0001| SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR | 0002| SENATE BILL 651 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO LONG-TERM CARE; REQUIRING CRIMINAL BACKGROUND | 0013| CHECKS FOR CAREGIVERS EMPLOYED BY CARE PROVIDERS; DECLARING AN | 0014| EMERGENCY. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. CRIMINAL RECORDS SCREENING FOR CAREGIVERS | 0018| EMPLOYED BY CARE PROVIDERS.-- | 0019| A. As used in this section: | 0020| (1) "applicant" means any person who seeks | 0021| employment, contractual service or volunteer service as a | 0022| caregiver with a care provider; | 0023| (2) "caregiver" means any person whose | 0024| employment, contractual service or volunteer service with a | 0025| care provider includes routine and unsupervised physical or | 0001| financial access to any care recipient served by that provider; | 0002| (3) "care provider" or "provider" means a | 0003| skilled nursing facility; intermediate care facility; care | 0004| facility for the mentally retarded; psychiatric facility; | 0005| rehabilitation facility; kidney disease treatment facility; | 0006| home health agency; homemaker agency; ambulatory surgical or | 0007| outpatient facility; home for the aged or disabled; group home; | 0008| adult foster care home; private residence that provides | 0009| personal care, sheltered care or nursing care for one or more | 0010| persons not related by blood or marriage to the facility's | 0011| operator or owner; adult daycare center; boarding home; adult | 0012| residential shelter care home; any entity that provides | 0013| respite, companion or personal care services; and any other | 0014| health or resident care related facility not a care facility | 0015| located at or performing services for any correctional | 0016| facility; | 0017| (4) "care recipient" means any person under | 0018| the care of a provider who has a physical or mental illness, | 0019| injury or disability or who suffers from any cognitive | 0020| impairment that restricts or limits the person's activities; | 0021| (5) "conviction" means any conviction of a | 0022| felony or a misdemeanor, including a conviction on a plea of | 0023| nolo contendere, of any crime specified in Subsection D of this | 0024| section; | 0025| (6) "nationwide criminal records check" means: | 0001| (a) fingerprinting on federal bureau of | 0002| investigation approved fingerprint cards, submitting the | 0003| fingerprint cards to the bureau and obtaining the nationwide | 0004| conviction record of an applicant or caregiver; or | 0005| (b) submitting an applicant's or | 0006| caregiver's authorization for release form to the federal bureau | 0007| of investigation for the purpose of obtaining the nationwide | 0008| conviction record of an applicant or caregiver; and | 0009| (7) "statewide criminal records check" means | 0010| fingerprinting on federal bureau of investigation approved | 0011| fingerprint cards, submitting the cards to the department of | 0012| public safety and obtaining the statewide conviction and felony | 0013| arrest history of an applicant or caregiver. | 0014| B. A care provider that seeks to employ any caregiver | 0015| shall initiate statewide and nationwide criminal records checks of | 0016| the applicant before an offer of permanent employment is made. A | 0017| care provider may make a temporary offer of employment to an | 0018| applicant pending the results of the criminal records checks, and | 0019| shall initiate these checks within five days of making the | 0020| temporary offer of employment. A care provider may employ a | 0021| person prior to receiving and reviewing the results of the | 0022| criminal records checks for that person for a period not to exceed | 0023| sixty days. A care provider may accept the results of an | 0024| applicant's criminal records checks less than one year old, | 0025| provided the results are obtained from the applicant's previous | 0001| employer pursuant to the applicant's written consent. An | 0002| applicant whose profession requires statewide and nationwide | 0003| criminal records checks as a prerequisite for professional | 0004| licensure may disclose the results of any such records checks to | 0005| the care provider in lieu of undergoing the records checks | 0006| required by this section. The costs of the criminal records | 0007| checks shall be paid by either the provider or the applicant. | 0008| C. A care provider that employs any caregiver as of | 0009| the effective date of this act shall initiate statewide and | 0010| nationwide criminal records checks of each such caregiver within | 0011| ninety days of the effective date of this act. A care provider | 0012| may continue to employ a caregiver pending the results of the | 0013| criminal records checks for a period not to exceed sixty days. A | 0014| care provider may accept the results of a caregiver's criminal | 0015| records checks less than one year old, provided the results are | 0016| obtained from the caregiver's previous employer pursuant to the | 0017| caregiver's written consent. A caregiver whose profession | 0018| requires statewide and nationwide criminal records checks as | 0019| prerequisite for professional licensure may disclose the results | 0020| of any such records checks to the care provider in lieu of | 0021| undergoing the records checks required by this section. A care | 0022| provider that has conducted criminal records checks within the | 0023| last two years as required in this section may use the results of | 0024| such checks to meet the requirements of this section. The costs | 0025| of the criminal records checks shall be paid by either the | 0001| provider or the caregiver. | 0002| D. Except as otherwise provided for in Subsection E of | 0003| this section, any of the following convictions disqualify an | 0004| applicant or caregiver from employment as a caregiver: | 0005| (1) homicide; | 0006| (2) assault or battery; | 0007| (3) aggravated assault or aggravated battery; | 0008| (4) kidnapping or false imprisonment; | 0009| (5) rape, criminal sexual penetration, criminal | 0010| sexual contact, incest or other non-consensual or forcible sexual | 0011| acts; | 0012| (6) domestic violence; | 0013| (7) any crime involving adult abuse, neglect or | 0014| financial exploitation; | 0015| (8) any crime involving child abuse or neglect; | 0016| (9) indecent exposure; | 0017| (10) felony larceny, robbery, burglary or | 0018| aggravated burglary; | 0019| (11) felony trafficking controlled substances; | 0020| (12) arson; or | 0021| (13) any criminal offense involving fraud. | 0022| E. A care provider shall not employ an applicant, or | 0023| continue to employ a caregiver, whose criminal records reflect | 0024| conviction of a crime specified in Subsection D of this section, | 0025| unless the applicant or caregiver requests reconsideration and | 0001| demonstrates to the provider that his employment poses no risk of | 0002| harm to a care recipient or does not directly bear upon his | 0003| fitness to have responsibility for the safety and well-being of | 0004| the care recipient. To determine whether to employ an applicant | 0005| or caregiver despite an otherwise disqualifying conviction, the | 0006| care provider must consider all of the following factors: | 0007| (1) level and seriousness of the crime; | 0008| (2) date of the crime; | 0009| (3) age of the applicant or caregiver at the | 0010| time of the conviction; | 0011| (4) circumstances surrounding the commission of | 0012| the crime, if known; | 0013| (5) nexus between the applicant's or caregiver's | 0014| criminal conduct and the job duties of the position to be filled; | 0015| (6) applicant's or caregiver's prison, jail, | 0016| probation, parole, rehabilitation and employment records since the | 0017| date the crime was committed; and | 0018| (7) subsequent commission by the applicant or | 0019| caregiver of a relevant offense. | 0020| F. A care provider may refuse to employ an applicant, | 0021| or to continue to employ a caregiver, whose criminal records | 0022| reflect conviction of a crime other than those specified in | 0023| Subsection D of this section or a felony arrest if, in the | 0024| provider's discretion, employment or continued employment is | 0025| inadvisable. | 0001| G. If a care provider refuses to employ an applicant, | 0002| or to continue to employ a caregiver, pursuant to Subsection E or | 0003| F of this section, the provider shall so notify the applicant or | 0004| caregiver, stating with specificity the convictions and arrests on | 0005| which refusal to employ is based and identifying the agency which | 0006| provided the records. | 0007| H. A care provider shall afford an applicant or | 0008| caregiver refused employment or continued employment a reasonable | 0009| opportunity to demonstrate that the criminal records are | 0010| inaccurate, including an opportunity to contact the agency that | 0011| provided the records. | 0012| I. A care provider shall maintain records evidencing | 0013| compliance with the requirements of this section with respect to | 0014| all applicants and caregivers employed on or after the effective | 0015| date of this act. These records shall be subject to inspection by | 0016| any governmental agency with regulatory jurisdiction over the | 0017| provider, including the department of health, the state agency on | 0018| aging, the attorney general's medicaid fraud control unit and the | 0019| children, youth and families department. Criminal records | 0020| maintained by the provider shall be destroyed one year after an | 0021| applicant is rejected or a caregiver's employment is terminated, | 0022| as applicable. | 0023| J. All criminal records obtained pursuant to this | 0024| section and the information contained therein are confidential. | 0025| No criminal records obtained pursuant to this section shall be | 0001| used for any purpose other than determining whether an applicant | 0002| or caregiver has criminal records that disqualify him from | 0003| employment as a caregiver. Except on court order or with the | 0004| written consent of the applicant or caregiver, criminal records | 0005| obtained pursuant to this section and the information contained | 0006| therein shall not be released or otherwise disclosed to any other | 0007| person or agency. Any person who discloses confidential records | 0008| or information in violation of this section is guilty of a | 0009| misdemeanor and shall be sentenced pursuant to the provisions of | 0010| Subsection A of 31-19-1 NMSA 1978. | 0011| K. A care provider, including its administrators | 0012| and/or employees, is not civilly liable for a good faith decision | 0013| to: | 0014| (1) employ, not employ or terminate employment | 0015| pursuant to this section; and | 0016| (2) rely on the results of criminal records | 0017| checks required by this section in making decisions or taking | 0018| action regarding placement or other personnel decisions. | 0019| L. Failure to comply with the requirements of this | 0020| section are grounds for the state agency having jurisdiction of | 0021| the care provider to impose administrative sanctions and | 0022| penalties, including suspension or revocation of the provider's | 0023| license and imposition of fines. This subsection neither limits | 0024| any existing and independent sanctioning authority nor grants any | 0025| additional sanctioning authority. | 0001| Section 2. EMERGENCY.--It is necessary for the public | 0002| peace, health and safety that this act take effect immediately. | 0003| - 8 - |