2023 New Mexico Statutes › Chapter 29 - Law Enforcement › Article 17 - Criminal Records Screening for Caregivers › Section 29-17-5 - Criminal history screening required; regulatory implementation; appeals.

A. The department of health is authorized to receive an applicant's, caregiver's or hospital caregiver's nationwide criminal history record obtained by the department of public safety as a result of a nationwide criminal history screening pursuant to an applicant's, caregiver's or hospital caregiver's authorization for such nationwide criminal history screening. Providers shall submit a set of fingerprints of applicants, caregivers and hospital caregivers to the department of health for a nationwide criminal history screening, and the department of public safety shall accept from the department of health such fingerprints for the purpose of conducting a nationwide criminal history screening.
B. The department of health is authorized to promulgate rules to implement the Caregivers Criminal History Screening Act, including rules establishing a three-year phased implementation based upon provider type; fingerprint submission procedures; fees; confidentiality; time frames for an applicant's or caregiver's nationwide criminal history screening; procedures for clarifying incomplete or confusing criminal history information; provider sanctions for noncompliance; and employment procedures pending the results of the nationwide criminal history screening relating to applicants and caregivers.
C. No caregiver or hospital caregiver may be employed by a care provider unless the caregiver or hospital caregiver first has submitted to a request for a nationwide criminal history screening prior to beginning employment in accordance with procedures established by rule by the departments of health and public safety. A caregiver or hospital caregiver shall apply for statewide criminal history screening when applying for employment with a care provider within twelve months of the caregiver's or hospital caregiver's most recent nationwide criminal history screening.
D. The following felony convictions disqualify an applicant, caregiver or hospital caregiver from employment as a caregiver:
(1) homicide;
(2) trafficking controlled substances;
(3) kidnapping, false imprisonment, aggravated assault or aggravated battery;
(4) rape, criminal sexual penetration, criminal sexual contact, incest, indecent exposure or other related sexual offenses;
(5) crimes involving adult abuse, neglect or financial exploitation;
(6) crimes involving child abuse or neglect;
(7) robbery, larceny, burglary, fraud, extortion, forgery, embezzlement, credit card fraud or receiving stolen property; or
(8) an attempt, solicitation or conspiracy involving any of the felonies in this subsection.
E. Upon receipt by the department of health of the results of the applicant's, caregiver's or hospital caregiver's nationwide criminal history screening, the department of health shall give notice to the submitting care provider whether the applicant or caregiver has a disqualifying conviction of a crime specified in Subsection D of this section. No other results of the applicant's, caregiver's or hospital caregiver's nationwide criminal history screening shall be provided to the care provider. Except as provided in Subsection F of this section, a care provider shall not employ an applicant or continue to employ a caregiver or hospital caregiver whose nationwide criminal history screening record reflects a disqualifying conviction. When the department of health provides notice to the care provider of a disqualifying conviction of a crime specified in Subsection D of this section, it shall also notify the applicant, caregiver or hospital caregiver, stating with specificity the convictions on which its decision is based and identifying the agency that provided the records.
F. An applicant, caregiver or hospital caregiver whose nationwide criminal history record, obtained through the applicant's, caregiver's or hospital caregiver's nationwide criminal history screening and other clarifying endeavors of the department of health, reflects a disqualifying conviction of a crime specified in Subsection D of this section may request from the department of health an administrative reconsideration. The care provider may, in its discretion, continue to employ such person during the pendency of the reconsideration. A care provider may employ the applicant or caregiver if the reconsideration proceeding results in a determination by the department of health that the applicant's, caregiver's or hospital caregiver's nationwide criminal history record inaccurately reflects a disqualifying conviction of a crime specified in Subsection D of this section or that the employment presents no risk of harm to a care recipient or that the conviction does not directly bear upon the applicant's, caregiver's or hospital caregiver's fitness for the employment.
G. The department of health is authorized to adopt rules for the administrative reconsideration proceeding available to an applicant or caregiver whose nationwide criminal history record reflects a disqualifying conviction. The rules shall take into account the requirements of the Criminal Offender Employment Act [28-2-1 to 28-2-6 NMSA 1978].
H. A care provider shall maintain records evidencing compliance with the requirements of this section with respect to all applicants and caregivers employed on or after May 20, 1998.
I. All criminal history records obtained pursuant to this section by the department of health are confidential. No criminal history records obtained pursuant to this section shall be used for any purpose other than determining whether an applicant, caregiver or hospital caregiver has a criminal conviction that would disqualify the applicant, caregiver or hospital caregiver from employment as a caregiver or hospital caregiver. Except on court order or with the written consent of the applicant, caregiver or hospital caregiver, criminal records obtained pursuant to this section and the information contained therein shall not be released or otherwise disclosed to any other person or agency. A person who discloses confidential records or information in violation of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Subsection A of Section 31-19-1 NMSA 1978.
J. The department of health shall maintain a registry of all applicants who are disqualified from employment or contractual service as caregivers or hospital caregivers. An applicant's arrest record information shall not be released except upon request of the applicant as provided in the Arrest Record Information Act [Chapter 29, Article 10 NMSA 1978].
K. A care provider, including its administrators and employees, is not civilly liable to an applicant or a caregiver for a good faith decision to employ, not employ or terminate employment pursuant to the Caregivers Criminal History Screening Act.
L. Failure to comply with the requirements of this section are grounds for the state agency having enforcement authority with respect to the care provider to impose appropriate administrative sanctions and penalties.
History:
Laws 1998, ch. 68, § 4; 1999, ch. 112, § 2; 2005, ch. 226, § 2.
ANNOTATIONS
The 2005 amendment,
effective June 17, 2005, provided in Subsection A that the department is authorized to receive a hospital caregiver's nationwide criminal history record or a hospital caregiver's authorization for nationwide criminal history screening and requires providers to provide a set of fingerprints of hospital caregivers to the department; changed "regulations" to "rules" in Subsection B; provided that no hospital caregiver may be employed by a care provider unless the hospital caregiver has submitted a request for a nationwide criminal history screening and provides that a caregiver or hospital caregiver shall apply for a statewide criminal history screening when applying for employment with a care provider within twelve months of the caregiver's or hospital caregiver's most recent nationwide criminal history screening; provided in Subsection D that the listed felony convictions disqualifies a hospital caregiver from employment as a caregiver; added Subsection D(8); provided in Subsection E that the department shall not give the care provider any results of the nationwide criminal screening other than whether the hospital caregiver has a disqualifying conviction, that a care provider shall not employ a hospital caregiver who has a disqualifying conviction, and that the department shall give the hospital caregiver notice of the disqualifying conviction; provided in Subsection F that a hospital caregiver who has a disqualifying conviction may request a reconsideration from the department, that a care provider may employ the ccaregiver if the department determines that the hospital caregiver's record inaccurately reflects a disqualifying conviction or that the conviction does not directly bear on the hospital caregiver's fitness for employment; provided in subsection I that criminal history records shall be used only to determine whether a hospital caregiver has a disqualifying conviction, and that criminal records shall not be released or disclosed unless the hospital caregiver consents; and provided in Subsection J that the department shall maintain a registry of disqualified hospital caregivers.
The 1999 amendment,
effective June 18, 1999, in Subsection A, in the first sentence, twice deleted "records" preceding "screening", and inserted "nationwide" preceding the second occurrence of "criminal screening"; in the second sentence, substituted "department of health" for "department of public safety", and inserted "from the department of health" preceding "such fingerprints"; and deleted "New Mexico" preceding "department" throughout the subsection; in Subsection B, substituted "the Caregivers Criminal History Screening Act" for "this act", deleted "but not limited to" following "including," and deleted "volunteers" preceding "applicants and caregivers"; inserted Subsection D(7); in Subsection E, twice substituted "screening" for "records" and twice inserted "nationwide" preceding "criminal history"; in Subsection F, in the first sentence, deleted "records" preceding "screening" and inserted "nationwide" preceding "criminal history", and, in the third sentence, substituted "department of health" for "agency on aging"; in Subsection G, deleted "20-2-1- to 20-2-6, NMSA 1978" following "Criminal Offender Employment Act"; in Subsection H, substituted "May 20, 1998" for "the effective date of this act"; in Subsection I, in the second sentence, substituted "has a criminal conviction that would disqualify him" for "has criminal records that disqualify him"; in Subsection K, substituted "the Caregivers Criminal History Screening Act" for "this act"; and made stylistic changes throughout the section.