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F I S C A L I M P A C T R E P O R T

SPONSOR HCPAC

DATE TYPED 3/9/05

HB 627/HCPACS

SHORT TITLE Amend Caregivers Criminal Screening Act

SB

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$100.0

Recurring General Fund

REVENUE

Estimated Revenue

Subsequent

Years Impact

Recurring

or Non-Rec

Fund

Affected

FY05

FY06

$650.0

Recurring Other State Funds

SOURCES OF INFORMATION

LFC Files

Responses Received From

Developmental Disabilities Planning Council (DDPC)

Children, Youth & Families Department (CYFD)

Department of Public Safety (DPS)

Aging and Long-Term Services Department (ALTSD)

Human Services Department (HSD)

Department of Health (DOH)

SUMMARY

Synopsis of Substitute Bill

House Bill 627 amends sections of the Caregivers Criminal History Screening Act (CCHCA)

provides for a statewide criminal history screening by the DOH, clarifies definitions and adds

conditions that may disqualify a caregiver from employment.

House Bill 627/HCPACS-- Page 2

Significant Issues

The intent of the amendments is to broaden protections to further ensure the health and safety of

vulnerable populations receiving healthcare services.

Proposed changes to the CCHCA include:

•

Adds acute care facilities to the list of providers pursuant to the Act,

•

Adds an inpatient hospital caregiver as an “applicant”,

•

Defines a statewide criminal history screening background investigation,

•

Requires employees to submit to a nationwide criminal history screening within twelve

months of their most recent screening,

•

Changes Agency on Aging to ALTSD,

•

Adds the definition of conviction and the conditions that constitute a conviction to the

statute,

•

Adds the crimes of burglary and fraud to the list of convictions that would disqualify an

applicant from employment as a caregiver,

•

Adds language to include attempt, solicitation or conspiracy to the felony convictions as

disqualifying an applicant or caregiver from employment as a caregiver.

The statewide screening will reveal any criminal convictions that have occurred within the state

during the previous year, which otherwise would not be recorded on the nationwide screen.

The AGO notes that negligent hiring is based on a duty flowing from the employer to the public

to protect those whom the employer might reasonably anticipate would be injured as a result of

the hiring. The Statute as it exists would permit an employer to hire a caregiver who has been

convicted of a disqualifying felony without violating the CCHSA. The proposed amendment re-

quiring statewide screening is necessary to clearly establish a duty of care for providers to ade-

quately screen caregivers.

PERFORMANCE IMPLICATIONS

FBI regulations require legislative authority to conduct and obtain nationwide criminal records

checks.

CYFD’s Dependent Care Providers and Client Service Agents are subject to a national criminal

history screening conducted by DOH.

HB 627 is a DOH and Governor’s priority bill addressing his goal for zero tolerance of elder

abuse.

FISCAL IMPLICATIONS

The DOH reports New Mexico’s federal grant of $1.1 million to improve the criminal screening

process requires than an individual be screened each time they seek new employment. The cur-

rent Act allows for an initial screen that is good for twelve months. New Mexico’s federal grant

may be at risk if the statute is not changed to eliminate the twelve-month window.

House Bill 627/HCPACS-- Page 3

HB 627 adds acute care hospitals, requiring them to screen their employees providing services.

It is estimated that 10,000 new screens will result annually. The fees for the additional number

of screens will pay for an increase in 1-3 additional staff needed to process the requests. This as-

sumes that the fees set will be at a level sufficient to cover the costs of administering the ex-

panded program. The impact to the general fund is indeterminate as any unexpended revenue at

the end of each fiscal year will be expected to revert to the general fund.

It may become a financial burden for small providers to screen all applicants if the cost is too

high because of frequent staff turnover and use of part time caregivers.

ADMINISTRATIVE IMPLICATIONS

ALTSD anticipates the Medicaid Policy Manuel Section, Personal Care Option Services, may

require revisions to establish the relationship between the consumer (employer of record) and the

fiscal intermediary under the Directed-Model to connect the “provider” definition under HB 627.

TECHNICAL ISSUES

ALTSD is concerned volunteers who provide direct care would not be excluded, as the language

addresses “employment or contractual services”.

It is unclear if the PCO program is excluded from the Act as family members frequently serve as

caregivers and may fail background checks.

The ALTSD notes that the definition of conviction includes “any plea or judgment entered in

connection with a conditional discharge, a suspended sentence, a diversion or a deferment…”. In

New Mexico, diversion means a suspect is placed in a program prior to the filing of criminal

charges or that criminal proceedings are suspended if the individual participates in the program.

HSD notes out of date language. A skilled nursing facility is more accurately referenced as a

nursing facility that provides Medicaid level of care services. A care facility for the mentally re-

tarded is more accurately referenced as an intermediate care facility for the mentally retarded.

OTHER SUBSTANTIVE ISSUES

DOH has the following comment:

DOH has operated the Caregivers Criminal History Screening Program for over five years. Cer-

tain felony convictions prevent individuals from employment in health care facilities. DOH

processes fingerprints for DPS (state) and FBI (national) criminal records. Employees are noti-

fied if they have a disqualifying conviction and may request a review of the department’s deter-

mination. The current screening application rate of $65 includes fees to pay for Division of

Health Improvement (DHI) staff, the national FBI screen and the DPS in-state screen. DHI has

just received a two and a half year $1.1 million grant to improve its screening processes and es-

tablish a registry. The program currently processes 20,000 applications a year.

HB 627 eliminates the requirement for no subsequent screens within one year of the initial

screen. Requiring additional screens when a person seeks new employment within one year of

initial screen will further assure that anyone committing a crime after the initial screen is pre-

House Bill 627/HCPACS-- Page 4

vented from employment. This change is consistent with the new federal CMS grant require-

ment to DOH/Division of Health Improvement to improve the criminal screening process.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

Caregivers who commit disqualifying felonies in the State of New Mexico within 12 months of a

successful nationwide criminal screen could still be employed as caregivers to vulnerable popu-

lations.

Hospitals will continue to be excluded from the Act and thus not required to submit fingerprint

screens for unlicensed caregivers.

New Mexico’s federal grant may be put at risk if the statute is not changed to close the twelve-

month window.

AHO/sb:yr