Section 75-03-14.1-05.1 - [Effective 10/1/2024] Background check and criminal conviction - Effect on operation of agency or employment or placement by agency1. The department requires an initial fingerprint-based criminal background check for each employee with direct contact with residents and a criminal background check for each nonemployee with direct contact with residents. Subsequent fingerprint-based background checks are not required for an employee who maintains continuous employment at the shelter care program unless the program or the department determines a need exists to conduct a subsequent investigation.2. The department requires a child abuse and neglect index check as part of the initial fingerprint-based background check and criminal background check. An annual child abuse and neglect index must be completed and placed in the employee or nonemployee file.3. A shelter care program supervisor may not be, and a shelter care program may not employ or place, in any capacity that involves or permits contact between an employee or nonemployee and any resident cared for by the shelter care program, an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:a. An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; 12.1-41, Uniform Act on Prevention of Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter; or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery, if a class A or B felony under subsection 2 of that section; 12.1-22-02 burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;b. An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; orc. An offense, other than an offense identified in subdivision a or b, if the department determines the individual has not been sufficiently rehabilitated. (1) The department will not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all criminal convictions has elapsed.(2) An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.4. The department has determined that the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on an individual's ability to provide shelter care for children.5. In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C felony; or 12.1-31-07.1, exploitation of an eligible adult - penalty, if a class B or C felony or a class A misdemeanor; or chapter 19-03.1, Uniform Controlled Substances Act, if a class A, B, or C felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine an individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions. The department is not compelled to make such determination.6. The department may discontinue processing a request for a criminal background check for any individual who provides false or misleading information about the individual's criminal history.7. An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is: a. Common knowledge in the community;b. Acknowledged by the individual; orc. Discovered by the authorized agent or department as a result of a background check.8. The department may request a fingerprint-based or a criminal background check if an employee or nonemployee of the certified shelter care program is known to have been involved in, charged with, or convicted of an offense.9. The department shall review fingerprint-based criminal background check results as follows: a. If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.b. The department shall assign the individual's request for review to a department review panel.c. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.d. The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.e. The final decision of the review panel may not be appealed.10. The shelter care program shall make an offer of employment to an employee conditioned upon the individual's consent to complete required background checks. While awaiting the results of the required background check, the shelter care program may choose to provide training and orientation to an employee. However, until the completed and approved required background check results are placed in the employee file, the employee is limited to supervised interaction with residents.11. The department may excuse an employee from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an employee is excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the employee lived during the eleven years preceding the signed authorization for the background check.12. A shelter care program employee or nonemployee shall comply with this section or must be an employee otherwise qualified and employed by a certified shelter care program prior to April 1, 2024.N.D. Admin Code 75-03-14.1-05.1
Adopted by Administrative Rules Supplement 2024-392, April 2024, effective 4/1/2024.Amended by Administrative Rules Supplement 2024-394, October 2024, effective 10/1/2024.General Authority: NDCC 50-06-16
Law Implemented: NDCC 50-06-01.4, 50-06-01.10