0001| AN ACT | 0002| RELATING TO LONG-TERM CARE; REQUIRING CRIMINAL BACKGROUND CHECKS FOR | 0003| CAREGIVERS EMPLOYED BY CARE PROVIDERS; DECLARING AN EMERGENCY. | 0004| | 0005| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0006| Section 1. CRIMINAL RECORDS SCREENING FOR CAREGIVERS EMPLOYED BY | 0007| CARE PROVIDERS.-- | 0008| A. As used in this section: | 0009| (1) "applicant" means any person who seeks | 0010| employment, contractual service or volunteer service as a caregiver | 0011| with a care provider; | 0012| (2) "caregiver" means any person whose employment, | 0013| contractual service or volunteer service with a care provider includes | 0014| direct care or routine and unsupervised physical or financial access | 0015| to any care recipient served by that provider; | 0016| (3) "care provider" or "provider" means a skilled | 0017| nursing facility; intermediate care facility; care facility for the | 0018| mentally retarded; psychiatric facility; rehabilitation facility; | 0019| kidney disease treatment facility; home health agency; homemaker | 0020| agency; ambulatory surgical or outpatient facility; home for the aged | 0021| or disabled; group home; adult foster care home; private residence | 0022| that provides personal care, sheltered care or nursing care for one or | 0023| more persons not related by blood or marriage to the facility's | 0024| operator or owner; adult daycare center; boarding home; adult | 0025| residential shelter care home; any entity that provides respite, | 0001| companion or personal care services; and any other health or resident | 0002| care related facility not a care facility located at or performing | 0003| services for any correctional facility; | 0004| (4) "care recipient" means any person under the care | 0005| of a provider who has a physical or mental illness, injury or | 0006| disability or who suffers from any cognitive impairment that restricts | 0007| or limits the person's activities; | 0008| (5) "conviction" means any conviction of a felony or | 0009| a misdemeanor, including a conviction on a plea of nolo contendere, of | 0010| any crime specified in Subsection D of this section; | 0011| (6) "nationwide criminal records check" means: | 0012| (a) fingerprinting on federal bureau of | 0013| investigation approved fingerprint cards, submitting the fingerprint | 0014| cards to the bureau and obtaining the nationwide conviction record of | 0015| an applicant or caregiver; or | 0016| (b) submitting an applicant's or caregiver's | 0017| authorization for release form to the federal bureau of investigation | 0018| for the purpose of obtaining the nationwide conviction record of an | 0019| applicant or caregiver; | 0020| (7) "statewide criminal records check" means | 0021| fingerprinting on federal bureau of investigation approved fingerprint | 0022| cards, submitting the cards to the department of public safety and | 0023| obtaining the statewide conviction and felony arrest history of an | 0024| applicant or caregiver; and | 0025| (8) "volunteer service" means the performance of work | 0001| for a care provider by a person who is not financially compensated for | 0002| that work and does not receive a stipend, and who assists the care | 0003| provider by filling a position that would otherwise be held by an | 0004| employee or independent contractor. | 0005| B. A care provider that seeks to employ any caregiver shall | 0006| initiate statewide and nationwide criminal records checks of the | 0007| applicant before an offer of permanent employment is made. A care | 0008| provider may make a temporary offer of employment to an applicant | 0009| pending the results of the criminal records checks, and shall initiate | 0010| these checks within five days of making the temporary offer of | 0011| employment. A care provider may employ a person prior to receiving | 0012| and reviewing the results of the criminal records checks for that | 0013| person for a period not to exceed one hundred days. A care provider | 0014| may accept the results of an applicant's criminal records checks less | 0015| than one year old, provided the results are obtained from the | 0016| applicant's previous employer pursuant to the applicant's written | 0017| consent. An applicant whose profession requires statewide and | 0018| nationwide criminal records checks as a prerequisite for professional | 0019| licensure may disclose the results of any such records checks to the | 0020| care provider in lieu of undergoing the records checks required by | 0021| this section. The costs of the criminal records checks shall be paid | 0022| by either the provider or the applicant. | 0023| C. A care provider that employs any caregiver as of the | 0024| effective date of this act shall initiate statewide and nationwide | 0025| criminal records checks of each such caregiver within one hundred | 0001| eighty days of the effective date of this act. A care provider may | 0002| continue to employ a caregiver pending the results of the criminal | 0003| records checks for a period not to exceed one hundred days. A care | 0004| provider may accept the results of a caregiver's criminal records | 0005| checks less than one year old, provided the results are obtained from | 0006| the caregiver's previous employer pursuant to the caregiver's written | 0007| consent. A caregiver whose profession requires statewide and | 0008| nationwide criminal records checks as prerequisite for professional | 0009| licensure may disclose the results of any such records checks to the | 0010| care provider in lieu of undergoing the records checks required by | 0011| this section. A care provider that has conducted criminal records | 0012| checks within the last two years as required in this section may use | 0013| the results of such checks to meet the requirements of this section. | 0014| The costs of the criminal records checks shall be paid by either the | 0015| provider or the caregiver. | 0016| D. Except as otherwise provided for in Subsection E of this | 0017| section, any of the following convictions disqualify an applicant or | 0018| caregiver from employment as a caregiver: | 0019| (1) homicide; | 0020| (2) assault or battery; | 0021| (3) aggravated assault or aggravated battery; | 0022| (4) kidnapping or false imprisonment; | 0023| (5) rape, criminal sexual penetration, criminal | 0024| sexual contact, incest or other non-consensual or forcible sexual | 0025| acts; | 0001| (6) domestic violence; | 0002| (7) any crime involving adult abuse, neglect or | 0003| financial exploitation; | 0004| (8) any crime involving child abuse or neglect; | 0005| (9) indecent exposure; | 0006| (10) felony larceny, robbery, burglary or aggravated | 0007| burglary; | 0008| (11) felony trafficking controlled substances; | 0009| (12) arson; or | 0010| (13) any criminal offense involving fraud. | 0011| E. A care provider shall not employ an applicant, or | 0012| continue to employ a caregiver, whose criminal records reflect | 0013| conviction of a crime specified in Subsection D of this section, | 0014| unless the applicant or caregiver requests reconsideration and | 0015| demonstrates to the provider that his employment poses no risk of harm | 0016| to a care recipient or does not directly bear upon his fitness to have | 0017| responsibility for the safety and well-being of the care recipient. | 0018| To determine whether to employ an applicant or caregiver despite an | 0019| otherwise disqualifying conviction, the care provider must consider | 0020| all of the following factors: | 0021| (1) level and seriousness of the crime; | 0022| (2) date of the crime; | 0023| (3) age of the applicant or caregiver at the time of | 0024| the conviction; | 0025| (4) circumstances surrounding the commission of the | 0001| crime, if known; | 0002| (5) nexus between the applicant's or caregiver's | 0003| criminal conduct and the job duties of the position to be filled; | 0004| (6) applicant's or caregiver's prison, jail, | 0005| probation, parole, rehabilitation and employment records since the | 0006| date the crime was committed; and | 0007| (7) subsequent commission by the applicant or | 0008| caregiver of a relevant offense. | 0009| F. This section does not preclude a care facility or | 0010| administrator or supervisory personnel from using other convictions or | 0011| information revealed by criminal records checks as a basis for | 0012| employment or personnel placement or other personnel decisions or | 0013| actions, including termination of employment. | 0014| G. If a care provider refuses to employ an applicant, or to | 0015| continue to employ a caregiver, pursuant to Subsection E or F of this | 0016| section, the provider shall so notify the applicant or caregiver, | 0017| stating with specificity the convictions and arrests on which refusal | 0018| to employ is based and identifying the agency which provided the | 0019| records. | 0020| H. A care provider shall afford an applicant or caregiver | 0021| refused employment or continued employment a reasonable opportunity to | 0022| demonstrate that the criminal records are inaccurate, including an | 0023| opportunity to contact the agency that provided the records. | 0024| I. A care provider shall maintain records evidencing | 0025| compliance with the requirements of this section with respect to all | 0001| applicants and caregivers employed on or after the effective date of | 0002| this act. These records shall be subject to inspection by any | 0003| governmental agency with regulatory jurisdiction over the provider, | 0004| including the department of health, the state agency on aging, the | 0005| attorney general's medicaid fraud control unit and the children, youth | 0006| and families department. Criminal records maintained by the provider | 0007| shall be destroyed one year after an applicant is rejected or a | 0008| caregiver's employment is terminated, as applicable. | 0009| J. All criminal records obtained pursuant to this section | 0010| and the information contained therein are confidential. No criminal | 0011| records obtained pursuant to this section shall be used for any | 0012| purpose other than determining whether an applicant or caregiver has | 0013| criminal records that disqualify him from employment as a caregiver. | 0014| Except on court order or with the written consent of the applicant or | 0015| caregiver, criminal records obtained pursuant to this section and the | 0016| information contained therein shall not be released or otherwise | 0017| disclosed to any other person or agency. Any person who discloses | 0018| confidential records or information in violation of this section is | 0019| guilty of a misdemeanor and shall be sentenced pursuant to the | 0020| provisions of Subsection A of 31-19-1 NMSA 1978. | 0021| K. A care provider, including its administrators and/or | 0022| employees, is not civilly liable for a good faith decision to: | 0023| (1) employ, not employ or terminate employment | 0024| pursuant to this section; or | 0025| (2) rely on the results of criminal records checks | 0001| required by this section in making decisions or taking action | 0002| regarding placement or other personnel decisions. | 0003| L. Failure to comply with the requirements of this section | 0004| are grounds for the state agency having jurisdiction of the care | 0005| provider to impose administrative sanctions and penalties, including | 0006| suspension or revocation of the provider's license and imposition of | 0007| fines. Until January 1, 1998 a care provider shall not be subject to | 0008| administrative sanctions or penalties for health facilities survey | 0009| deficiencies for continuing to employ a caregiver for whom the | 0010| provider has not received the results of criminal records checks | 0011| during the one hundred day period of temporary employment provided for | 0012| in Subsections B and C of this section. This subsection neither | 0013| limits any existing and independent sanctioning authority nor grants | 0014| any additional sanctioning authority. | 0015| Section 2. EMERGENCY.--It is necessary for the public | 0016| peace, health and safety that this act take effect immediately. | 0017| |