Section 75-03-40-25 - [Effective until 10/1/2024] Background checks and criminal conviction - Effect on operation of facility or employment by facility1. The department requires an initial fingeprint-based criminal background check for all personnel with direct contact with residents. Subsequent fingerprint-based background checks are not required for personnel maintaining continuous employment at the facility, unless 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 intial fingerprint-based background check. An annual child abuse and neglect index check must be completed and placed in the personnel file.3. A facility administrator may not be, and a facility may not employ or place, in any capacity that involves or permits contact between personnel and any resident cared for by the facility, 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; or 12.1-41, Uniform Act on Prevention of and 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 may 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 other 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 conviction, is prima facie evidence of sufficient rehabilitation.4. The department has determined the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on the individual's ability to serve the public in a capacity involving the provision of care to 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 felony under subdivision c of subsection 2 of that section or a class B felony under subdivision d of subsection 2 of that section; of chapter 19-03.1, Uniform Controlled Substance 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 the 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 may not be 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 verified by source documents;b. Acknowledged by the individual; orc. Discovered by the facility, authorized agent, or department as a result of a background check.8. The department may request a fingerprint-based criminal background check if personnel of the facility are known to have been involved in, charged with, or convicted of an offense.9. Fingerprint-based criminal background check results must be reviewed 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 facility 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 facility 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 may only have supervised interaction with residents.11. The department may excuse personnel from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If personnel are excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the personnel lived during the eleven years preceding the signed authorization for the background check.12. A facility shall establish written policies and engage in practices that conform to those policies to effectively implement this section, North Dakota Century Code section 50-11-06.8, and subsection 4 of North Dakota Century Code section 50-11-07.13. A facility shall establish written policies specific to how the facility shall proceed if personnel is known to have been found guilty of, pled guilty to, or pled no contest to an offense.N.D. Admin Code 75-03-40-25
Adopted by Administrative Rules Supplement 374, October 2019, effective 10/1/2019.Amended by Administrative Rules Supplement 2024-392, April 2024, effective 4/1/2024.General Authority: NDCC 50-11-03
Law Implemented: NDCC 50-11-02, 50-11-06.8