0001| | 0002| SENATE BILL 207 | 0003| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0004| INTRODUCED BY | 0005| L. SKIP VERNON | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO HEALTH CARE PROVIDERS; ESTABLISHING CRIMINAL | 0013| HISTORY SCREENING REQUIREMENTS FOR CAREGIVERS; REPEALING | 0014| SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. TITLE.--Sections 1 though 5 of this act may | 0018| be cited as the "Caregivers Criminal History Screening Act". | 0019| Section 2. PURPOSE.--The purpose of the Caregivers | 0020| Criminal History Screening Act and its requirement that | 0021| caregivers undergo a nationwide criminal history screening is | 0022| to ensure to the highest degree possible the prevention of | 0023| abuse, neglect or financial exploitation of care recipients. | 0024| Section 3. DEFINITIONS.--As used in the Caregivers | 0025| Criminal History Screening Act: | - 1 - 0001| A. "Applicant" means a person who seeks and is | 0002| offered employment, contractual service or volunteer service | 0003| as a caregiver with a care provider. | 0004| B. "Caregiver" means a person, not otherwise | 0005| required to undergo a nationwide criminal history screening by | 0006| the New Mexico Children's and Juvenile Facility Criminal | 0007| Records Screening Act [32A-15-1 to 32A-15-4 NMSA 1978], whose | 0008| employment, contractual service or volunteer service with a | 0009| care provider includes direct care or routine and | 0010| unsupervised physical or financial access to any care | 0011| recipient served by that provider; | 0012| C. "Care provider" or "provider" means a skilled | 0013| nursing facility; intermediate care facility; care facility | 0014| for the mentally retarded; psychiatric facility; | 0015| rehabilitation facility; home health agency; homemaker agency; | 0016| home for the aged or disabled; group home; adult foster care | 0017| home; private residence that provides personal care, adult | 0018| residential care, or nursing care for two or more persons not | 0019| related by blood or marriage to the facility's operator or | 0020| owner; adult daycare center; boarding home; adult residential | 0021| care home; residential service or habilitation service | 0022| providers authorized to be reimbursed by Medicaid; any | 0023| licensed or Medicaid certified entity, or any program funded | 0024| by the state agency on aging, that provides respite, companion | 0025| or personal care services; however, it does not include | - 2 - 0001| general acute care hospitals, and resident care facilities | 0002| located at or performing services exclusively for any | 0003| correctional facility; | 0004| D. "care recipient" means any person under the | 0005| care of a provider who has a physical or mental illness, | 0006| injury or disability or who suffers from any cognitive | 0007| impairment that restricts or limits the person's activities; | 0008| E. "Nationwide criminal history screening" means a | 0009| criminal history background investigation of an applicant or | 0010| caregiver through the use of fingerprints collected by the New | 0011| Mexico department of public safety and submitted to the | 0012| federal bureau of investigation, resulting in generation of a | 0013| nationwide criminal history record for that applicant or | 0014| caregiver; | 0015| F. "Nationwide criminal history record" means | 0016| information concerning a person's arrests, indictments, or | 0017| other formal criminal charges, and any dispositions arising | 0018| therefrom, including convictions, dismissals, acquittals, | 0019| sentencing, and correctional supervision, collected by | 0020| criminal justice agencies and stored in the computerized | 0021| databases of the federal bureau of investigation, the National | 0022| Law Enforcement Telecommunications System, the New Mexico | 0023| department of public safety, or the repositories of criminal | 0024| history information of other states. | 0025| G. "Volunteer service" means the performance of | - 3 - 0001| work for a care provider by a person who is not financially | 0002| compensated for that work or who receives a nominal stipend | 0003| for that work and who assists the care provider by filling a | 0004| position that would otherwise be held by an employee or | 0005| independent contractor. | 0006| Section 3.--CRIMINAL HISTORY SCREENING REQUIRED; | 0007| REGULATORY IMPLEMENTATION; APPEALS.-- | 0008| A. The department of health is authorized to | 0009| receive an applicant's or caregiver's nationwide criminal | 0010| history record obtained by the New Mexico department of public | 0011| safety as a result of a nationwide criminal history records | 0012| screening pursuant to an applicant's or caregiver's | 0013| authorization for such criminal history records screening. | 0014| Providers shall submit a set of fingerprints of applicants and | 0015| caregivers to the New Mexico department of public safety for a | 0016| nationwide criminal history screening, and the New Mexico | 0017| department of public safety shall accept such fingerprints for | 0018| the purpose of conducting a nationwide criminal history | 0019| screening. | 0020| B. The department of health is authorized to | 0021| promulgate regulations to implement this act, including but | 0022| not limited to regulations establishing a three year phased | 0023| implementation based upon provider type; fingerprint | 0024| submission procedures; fees; confidentiality; timeframes for | 0025| an applicant's or caregiver's nationwide criminal history | - 4 - 0001| screening; procedures for clarifying incomplete or confusing | 0002| criminal history information; provider sanctions for | 0003| noncompliance; and employment procedures pending the results | 0004| of the nationwide criminal history screening relating to | 0005| volunteers, applicants, and caregivers. | 0006| C. No caregiver may be employed by a care provider | 0007| unless the caregiver first has submitted to a request for a | 0008| nationwide criminal history screening prior to beginning | 0009| employment in accordance with procedures established by | 0010| regulation by the departments of health and public safety, or | 0011| unless the caregiver has submitted to a nationwide criminal | 0012| history screening and has been cleared within the previous 12 | 0013| months. | 0014| D. The following felony convictions disqualify an | 0015| applicant or caregiver from employment as a caregiver: | 0016| (1) homicide; | 0017| (2) trafficking controlled substances; | 0018| (3) kidnapping, false imprisonment, | 0019| aggravated assault or aggravated battery; | 0020| (4) rape, criminal sexual penetration, | 0021| criminal sexual contact, incest, indecent exposure, or other | 0022| related sexual offenses; | 0023| (5) crimes involving adult abuse, neglect or | 0024| financial exploitation; | 0025| (6) crimes involving child abuse or neglect; | - 5 - 0001| E. Upon receipt by the department of health of the | 0002| results of the applicant's or caregiver's nationwide criminal | 0003| history record, the department of health shall give notice to | 0004| the submitting care provider whether or not the applicant or | 0005| caregiver has a disqualifying conviction of a crime specified | 0006| in Subsection D of this section. No other results of the | 0007| applicant's or caregiver's criminal history records screening | 0008| shall be provided to the care provider. Except as provided in | 0009| Subsection F of this section, a care provider shall not employ | 0010| an applicant, or continue to employ a caregiver, whose | 0011| criminal history screening records reflect a disqualifying | 0012| conviction. When the department of health provides notice to | 0013| the care provider of a disqualifying conviction of a crime | 0014| specified in Subsection D of this section, it shall also | 0015| notify the applicant or caregiver, stating with specificity | 0016| the convictions and arrests on which its decision is based and | 0017| identifying the agency which provided the records. | 0018| F. An applicant or caregiver whose nationwide | 0019| criminal history record, obtained through the applicant's or | 0020| caregiver's criminal history records screening and other | 0021| clarifying endeavors of the department of health, reflects a | 0022| disqualifying conviction of a crime specified in Subsection D | 0023| of this section may request from the agency on aging an | 0024| administrative reconsideration. The care provider may, in its | 0025| discretion, continue to employ such person during the pendency | - 6 - 0001| of the reconsideration. A care provider may employ the | 0002| applicant or caregiver if the reconsideration proceeding | 0003| results in a determination by the agency on aging that the | 0004| applicant's or caregiver's nationwide criminal history record | 0005| inaccurately reflects a disqualifying conviction of a crime | 0006| specified in Subsection D of this section, or that the | 0007| employment presents no risk of harm to a care recipient, or | 0008| that the conviction does not directly bear upon the | 0009| applicant's or caregiver's fitness for the employment. | 0010| G. The agency on aging is authorized to adopt | 0011| regulations for the administrative reconsideration proceeding | 0012| available to any applicant or caregiver whose nationwide | 0013| criminal history record reflects a disqualifying conviction. | 0014| The regulations shall take into account the requirements of | 0015| the Criminal Offender Employment Act, 28-2-1 to 28-2-6, NMSA | 0016| 1978. | 0017| H. A care provider shall maintain records | 0018| evidencing compliance with the requirements of this section | 0019| with respect to all applicants and caregivers employed on or | 0020| after the effective date of this act. | 0021| I. All criminal history records obtained pursuant | 0022| to this section by the department of health and the agency on | 0023| aging are confidential. No criminal history records obtained | 0024| pursuant to this section shall be used for any purpose other | 0025| than determining whether an applicant or caregiver has | - 7 - 0001| criminal records that disqualify him from employment as a | 0002| caregiver. Except on court order or with the written consent | 0003| of the applicant or caregiver, criminal records obtained | 0004| pursuant to this section and the information contained therein | 0005| shall not be released or otherwise disclosed to any other | 0006| person or agency. Any person who discloses confidential | 0007| records or information in violation of this section is guilty | 0008| of a misdemeanor and shall be sentenced pursuant to the | 0009| provisions of Subsection A of Section 31-19-1 NMSA 1978. | 0010| J. A care provider, including its administrators | 0011| and employees, is not civilly liable to an applicant or a | 0012| caregiver for a good faith decision to employ, not employ or | 0013| terminate employment pursuant to this act. | 0014| K. Failure to comply with the requirements of this | 0015| section are grounds for the state agency having enforcement | 0016| authority with respect to the care provider to impose | 0017| appropriate administrative sanctions and penalties. | 0018| Section 4.--CONSTRUCTION; SEVERABILITY.--If any provision | 0019| of the Caregivers Criminal History Screening Act or the | 0020| application thereof to any person or entity or in any | 0021| circumstances is held invalid, the remainder of that act and | 0022| the application of such provision to others or in other | 0023| circumstances shall not be affected thereby. | 0024| Section 5.--REPEAL.--Section 29-17-1 NMSA 1978 (being | 0025| Laws 1997, Chapter 202) is repealed. | - 8 - 0001| Section 6.--APPROPRIATION.--For fiscal year 1999, two | 0002| hundred seventy five thousand dollars ($275,000) is | 0003| appropriated to the department of health, two hundred twenty | 0004| five thousand ($225,000) is appropriated to the department of | 0005| public safety, and sixty thousand dollars ($60,000) is | 0006| appropriated to the agency on aging from the general fund for | 0007| the purpose of implementing the provisions of Caregivers | 0008| Criminal History Screening Act. | 0009|  |