.S.A. 45:11-24.3; or
 
3. Revoke the conditional certificate, if the criminal history background check indicates that the applicant has been convicted of a disqualifying crime or disorderly persons pursuant to N.J.S.A. 45:11-24.3. An applicant shall have 30 days to submit information disputing the accuracy of the criminal history background check. The Board shall review the information submitted by the applicant to determine if it should issue a certificate to the applicant.]
 
(d) When the results of a criminal history background check revealing a conviction for a crime or disorderly persons offense have been received by the Board, the applicant and the applicant's prospective employer, if known, shall be notified that the Board has made a preliminary determination that the applicant is disqualified. The notice provided to the applicant shall also set forth:
 
1. The basis for the preliminary determination that the applicant is disqualified;
 
2. The applicant's right to provide evidence to the Board, within 30 days of receipt of the notice, contesting the accuracy of the criminal history background check; and
 
3. In the event that the applicant truthfully disclosed the conviction in the application, the applicant's right to provide evidence to the Board, within 30 days of receipt of the notice, affirmatively demonstrating rehabilitation and an identification of the factors that the Board will consider in determining whether the applicant has clearly and convincingly demonstrated rehabilitation, as set forth at N.J.S.A. 45:11-24.3(b).
 
(e) If the applicant submits evidence contesting the accuracy of the criminal history background check or demonstrating rehabilitation, notice of the submission shall be provided to the applicant's prospective employer, if known.
 
(f) Upon its review of the results of a criminal history background, and any evidence pertaining to accuracy or rehabilitation, if applicable, the Board shall render one of the following dispositions:
 
1. Issue a homemaker-home health aide certificate to the applicant, if the criminal history background check indicated that the applicant has never been convicted of any crime or disorderly persons offense;
 
2. Issue a homemaker-home health aide certificate to the applicant, if the Board determines that the applicant has submitted sufficient information to establish to the Board that the criminal history background check is inaccurate or to clearly and convincingly demonstrate rehabilitation;
 
3. Provide an applicant with additional time to supplement the evidence presented regarding rehabilitation, in writing or via an opportunity to be heard if there are material facts in dispute;
 
4. Provide an applicant with additional time to supplement the evidence relating to the accuracy of the criminal history background check, in writing or via an opportunity to be heard if there are material facts in dispute; or
 
5. Deny the application for a homemaker-home health aide certificate, providing reasons for the denial and designating the period of time that the applicant will be barred from reapplication, if the Board determines that the applicant has failed to submit sufficient information to clearly and convincingly demonstrate rehabilitation and:
 
i. The criminal history background check accurately reflects that the applicant has been convicted of a disqualifying crime or disorderly persons offense, as set forth at N.J.S.A. 45:11-24.3.b; or
 
ii. The criminal history background check accurately reflects that the applicant has been convicted of a crime or offense, which has not been categorized as disqualifying, but otherwise involves moral turpitude or is related adversely to the activity regulated by the Board, pursuant to N.J.S.A. 45:1-21.f.
 
(g) If the applicant fails to contest the accuracy of the criminal history background check or submit evidence of rehabilitation within 30 days of the notification pursuant to (d) above, the application will be considered abandoned.
 
(h) If an applicant submits, as part of the application, a sworn statement asserting that he or she has not been convicted of a crime or disorderly persons offense that is false, he or she shall be disqualified from certification as a homemaker-home health aide and shall not have an opportunity to establish rehabilitation pursuant to N.J.S.A. 45:11-24.3 and may be subject to penalty, including a bar from reapplication for a period of time and a fine of up to $ 1,000, pursuant to N.J.S.A. 45:11-24.9.
 
(i) The Board shall notify the applicant and the applicant's prospective employer, if known, of the disposition on the application.