SENATE BILL 140
52nd legislature - STATE OF NEW MEXICO - first session, 2015
RELATING TO CHILD WELFARE; CREATING THE OUTDOOR YOUTH PROGRAM ACT; ESTABLISHING THE OUTDOOR YOUTH PROGRAM BOARD; REQUIRING LICENSURE TO OPERATE OUTDOOR YOUTH PROGRAMS; REQUIRING BACKGROUND CHECKS; PROVIDING FOR FEES AND DISCIPLINARY ACTION; MAKING AN APPROPRIATION; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Outdoor Youth Program Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Outdoor Youth Program Act:
A. "board" means the outdoor youth program board;
B. "department" means the children, youth and families department;
C. "outdoor youth program" means a program that is designed to provide educational, disciplinary, counseling, behavioral or substance abuse services to a minor and that:
(1) serves adjudicated or nonadjudicated minors;
(2) charges a fee for its services or requires a minor to work as a condition of enrollment in the outdoor youth program;
(3) accepts anything of value in exchange for enrolling a minor in the outdoor youth program;
(4) arranges for the enrollment of a minor in the outdoor youth program through a scholarship or any other means;
(5) may provide room and board for a minor;
(6) may provide all or a part of its services in the outdoors;
(7) may limit access to the parents or guardians of a minor;
(8) may assume temporary guardianship of a minor during enrollment in the outdoor youth program;
(9) prohibits or restricts a minor's ability to leave the program at any time of the minor's own free will;
(10) is not operated by a public school system or governed by a local school board;
(11) is not a private school accredited or recognized by the public education department;
(12) is not a "health facility" as that term is defined in Section 24-1-2 NMSA 1978;
(13) is not operated by the federal government or a tribal government;
(14) is not a summer religious school held on the premises of a religious organization;
(15) is not a summer camp or solely recreational program operated by a nonprofit organization, such as a church, school or the boy scouts or girl scouts;
(16) is not a facility that provides child care for twenty-four hours on a continuous basis and that is regulated by the department;
(17) is not a residential treatment program;
(18) is not a wilderness experience program provided by the department for treatment of children alleged or found to be delinquent or in need of supervision pursuant to Section 32A-13-3 NMSA 1978; and
(19) is not a children's crisis shelter, multiservice home, community home or new and innovative program licensed by the department;
D. "premises" means the buildings, grounds, equipment and real property occupied or used by an outdoor youth program;
E. "room and board" means to provide a place to live and meals in exchange for money, labor or another form of consideration; and
F. "secretary" means the secretary of children, youth and families.
SECTION 3. [NEW MATERIAL] LICENSE REQUIRED.--
A. Unless licensed to operate under the Outdoor Youth Program Act, a person shall not:
(1) operate an outdoor youth program;
(2) market or promote an outdoor youth program; or
(3) make any representation that the person is licensed to operate an outdoor youth program.
B. A person who, with or without a license under the Outdoor Youth Program Act, engages in the operation, marketing or promotion of an outdoor youth program is subject to the jurisdiction of the state and to the administrative jurisdiction of the board and is subject to all penalties and remedies available for a violation of a provision of the Outdoor Youth Program Act.
SECTION 4. [NEW MATERIAL] OUTDOOR YOUTH PROGRAM BOARD CREATED.--
A. There is created the "outdoor youth program board".
B. The board is administratively attached to the department.
C. The board consists of six members. Three members shall have at least five years of professional experience working with adolescents and shall be licensed for independent practice under either the Medical Practice Act, the Professional Psychologist Act or the Counseling and Therapy Practice Act. Two members shall represent the public and shall never have had any financial interest, direct or indirect, in any outdoor youth program. One member shall be a designee of the secretary.
D. Members of the board shall be appointed by the governor for staggered terms so that the terms of two members expire in two years, the terms of two members expire in three years and the terms of two members expire in four years. Thereafter, all members shall be appointed for terms of four years. Each member shall hold office until the member's successor is duly qualified and appointed. Vacancies shall be filled for an unexpired term in the same manner as original appointments.
E. Members of the board are entitled to reimbursement of per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.
F. A simple majority of the board members currently serving constitutes a quorum.
G. The board shall hold at least two regular meetings each year and shall meet at such other times as it deems necessary.
H. A board member shall not serve more than two full consecutive terms. The board shall recommend removal of any board member who has three unexcused absences from properly noticed meetings within a twelve-month period and may recommend removal of a board member for any other just cause.
I. The board shall elect a chair and such other officers as necessary to administer its duties.
SECTION 5. [NEW MATERIAL] BOARD DUTIES.--The board shall:
A. administer and enforce the provisions of the Outdoor Youth Program Act;
B. provide for the examination, licensing and renewal of licensing of applicants or licensees of outdoor youth programs;
C. promulgate rules to promote the health, safety and welfare of minors enrolled in outdoor youth programs; and
D. provide or arrange for the inspection of outdoor youth programs.
SECTION 6. [NEW MATERIAL] INSPECTION--ACCESS--COUNSEL.--
A. Inspection of outdoor youth programs, including all records, financial or otherwise, is authorized during regular business hours. Acceptance of a license shall constitute permission for the board or its designee to enter any premises or location where an outdoor youth program is being operated without legal process.
B. An outdoor youth program shall maintain business records as required by law or rule.
C. The board shall be represented by the attorney general. The board may employ a special counsel, upon the approval of the attorney general, to review and prosecute cases of consumer complaints against any person licensed pursuant to the Outdoor Youth Program Act. Payments for these services shall be made by the board.
SECTION 7. [NEW MATERIAL] REQUIREMENTS FOR LICENSURE.--A license to operate an outdoor youth program shall be issued to any person who files a completed application, accompanied by the required fees and documentation, and who submits satisfactory evidence that the person:
A. is at least twenty-five years of age;
B. has not been convicted of child neglect, exploitation or abuse; and
C. has met any other requirements as determined by the department.
SECTION 8. [NEW MATERIAL] BACKGROUND CHECKS.--
A. An applicant for initial licensure and every prospective employee of an applicant or licensee shall be fingerprinted and shall provide two fingerprint cards or the equivalent electronic fingerprints to the board to obtain the applicant's or prospective employee's federal bureau of investigation record. Convictions of felonies or misdemeanors contained in the federal bureau of investigation record shall be used in accordance with the Criminal Offender Employment Act. Other information contained in the federal bureau of investigation record, if supported by independent evidence, may form the basis for the denial, suspension or revocation of a license for cause or for denying approval for a prospective employee to work for an outdoor youth program.
B. Records and related information shall be privileged and not disclosed to a person not directly involved in the licensure or employment decisions affecting a specific applicant or licensee, or a prospective or current employee.
C. An applicant for initial licensure or a licensee shall pay for the cost of obtaining required federal bureau of investigation records.
D. A licensee shall not employ any person for whom a background check has not been completed and who, on the basis of the background check, has been denied approval to work for an outdoor youth program by the board.
SECTION 9. [NEW MATERIAL] FEES.--The following fees shall be submitted as appropriate to the board:
A. an application fee not to exceed one hundred fifty dollars ($150);
B. a license renewal fee not to exceed one hundred fifty dollars ($150) paid annually;
C. a late fee not to exceed twenty-five dollars ($25.00) for every day a licensee fails to renew its license; and
D. an inspection fee not to exceed five hundred dollars ($500).
SECTION 10. [NEW MATERIAL] DISCIPLINARY PROCEEDINGS--JUDICIAL REVIEW.--
A. The board, in accordance with the procedures set forth in the Uniform Licensing Act, may take disciplinary action against any applicant or licensee of an outdoor youth program.
B. The board may take any action set forth in Section 61-1-3 NMSA 1978 upon a finding by the board that an applicant or licensee of an outdoor youth program is guilty of any of the following acts of commission or omission:
(1) conviction of an offense punishable by incarceration in a state penitentiary or federal prison; provided that the board receives a copy of the record of conviction, certified to by the clerk of the court entering the conviction, which shall be conclusive evidence of the conviction;
(2) fraud or deceit in procuring or attempting to procure a license;
(3) gross negligence or incompetence;
(4) unprofessional or dishonorable conduct, which includes:
(a) misrepresentation or fraud; or
(b) false or misleading advertising;
(5) violation of the provisions of the Outdoor Youth Program Act or a rule of the board;
(6) violation of any local, state or federal ordinance, law or regulation;
(7) willful or negligent operation beyond the scope of the license issued by the board;
(8) failure to give full cooperation to the board or one of its committees, staff, inspectors, agents or an attorney for the board in the performance of official duties;
(9) having had a license, certificate or registration to operate an outdoor youth program revoked, suspended or denied in any jurisdiction, territory or possession of the United States or another country for actions of the licensee or applicant similar to acts described in this subsection. A certified copy of the record of the jurisdiction taking the disciplinary action is conclusive evidence of the violation;
(10) failure to adequately supervise subordinate personnel; or
(11) failure to report to the board any charges filed against, or conviction of, a licensee or a licensee's employee for any felony or misdemeanor involving moral turpitude.
C. In addition to taking disciplinary action for the offenses listed in Subsection B of this section, the board may take any action set forth in Section 61-1-3 NMSA 1978 upon a finding by the board that a person is guilty of any of the following acts of commission or omission:
(1) operating an outdoor youth program without a license or aiding or abetting an unlicensed person to operate an outdoor youth program;
(2) permitting unqualified personnel to supervise minors enrolled in an outdoor youth program;
(3) engaging or making any representation as engaging in the operation of an outdoor youth program, unless the person has a license to operate an outdoor youth program; or
(4) engaging in conduct or activities for which a license is required or aiding and abetting an unlicensed person to engage in conduct or activities for which a license is required.
D. Unless exonerated by the board, persons who have been subjected to formal disciplinary sanctions by the board shall be responsible for the payment of costs of the disciplinary proceedings, which include costs for:
(1) court reporters;
(3) certification or notarization;
(5) witness attendance and mileage fees;
(6) postage for mailings required by law;
(7) expert witnesses; and
E. All fees, fines and costs imposed on an applicant or licensee of an outdoor youth program shall be paid in full to the board before an initial or renewal license may be issued.
SECTION 11. APPROPRIATION.--Five hundred thousand dollars ($500,000) is appropriated from the general fund to the children, youth and families department for expenditure in fiscal years 2015 and 2016 for the establishment of the outdoor youth program board and administrative expenses associated with the board's duties pursuant to the Outdoor Youth Program Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2016 shall revert to the general fund.
SECTION 12. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
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